7 August 2003, Volume 4, Number 19
IN FOCUSAS PUBLIC DISCUSSION OF AFGHAN CONSTITUTION WINDS DOWN, DEBATE HEATS UP. As the formal, two-month public discussion of the draft constitution drew to a close last week, speculation on the contents of the still-secret draft has heated up. Nongovernmental groups and concerned others in Afghanistan and abroad are beginning to sound more calls for the earlier publication of the draft, slated to be unveiled on 1 September. They are also pushing for more time to debate the draft and want a constitution that "entrenches freedom, not its foes," in the words of Felice Gaer, a member of the U.S. Commission on International Religious Freedom (CIRF), which is appointed by the president. The Kabul paper "Farda" commented on 20 July that it was not possible for people to discuss the constitution without seeing the draft (see "RFE/RL Afghanistan Report," 24 July 2003).
Last weekend, a group of women in Kabul known as Negar collected 100,000 signatures for its "Declaration of the Essential Rights of Afghan Women," AP reported on 3 August. They presented it to the government commission drafting the new constitution, scheduled for debate by the Loya Jirga in October, and urged the incorporation of their concerns. The declaration was drafted by Afghan women in exile in Tajikistan in 2000, and calls for the elimination of gender-based discrimination and segregation, the right to move about independently, and the right to chose whether to wear a burqa.
On 15 July, approximately 300 people, most of whom have ties to the Freedom and Democracy Movement or the National Islamic Movement, staged a rally in Kabul to demands reforms within the Afghan Transitional Administration and the Afghan National Army. Those present at the rally also called for the future Afghan constitution to provide equal rights for men and women, the Hindukosh news agency reported (see RFE/RL's "Afghanistan Report," 24 July). The demonstrators also demanded that conservative Supreme Court Chief Justice Mawlawi Fazl Hadi Shinwari resign, accusing him of having links to former mujahedin parties. The protestors submitted an 11-point communique to the office of the United Nations Assistance Mission to Afghanistan (UNAMA) for consideration, including calls for press freedom and elections under the auspices of the international community. To guarantee rights, the group advocated a "just and independent judiciary, devoid of any extremist and factional inclinations or links" and a "transitional justice commission" which would help "prepare dossiers of war criminals, national traitors, and those who plunder public wealth" for the courts.
U.S. reformers are also wary of Afghanistan's influential chief justice, reported "The St. Petersburg Times," saying Shinwari's allies reportedly helped write the draft. The paper recounted stories of Shinwari's Kabul office, decorated with a sword and lash left by the Taliban which he is said to display as a symbol of punishment for infidels and thieves. Shinwari has tried to distinguish himself from the Taliban. On 3 October 2002, he told "The Washington Post" that stonings, amputations, and executions should only be rarely administered, according to certain procedures, and only in private, not at spectator events in stadiums.
Interestingly, neither the women's group or the democracy demonstrators in Kabul appeared to focus on calls for freedom of religion or protection of ethnic or religious minorities, although their references to "extremists" implied such concerns. UN officials and others polling opinions in the country have found a preoccupation with ethnic and language issues outside the capital.
In Washington, however, religious concerns have predominated discussion of the process. The draft has been classified by the U.S. State Department as "top-secret," "The St. Petersburg Times" reported on 23 June and is being closely guarded by a handful of experts who, in any event, disavow direct participation in the draft or the actual ability to influence what is viewed as an Afghan-driven process. The secrecy around the process and the concern that human rights may be downplayed has prompted some public figures to speak out. Nina Shea, vice chairwoman of CIRF and a senior staffer at Freedom House, an NGO that monitors and promotes democracy around the world, has aired her fears that the U.S. government is not sufficiently "engaged" publicly to prevent the imposition of harsh interpretations of shari'a law, according to "The St. Petersburg Times." According to the "New York Sun" on 6 August, Shea has called both the Afghan and Iraqi constitutions "a mess" because they did not have sufficient guarantees for dissent.
A 6 August "New York Sun" editorial summed up what many Americans involved in promoting democracy abroad feel about such constitutions: they must contain commitment to equality for all citizens, both men and women; the right to practice openly and freely the religion of one's choice so that non-Muslims won't fear being treated as second-class citizens; and a separation of mosque and state. Yet the U.S. notion of "separation of church and state" is not internationally recognized as a "human right" and is not being advocated from within Afghanistan. The UN's treaties and other human rights agreements say religious freedom can also be guaranteed in countries with one official state religion, including democracies such as the United Kingdom. There is still ample reason for concern. According to an unnamed source interviewed by "The St. Petersburg Times" who was briefed on the draft, equal rights for women and ethnic minorities "were not spelled out; freedom of speech and religion is lacking, and there is no firm commitment to the rule of law and international treaties." While reports of the draft say it does not include such cruel punishments as stoning for adultery, it does not prohibit them, which some experts feel is a requirement given the history of such practices in Afghanistan. Reformers could still be jailed as blasphemers, the source said.
The Brussels-based nongovernmental International Crisis Group (ICG), in a 12 June report, said the extreme secrecy around the document ensured that religious conservatives in the nine-member constitutional committee prevailed. They called for a postponement of the drafting process and a cancellation of the Loya Jirga scheduled for October to give a wider public a chance to overcome powerful factions that would sink efforts to include more human rights guarantees. A key issue is the type of political system. "Afghans share a broad consensus about the minimal role of federalism, the only exceptions being political factions that stand to gain from decentralization," said the ICG report. They believe holding elections first to a national assembly, which would then lead a national debate on the constitution and ensure a more fair document. By contrast, both local and international officials claimed privately that keeping the draft secret actually protects it from conservatives and enables more public discussion to begin.
UN officials in Kabul reacted uncharacteristically strongly to the ICG criticism, calling the report "ill-informed" and saying the group had reached "premature conclusions on a process that had barely started," the BBC reported on 15 June. The group had criticized the lack of focused funding for the process of informing the public about the constitution, but UN officials argued that $20 million was set aside for public education. The London-based nongovernmental Institute for War and Peace Reporting (IWPR) said in a 23 July report that the members of the constitutional commission did fan out around the country, collating 30,000 surveys and receiving 7,000 other comments, including even a 200 meter banner from Bamiyan with 1,000 opinions written on it. IWPR reporters found that even a professor they interviewed at Kabul's Polytechnic University, however, found the issues too complex to absorb within an hour's lecture. IWPR also noted that in southern Afghanistan in particular, Islamic fundamentalist commanders warned people away from meetings to discuss the constitution, and even the presence of Kabul police officers accompanying commissioners to provide security was not reassuring.
As Amin Tarzi, editor of RFE/RL's "Afghanistan Report," (see "Public Participation in Crafting the New Afghan Constitution," rferl.org, 4 April) has noted, only two of Afghanistan's past constitutions, those of 1923 and 1964, were publicly debated. In describing the difficulties of debating and then implementing guarantees for minorities, Tarzi provides a cautionary tale: "The lack of public participation in the drafting of Afghanistan's first constitution allowed conservative clerics, in alliance with other religious leaders who were keen to preserve their privileges, to derail the state-building process in the country, effectively plunging it into a civil war."
Ahmed Rashid, Kabul correspondent for Pakistan's "The Nation," found that ethnic issues rather than interpretations of Islam fuel most divisions. "In the north the Uzbeks want a federation with maximum autonomy and in the south the Pashtuns want a strong center and maybe the return of the monarch," he quoted a senior UN official as saying in the 26 July issue of the paper. The official also added that both the Persian and Pushtu languages should have legal status.
The Afghan Civil Society Forum, a Swiss-German funded consortium of 25 Afghan NGOs including 12 women's groups, has trained some 1600 educators from all 32 provinces to raise awareness about the constitution, "The Nation" reported. "Above all, people want an accountable government. Neither the monarchy, nor the communists, nor the mujahedin were accountable," Susanne Schmeidl, director of the NGO forum, was quoted as saying by "The Nation."
AZERBAIJANDISBARRED HUMAN RIGHTS LAWYER HOPES FOR REINSTATEMENT. Azerbaijani lawyers and opposition figures visiting the U.S. in July voiced continuing concerns about the state of the rule of law in their country, but indicated their profession is beginning to stand up for itself in the face of government pressure. In an interview with "(Un)Civil Societies," Aslan Ismailov, a prominent human rights attorney who has taken on many controversial lawsuits and suffered politically motivated disbarment, expressed hope that with presidential elections in the fall, he might expect reinstatement to the bar despite a vendetta waged against him by President Heidar Aliyev over critical remarks Ismailov made in the past about the president's son, Ilham. Ilham Aliyev was named prime minister this week, but after critics voiced protests about his violation of the electoral code -- prohibiting a serving prime minister from running for president -- he announced he was taking a leave of absence from his post to run in the elections.
Such public legal challenges have not come easy, but lawyers are now organizing themselves. On 24-25 May, some 400 lawyers gathered to create a new bar association as an alternative to the Soviet-era Collegium of Advocates. Organizers of the new professional body included Annagi Hajiev, president of the Azerbaijani Lawyers Association (ALA), Ilyas Ismailov, former justice minister, Tamerlan Karayev, a former deputy chair of the Supreme Council of the Azerbaijani Republic and former ambassador to China, and other figures such as Ayyub Kerimov, editor in chief of the independent newspaper "Femida," which was closed by officials in 2001. German and American lawyers who run legal training programs attended as observers. Their purpose was to implement a recent law on the bar and a presidential decree that mandates the formation of a bar association.
While some lawyers critical of the government were present at the founding conference, "we did not want the organization to have an oppositionist hue," Ismailov, once a member of the Collegium, told "(Un)Civil Societies." Leaving aside their differences, lawyers who were at odds with each other and the government on various legal and political issues attempted to form a nationwide professional body that would help propel the legal profession out of the Soviet era into the modern age. Unlike neighboring Georgia and Armenia, and other former Soviet republics such as Russia, the bar in Azerbaijan has been much slower to reform and grow. After a brief flourishing of independence when the president temporarily authorized commercial licensing procedures, lawyers have had to struggle hard to create alternative groups to reform their profession. While one organization, Hajiev's ALA, was eventually registered by the Justice Ministry after pressure from the Council of Europe, another organization, the Association of Azerbaijani Jurists, headed by Ismailov, was not so fortunate due to Ismailov's high profile and the persistent refusal of the authorities to restore him to the bar.
In 2000, while on a speaking tour of the U.S., Ismailov made some critical remarks about human rights violations in Azerbaijan at a roundtable hosted by RFE/RL and at other public meetings. During the tour, Ismailov said that Aliev's son, Ilham, had plans for a dynastic-like succession. The president evidently took personal offense and Ismailov was expelled from the bar. For the last three years, Ismailov and his colleagues at home and abroad have attempted to get him reinstated, even waylaying official delegations from Azerbaijan at various international meetings, including Ilham Aliyev himself in his capacity as head of Azerbaijan's delegation to the Parliamentary Assembly of the Council of Europe. With the support of European and American parliamentarians, Ismailov's case has been raised at all levels repeatedly by Western governments and international officials. Nevertheless, Azerbaijani justice officials privately explain that while there is no technical reason why Ismailov cannot be reinstated, their hands are tied while Aliyev is in power.
Asked about the fate of his case should the present leader pass from the scene, Ismailov said he had no doubt that he would be reinstated and that the bar would begin to recover from years of repression. He seemed unconcerned that Aliev's son might continue the vendetta, because after his father was gone, his power and influence would likely wane, as he faces competition in the presidential elections this fall. Nevertheless, Ismailov had the misfortune to be an early discussant of Aliev's plans to groom his son as an heir, and it is not certain the incident will be forgotten without continued intervention from Western governments and international agencies.
In their efforts to form a new bar, the Azerbaijani lawyers have looked at models in the region and in the West. They do not expect to succeed right away, but their purpose was to "push authorities into recognition," says Ismailov. Mindful of various interests and conflicts, the attorneys did not create a single chairman or attempt to elect one, but instead established an executive body of 21 people, with seven chairmen who will rotate over a period, most likely of six months. They made a conscious effort to put young people forward: "We wanted to avoid the problem of the public's fatigue with the same old opposition figures," Ismailov says. In addition, a commission of nine members was envisioned that would administer entrance exams to the bar. They will determine the procedures and criteria for how licensing should be performed.
For a while, the question of who could be elected in the general meeting in May, and who could be considered a member of the new organization vexed the organizers, who wanted to make sure it was not overrun with members of the old Collegium, but also had credibility. They settled on accepting those who had either been members of the Collegium in the past or had been recognized even temporarily under the 2000 decree and had obtained licenses using its procedures.
Organizers also moved to urge an amendment on the law on the bar that currently stipulates that a person expelled from the Collegium cannot return under any circumstances -- a clause seemingly designed with Ismailov in mind. Ismailov says Council of Europe officials who advocated changes in legislation before Azerbaijan's accession said the law should be amended and the expulsion clause revised by the end of this year.
Since the suspension of the licensing in 2000, the bar has been moribund, not accepting new members. Only members of the officially sanctioned Collegium could defend clients in criminal proceedings, meaning that those who had once obtained a license through the new procedures, which were later suspended, lost clients, and figures like Ismailov were also barred from appearing in criminal court. They had to make do handling civil cases or providing counsel to other attorneys. While Americans complain of having too many lawyers, the opposite is true in Azerbaijan. In the U.S. 29 per 10,000 people are lawyers; in 1987, the Soviet Union boasted nearly 5 per 10,000; now, according to U.S. government statistics, Azerbaijan has only one lawyer per 20,000 people.
As the fledgling bar struggles to come into existence, reform-minded lawyers in Azerbaijan are disgruntled that recognition came from the West for a judicial figure they believed should not have been elevated to a position of international prestige and authority. The chair of the Supreme Court, Hanlar Hajiev, who presided over the cases of many of the still-imprisoned political prisoners, tried from 1993-1997, was recently elected as a member of the European Court of Human Rights in Strasbourg. The Council of Europe has a list of some 700 political prisoners whose cases it continues to raise with the government of Azerbaijan, recently setting a deadline of September for resolution of the cases.
European officials defended their decision, noting that a figure like Hajiev was not personally responsible for the sentencing of prisoners whose cases were ordered from above -- most likely by President Aliyev or his immediate subordinates. Despite the lobbying against the nomination by human rights activists in Baku and across Europe, the appointment was approved by the Strasbourg court.
Thus, with the potentially uncomfortable bedfellows of the old guard, some longtime dissidents, and a new generation of young lawyers, a new bar association was born. Its immediate future, however, is uncertain. Former Justice Minister Ilyas Ismailov, who is among the presidential contenders and has published a book about human rights and the rule of law in Azerbaijan, is more pessimistic than other founders. "Realistically, there is no way the authorities will register this bar at this time," he told "(Un)Civil Societies," although he fully supported the effort and anticipated that elections could bring change.
BELARUSBELARUSIAN PARENTS STRUGGLE FOR INDEPENDENT SCHOOL. Parents of students at a recently closed Belarusian academy are not going to take the government's liquidation of their institution lying down. Since the closure of the school by a Council of Ministers resolution of 25 June, parents and students have been struggling with the authorities to keep open the National Humanities Lyceum, the last remaining private high school where classes were taught in the Belarusian language. Carrying banners with slogans like "Leave Us In Peace" and "I Love The Lyceum," as well as portraits of Jakub Kolas, a 20th century Belarusian poet whom the school is named after, a group of 50 demonstrators formed outside the Education Ministry on 29 and 31 July, and urged city education officials to permit them to continue their studies at the lyceum.
In June, the lyceum supporters created a committee and called on political parties, NGOs, cultural figures, and scientists to join their struggle. Minsk city officials announced that the building occupied by the lyceum would be closed for up to two years for repairs, RFE/RL's Belarusian Service reported on 21 July. The parents believe the authorities have cooked up the construction plan to stall efforts to revive the school, and refuse to meet them. While they are trying to keep the student body together, with no guarantee that the school will open in the fall, it will be difficult. "A danger remains that they [the students] might get scattered to various schools.... We are convinced that the chief purpose was precisely to destroy the spirit of the lyceum, because it poses the greatest danger to the current government," Vladimir Gudkov, a member of the parents' group, was quoted as saying by RFE/RL's Belarusian Service.
The executive committee of the Minsk city government has decreed that the building is state property, that repairs must be undertaken, and when they are completed, a new institution, the Minsk State Humanities Lyceum, more closely controlled by the government, will take the place of the previous school. The future of the teachers in the school has yet to be determined, but parents and students fear that because their existing organization's recommendations were ignored when the city issued the decree, they will not have a say in the new school's functioning. They are also concerned that a unique library they had collected, with many donations, will not be preserved during the construction, as they have no place to house it.
In an urgent open appeal issued in June to governments and nongovernmental organizations, former students called for pressure on the Belarusian government to justify its actions in closing the school and to allow the students to complete the academic year. "The lyceum was the first and the only non-Soviet establishment where they put into practice democratic educational curricula of a new type," the students said in a statement. They felt their teachers' innovative methods were superior to state-run schools, and pointed to the nearly 100 percent success rate for lyceum students entering universities or colleges after graduation. They also noted the outstanding performance by students at various national and international competitions.
The students said that they believe the government was not motivated by any concerns about educational administration or the safety of the building, erected in 1955. "Their aim is to destroy democratic circles, to destroy the national language, memory, and culture," they said in their appeal.
Leaders of 14 public associations in Belarus have protested the closure in various public statements, saying it is the result of the "unlimited despotism of one person [President Alyaksandr Lukashenka]." The Belarusian Association of Journalists and other groups have tried to get various UN bodies and the Organization for Security and Cooperation in Europe to intervene.
Two leaders of the opposition, whose children studied at the school, have linked the closure to a larger crackdown on civil society in Belarus. "The shutdown of the National Lyceum is yet another in a series of attacks on the civil society of Belarus. Newspaper closures, mass repressions against directors and businessmen, arrests of youth activists all show that the dictator has gone too far in his impunity.... If we don't want out grandchildren to fall prey to dictatorship, too, we must strengthen our resistance against this criminal regime," said Dzmitry Bondarenka, coordinator of Charter 97, a civic initiative, in an article on the organization's website (http://www.charter97.org). Bondarenka lashed out at European politicians who have advocated a "peace-making strategy" with Belarus that has strengthened the regime's hand of repression, yet noted the chief reason for the erosion of civic organizations "is the passiveness of Belarusians, who somehow assume that Belarus will become free on her own," charter97.org quoted him as saying.
Vintsuk Viachorka, leader of the Belarusian Popular Front, whose child also attends the lyceum, questioned whether it was effective for parents to go on meeting with Education Ministry officials to ask for their intervention, since they were really not part of the decision-making process in naming a new headmaster. On 13 July, Education Minister Piotar Bryhadzin met with the lyceum's parents, teachers, and pupils, who expressed their opinion that the school should keep its previous status under Uladzimir Kolas, the headmaster and founder of the school. Yet Bryhadzin abruptly announced that Tamara Sherbachevich had already been chosen as the new head of the revamped lyceum. "We were not supposed to expect a different ending to this matter, since it is absolutely clear that we were talking not to a minister, but to a clerk, who had been sent just to announce the decision," Viachorka was quoted as saying.
Officials claim that the closure of the lyceum is not politically motivated, but is because the Education Ministry is "restructuring" its system for the management of the nation's educational institutions. The new Minsk State Humanitarian Lyceum will be under the jurisdiction of the Minsk city government, which an education official explained was rational as 90 percent of the students were residents of Minsk. When the new school opens, both teachers and students will be offered places, officials said, and, meanwhile, other slots would be found for them in schools around the city.
The changes, though, appear not to be merely administrative, but part of an overall government plan to step up ideological control of education. Beginning in 2004, a new course in state ideology, initiated by President Lukashenka, will be mandatory in higher education institutions, both state and private. The president's Academy of Management, the Belarusian State University, and other educational institutions have formed a joint working group to draft the curriculum and will be meeting the Education Ministry to review the "economic, political, and legal" components of the special course, Rosbalt reported on 25 July, citing the education minister.
At a March seminar for government officials on ideological training, Lukashenka reportedly urged a fundamental change in the ideological education program in schools or "we will simply lose our youth." Parents of children studying in the independent lyceum are not willing to lose their youth, either, and are resisting the state's effort to take over yet another aspect of civil society. Although the odds are not in favor of the struggling parents, their persistence is a sign that civil society in Belarus is still alive. At a 27 June press conference, Lyavon Borschevsk, the deputy director of the lyceum, invoked the late Belarusian writer Vasil Bykau. "I am proud of our pedagogical team, which has shown 100 percent solidarity. Vasil Bykau's advice -- 'not to lose heart and stand up to trouble' -- has been fulfilled," Radio Racyja quoted him as saying.
RECOMMENDED NEWS LINKSAFGHANISTAN. The Institute for Afghan Studies (IAS) is a nongovernmental research organization founded and run by young Afghan scholars from around the globe. Current articles featured include a discussion of the composition and nature of the Loya Jirga, the pros and cons of federalism in Afghanistan, and human rights and reconstruction in Afghanistan. http://www.institute-for-afghan-studies.org
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SERBIA AND MONTENEGRO. The "Balkan Report" of the Institute for War and Peace Reporting features articles on the backlash felt by international officials in Kosovo after the jailing of former Kosovo Liberation Army rebels, and an essay by Belgrade lawyer, Natasa Kandic, "Kosovars Must Confront Their Demons" on demands for justice. http://www.iwpr.net