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Western Withdrawal Date Brings Old Debate On Islamic Law Into Focus

Security remains a major challenge in rural Afghanistan.
Nine years after the toppling of their hard-line regime, the Taliban are making a comeback in rural Afghanistan with their harsh system of justice and strict social controls.

In Qarabagh, a district in Afghanistan's central Ghazni Province, the Taliban have forced the closure of all girl schools and banned sports, music, and dancing. Women are barred from employment and forced to wear the all-encompassing burqa, while men are ordered to cover their heads, too. Public schools for boys were kept open only after dramatically increasing Islamic lessons.

The Taliban push for implementing Shari'a law has sparked a debate about whether the Western withdrawal from Afghanistan -- set to begin in July 2011 -- and Kabul's drive for reconciliation with the Taliban will encourage conservative Islamic clerics and hard-line Islamists, including the moderate elements of the Taliban, to push for the implementation of a harsh justice system that would directly contradict the human-rights guarantees enshrined in the current Afghan Constitution.

Inside Afghanistan, it has rekindled a century-old discussion about the role of Shari'a law in society. The central question now is whether a majority of Afghans, including the Taliban, can agree on a justice system consistent with universal notions of human rights.

Unprecedented Vision

David Edwards, a professor of anthropology at Williams College in Massachusetts, believes the Taliban are unlikely to be open to negotiations on an alternative vision of Shari'a or accept the current Afghan Constitution.

Edwards, who has studied the politics and culture of Afghanistan for the past 30 years, says the Taliban are attempting to implement an unprecedented vision of Shari'a law. Like the Afghan communists in the late 1970s, the Taliban represented a radical attempt to reorganize Afghan society around a utopian ideal. In their case, it was the Shari'a Emirate, which ultimately proved to be unacceptable to a vast majority of Afghans.

But similar to what occurred in the 1990s, Edwards says, the Taliban are once again thriving on the failures of an Afghan government. Compared to the unreliable government courts, the Taliban offer a ready judicial alternative with their mobile courts set up in the back of pick-up trucks. Quick, decisive verdicts are dispensed in the name of implementing Shari'a.

Edwards suggests the Taliban are unlikely to compromise as they take strength from the increasing disagreements between Washington and Kabul and the plummeting support for the Afghan war in the West.

"I can't really imagine [the Taliban], given everything that they have stood for since their founding in the mid-1990s, I can't see them accepting a constitution that is not based entirely upon Shari'a law," Edwards says. "I think it would go entirely against everything that they've stood for. The notion that there can be some compromise between a constitution that has also Western principles and Islamic principles, I think is probably unrealistic."

Grand Compromise

But Maulavi Mohammad Ayaz Tarnak, a conservative Kabul-based Islamic cleric, sees grounds for a grand compromise between the Karzai administration and the Taliban on what constitutes Shari'a and how best to implement it.

Tarnak is among the leaders of the Afghan Ulema Council, a clerical alliance that recently called on Kabul to implement Islamic Hudood, a strict Islamic criminal code that the Taliban often confuse with Shari'a. Hudood punishments including the amputations of limbs for theft, stoning to death for adultery, and lashes for alcohol consumption. Shari'a is a much broader term that represents the ethos behind a complicated tradition that is subject to different interpretations.

Tarnak acknowledges that Western and liberal Afghan expectations "are as far apart as heaven and Earth" from what the conservative Afghan clerics want. A compromise, he says, essentially entails Kabul agreeing to implement Hudood if the Taliban agree to participate in the current political system.

"If the Taliban drop their opposition and accept the current constitution but ask for the implementation of the Hudood and Hanafi Fiqah -- if the two can agree on this compromise, I don't think that they really stand far from each other," Tarnak says.

Mutually Exclusive?

Faiqah al-Shari'a are schools of interpreting Islamic law. Most Afghan clerics follow the Hanafi Fiqah of Sunni Islam, but three other Sunni Fiqah schools exit. The Afghan Constitution also recognizes the Shi'a Fiqah for the followers of that Islamic sect.

The Afghan Constitution affirms Islam as the state religion and guarantees that all Afghan laws will be consistent with Islam. It also guarantees the observance of the Universal Declaration of Human Rights and other global human rights conventions, including protections for women and minorities.

That's why the Taliban-ordered stoning of a young couple for adultery in northern Afghanistan last month came under such severe domestic and international criticism. And "Time" magazine's recent coverage of 18-year-old Aisha Bibi's ordeal sparked heated debate about the wisdom of a Western withdrawal from Afghanistan starting next summer. Bibi's nose and ears were chopped off because she had run away from her husband -- a punishment ordered by a local Taliban commander in southern Uruzgan Province.

Maulvi Arsala Rahmani, a former Taliban cabinet member who has reconciled with the government, believes an agreement between the Afghan government and the Taliban is possible -- and their apparent differences on the interpretations of Shari'a can be resolved -- once peace is restored.

Rahmani, now a member of the Afghan Senate, asks whether any Islamic country has been able to satisfactorily resolve the clash of Shari'a with contemporary notions of human rights and freedom of speech. He notes that Saudi Arabia, which implements a stricter form of Hudood, is not criticized as loudly as Afghanistan because of its oil wealth and international influence.

'How Can We Judge?'

Indeed, Rahmani questions the universality of the concept of human rights and asks whether such rights are defined by divine guidance, human intellect, or traditions and customs.

"If [the human rights] are defined by divine guidance, then there are different religions having different divine books. How can we judge the human rights with a single scale? If the human rights are defined by intellect, then human intellect varies," Rahmani says. "If we base these on customs and traditions, then human rights are defined differently in Afghanistan, London, and Paris because of the differences in their customs and traditions."

Rahmani, who has participated in behind-the-scene discussions between Kabul and the Taliban, sees the two sides eventually agreeing on the proper role of Islam in Afghanistan. He points to the millennium-old history of Islam in Afghanistan, where he says different Islamic sects and various ethnic groups have been able to live in harmony.

Sana Haroon, a historian of Islam in South Asia, disagrees. She says Muslim thinkers across the world have never agreed on a unified definition of Shari'a, in the sense of a codified body of laws that can be implemented.

She says any debate on the role of Shari'a in Afghanistan must be rooted in constitutional traditions, which can claim broader public legitimacy, as opposed to imposing Islam arbitrarily through the barrel of a gun.

"If you are going to choose between which format it is to go forward on, it is clearly the format of a constitutional history. It is the format of rationalized debate, of considerations of rights being accorded to women, of protections being accorded to minorities," Haroon says. "These are the issues that a society and a state wants to highlight and the concerns which you want to account for when you are moving forward.

"And those are concerns which are not addressed by a Taliban version of law."
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    Abubakar Siddique

    Abubakar Siddique, a journalist for RFE/RL's Radio Azadi, specializes in the coverage of Afghanistan and Pakistan. He is the author of The Pashtun Question: The Unresolved Key To The Future Of Pakistan And Afghanistan. He is also one of the authors of the Azadi Briefing, a weekly newsletter that unpacks the key issues in Afghanistan.