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Afghan Clerics Want Power To Issue Legally Binding Fatwas

Islamic clerics on Afghanistan's Ulema Council have asked President Hamid Karzai to expand their clout by giving them the power to issue legally binding fatwas. (file photo)
Islamic clerics on Afghanistan's Ulema Council are the country's religious authorities, but their opinions on questions of Islamic law are treated as guideposts rather than legally binding decrees.

The Ulema Council wants to change that.

Clerics have asked President Hamid Karzai to establish a new Dar al-Ifta in Afghanistan -- an institute of Islamic scholars with authority to issue Shari'a-based decrees. Unlike the nonbinding declarations from the Dar al-Ifta in countries like Egypt and Saudi Arabia, Afghan clerics want their fatwas to be enforced by the courts and national police.

Mawlawi Abdul Rahim Shah Agha, one of the Ulema clerics asking Karzai for expanded powers, says the Dar al-Ifta must be independent from Afghanistan's government and foreign influence.

"Afghanistan's clerics want to prevent Afghans from being forced to ask foreign [clerics questions about Islamic issues] so that foreign clerics won't be issuing fatwas against Afghanistan's interests in the future," Agha says.

Constitutional Implications

It's not yet clear if Karzai has the power to expand the council's authority. Presidential spokesman Siamak Heravi told RFE/RL that Karzai must first consider the constitutional implications of the request.

Afghan President Hamid Karzai
Afghan President Hamid Karzai
"It needs consideration because the work of a Dar al-Ifta and the Afghan Supreme Court may overlap. The clerics know this, so they left it for the president to consider," Heravi said. "This issue will be discussed more in the future. But as for now, no decision has been made."

According to Afghanistan's UN-backed constitution, all laws in the country must be "in accordance with Islam." But the constitution also created a balance of power between lawmakers in parliament, judges in the courts, and the presidential administration.

Lawmaker Baktash Siyawash argues that empowering the Ulema Council with legally binding fatwa authority would transform the clerics into a powerful, unelected fourth branch of government.

"Afghanistan's government structure is based on three branches of government -- the legislative, judicial, and executive. The demand of the Ulema Council to create a Dar al-Ifta is an attempt to gain legislative powers," Siyawash says. "In fact, this demand would create another branch of government and we do not have any provision for this within our constitution."

Reminiscent Of Iran

Rights advocates say the move could put Afghanistan back on a path reminiscent of the Taliban era.

The clerics already have renounced Article 22 of the constitution, which says, "The citizens of Afghanistan -- whether man or woman -- have equal rights and duties before the law."

According to Ulema Council edicts issued in March, "men are fundamental and women are secondary," women should not interact with men in the workplace or in schools, and women must always be accompanied by a male guardian when traveling.

Shukria Barakzai: "This is not Tehran. This is Afghanistan."
Shukria Barakzai: "This is not Tehran. This is Afghanistan."
Critics also warn that empowering the clerics could lead to a system reminiscent of Iran's powerful Guardians Council.

Under Iran's 1979 constitution, the Guardians Council serves as a constitutional court and must approve all proposed legislation in parliament. Since 1991, the Guardians Council also has been empowered to reject or accept all candidates for parliament and the presidency.

"These people are demanding a Dar al-Ifta within the Supreme Court. We tell them that this is not Tehran. This is Afghanistan," says Shukria Barakzai, a prominent women's rights activist from Kabul and a member of Afghanistan's lower house of parliament. "Our law is Islamic and it is our Supreme Court that issues fatwas."

'Stifle Dissent'

Analysts say the issue puts Karzai in a difficult position because he needs the Ulema Council's support to maintain his political base and its influence to advance the peace-and-reconciliation process.

Wadir Safi, a law professor at Kabul University, says he worries that Karzai will ultimately agree to the Ulema Council's proposal, creating an institution that could reverse many of the internationally backed reforms achieved during the past decade.

"This suggestion was something the Ulema Council and the president had discussed before," Safi says. "Behind this request, there are political goals and they want to achieve these goals 1 1/2 years from now, when foreign troops have left Afghanistan. The Ulema Council wants to stifle dissent from everyone who opposes the government by using this power."

Reza Shah-Kazemi, a research associate at the Institute of Ismaili Studies in London, says the powers held by Afghanistan's Ulema Council will have major implications for democracy and human rights in the country after most foreign troops leave in 2014.

He says the Ulema Council also faces internal challenges over theological disputes between Sunnis and Shi'a and other issues that divide moderate and extremist clerics.