Religious freedom and the contradictions of Afghanistan’s compromise constitution

March 24, 2006

Over the past several days the government of Afghan President Hamid Karzai has come under increasing international pressure to intervene in the case of an Afghan convert to Christianity who faces death on charges of apostasy. More significantly, much of this pressure has come from the highest levels of the US government, Mr. Karzai’s closest allies and itself subject to similar pressures from its Christian base here in America.

While the calls for upholding religious freedom are welcome in that they speak to the fundamental value of human dignity and a basic human right, in their appeals to the government of Afghanistan to intervene in the case, the international community and the US government are addressing the wrong crowd and seeking the improper solution. Thus far, these calls have produced a backlash from the ruling judge in the case, who has correctly cited independence of the judiciary and has refused to cave in to pressure from the government. At the same time the government is trying to get another charge –that of insanity for the accused- to stick in order to extricate itself from the debacle. Either outcome would be a five year leap backwards for Afghanistan.

More than anything else, the apostasy case in Afghanistan has exposed the contradictions inherent in the country’s new constitution. In an effort to appease both the West and the religious conservatives who wielded power in the new government and in the countryside, the drafters of the new constitution paid ample lip-service both to the Universal Declaration of Human Rights as well as the Sharia Law. The result is a labored, uninspiring, and double-entendre text full of vagueness and room for equivocation. It neither meets the lofty Jeffersonian ideals of the constitution that it tries to emulate, nor clearly defines the limits and bounds of the Sharia Law, thus leaving its application open to the whims of activist, conservative interpreters.

This is why over the past three years there have been three cases of when activist judges of the Kabul Supreme Court have hauled journalists and authors before the court on charges of blasphemy and insulting Islam. Interestingly, the last case before the court prior to the apostasy case was that of an Islamic scholar who argued that though apostasy is ill-gotten, it is not a crime. He was first sentenced to death, and then given two years in prison after he recanted. In the first case, the editor of a paper in Kabul had argued against what he called “consecrated fascism,” a phrase that seems more fitting in retrospect. He is currently living in exile.

I hope Mr. Rahman is released and makes it to a safe haven with both his life and his sanity intact. The people of Afghanistan, on the other hand, may have to live in the shadow of their two-headed hydra for a long time to come. The problems of Afghanistan’s current constitution is characteristic of all such charters drawn up in times of extraordinary emergency, and demonstrates the need for mechanisms that allow for modifying them as conditions improve. Over the protests of some of the drafters, such sunset clauses were not included in Afghanistan’s new constitution. The success of democracy in Afghanistan, and the lessons learned in the process continue to remain important for the United States.

The author is a student of International Political Economy from Afghanistan and the President of Student Body in Juniata College, Pennsylvania.