The stages through which the drawing up of the Afghan Constitution passed obviously took into account popular sensitivities and social attitudes. The Constitutional Commission, entrusted with writing the final draft of the document, which at the end of the process was submitted to the Loya Jirga, an ancient body of the prevalent Pashtun tradition, attempted to involve the population in the drawing up of the Constitution by engaging in hearings at which Afghans were invited to express their views on the future of the country and its institutions. It was specifically when the expectations of civil society were being explored that there emerged the priority of giving an clearly confessional character to the institutions and the system of law. Although the country had emerged from years of a theocratic dictatorship, it clearly had a deep attachment to its Islamic tradition.
For that matter, the connection with Islam is not strange thing, both because of historical events that date the Islamisation of the region back a very long time and because of recent events as well. Indeed, modernity has not broken the links of the Afghan people with Islam; indeed, if this is possible, it has strengthened them. This is the result first and foremost of the war by which Afghanistan freed itself from the Soviet yoke, a war that took on religious connotations.
Indeed, 'the occupation stimulated the various tribal and religious leaders and movements of Afghanistan to launch a people's jihad. Afghan tribal society had a fragile unity opposed by a multi-ethnic tribal social reality involving the Pashtuns, Uzbekis, Tagikis and Azeris, who were divided from a religious point of view into a Sunnite Muslim majority and a Shiite Muslim minority. The Soviet occupation, however, provided a mission and a common enemy. The appeal to the jihad offered an Islamic religious identity and a source of inspiration that were shared'1.
The call to a holy war did not only help to galvanise people's spirits but also brought into the region resources and even men from the Arab world who were ready to fight to drive out the occupiers. The experience of the war of liberation thus cemented, together with a feeling of belonging to a nation, also the central role of the Islamic religion in containing tribal identities that were profoundly divided.
It is not therefore incomprehensible that the Constitution of 2004, in its initial preamble, expressly mentions the 'just jihad' that was engaged in some years previously as a founding elements of the Afghan identity: Islam, which arrived in the country centuries ago, was still seen as an essential factor in the reconstruction of the State.
Although the launching of the new Constitution received the applause of the international community as an instrument for the affirming in the country of certain principles of a constitutional State, an analysis of the text should be addressed with the warning that its effects on real life are not at all to be taken for granted. This is because 'in the current political tradition of the region the promulgation of political principles [is] a surrogate for their implementation and not a means for their actuation'.2
The Weight of Interpretations
From the point of view of the fundamental principles and rights upheld in the text, the Constitution has a marked ambivalence. Side by side with pronouncements in line with the democratic standards of modern countries, it remains from certain points of view deeply anchored in the Islamic tradition, which, indeed, offers a different panorama of freedoms and juridical principles. The joint presence of such elements some of which move towards modernisation of a Western kind and some of which are in the direction of the most classic Islamic regimes provides the impression of an unresolved juxtaposition which can give rise to different readings with very different implications. According to the interpretation that one wants to give to the various directives around which the Constitution is organised, the result in terms of the protection of rights and the application of elementary constitutional principles can change profoundly.
When reading some articles in particular of the Afghan Constitutional Charter one seems to be faced with a modern product that is consistent with the specific requirements of regimes with a solid democratic tradition. Article 22, for example, forbids any discrimination in relation to citizens who, leaving aside their sex, have equal rights and duties before the law. Article 66 envisages a similar defence of the principle of equality by establishing that the President of the Republic of Afghanistan cannot act on the basis of ethnic or religious considerations. Lastly, the constitutional provisions that attribute to women a significant number of seats in parliament (articles 83 and 84) are also an application of the principle of equality.
Reference should also be made to article 7 which obliges the State to observe the Charter of the United Nations, the international treaties and conventions of which Afghanistan is a part, and the Universal Declaration of Human Rights. This is an important statement which links Afghan law to international standards at the level of the protection of human rights. This is an instrument that is not unusual and one which other newly born democracies, usually those that have emerged from periods of dictatorship, have also used. In linking their own constitutional settlement to the most modern international instruments of defence, these countries generally seek to prevent anti-democratic forces from acting upon internal law by reducing fundamental freedoms.3
In themselves, the articles that have been briefly mentioned seem to indicate a going beyond certain positions that are widespread with the Islamic juridical tradition. This tradition, in fact, does not apply the principle of equality to the full because it recognises the Muslim male as the only pleno iure subject4. This fundamental differentiation generates differences of status both between men and women within the Islamic community and between Muslims and non-Muslims as well.
The going beyond the Muslim juridical inheritance, at least as regards its most traditionalist components, is, in contrary fashion, called into question in some of the other articles of the Constitution. There are some articles which seem simply to declare the pre-eminence of the Muslim religion in the social and institutional life of the country. This is present in the Islamic definition of the Republic of Afghanistan (article 1), the statement that the official religion of state is Islam (article 2), or even the provision that the Head of State has to be a Muslim (article 62). Although it is above all this last provision that involves evident discrimination to the disadvantage of non-Muslims and a limitation of the religious freedom of the President of the Republic who, while he is in office, cannot convert to another religion all these cases can be traced to the need to facilitate the identification of Afghan citizens, who are overwhelmingly Muslim,5 with institutions through the religious dimension, which indeed could catalyse ties between the people and the state apparatus.
However, other elements seem to aim more decisively at locating the new settlement within the furrow of Muslim institutions. First of all, there is article 3, which states that 'in Afghanistan no law can be against the creed and the norms of the sacred religion of Islam'. Side by side with this statement, which is already highly expressive of the penetration of the religious element within the settlement, three others may be listed: the prohibition on political programmes which contradict Islamic principles (article 35), the provision that national education should be based upon Islamic precepts (article 45), the oath of ministers to support Islam (article 74) and the possibility that the members of the Supreme Court of Afghanistan can be chosen from experts on Islamic jurisprudence (article 118).
It is above all else the first norm cited above, which forbids laws in contrast with the creed and the norms of Islam, which gives concrete form to the most evident antinomy within the constitutional settlement. Indeed, the Constitution on the one hand aims at the equality of all citizens, but on the other hand it appears to place important hindrances in the way of the application of principles such as equality, given that Muslim law envisages different statuses on the basis of sex and religion.
It is specifically the interpretation that should be given to article 3 that is the element that could lead the new constitutional settlement either in a modern direction or in an Islamic direction. If a traditionalist reading of Muslim law were to prevail, the 'norms' to which this article refer would be those present for centuries in Islamic contexts, and these, hitherto, have resisted attempts to up-date them. In this way, for example, article 2, which recognises that non-Muslims have the right to practice their own religion, would be subjected to a restrictive interpretation. Given that Islamic tradition punishes conversion from Islam to other creeds, it would be possible to introduce a law that sanctions apostasy or even, employing other auxiliary norms that are contained in the Constitution,6 to apply such a provision by drawing directly from classic Muslim law (as seems to have occurred in the case of Abdul Rahman)7. In contrary fashion, were one to give prevalence to the principles in the international documents to which the Constitution refers, then the alignment of Afghanistan with international standards for the protection of human rights would be probable. Naturally this would force the interpreters to select from the vast Islamic juridical tradition only those precepts in agreement with this modern sensibility and to abandon those precepts that are more strongly in opposition to those international declarations, treaties and charters, respect for which, however, is assured by the Constitution.
The case of Abdul Rahman can thus be read as the prevalence of Islamic tradition over the modernising elements of the Afghan constitutional settlement, and here the provision to the effect that experts on Islamic jurisprudence can be judges of the Supreme Court also has a bearing. A less radical reading of these events, instead, could more simply lead to the conclusion that what is written in the Constitution will not be certainly applied and that what is needed is a widespread juridical sensibility that appears from many points of view still something that belongs to the future.
1. John L. Esposito, Guerra santa? Il terrore nel nome dell'Islam, (Milan: Vita e Pensiero, 2004) p. 10.
2. Bernard Lewis, La costruzione del Medio Oriente, (Rome-Bari: Laterza 2003) p. 118.
3. For example an analogy can be found in art. 10, second paragraph, of the Constitution of Spain. See Stefano Ceccanti, Una libertà comparata. Libertà religiosa, fondamentalismi e società multietniche(Bologna: Il Mulino, 2001), p. 41.
4. For greater clarification seeCastro, 'Diritto musulmano e dei Paesi musulmani' (heading), in Enciclopedia giuridica Treccani, (Rome, 1989), vol. XI, p. 10.
5. According to the International Religious Freedom Report 2006 of the American State Department, under the heading 'Afghanistan', the Sunnite Muslims make up 80% of the population and the Shiite Muslims make up 19%, thus constituting together 99% of the population of the country.
6. Article 130, in the absence of express provisions otherwise, allows the application of classic Sunnite Muslim law.
7. Source: International Religious Freedom Report 2006, the American State
Department, the heading 'Afghanistan'.