Approval of a democratic constitution in a traditional society of Afghanistan has been a great achievement. It has been the product of Afghans’ sacrifices for their rights and freedoms and the democratic movements of some rulers in the past. In the post-Taliban Afghanistan, however, Kabul’s international allies played an essential role in the approval of a democratic constitution, which advocates the equal rights, freedoms, and dignity of men and women.
A number of political pundits believe that the Taliban’s exclusion from 2004 Loya Jirga, convened to approve the constitution, had been a political error. However, the US Special Representatives for Afghanistan Reconciliation Zalmay Khalilzad, besides accepting underestimation of the Taliban’s resiliency at the time, stated in his book “The Envoy” that “the Taliban made decisions via a shura of Islamic scholars. The very concept of a Loya Jirga was anathema to them, representing the democratic and national values they despised. Formally involving the Taliban, moreover, would have provoked the Northern Alliance’s ire, jeopardizing the Loya Jirga’s broader success”.
It is believed that the Taliban’s inclusion in the Loya Jirga would trigger many challenges. First, it would outrage the public conscience across Afghanistan since the Taliban spilled streams of blood and hatred against them surged up. Second, political parties in general and Afghan women in particular would show a backlash against formal presence of the Taliban in the Loya Jirga. Third, the Taliban would not be able to reconcile their radical ideology with democratic principles, which could lead the approval of a democratic constitution to stalemate. Therefore, accepting the Universal Declaration of Human Rights and United Nations Charter and accommodating equal rights of men and women would not be possible.
The Taliban’s call for amending the constitution after reaching a peace deal suggests that they seek to include their Islamic sharia in the constitution. To this end, Afghan women fear that the Taliban would curtail their rights and freedoms if “Islamic Emirate” returns after signing peace accord with their interlocutors.
Khalilzad said, “I knew we would end up with a system that accommodated sharia principles and also committed Afghanistan to international norms, principles, and laws regarding human rights.” He added, “Even during the pre-war period, when Islamic fundamentalism was a far less influential force in the country, the Afghan legal system had been based on a mix of French law and principles from the Hanafi school of Islamic jurisprudence”.
To resolve the issue through making a compromise, Khalizad said Fazl Hadie Shinwari clarified that “the new government would ensure basic liberties and that it would not condone stoning and other harsh punishments permitted under the Taliban”.
It should be noted that no individual or institution is allowed to curtail the rights of citizens through amending the constitution, as it states in Article 149 that “The principles of adherence to the tenets of the Holy religion of Islam as well as Islamic Republicanism shall not be amended. Amending fundamental rights of the people shall be permitted only to improve them.” This Article suggests that Afghanistan will remain a republic state and changing it into “Emirate” is not permissible. Second, amending the fundamental rights, including one’s rights to life and liberty, will be amended only for their improvement not restriction. Thus, protecting “republicanism” and “fundamental rights” of Afghan men and women are the “red line” of the current constitution.
Afghan Constitution has passed many ups and downs and evolved through the history. For instance, the last decade of King Zahir Shah was called “the decade of democracy” or “the decade of constitution” for advocating citizens’ rights and liberties and approval of a relatively democratic constitution. That is, the current constitution of Afghanistan has received high impacts from that of Zahir Shah’s.
Meanwhile, King Amanullah Khan also supported the public rights and freedoms as he sought to modernize Afghanistan. In short, the seeds of democracy have been sowed by Afghan moderate kings.
Now Afghan nation and state have the responsibility to protect the democratic principles and fundamental human rights of citizens. Undoing democratic principles and constitutional values will deal a strong blow to the sacrifices made by Afghan men and women for supporting democracy and advocating their rights and freedoms.
The Afghan government and international community should support the peace talks that would guarantee the rights and freedoms of Afghan men and women. The Taliban have to understand that they would be no more able to sell their parochial mindset and radical ideology to Afghan people, who paid heavy sacrifices for democracy and determined to further fight for it.