The Loya Jirga, held in post-Taliban Afghanistan to approve constitution, has been a controversial assembly since Afghan representatives from many walks of life – including religious scholars, Jihadi leaders, intellectuals, and women – participated.
Human rights discourse and sharia law have been debated hotly between conservatives and modernists in Loya Jirga. Some religious scholars sought to put their weight behind sharia law, however, it was not agreed upon. A number of individuals showed tendency towards democratic principles and equal rights for men and women.
US Special Envoy Zalmay Khalilzad, who was one of the participants in the Jirga, said in his book “The Envoy” that “we would end up with a system that accommodated sharia principles and also committed Afghanistan to international norms, principles, and laws regarding human rights. 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 Hanafi school of Islamic jurisprudence.”
To resolve the issue, Khalilzad added that Fazl Hadie Shinwari said that sharia principles would help guide the judiciary’s decisions. “He clarified, however, that the new government would ensure basic liberties and that it would not condone stoning and other harsh punishments permitted under the Taliban.”
Subsequently, Afghan Constitution was approved recognizing both Islamic principles and the Universal Declaration of Human Rights (UDHR) and the United States Charter. It includes democratic principles and equal rights for men and women as Article 22 states, “Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.”
Besides adhering to the UDHR and UN Charter, Article three says, “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.”
Although supporting sharia law on the one hand, and adhering to UDHR and UN Charter on the other hand, is somehow contradictory, the current constitution is endorsed based on democratic principles and surpasses many constitutions in terms of being democratic in Islamic countries.
Now it is feared that with the return of Islamic Emirate after a peace deal signed between the Taliban leadership and the Afghan government, the Taliban will seek to tailor the constitution based on their own parochial worldview.
Practicing upon fundamental ideology, the Taliban regime did not approve a constitution arguing that Qur’an, the Holy Book of Muslims, contained each and every issues and there was no need to a man-made law since God established law for His creatures. This argument was highly misleading. Even during the regime of King Amanullah Khan, when mullahs and conservatives revolted against his reform and modernist movement, a mullah held Qur’an in one hand and constitution in his other hand asking the masses which one they wanted. The masses, who were mostly illiterate and conservatives, had no choice other than insisting that they wanted the book of Allah, Qur’an. The Taliban thought the same way. They hardly ponder that with the emergence of modern world, people have many new requirements to be met by law.
It should be noted that Islamic laws are divisible into two distinct kinds: First, those laws and regulations pertaining to a section of beliefs and principles, which form human devotion and humility towards the Creator (in which there is not possibility of change).
It is true that human beings naturally prefer the new to the old, but this generalization cannot be applied to all situations and practices. As we can never say that since the well-known formula; two multiplied by two is equal to four, has been used by mankind for thousands of years, it has become obsolete and needs to be discarded.
Second, those laws and regulations which have temporal, regional or some other special aspects and change their form with variation in modes of living. This class of laws is alterable according to gradual cultural advancements and changes in social spheres. Thus, this kind of law needs revision with abolition of old custom and traditions.
With this in mind, constitution must be approved to meet the new requirements of human societies. It is highly difficult to imagine a country without having a constitution or civil and criminal laws.
Overall, Afghan constitution should be a “red line” for the government and the Taliban should not impose their mindset in the constitution, particularly regarding equal rights and obligations of men and women. Since the current constitution was approved in the presence of Afghan high-level clerics, both Shiites and Sunnis, the Taliban have to reconcile their mindset with this and do not push for its amendment.