Afghan Constitution debuts

Monday's draft struggles to bridge the gap between democracy and Islamic law.

A panel of Afghans Monday presented their leaders with a draft of the country's new Constitution, offering the war-scarred nation a document that promises to draw on Islamic and democratic values to create a strong presidential system.

The long-delayed draft, presented with pomp and prayers beneath the falling leaves of a courtyard inside the presidential palace, will now be open to public discussion ahead of a 500-member constitutional loya jirga, or grand assembly, planned for next month.

But the proposed Constitution fell short of answering many of the questions Afghan and international observers have about the future direction of the nation. Some of the vagaries of the text underscore the ongoing tensions here between progressives, who would like the Constitution to lay the groundwork for Western-style democracy, and conservatives, who want to ensure Afghanistan is governed by principles outlined in sharia, or Islamic law.

The constitutional draft, which names Afghanistan as an Islamic Republic and bears the year on the Muslim calendar - 1382 - at the top, calls for the creation of a largely elected bicameral national assembly which is forbidden to pass any law "contrary to the sacred religion of Islam." But it did not call for a return to strict sharia, instead envisioning the "creation of a civil society ... based on the people's will and democracy."

As such, the 160-article text is viewed in some corners as the basis of compromise between traditional and modern values - and in others as a disappointment, especially for those who had hoped to see specific provisions on issues such as women's rights.

"This commission did everything it could to create a document which is in agreement with Islam and the national will of the people," said Naimatullah Shahrani, the chairman of the drafting commission and an Islamic scholar. Mr. Shahrani, who wears a wide, wound turban and a bristling white beard, presented copies of the proposed Constitution in regal red-leather binders to the country's president, Hamid Karzai, as well as to the country's father figure, King Zahir Shah, and the senior United Nations official here, Lakhdar Brahimi.

"This is not completed," Mr. Shahrani explained. "Maybe a lot of people will give their opinion on different issues, and then the commission will prepared a new draft before the loya jirga."

The release of the Constitution Monday cleared up some of the uncertainties over what sort of government would lead Afghanistan after nationwide elections, scheduled to take place next June. The proposed Constitution put to rest rumors that the commission would try to institute an office of prime minister, akin to the French system, in an attempt to balance power between Mr. Karzai, an ethnic Pashtun, and leading members of the Northern Alliance, the primarily-Tajik military umbrella group.

Instead, the Constitution will allow for a powerful presidency, a concept that a Karzai spokesman defended in a press conference. "The most important thing a country like Afghanistan needs is stability," said Jawal Ludin, "and I think that's what the commissioners had in mind."

However, that decision could set the stage for additional tensions between Karzai and his political rivals, including Defense Minister Mohammed Qasim Fahim, who had strongly supported the creation of a prime minister - a role he might have played.

Matters look much less specific when it comes to criminal and civil laws. Advocates for more progressive laws say they wanted the Constitution to refer specifically to "men and women," but lost that battle to more traditional forces on the commission, who preferred the language of protecting the rights of "all Afghans." By leaving out references to women, some legal experts say, the drafters are signaling a hands-off policy to parts of sharia that govern life in many Islamic societies - and view women differently from men.

"There are some things in which you cannot make women equal, such as in marriage, divorce, testifying in court, inheritance, and even leadership of the nation," says a member of the commission who asked not to be named. In the end, the conservative viewpoint won. "Ultimately the president has the final say, because this was not an independent commission," the member says.

Judges and legal experts, both here and abroad, say that even if the Constitution calls for a system that gives deference to sharia, it is unlikely that the sort of brutal punishments implemented by the Taliban - such as stoning adulterers and cutting off the hands of thieves - will be ever be meted out under its auspices. Ultimately, the future national assembly will decide how Afghanistan's criminal laws will look.

"Right now it's the most progressive constitution it can be, given the circumstances of an Islamic state," says Musa Maroofi, a member of the drafting commission who has pushed for a more liberal outlook. "It's very fair, balanced, democratic, and progressive, given the social realities," he says. "Men and women are equal before the law in all aspects except a few specific ones. We feel very happy, but if you are a progressive Western-style rights believer, then perhaps you will be disappointed."

According to the draft, Afghanistan's president will be able to nominate half of the upper house of parliament, or the Meshrano Jirga (House of Elders), while the lower chamber will be called the Wolesi Jirga (House of People), according to a statement from the commission. He will also have the power to dissolve and appoint the cabinet "with consultation with the parliament."

Despite some of what it lacks, the Constitution represents several achievements for individual rights. It promises freedom of expression, the right to hold nonviolent demonstrations, and to form political parties - as long as they are not based on ethnic, religious, military, or regional lines. The latter provision, if enforced, will present a challenge for several Afghan warlords who are expected to try to morph their militias into legitimate political parties ahead of elections.

The draft Constitution now faces public debate, and the final version is expected to be hammered out at the loya jirga, set to meet on Dec. 10.

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