Afghanistan- Protecting Afghan Constitution is a National Obligation

(MENAFN- Daily Outlook Afghanistan) The Loya Jirga, heldin post-Taliban Afghanistan to approve constitution, has been a controversialassembly since Afghan representatives from many walks of life – includingreligious scholars, Jihadi leaders, intellectuals, and women – participated.
Human rightsdiscourse and sharia law have been debated hotly between conservatives andmodernists in Loya Jirga. Some religious scholars sought to put their weightbehind sharia law, however, it was not agreed upon. A number of individualsshowed tendency towards democratic principles and equal rights for men andwomen.
US Special EnvoyZalmay Khalilzad, who was one of the participants in the Jirga, said in hisbook 'The Envoy that 'we would end up with a system that accommodated shariaprinciples and also committed Afghanistan to international norms, principles,and laws regarding human rights. Even during the pre-war period, when Islamicfundamentalism was a far less influential force in the country, the Afghanlegal system had been based on a mix of French law and principles from Hanafischool of Islamic jurisprudence.
To resolve the issue,Khalilzad added that Fazl Hadie Shinwari said that sharia principles would helpguide the judiciary's decisions. 'He clarified, however, that the newgovernment would ensure basic liberties and that it would not condone stoningand other harsh punishments permitted under the Taliban.
Subsequently, AfghanConstitution was approved recognizing both Islamic principles and the UniversalDeclaration of Human Rights (UDHR) and the United States Charter. It includesdemocratic principles and equal rights for men and women as Article 22 states,'Any kind of discrimination and distinction between citizens of Afghanistan shallbe forbidden. The citizens of Afghanistan, man and woman, have equal rights andduties before the law.
Besides adhering tothe UDHR and UN Charter, Article three says, 'No law shall contravene thetenets and provisions of the holy religion of Islam in Afghanistan.
Although supportingsharia law on the one hand, and adhering to UDHR and UN Charter on the otherhand, is somehow contradictory, the current constitution is endorsed based ondemocratic principles and surpasses many constitutions in terms of beingdemocratic in Islamic countries.
Now it is feared thatwith the return of Islamic Emirate after a peace deal signed between theTaliban leadership and the Afghan government, the Taliban will seek to tailorthe constitution based on their own parochial worldview.
Practicing uponfundamental ideology, the Taliban regime did not approve a constitution arguingthat Qur'an, the Holy Book of Muslims, contained each and every issues andthere 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 AmanullahKhan, when mullahs and conservatives revolted against his reform and modernistmovement, a mullah held Qur'an in one hand and constitution in his other handasking the masses which one they wanted. The masses, who were mostly illiterateand conservatives, had no choice other than insisting that they wanted the bookof Allah, Qur'an. The Taliban thought the same way. They hardly ponder thatwith the emergence of modern world, people have many new requirements to be metby law.
It should be notedthat Islamic laws are divisible into two distinct kinds: First, those laws andregulations pertaining to a section of beliefs and principles, which form humandevotion and humility towards the Creator (in which there is not possibility ofchange).
It is true that humanbeings naturally prefer the new to the old, but this generalization cannot beapplied to all situations and practices. As we can never say that since thewell-known formula; two multiplied by two is equal to four, has been used bymankind for thousands of years, it has become obsolete and needs to bediscarded.
Second, those lawsand regulations which have temporal, regional or some other special aspects andchange their form with variation in modes of living. This class of laws isalterable according to gradual cultural advancements and changes in socialspheres. Thus, this kind of law needs revision with abolition of old custom andtraditions.
With this in mind, constitutionmust be approved to meet the new requirements of human societies. It is highlydifficult to imagine a country without having a constitution or civil andcriminal laws.
Overall, Afghanconstitution should be a 'red line for the government and the Taliban shouldnot impose their mindset in the constitution, particularly regarding equalrights and obligations of men and women. Since the current constitution wasapproved 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 itsamendment.

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