NEW AFGHAN CONSTITUTION IS WORRYING U.S. PANEL
Marc Perelman, Forward, 8/29/03
New Afghan Constitution Is Worrying U.S. Panel
Basic Rights Unprotected
The U.S. government's top human rights body is warning that the new
constitution being drafted in Afghanistan may fail to protect basic
human rights while allowing conservative Islamic clerics to curtail
A delegation from the United States Commission on International
Religious Freedom, a bipartisan body set up by Congress to monitor
human rights around the globe, drew worrisome conclusions from an
official visit to Afghanistan earlier this month. The group, which
visited the country from August 10 to August 13, is now preparing a
report and will brief Congress and administration officials about its
"We believe the constitution as it is taking shape right now will not
preserve basic freedoms," said Felice Gaer, the vice-chair of the
nine-member commission who headed the Afghanistan visit and a senior
official with the American Jewish Committee. "We have to prevent the
return of Taliban-like attitudes, and I believe the administration is
starting to realize that if this happens under U.S. guidance, it
would be a major policy failure that would set a bad precedent for
what we're doing in Iraq."
She called on the administration to give more open support to mod-
erates who she says are being stifled by Islamic radicals and
powerful warlords, and to be more assertive in claiming the
centrality of human rights to Americans.
As violence worsens in the region and crucial political deadlines
approach, both in Kabul and Washington, the administration is said to
be planning a doubling of the aid and a comprehensive personnel
turnover in Afghanistan to boost reconstruction, according to The New
The human rights commission's visit came as the Afghan government is
preparing to unveil a draft constitution after September 1. A
constitutional assembly, or loya jirga, is to be convened in October
to discuss and adopt a final text. The constitution is also expected
to create a political system that will open the way for elections
scheduled for June of next year.
American officials have been treading a fine line between allowing a
genuine political process to take hold and ensuring that the end
result does not bring about an undemocratic model. But liberals in
Afghanistan have warned diplomats and American officials over the
past months that they were losing ground to more conservative
In Iraq, the debate over the new constitution is still in the early
stages, but tensions are already surfacing. Noah Feldman, a New York
University scholar and strong believer in the coexistence of Islam
and democracy who was appointed adviser to the American team in Iraq,
resigned last month.
Feldman told the Forward that he stepped down from his government
position in July because he had completed his task to help transfer
the authority of drafting a constitution to the provisional governing
council appointed by the United States.
According to one source, however, rumors surfaced earlier this summer
that Feldman was dismissed because his ideas did not correspond to
those of his Pentagon bosses.
Feldman denied the rumors, stressing that he left because his job was
done. He added that he was planning to go back to Iraq as an
independent consultant later on.
"I stepped down because at that juncture it was better for the Iraqis
to be able to solicit me and take or leave my advice in a private
capacity than with the might of the U.S. government in the
background," he said.
In Afghanistan, the United States has left oversight of the
constitutional drafting process to an Italian-led team of the United
Nations and outside consultants. An appointed Afghan constitutional
commission did the formal drafting.
Members of the human rights commission argue that transforming
Afghanistan into a truly democratic country is necessary to set an
example for a deeply suspicious Muslim world. But they say that the
draft constitution, which has been reviewed by Afghan and American
officials, would fail to entrench major human rights conventions,
basic freedoms and the rule of law.
There are indications that the message has now registered in
Washington. In an illustration of the sensitivity of the topic, the
State Department has classified the draft of the constitution,
according to a June report in the Saint-Petersburg Times. Two
knowledgeable sources confirmed the report.
Brooke Summers, a State Department spokeswoman, declined to comment
on the classification of the draft. She said that the United States
only plays an advisory role.
For over a year, since June 2002, the administration had rejected
repeated demands from the human rights commission to travel to
Afghanistan, citing security reasons and concern in the State
Department that American officials should not lecture Afghans on
In May 2003, the American commission issued an alarmist report about
the constitutional process based on discussions with members of the
Afghan constitutional commission and other observers.
The report expressed concerns over the inclusion of Shariah, or
Islamic law, in the constitution and the absence of a formal
proclamation of equal rights for women and ethnic minorities and
basic freedoms, as well as a lack of commitment to the rule of law
and major international human rights conventions.
After the commission and several nongovernmental organizations
intensified their lobbying, with Afghan moderates publicly expressing
similar misgivings, the administration changed tacks and allowed the
trip. With the constitution debate reaching its final stages, sending
the official American human rights body suddenly became useful to
stress that human rights was a genuine American concern, sources said.
Commission members met earlier this summer with Zalmay Khalilzad, the
president's special envoy to Afghanistan, who expressed support for
the trip and helped secure an invitation from the U.S. Embassy in
"The constitution process is nearing its end. There are worries that
it is going in the wrong direction, so the issue has been taken more
seriously in recent months," Gaer said. "Obviously, security is still
a key condition, especially outside Kabul, but we believe the U.S.
should do more about human rights."
In Kabul, Gaer and another commission member, Preeta Bansal, a former
New York State solicitor general, met with Afghan ministers,
religious leaders, members of the Afghan constitutional commission,
diplomats and nongovernmental organizations.
She said several ministers had seen a draft of the constitution.
Gaer said moderate members of the constitutional commission had told
her delegation that Islamists were controlling the process, an
assessment shared by outside observers.
Gaer said she was especially worried about Chief Justice Fazal Hadi
Shinwari, who has openly supported the inclusion of the Shariah in
Afghan law and has, in private, expressed support for stoning as a
means of punishment.
Gaer said Shinwari told her delegation that he was happy that the
draft constitution specified that the country would be called "the
Islamic state of Afghanistan" and that Islam would be declared its
While Gaer said she is worried about this emphasis on Islam, experts
say Afghanistan's several constitutions all specified that Islam was
the national religion.
In a country that is 99% Muslim, she said, it is vital to preserve
the freedom from religious coercion that could take hold and bring
back some Taliban-era practices.
"Our feeling is that good guys who really believe in blending Islam
and human rights are running scared and that the forces of extremist
Islam are rising," said Bansal, the other commission member on the
trip. "The hardliners are dominating the debate, and we need a
serious effort to level the playing field."
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