Skip To Content

New Afghan Constitution Is Worrying U.S. Panel

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 religious freedom.

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 findings.

“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 moderates 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 York Times.

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 religious factions.

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 human rights.

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 Kabul.

“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 national religion.

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.”

A message from our editor-in-chief Jodi Rudoren

We're building on 127 years of independent journalism to help you develop deeper connections to what it means to be Jewish today.

With so much at stake for the Jewish people right now — war, rising antisemitism, a high-stakes U.S. presidential election — American Jews depend on the Forward's perspective, integrity and courage.

—  Jodi Rudoren, Editor-in-Chief 

Join our mission to tell the Jewish story fully and fairly.

Republish This Story

Please read before republishing

We’re happy to make this story available to republish for free, unless it originated with JTA, Haaretz or another publication (as indicated on the article) and as long as you follow our guidelines. You must credit the Forward, retain our pixel and preserve our canonical link in Google search.  See our full guidelines for more information, and this guide for detail about canonical URLs.

To republish, copy the HTML by clicking on the yellow button to the right; it includes our tracking pixel, all paragraph styles and hyperlinks, the author byline and credit to the Forward. It does not include images; to avoid copyright violations, you must add them manually, following our guidelines. Please email us at [email protected], subject line “republish,” with any questions or to let us know what stories you’re picking up.

We don't support Internet Explorer

Please use Chrome, Safari, Firefox, or Edge to view this site.