The following was written on 6 January 2004 by Stephen Coughlin when he was working at the National Military Command Center while also a student at the Joint Military Intelligence College (known today as the National Intelligence University):
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The “Draft” Afghan Constitution (“Constitution”) exposes any future Afghan government to substantial vulnerability in the form of language that is embedded in the Constitution itself. What follows is a risk analysis of the Constitution based on that embedded language.
The risk comes from the supremacy clause language of Chapter I, Article 3 of the Constitution that that subordinates the Constitution to Islamic law. It envisions elements serving Taliban or al-Qaida interests (“Taliban Proxy”) to apply the controlling language in a process that will overwrite the Constitution with Islamic law – as the law of the land. The process to overwrite the Constitution will not be based on rarified or otherwise theoretical concepts of Constitutional law but rather on applying the basic rules of statutory construction. There are no tricks.
The Taliban Proxies will simply apply the plain meaning of supremacy clause. It nullifies the Constitution. As such, the Constitution was drafted in a manner that envisions a governing authority committed to the strict application of Islamic law along the lines expressed by the Taliban and al-Qaida. This is assured by the fact that Chapter 1, Article 1 declares Afghanistan to be an Islamic Republic.
Demonstrative Example
For this assessment, the relevant law is Chapter 1, Articles 2 & 3 of the Constitution. The discussion will be used to demonstrate how the free exercise of religion will cascade into loss of citizenship and unequal protection under the law – as the law of the land as stated in the Afghan Constitution. The two articles state:
Chapter I, Article 2: The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam. Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of the law.
Chapter I, Article 3: In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.
The person in the Afghan government serving as a Taliban Proxy will argue that if Article 3 is to have any meaning, then certainly it must mean that the laws of Afghanistan, including the Constitution itself, must conform to Islamic law – the Shari’a. The issue will come down to control of the meaning of the term “provisions” as stated in Article 3. The argument is one of definition. What else could Article 3 mean when it says “no law can be contrary to the beliefs and provisions of the sacred religion of Islam” if not that the provisions in question are the clearly stated black letter of Islamic law? In making this argument, the Taliban Proxy’s position will be both credible and persuasive.
Most likely, the question of definition relating to Article 3 will not be made in isolation but rather in conjunction with some substantive issue from other portions of the Constitution. The following scenario will serve to explain the implications of the Article 2, which clearly seems to grant “free exercise of religion,” when interpreted in light of Article 3.
SCENARIO – Undo Afghan Constitution
A group of non-Muslims (or even Shia Muslims) begin to exercise the free expression of their religion as provided in Article 2: “Followers of other religions are free to exercise their faith and perform their religious rites.” The non-Muslim might argue that Article 2 couldn’t be any clearer. To the non-Muslim’s initial surprise, the Taliban Proxy earnestly agrees that the language could not be any clearer. The same article that offers free exercise of religion to other faiths, he would point out, also states explicitly that Afghanistan is an Islamic Republic and that the free exercise of non-Muslim religions is free only in-so-far as they are consistent with the proper running of an Islamic Republic. Article 2, he notes, states that free exercise of non-Muslim religions is guaranteed only in-so-far as they stay “within the limits of the provisions of the law.”
Most seriously, the Taliban Proxy will tell the non-Muslim that Afghan law will allow non-Muslim believers to freely practice their religion as long as their religious practices conform to Islamic law on such matters and then point out how tolerant Islam is in this regard. Surprised by what seems, on first impression, to be such a silly answer from what appears to be such a serious man, the non-Muslim will argue that whatever Afghan law stands for, it certainly couldn’t stand for the imposition of Islamic law in this instance as it seems to run contrary to the clear expression of the rights of non-Muslims to freely express their religious beliefs as stated in Article 2.
The Taliban Proxy would correctly point out that there is nothing contradictory to using Shari’a to establish the “limits of the provisions of that law” as it was clearly envisioned that Islamic law be given full effect in situations just like this. With a cynical guffaw, the non-Muslim will protest that such an outcome was never envisioned by the drafters of the Constitution and that the Taliban Proxy’s analysis is the result of self-serving extremist casuistry that cannot possibly stand up to even minimal scrutiny.
With a glimmer of victory in his eyes, the Taliban Proxy will point out that his position is manifestly clear and based on a straight-line interpretation of the Constitution using the most rudimentary concepts of statutory construction. Noting that Article 2 does is not clear on its own, he will point out that it is meant to be read in conjunction with Article 3 that states that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.“ With this analysis, the Taliban Proxy will then connect the dots – apply the law – to demonstrate that not only should Article 2 be interpreted to mean that free exercise of religion is controlled by specific Islamic law on the subject, but that it is actually intended to be the law in this situation precisely because there is specific Islamic law on point. The Taliban Proxy’s argument is both persuasive and correct.
Beginning to suspect their own vulnerability, the non-Muslims begin to ruminate about how this affects their right to express their religion in Afghanistan. The Taliban Proxy simply points out that if they were Muslim, they could take their claim to an Islamic court, but because they are non-Muslims, they cannot serve as witnesses or provide testimony in their own proceeding (Shari’a o24.2 (e)). Further, non-Muslims serving in government positions may find their positions challenged as it is arguably against Islamic law to place non-Muslims in positions of authority over Muslims or even in positions of authority over other non-Muslims in an Islamic state. (Shari’a 25.3(a)).
The Taliban Proxy would note that their situation is not all bad. Islam is generous and freely tolerates the expression of their religion so long as they submit to the laws of Islam and pay the Jizyah – or submission tax, are not idol worshippers or people of a Book that came after Mohammed, wear distinctive cloths that identify them as non-Muslims, stay on the sides of the street, never practice their religion openly, never live in a house larger than a Muslim’s, never build new churches, and never ever attempt to lead a Muslim from Islam. (Shari’a o11)
The non-Muslim will note in exasperation that if he cannot lead his life the same as a similarly situated Muslim, cannot offer testimony, and cannot have authority over others – then he not only is not allowed the commonly understood right to free exercise of his religion but arguably doesn’t even have the same rights as his Muslim peers as citizens. The Taliban Proxy would note that while this may be true, he should not worry because as a non-Muslim operating under the conditions outlined in the Shari’a, he will be given the full protection that the Islamic Republic accords non-Muslims – or at least the level of protection given to other non-Muslims similarly situated. The Taliban Proxy would then insist that non-Muslims not direct their anger and frustration at him but rather at the U.S. State Department because they were the primary drafters of the Constitution.
While this scenario sounds contrived, it is not. In fact, this scenario will probably unfold in some fashion within the first 18 to 24 months of the Constitution taking effect. Moreover, this scenario can be expected to play itself out every time there is a conflict with language in the Constitution where there is black letter Islamic law on the topic. Outside the confines of Islamic law, just as Article 3 demolishes any real meaning of the concept of the free exercise of religion as stated in Article 2, it will likewise be used to deconstruct any real democratic principles that appear to be provided in the Afghan Constitution where language in the Constitution conflicts with established – clearly stated – Islamic law.
The scenario raises a series of concerns:
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- Because the Shari’a is at the center of the Islamic “complete way of life,” the Taliban Proxy’s arguments based on Article 3 have persuasive merit and strength.
- When opposing the legal demands of the Taliban Proxy (or other Salafis), won’t constitutionalists and “moderates” within the Afghan government be forced to resort to less-than-genuine arguments that seek to deny the obvous meaning of Article 3 as is reasonably and foreseeably understood in an Islamic culture – especially those Islamic countries that openly define themselves as Islamic Republics whose constitutions explicitly state the primacy of Islamic law?
- Does Article 2 and 3 allow the Taliban Proxy (or Salafis or “extremists”) the ability to win such debates on the merits not just because Islamic law demands it but also because the Afghanistan Constitution requires it? Are Western drafters of the Afghan Constitution operating off a series of unstated assumptions – the underlying premise of which is that Islamic law is neither genuine nor a genuine competitor to the Constitutional form of governance they seek to implement? Are those drafters fully aware of what they are doing?
The risk associated with the constitutional language that formally subordinates the democratic principals of the Afghan Constitution to Islamic law is real and assured to manifest itself.
Relevant Islamic Law
Reliance of the Traveller: A Classic Manual of Islamic Sacred Law
By Ahmad ibn Naqib al-Misri
Book O: Justice
o11.0 – Non-Muslim Subjects of the Islamic State
o11.1 A formal agreement of protection is made with citizens who are:
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- Jews;
- Christians;
- Zoroastians;
- Samarians and Sabians, if their religions do not respectively contradict the fundamental bases of Judaism and Christianity;
- and those who adhere to the religion of Abraham or one of
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the other prophets (upon whom be blessings and peace).
o11.2 Such an agreement may not be effected with those who are idol worshippers (dis: o9.9(n:)), or those who do not have a Sacred Book or something that could have been a Book.
(A: Something that could have been a Book refers to those like the Zoroastians, who have remnants resembling an ancient Book. As for the psuedoscriptures of could that have appeared since Islam (n: such as the Sikhs, Baha’is, Mormons, Qadianis, etc.), they neither are nor could be a Book, since the Koran is the final revelation (dis: w4).)
o11.3 Such an agreement is only valid when the subject peoples:
(a) follow the rules of Islam (A: those mentioned below (o11.5) and those involving public behavior and dress, thought in acts of worship and their private lives, the subject communities have their own laws, judges, and courts, enforcing the rules of their own religion among themselves);
(b) and pay the non-Muslim poll tax (jizya).
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THE NON-MUSLIM POLL TAX
o11.4 The minimum non-Muslim poll tax is one dinar (n: 4.235 grams of gold) per person (A: per year). The maximum is whatever both sides agree upon. It is collected with leniency and politeness, as are all debts, and is not levied on women, children or the insane.
o11.5 Such non-Muslim subjects are obliged to comply with the Islamic rules that pertain to safety and indemnity of life, reputation, and property. In addition, they:
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- are penalized for committing adultery of theft, though not for drunkenness
- are distinguished from Muslims in dress wearing a wide cloth belt (zunnar);
- are not greeted with “as-Salamu ‘alaykum”;
- must keep to the side of the street;
- may not build higher than or as high as the Muslims’ buildings, though if they acquire a tall house, it is not razed;
- are forbidden to openly display wine or pork, (A: to ring church bells or display crosses,) recite the Torah or Evangel aloud, or make pubic display of their funerals and feast days;
- and are forbidden to build new churches.
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o11.6 They are forbidden to reside in the Hijaz, meaning the area and towns around Mecca, Medina, and Yamama, for more than three days (when the caliph allows them to enter there of something they need).
o11.7 A non-Muslim may not enter the Meccan Sacred Precinct (Haram) under any circumstances, or enter any other mosque without permission (A: nor may Muslims enter churches without permission).
o11.8 It is obligatory for the caliph (def: o25) to protect those of them who are in Muslim lands just as he would Muslims, and to seek the release of those of them who are captured.
o11.9 If non-Muslim subjects of the Islamic stat refuse to conform to the rules of Islam, or to pay the non-Muslim poll tax, then their agreement with the state has been violated (dis: 011.11)(A: though if only one of them disobeys, it concerns him alone).
o11.10 The agreement is also violated (A: with respect to the offender alone) if the state has stipulated that any of the following things break it, and one of the subjects does so anyway, though if the state has not stipulated that these break the agreement, then they do not; namely, if one of the subject people:
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- commits adultery with a Muslim woman or marries her;
- conceals spies of hostile forces;
- leads a Muslim away from Islam;
- kills a Muslim;
- or mentions something impermissible about Allah, the Prophet (Allah bless him and give him peace), or Islam.
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o11.11 When a subject’s agreement with the state has been violated, the caliph chooses between the four alternatives mentioned above in connection with prisoners of war (o9.14).
o25.0 THE CALIPHATE
THE QUALIFICATIONS OF A CALIPH
o25.3 (Nawawi:) Among the qualifications of the caliph are that he be:
(a) Muslim (H: so that he may see to the best interests of Islam and the Muslims (K: it being invalid to appoint a non-Muslim (kafir) to authority, even to rule non-Muslims.) (S: Qadi ‘Iyad states that there is scholarly consensus (def: b7) that is is not legally valid to invest a non-Muslim as caliph, and that if a caliph becomes a non- Muslim (dis: o8.7) he is no longer caliph, as also when he does not maintain the
prescribed prayers …
o24.0 WITNESSING & TESTIFYING
o24.2 Legal testimony is only acceptable from a witness who:
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- is free;
- is fully responsible (mukalaf, def: c8.1) (O: as testimony is not accepted from a child or insane person, even when the child’s testimony regards injuries among children that occurred at play;
- is able to speak;
- is mentally awake;
- is religious (O: meaning upright (o24.4) (A: and Muslim), for Allah Most High says,
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“Let those of rectitude among you testify” (Koran 65:2),
and unbelief is the vilest form of corruption, as goes without saying);
The Constitution of Afghanistan (ratified January 26, 2004)
