Whiskey Bar: Slouching Towards the Islamic Republic

The advance of freedom in the greater Middle East has given new rights and new hopes to women. And America will do its part to continue the spread of liberty.

George W. Bush
Remarks on women's rights
March 12, 2005

I predicted a few days ago that the American proconsul in Baghdad would soon find it expedient to throw President Bush's high-flown promises to the women of Iraq off the constitutional train. And, according to Reuters, that moment now seems to have arrived:

U.S. diplomats have conceded ground to Islamists on the role of religion in Iraq, negotiators said on Saturday as they raced to meet a 48-hour deadline to draft a constitution under intense U.S. pressure.

U.S. diplomats, who have insisted the constitution must enshrine ideals of equal rights and democracy, declined comment.

Shi'ite, Sunni and Kurdish negotiators all said there was accord on a bigger role for Islamic law than Iraq had before.

But a secular Kurdish politician said Kurds opposed making Islam "the", not "a", main source of law -- changing current wording -- and subjecting all legislation to a religious test.

"We understand the Americans have sided with the Shi'ites," he said. "It's shocking. It doesn't fit American values. They have spent so much blood and money here, only to back the creation of an Islamist state ... I can't believe that's what the Americans really want or what the American people want."

Actually, if it staves off civil war long enough for the Pentagon to withdraw the bulk of the troops from Iraq, then I'd say it's precisely what the American people want.

Outside the neocon and neoliberal elites (plus the Republican true believers, who support whatever they're told to support) the American public never has shown much enthusiasm for Bush's revolutionary aspirations in the Middle East, and it has even less of an appetite for grand historical transformations now that it has a better idea of how much they cost. Which means the firm of Democracy Unlimited, Inc. ("Shouldering the white man's burden since 2003") is going into liquidation. And, as always, the least valuable assets are being discarded first, meaning women's rights in the Iraq are bound for the bottom of the scrap heap. Sic transit gloria Shrub.

The Afghan constitution, ratified by a warlord-dominated "loya jirga" in January of last year, is one of the strangest legal documents I think I've ever read -- as hopelessly contradictory, in its own way, as the Soviet-era constitutions that blended (with a complete poker face) solemn guarantees of human rights and civil liberties with the absolute dictatorship of the Communist Party of the USSR.

On the one hand, the founding fathers (plus a token contigent of founding mothers) of the Afghan Republic included a sweeping guarantee of civil equality between all citizens, and men and women in particular:

Chapter 2; Article 22: Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan – whether man or woman – have equal rights and duties before the law.

They also included at least a constitutional endorsement, if not an outright guarantee, of equal educational opportunity:

Chapter 2, Article 44: The state shall devise and implement effective programs for balancing and promoting of education for women . . .

Finally, in an outright spasm of affirmative action (one can only imagine Judge Roberts's horrified reaction) the framers stipulated that 25% of the seats in the lower house of Afghanistan's National Assembly should be reserved for women, while one-sixth of the seats in the upper house should go to women appointed by the president.

On the other hand, the constitution also establishes in its first three clauses that:

* "Afghanistan is an Islamic Republic."

* "The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam."

* "In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam."

That last provision is one the Iraqi fundamentalist parties want to borrow for their constitution -- along with a more affirmative clause making Sharia "the" primary source of legal precedent. The Afghan constitution doesn't go that far, at least not directly. But it achieves much the same objective through the back door, by stipulating that decisions by the Supreme Court (the final constitutional arbiter) must "accord with the Hanafi jurisprudence in a way to serve justice in the best possible manner."

Hanafi is one of the primary schools of Sunni religious law, and the historically predominant one in Central Asia and India (and, interestingly enough, also the school officially favored by the Ottoman Empire.) I don't know enough about Islamic law to say whether Hanafi is more or less "liberal" (in a strictly relative sense) than the other schools, such as Hanbali, which is predominant in Iraq, Syria and the Arabian peninsula and is generally considered the most conservative. But by locking Afghanistan's Surpreme Court into an explicit flavor of Islamic law, Khalilzad and his loya jirga effectively institutionalized Sharia as the basis of the country's legal system.

More to the point, unless the Hanafi school is a lot more liberal than I think it is, it's hard to see how true "equal rights and duties before the law" for both sexes can be reconciled with Islamic religious precedent -- not without making a mockery of both.

In another provision that has ominous echoes for Iraqi women, the framers in Afghanistan offered a legal concession to that country's Shi'a minority, by stipulating that cases involving "personal matters" (marriage, divorce, etc.) must be based on the Shi'a version of Islamic law, and that all other cases should be based on Shi'a Sharia (try saying that ten times quickly) unless the constitution or statute law expliclity say otherwise.

No such concession, naturally, was offered to Afghani women who do not wish for their personal lives to be governed by any brand of Sharia.

And those sweeping guarantees of equal rights laid elsewhere in the Afghan charter? They're counterbalanced by a couple of clauses so inspired by fundamentalism they must make the Rev. Dobson green with envy. The call for equal education, for example, is carefully hedged by a requirement that:

The state shall devise and implement a unified educational curriculum based on the provisions of the sacred religion of Islam . . . and develop the curriculum of religious subjects on the basis of the Islamic sects existing in Afghanistan.

And that sacred institution so near and dear to fundamentalist hearts everywhere -- the nuclear, patriarchial family -- gets an article all of its own:

Chapter 2, Article 54: Family is a fundamental unit of society and is supported by the state. The state adopts necessary measures to ensure physical and psychological well being of family, especially of child and mother, upbringing of children and the elimination of traditions contrary to the principles of sacred religion of Islam. (emphasis added.)

Dobson: I gotta get me one of those!

The result, then, is a constitution that enshrines in its chapters both the supremacy of Islamic religious law and the sectarian divide between Sunni and Shia. What's more, those provisions can never, ever be changed:

Article 149, Chapter 10: The provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended.

By contrast, the lofty Jeffersonian language about rights and liberties looks exactly like what it is: window dressing.

The trade off for all the Soviet-style guarantees of Sharia's "leading role" was supposed to be the political quotas that would at least give Afghani women a public voice with which to protest their continued oppression. These provisions, more than anything else, persuaded some women's rights advocates (naively, in my view) to give the constitution a cautious thumbs up.

But constitutions are made out of paper, not facts. And a recent report by Human Rights Watch documents how little that paper is actually worth compared to the brutal realities of political power in a society dominated by men with guns. The Afghan constitution may have granted women a fixed share of the seats on the National Assembly, but it didn't guarantee them they wouldn't be murdered or threatened with death for trying to run for those seats -- something which is happening wth distressing regularity in the New Afghanistan.

Whiskey Bar: Slouching Towards the Islamic Republic


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