Many observers of the Afghan scene wondered about the progress of work on drafting of the new constitution by the drafting committee of eight members. The committee originally had nine members, but one member, an Afghan educator in France could not attend its sessions and thus the task was given to the remaining eight members. There were reports of wide differences of opinion among the members of the committee and a division between reformist tendencies and religious conservatism. There are many sensitive issues that need to be tackled by the new constitution. The most important among these are the question of the type of government and the competing views regarding the choice of the legal system for the country. While the reformists would want a secular system, the fundamentalists insist on mainly the Islamic law, the Sharia, to be recognized as the only legal system.
According to a report by the Associated Press, last week, the committee, headed by Vice President Naymatullah Shahrani, submitted a draft to president Karzai. The draft remains secret for sometime until Mr. Karzai assigns a larger commission of 30 people to review it and solicit public comments on it. The report states that "only selected Afghans -- professors, elders, religious leaders -- will be questioned on their views and there will be no referendum. The final product will be debated at a constitutional Loya Jirga, or grand council, in October".

The same report says, "The new government likely will be an Islamic democracy with a powerful president, a weaker prime minister and a parliament -- all elected every four to five years, said Fazel Ahmed Manawi, deputy chief justice of the Supreme Court."

Earlier there were reports that mostly the Pashtun tribes would option for a revival of the monarchy and that fundamentalists were strongly opposed to a secular system for the country. Although the former King is supposedly the figurehead of the endeavor for the working of a new constitution, it is unlikely that he would play any effective role in the choice of monarchy for Afghanistan. He is 89 and frail. He has already missed his chance of emerging as an active leader in Afghanistan during the last Loya Jirga.

On the issue of the legal system for the country, the religious conservatives, such as the head of the Supreme Court, Mr. Shinwari has consistently opposed secular laws and is strongly pushing for the implementation of the Sharia as the main legal system for the country. He himself has vast knowledge of the Islamic law, but no education in secular or modern laws. He claims that the Sharia encompasses all modern laws and concerns including human rights and rights of women. On this latter issue, Afghanistan and especially the president of its transitional administration, Mr. Karzai who finds himself in the middle and as always in need of finding a compromise, may also be pressured by world public opinion.

Another important issue to be dealt with by the constitution is for the country to have a strong central government or grant autonomy to provincial governments that are presently ruled by the warlords. Some ethnic minorities would like to push for a federal system. Mr. Shahrani's younger brother has consistently campaigned for the establishment of such a system for Afghanistan. However, it is believed that Shahrani himself favors a strong central government. On the other hand, for many obvious reasons (also dealt with in an article on the same subject on www.institute-for-afghan-studies.org ,) a federal system may not be a workable alternative in Afghanistan.

All of this would leave Mr. Karzai tackling a grave dilemma of how to find and implement his middle way. A former constitution of the country had found one way of reconciling of the two options for the legal system in the country. It said: "No law shall run counter to the principles of the sacred religion of Islam." This would open the door to promulgation of laws based on modern civil rights and ensure that these would not be in opposition to Islam as the religion of the majority of Afghans. As to the distribution of power issue, it is believed that a strong central government with locally elected provincial officials and local and central legislatures would lead to an equitable distribution of power while it would maintain the country's unity and full sovereignty. Let us hope that the draft directs the country onto such a course; and if not, let us hope that further work on it would do so. 04/04/03