Tuesday, March 28, 2006

Constitution and Apostasy in Afghanistan

After its successful campaigns in Afghanistan and Iraq, the Americans, as leaders of a coalition of nations, also played a pivotal role in the making of new constitutions for Afghanistan and Iraq. The Afghani Constitution was adopted in 2004 after the convening of a traditional Loya Yurga, presided by the former Afghani King, and a plebiscite on its adoption. The Iraqi Constitution was adopted October 15, 2005 after the conclusion of unsuccessful three way negotiations between the largest ethnic and religious groups in the country – the Sunnis, the Shi’as and the Kurds. The Sunnis had refused to accept the proposal as ultimately adopted. The constitution was submitted to a vote of the nation anyway on October 15, 2005, the legitimacy of which remains highly contested. On October 24, 2005, an announcement made of its approval by a majority voters plebiscite, the authority of which remains highly contested.

These constitutions were different, in important respects, from the great constitutions the Americans helped craft a half a century earlier for Germany and Japan. Like the German and Japanese Constitutions, both the Iraqi and Afghani constitutions are notable for a firm adherence to the ideal of constitutional legitimacy grounded in the rule of law as both process (state rule through law) and substance (state organization framed by fundamental substantive principles and values. Indeed, the Afghani constitution purports to incorporate the great principles of international human rights, providing in Chapter 1, Article 7 that the “state shall abide by the UN Charter, international treaties, international conventions that Afghanistan has signed and the Universal Declaration of Human Rights.”

But unlike the German and Japanese constitutions of the mid twentieth century, the new constitutions of Afghanistan and Iraq embraced a set of singular transcendent norms – those of Islam. The Afghan Constitution (Chapter 1, Article 3) also provides that “In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” This constitution incorporates as the ultimate interpretive source of political authority an ancient universal system of governance developed within a global community of believers, whose moral and ethical norms, it is argued, should limit the power of states over their subjects, whether or not members of the community of believers.

In applying the law, the courts, including the Supreme Court, is obligated to apply the interpretations of a particular jurisprudential school of Islamic Shari’a to decide questions of law. Article 131 of the Afghani Constitution (Chapter 7, article 15) provides that “while processing the cases, the courts apply the provisions of this Constitution and other laws. When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts' decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence[one of the traditional schools of Islamic jurisprudence] and in a way to serve justice in the best possible manner.” In addition, Article 131 further provides that “Courts shall apply Shia school of law in cases dealing with personal matters involving the followers of Shia Sect in accordance with the provisions of law. In other cases if no clarification by this constitution and other laws exist and both sides of the case are followers of the Shia Sect, courts will resolve the matter according to laws of this Sect.”

It should come as no surprise, then, that the secular authorities in Afghanistan sought to punish a citizen for the religious crime of apostasy. In a March 28, 2006 article published by the New York Times (“Afghan Convert to Christianity is Released, Officials Say”), Sultan Munadi and Christine Hauser write that this saga began sadly but mundanely enough. When an Afghani man who had left the country and converted from Islam to Christianity returned to Afghanistan seeking custody of his daughters, the family told the authorities that he was an apostate. Though apostasy is not a subject of the Afghani civil law, it is a crime punishable by death under traditional Sharia principles. Given the provisions of the Afghani constitution, it makes perfect sense for the state authorities to seek to enforce the religious law that serves as the foundation of state authority. Ironically, Afghanistan will not see this case through to execution. It seems that, bowing to pressure from Christian majority states, the Afghani courts will not see the case through to completion. Suggesting both procedural defects and the sense that only mental illness could explain apostasy (conversion from Islam to Christianity), the courts returned the case to prosecutors. This postpones but does not answer the question posed. It does, however, serve as a warning that theocratic democratic states will act in ways inconsistent with the norms of secular constitutional states in the West. While it may be possible to harmonize the results under different systems of constitution making, it is likely that the methodologies of constitutional interpretation and the basis on which similar results might be reached will be based on very different approaches to law. That stands to reason, of course, where harmonization is sought between systems whose foundational norm structures may be incompatible. In the case of an Islamic Republic, apostasy from Islam might be deemed the equivalent of a rejection of the fundamental ordering of the state, and as such, as a political and not a religious act. The approach might have more in common with understandings of class within Marxist systems than with the human rights foundationalism of secular international institutional law.

That this is result is both understood by and a deliberate product of American constitutional ingenuity, or at least of its sponsorship, should also come as no surprise. People who listened closely to President Bush’s second inaugural address would have heard an American willingness to permit experiments in democracy. As I have written elsewhere (see my blog post April 1, 2006): Drawing from universal principles from the founding of the Republic, as well as the eternal “truths of Sinai, the Sermon on the Mount, the words of the Koran, and the varied faiths of our people” the rules of behavior between, among and within nations will be grounded in human freedom and democracy. Democracy and human dignity provide a framework limiting the power of any political community – nation, state, international organization, or the like – to organize its society. Every nation has the right to choose its own path to freedom and democracy, and every other state has the authority to help its neighbors achieve and maintain compliance with these standards. But no community outside of the nation should have the power to choose or govern the choices made by any nation within the broad framework of liberty and democracy. As President Bush suggested: “Freedom, by its nature, must be chosen, and defended by citizens, and sustained by the rule of law and the protection of minorities. And when the soul of a nation finally speaks, the institutions that arise may reflect customs and traditions very different from our own. America will not impose our own style of government on the unwilling. Our goal instead is to help others find their own voice, attain their own freedom, and make their own way.”

The United States has helped create this constitution. Perhaps the United States is interested in testing the utility or limits of theocratic constitutionalism as a force for democratic constitutionalism. Perhaps Afghanistan provides a laboratory for a faith-based constitutionalism with implications for the future of constitutional interpretation in this country. Perhaps the United States was unprepared to advise a nation, heir to a complex and rich religiously based jurisprudence, on a means of blending those traditions with the modern traditions of international human rights norms limiting constitutional authority. Whatever the context, it will only be a matter of time before another Abdul Rahman commits apostasy, or another person commits an offense against Islam the punishment of which offends international notions of human rights. Stay tuned.

Sunday, March 26, 2006

Missing the Point of the Ports Problem—Getting Foreign Governments Out of U.S. Security Related Business

Media pundits, political elites and academics fret about Dubai Ports World’s control of the operation of several key ports on the U.S. East coast for all the wrong reasons—security concerns, control of the management of key U.S. assets by foreign corporations, anti-Arab discrimination, usurpation of government by the executive branch at the expense of the legislative branch. Some have even noted a connection between the Dubai Ports deal and the January 24, 2006 nomination by President Bush of a Dubai Ports senior executive as Maritime Administrator, a position reporting directly to Transportation Secretary Norman Mineta. Lost in all the bickering, and political trashing with which those issues are larded, is a key issue worth great thought—that Dubai Ports World is an instrumentality of a sovereign state and not a group of foreign individuals. Does the United States want to turn over control of a key transportation sector to a foreign power conveniently operating under cover of corporate form?

Under the usual circumstances, shareholders own an interest in the corporation. This interest usually entitles the shareholders to rights to control (they elect the directors), and distributions of income (dividends) and assets (either through sale of shares or on liquidation). Individual shareholders usually vote their own interests. The board of directors represents all shareholders. In this country, at least, the board runs the company for the benefit of its shareholders, usually measured by increases in the economic value of the company. But a strange thing happens when the controlling shareholder is a sovereign state. A state, unlike an individual, is not merely interested in maximizing the economic value of its investment in a corporation. A state must necessarily use all its assets for their strategic value in meeting the political, cultural, military, and economic objectives of the state. Those objectives may be determined by reference to the will of the people in secular democratic states. In monarchies, the objectives are an expression of the will and objectives of the monarch or ruling caste. In theocratic states, such objectives may be dictated by conscience, as determined by the religious caste with political authority. But in no case would a state use its interest in any endeavor, even an economic endeavor, in the same way as an individual with no state power. In a sense, then, state ownership of a corporation operating in another country is similar to a state asserting its control indirectly in that country—a sort of imperialism that in other contexts would be condemned as arrogant and unfair and a threat to sovereignty. The worry, thus, is not that people of a particular ethnicity, nationality, religion, or financial power control the corporation—the worry ought to be that a corporation owned by a sovereign state must be viewed as an instrument of that state’s power. Individuals maximize wealth; states maximize their own political interests especially in foreign nations in which they operate in corporate form. States operating directly in other states, or indirectly in corporate form, is not an aspect of economic globalization, but a political intervention in a foreign state that ought to be subject to significant scrutiny.

I guess you have to live in a nation that experienced foreign governmental control of its commerce to understand the danger. That was one of the great lessons of Japan in the late 19th century and of pre-War China that dramatically illustrate the way that foreign control of key national infrastructure, backed by state power, implicates national sovereignty. Consider the following scenario: the People’s Republic of China operates its ports through a local corporation. Assume that it is possible for a foreign corporation to obtain voting control of that corporation. Assume further that a corporation controlled by the United States of America acquires ownership of a majority of the shares of the Chinese company, and on that basis, acquires the right to operate Chinese ports. You can just hear the reaction: Imperialists! The Chinese might rightly consider the purchase an aggressive intervention and a threat to their sovereignty. The United States now operates Chinese ports through indirect ownership of a corporation. Sure, it is a corporation that is running the ports directly, but that company serves its controlling shareholder’s interests. In this case, those would be the interests of the United States. China is now vulnerable to American political pressure, not because the corporation runs the ports, but because the American government owns the corporation. Should America want to put pressure on the Chinese, it can use its ownership interest to induce the board of the company to act in a way that might make no sense if the purpose of the company is to make money, but makes perfect sense if the company is run to maximize its value to the American government. There is a world of difference between Google operating in China as a United States publicly owned corporation, and Google owned by the government of the United States, for example. It would be difficult to envision the Chinese government giving a corporation owned by the American government the contract that China awarded Google.

The real issue for the American government must be the connection between the government of Dubai and the corporation it owns operating as Dubai Ports World. It is one thing for a corporation—a private economic entity—to operate the Ports for the benefit of shareholders who are also private, non-governmental entities or individuals. All of them invest to make money. A corporation that is a front for another government ought to be an entirely different matter. For that reason, the operation of the ports by the predecessor to Dubai Ports World, the privately held Peninsular and Oriental Steam Navigation company, should not be problematic. On the other hand, the control by the Singapore government of certain West coast ports ought to be as troubling as that of the Dubai government on the east coast. Ours should not be an anti-Arab, or anti-Asian, or anti-Muslim policy with respect to the operation of our ports. But ours should be an anti-foreign government control policy, at least with respect to vital sectors of America’s economic infrastructure. What would be deemed offensive and dangerous to the national sovereignty of developing states should be considered equally offensive and dangerous in the United States.