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 Shari’a 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.