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US Concerns Aired Over Parts of Draft Afghan Constitution - 2003-11-20

U.S. officials and experts testifying before a congressional panel have expressed concern about parts of the draft constitution for Afghanistan. Witnesses said progress is being made in Afghanistan, but changes may be necessary in the draft to make sure the rights of all Afghan citizens are protected.

If all goes as planned, Afghanistan will adopt a new constitution, the ninth in the country's history, in December with elections for government leaders and a National Assembly to follow.

U.S. officials say major progress is being made in laying the foundation for a democratic system and one that respects human and civil rights under international law.

However, concerns about the process were aired Wednesday in a joint hearing of two House subcommittees.

Against the background of what U.S. officials acknowledge is a "precarious" security situation, there is concern about specific sections of the draft constitution dealing with religion and women's rights.

Republican Congresswoman Ileana Ros-Lehtinen says some portions are laudable for their protection of rights and prohibition of discrimination against women, but others fall short.

"These concerns increase as, according to some, the conservative religious tendencies of Afghan society are enshrined in the constitution and could, in its practical application, empower extremist elements in the country," he said.

Lawmakers cited recent incidents in two Afghan provincial districts in which the election of women to the constitutional assembly ["Loya Jirga"] was suspended after opposition from Sunni [Islamic sect] scholars.

Democratic Congressman Gary Ackerman said the constitutional draft does not contain strong enough protections for women.

"Clearly, the treatment of women in Afghanistan has not changed that much since the removal of the Taleban," he said.

Still sharper criticism came from T. Kumar, Asia and Pacific Advocacy Director for Amnesty International USA. "Amnesty International is concerned that during the last three or four months of the process, the constitutional Loya Jirga commission did not consult with all the segments of society in the country," he said. "Even human rights advocates were sidelined. They were consulted, but they were sidelined. Civil society folks were sidelined."

U.S. officials testifying before the committee acknowledged, as they have done in several recent hearings, that the security situation in Afghanistan is "precarious." They paint a mostly positive picture of the constitutional process.

John Hanford, Ambassador-at-Large in the State Department's Office of International Religious Freedom, says the draft explicitly affirms international human rights standards, and does not explicitly codify Islamic [Sharia] law.

However, Mr. Hanford says there are some other troubling areas that need to be addressed.

"The draft does not explicitly guarantee or even mention religious freedom," he said. "Though the clause on non-Muslims affirms a qualified right to 'perform religious ceremonies,' full religious freedom of course encompasses much more than that. Second, the draft language is ambiguous on which standard holds the highest legal authority. Some rights, such as freedom for non-Muslims to perform ceremonies as well as the basic freedom of expression are conditioned by an undefined "law." Elsewhere the draft states that no law can be contrary to the "sacred religion of Islam."

In recent weeks, critics of the draft constitution, some of whom have met with U.S. lawmakers, say it does not sufficiently reflect the input of Afghan women or contain strong enough guarantees of women's rights.

Mariam Nawabi, Legal Advisor to the Constitutional Drafting Commission of Afghanistan, says it's one thing to write guarantees into a constitution, quite another to make sure they are enforced.

"As past Afghan history has proven it is not the language of the constitution that will drive the reforms and implementation, but it is the capacity and willingness of other institutions, such as the judiciary, to support and guarantee those rights, what public support those rights get, and backing from the clergy who wield immense power in many communities," he said.

In a recent news conference in Washington, Sadiqa Basiri, of the Afghan Women's Network, said the lack of security has made women fearful of participating in the political process.

"If there is no security in Afghanistan, no reconstruction and no security, the constitutional process will fail. Why? Because women will not have a chance to raise their voice, and say we want these things to be included in the constitution," he said.

In his testimony Wednesday, Assistant Secretary of State for Human Rights, Lorne Craner, said the Bush administration is committed to working with Afghan leaders to make sure the constitution and a future democratic government are strong, and uphold human and civil rights.