The Commission continues to monitor the situation in Afghanistan, where the United States has played, and continues to play, a crucial role. Conditions for freedom of religion or belief improved markedly after the fall of the Taliban regime and the establishment in 2002 of the transitional government headed by President Hamid Karzai, who was popularly elected president under Afghanistan's new Constitution in October 2004. Despite the improved situation, however, concerns about religious freedom remain. The new Constitution, while positive in some aspects, does not contain clear protections for the right to freedom of religion or belief for individual Afghan citizens, particularly those in the majority Muslim community. There is also continued concern about the role and power of the country's Supreme Court, which is currently headed by a man who has shown little regard for international human rights standards, indicating that religious extremism remains a threat.

In contrast to the Taliban era, the right to religious freedom is now largely respected in the areas under government control. Although some discrimination continues, the active persecution of Afghanistan's Shi'a minority (approximately 15 percent of the population) that was perpetrated by the Taliban has ended, and Shi'as are once again able to perform their traditional processions and to participate in public life. In January 2005, President Karzai appointed a Shi'a scholar to the country's Supreme Court, the first Shi'a scholar ever to be appointed to that body. The situation of Afghanistan's religious minorities, which include small communities of Hindus and Sikhs, has also improved significantly since the fall of the Taliban. Although there are no churches, expatriate Christians are reportedly able to meet for informal worship services in Kabul and one or two other major centers.

Due to continued security problems, however, the government of President Karzai does not exercise full control over the country. As a result, the situation for religious freedom and other human rights remains both precarious and problematic in some parts of the country. Taliban remnants remain active in various regions and continue to pose a threat to the stability of the government. Many of the human rights abuses practiced by the Taliban reportedly persist today under the rule of the regional warlords, who continue to operate in regions that are effectively outside of central government control. These abuses include political killings, torture, coercion to enforce social and religious conformity, and abuses against women and girls, sometimes with the active support of the local courts and police. These substantial security threats present a persistent danger to the establishment of democracy and the rule of law throughout Afghanistan.

In January 2004, Afghanistan adopted a new Constitution. The Constitution contains an explicit recognition of equality between men and women and a reference to Afghanistan's commitment to its international human rights obligations. However, though the Constitution provides for the freedom of non-Muslim groups to exercise their various faiths, it does not contain explicit protections for the right to freedom of religion or belief that would extend to every individual, particularly to individual Muslims, the overwhelming majority of Afghanistan's population. This omission is compounded by a repugnancy clause that states that "no law can be contrary to the beliefs and provisions of Islam," as well as by provisions for a judicial system empowered to enforce the repugnancy clause and apply Hanafi jurisprudence to cases where there is no other applicable law.

The absence of a guarantee of the individual right to religious freedom and the inclusion of a judicial system instructed to enforce Islamic principles and Islamic law mean that the new Constitution does not fully protect individual Afghan citizens against unjust accusations of religious "crimes" such as apostasy and blasphemy. There are also fewer protections for Afghans to debate the role and content of religion in law and society, to advocate the rights of women and members of religious minorities, and to question interpretations of Islamic precepts without fear of retribution. There is concern that these constitutional deficiencies could permit a harsh, unfair, or even abusive interpretation of religious orthodoxy to be officially imposed, violating numerous human rights of the individual by stifling dissent within the Islamic tradition.

These concerns are not merely theoretical, as the task of interpreting many of these provisions has been left to the Supreme Court, currently headed by Chief Justice Fazl Hadi Shinwari, who has shown little tolerance for those who disagree with his hard-line interpretation of Islam. In August 2003, Chief Justice Shinwari told a visiting Commission delegation that he rejects three crucial freedoms – those of expression, religion, and equal rights for men and women – all of which are protected under the Universal Declaration of Human Rights. As a consequence of his actions, a sitting Minister in the interim Afghan government was forced to resign after she was charged with blasphemy for questioning the role of Islamic law in Afghanistan, journalists have been jailed on charges of offending Islam, and during the October 2004 presidential elections, a presidential candidate was threatened with disqualification for purported "anti-Islamic remarks" on women's rights and family law. These incidents suggest that despite the gains since 2002 and the adoption of a new constitution, religious freedom and other human rights, along with democracy itself, remain under threat from extremism.

These constitutional pitfalls have been extended to other legislation also. For example, in 2002, Afghanistan adopted a new press law that contains a sanction against publication of "matters contrary to the principles of Islam or offensive to other religions and sects." According to the State Department's 2004 Annual Report on International Religious Freedom, the vagueness in the definition of what constitutes offensive material allows for the potential abuse of this clause with the aim of limiting freedom of the press and intimidating journalists. Indeed, incidents of this sort of abuse have already occurred, as when the Chief Justice Shinwari in November 2004 successfully appealed to the Afghan government to have cable television taken off the air because of its "immoral" programs that insult religion. Earlier in the year, the Chief Justice had also protested the presence of female singers on radio and television and attempted to have the practice halted, though in this effort he was ultimately not successful.

During the period that the Constitution was being drafted, the Commission met with numerous high-ranking U.S. government officials to articulate the importance of institutionalizing human rights guarantees in the document that adequately protect the rights of each individual. The Commission also briefed Members of Congress and relevant committee staff on its policy findings and recommendations. In January 2003, the Commission held an international forum, "Reconstructing Afghanistan: Freedom in Crisis?" in cooperation with George Washington University Law School, which brought together key Afghan leaders, U.S. policymakers, and other experts to discuss ways of integrating adequate human rights protections into current judicial and legal reform processes. The Commission also raised the issue of religious freedom in numerous public statements, as well as in two separate opinion-editorial articles, in The Washington Post and The New York Times, authored by Commissioners Michael

K. Young, Felice D. Gaer, and Preeta D. Bansal. In late 2003, the Commission was cited on this issue in over a dozen editorials in major newspapers worldwide.

In August 2003, a Commission delegation visited Afghanistan for an intensive series of discussions with senior officials of the Transitional Administration, U.S. officials, representatives of non-governmental organizations and of Afghan civil society, former President Burhanuddin Rabbani, religious leaders, and members of the diplomatic community, including the United Nations Assistance Mission in Afghanistan (UNAMA). In September 2004, the Commission issued a press release denouncing the Supreme Court Chief Justice's attempt to stifle freedom and electoral democracy by calling for the disqualification of a candidate who made comments of which Chief Justice Shinwari did not approve.

The U.S. government should provide the leadership, sound policy, and resources needed to secure freedom for all in Afghanistan, which is still at a juncture from which it can either move forward to secure greater protections for the rights of its people or revert to Taliban-like practices. It should also step up its leadership and engagement in Afghanistan to preserve and consolidate the Afghan people's gains in the protection of human rights, since no other nation or international institution can substitute for the United States in this daunting task, and failure will leave Afghanistan not only less free but also more unstable, thereby contributing to regional insecurity and potentially serving again as a future haven for global terrorism that threatens U.S. interests.

With regard to Afghanistan, the Commission has also recommended that the U.S. government should:

  • vigorously support respect for the right of every individual to freedom of thought, conscience, religion or belief in post-Taliban Afghanistan, and be prepared to make great efforts to ensure protection of fundamental human rights, including freedom of conscience and the equal rights of women, as outlined in international human rights instruments to which Afghanistan is a party;
  • use its influence to protect freedom of expression against charges that may be used to stifle debate, such as blasphemy, "offending Islam," apostasy or similar offenses, including expression on sensitive subjects such as the role of religion in society and the rights of women and members of minorities;
  • act to bolster the position of those reformers who respect, and advocate respect for, human rights, since those persons in Afghan society who would promote respect for internationally recognized human rights are currently on the defensive, even threatened, and these people need U.S. support to counter the influence of those with an Islamic extremist agenda;
  • ensure that its programs, administered by the U.S. Agency for International Development, to help develop primary and secondary education, including through the printing of textbooks, and to provide civic education, incorporate, as part of the content, education on international standards with regard to human rights, including freedom of religion or belief, and religious tolerance;
  • strongly support the reconstruction in Afghanistan of a judicial sector operating under the rule of law and upholding civil law and international standards of human rights, and work to ensure that all judges and prosecutors are trained in civil law and international human rights standards, women are recruited into the judiciary at all levels, and all Afghans have equal access to the courts;
  • assist legal experts to visit Afghanistan, engage their Afghan counterparts, and provide information to the Afghan public on the universality of human rights and the compatibility of Islam and universal human rights, including freedom of religion and belief, and expand existing programs to bring Afghans to this country to see how Islam and other faiths may be practiced in a free society; and
  • improve security outside Kabul in order for Afghanistan's political reconstruction to succeed, because without adequate security, the warlords will continue to hold sway over much of the country, undermining the rule of law and Afghanistan's nascent democratic institutions.

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