Law concepts and applications

Legal pluralism is among the greatest challenged confronting democratic societies today (Van Cott 2000). It is that of incorporating populations of distinct group identities and cultural norms into a single polity under a constitution, which reflects and affirms the different identities and norms of the citizens. The most important factors affecting the practical realization of legal pluralism have been identified as the capacity of the political system; the legal tradition and society, which will incorporate and tolerate the diversity; the geographic isolation and alienation of the indigenous communities; the degree of division among these communities and movements in general; and effective legal mechanisms available to indigenous communities seeking to protect this right in particular. In the last decade, ethnic communities have demanded this right and new constitutions have successfully evolved (Van Cott). But this trend may not be easily duplicated in other countries, such as Iraq and Afghanistan.

The critical issues confronting the Interim Government of Iraq include the Kurdish desire for federalism and a vetoing of the constitution; Sh'ia resistance to separatism and minority veto rights; religious demand for the recognition of Islam as the exclusive source of legislation; and the increasing hostility of the Arab Sunnis, who faced marginalization (Yaphe 2004). The Interim Government of Iraq was formed on June 1, 2004. Most Iraqis were grateful about the end of the tyrannical Saddam regime. They and the U.S. expected the transition from oppression to democracy to be smooth and quick and that Iraqi political elites would swiftly ensure democratic rule. But many of them have suspected that the United States would withdraw from them or retain control through appointed puppets and leave the Iraqis to solve their own political, economic and military problems. The swift victory and change of regime were accomplished, but the prompt reconstruction of the Iraqi polity and economy has yet to be achieved. That success now hinges on the outcome of three conditions: an imminent civil war, transitional governance, and political institution building (Yaphe).

Anti-American violence has been increasing (Yaphe 2004). The imminent civil war is not likely to be between the Sunnis and the Shi'a, or between the Arabs and the Kurds. The clashes in many parts of the country were clearly a series of planned and coordinated attacks on U.S. forces and civilians working on the reconstruction plan. The civil war is seen as likelier between religious extremists Sunni and Shi'a. Iraq is made up of 60% Shi'a Arab, 20% Sunni Arab and 20% Kurd. Sunni and Shi'a Arabs stand for Iraqi nationalism and want to maintain the country's political and territorial integrity according to the 1920 San Remo Treaty and the 1932 Treaty of Independence. And the Iraqi Kurds want to be part of Iraq only at the moment and their reluctance towards permanent status is a clear impediment to constitutional and territorial concessions. The second condition, which must be handled, surrounds the fate of transitional governance. Its nature, selection, and who would serve the cabinet posts were the points of dispute between the Coalition Provisional Authority and the Iraqis. The Governing Council apparently preempted UN-U.S. efforts to form the new interim government by choosing a new president, two deputy presidents and a prime minister. Elections would not ensure perfect democratic governance or a pro-American government, but should reflect the consensus of the majority of the Iraqi people. What it took Britain to achieve a truly representative government after 900 years and the United States more than 225 years and a civil war has been made the goal for the Iraqis in only a year. And the third condition brings out the Governing Council's lack of legitimacy and the still undefined nature of political institutions. These issues cannot be resolved soon. The U.S. needs to pass on real and transparent decision-making power on to the Iraqis (Yaphe).

The Iraqis and their neighbors can come to see future U.S. intentions as it behaves at present (Yaphe 2004). It cannot appoint advisers for multi-year terms, write Iraq's constitution or favor one party over another. These are the jobs and prerogatives of the Iraqis themselves. It can only encourage and inspire secular government, the rule of law and equal opportunities for all Iraqis. Most importantly, the U.S. cannot just cut and vanish from the scene. Abandoning transition efforts at this time can compound U.S. problems, according to critics. A workable transitional administrative law may be the need of the hour. It should take a number of things into consideration: Islam as the official religion of the country and also its source of legislation; Iraq's many but inseparable nationalities; Iraqis' capability to educate their children in their own official languages in state and private schools; a sense of equality among all Iraqis, regardless of gender, sect, opinion, belief, nationality, religion or origin; and the armed forces and intelligence services under civilian control and all military personnel prohibited from holding public office and activity (Yaphe).

The citizens of Iraq are tired of conflict, abuse, repression, insecurity and neglect (Veneman 2004). They would want to build better lives and are grateful for the opportunity for stability and normalcy afforded by the U.S. The citizens of Afghanistan share the sentiment as another country undergoing massive transition in its own way and with its own starting point (Veneman). Afghanistan now appears to be the harshest, most brutal, most terrifying, unhappiest and most dangerous place in the world (Current Events 2001). It cannot be compared or identified with just other countries. There are only piles of dusty rubles where cities used to be, few usable roads, few safe bridges and nothing, which are normally found in most countries. Its hard-line Islamic rulers, the Taliban, have banned or forbidden whatever has remained from more than two decades of war. The Taliban prohibits everything that comes from Europe and the United States, including Western clothing. Women cannot work or even work outside the home without a male as company. It controls around 90% of Afghanistan. It is ruled by a religious council, headed by a supreme leader. The present supreme leader is Mullah Muhammad Omar, who claims to be an Islamic holy man, who receives directions directly from God. This council gives directions to religious police to punish violators of Taliban's laws. Millions of Afghans must bear not only severe Taliban rule but also the conditions and threats of war from the enemies of Taliban. U.S. warplanes have mounted attacks on targets and strongholds where the terrorist leader, Osama bin Laden, may be hiding. U.S. officials believe he led the terrorist attacks in New York and Washington DC on September 11, 2001. U.S. special operations forces on the ground support the rebel Northern Alliance in northern Afghanistan and direct the bombing. U.S. officials believe that they can achieve their objective in Afghanistan if the U.S. does not try to occupy the country as the Soviets did and if Afghanistan cooperates in establishing a government, which will be acceptable to all Afghans. As the fighting rages, U.S. diplomats have been working on the plan to replace the Taliban with another government. Many invaders have for centuries tried to assert their will on Afghanistan but few have succeeded for long. Many wonder what measures should be undertaken by the U.S. To accomplish its purpose (Current Events).

US President George W. Bush vigorously emphasized the importance of human rights and democracy as America's foreign policy (Shea 2002). On September 11, 2001, he declared that America would work "to extend the benefits of freedom and progress to nations that lack them." The consequent political reconstruction of Afghanistan and the substantial American involvement and financing emanated from that declaration. Despite this, the danger loomed that Afghanistan would be reconstructed as an Islamic state under hard-line sharia law. Under the Islamist version of sharia, courts have the authority to pronounce and enforce strict and all-encompassing codes of behavior, according to the literal reading of the Koran. These courts use ancient rules of evidence and apply corporal punishment. The final rulings of their criminal courts are viewed as deriving from diving law and, as such, cannot be criticized or changed. They deny the broad range of human rights, equality under the law, non-discrimination, and the right not to be tortured. President Karzai appointed Shinwari to head the Supreme Court. Shinwari told the international press that under the new government, adulterers would be stoned to death, the hands of thieves cut off, and alcoholics lashed 80 times. He opposed the practice of Christianity, as the sharia forbids. He said that violators can punish violators, expel or execute them. Under the sharia, a violator has only three options: he can politely accept Islam when he is invited, obey it or be beheaded. Two weeks after his appointment, Shinwari stressed that Afghanistan would continue to be an Islamic state under the all-encompassing sharia law. He clarified that there could be no "Western-style government" in Afghanistan. He said that no one would accept it, as only an Islamic government was acceptable to the Afghan people (Shea).

President Karzai confirmed that the sharia would remain as the law of the land but gave assurances that amputation punishments would not be enforced (Shea 2002). He stressed that very strict rules applied in such cases. Extreme sharia had no room for checks on judicial power. Extreme sharia's all-powerful judicial mechanism excludes democracy and sharply reduces human freedom. With its 7th-century laws and punishments, the Supreme Court was not only another branch of government but the very seat of power. Countries with religious judges were in direct command of coercive powers. The president or parliament could not override their decisions and no politician or journalist could criticize them. It would be blasphemy to do so. With the drafting of a new constitution after a year-long process, the country's legislative body could prevent the portent spoken of by Shinwari. It would be crucial to the protection and expansion of human freedoms that Afghanistan not be defined as a sharia state; that the judiciary not be given control over law enforcement; that sharia jurisdiction exclude criminal law; and that the training in human-rights jurisprudence be required of all the members of the Supreme Court (Shea).

Those involved in formulating future policy in Afghanistan may find certain observations worth considering (Maloney 2004). Most of Afghanistan is in a post-Apocalyptic environment. The ideological and spiritual wreckage inflicted by the Taliban on Afghan peoples would equate with a drought brought about by the destruction of irrigation systems and aquifers by Soviet explosives and tanks. Illiteracy in Afghanistan was reaching 80 to 90%. Most of its infrastructure was desolate and there was virtually no industry. "Doctors" in remote villages were only second-generation descendants of Western-trained medical people. It would be in the Year Zero. Many civil institutions were headed by men in their 70s because they were the only surviving memento from the pre-Soviet period (Maloney).

It would be counterproductive to reconstruction objectives and efforts to antagonize "warlords" or call them to account for their violent operating methods under Western legal structures (Maloney 2004). The tendency to be judgmental must be resisted. It would be advantageous to work with them. Outright removing them would trigger waves of violence, which could defeat or destroy what had been already been built and achieved (Maloney).

Democracy and human rights in Afghanistan, according to Western concept and understanding, might not be feasible or possible in the short-term (Maloney 2004). Inter-tribal and inter-ethnic politics in the country were and have been complex. Its high level of illiteracy and the perceivably high levels of political intimidation, which could accompany any Western form of electoral process could suppress or defeat the mere concept of democracy. Modernization, rather than democratization, should be the initial concept. The Afghan people have a traditional system and the issue would be whether they could or should change it to satisfy outsiders (Maloney).