The Constitution making process in Afghanistan has entered a decisive phase since the unveiling of the draft document on 3 November 2003 and as the Loya Jirga (Grand Assembly) prepares itself for the final deliberations on the document on 10 December, the process itself is emerging as a decisive ideological battle between the radicals and the liberals in the country. The constitution itself is a pointer to the path Afghanistan will tread in the forthcoming elections next summer.

The draft constitution, drafted by a 35-member Constitutional Review Commission, reflects Afghanistan's hopes for national unity after decades of strife. However, a plethora of divisive issues - such as structure and form of the government, distribution of power among branches of government, the role of the monarchy and the degree of Islam in the constitution, religious and women’s rights have sparked political wrangling between various factions resulting in two months’ delay in the release of the draft constitution.

It is evident that the constitution making process itself is emerging as a battle for supremacy between progressives like the former monarch Mohammad Zahir Shah and President Hamid Karzai, who would like the Constitution to lay the groundwork for democracy, and the conservatives, like the Defense Minister Mohammed Fahim who want to ensure Afghanistan is governed by principles outlined in Sharia. For the time being, the draft constitution appears favorable to Karzai by opting for a strong presidency and not providing for a parliamentary system of government, thereby negating his weakness of not having a party base while he contests the elections in June 2004. In fact Karzai has already expressed his desire not to run for Presidency unless Afghanistan chooses a Presidential form of government. Further the draft bans political parties with military affiliations, effectively creating impediments for elements like Defense Minister Fahim from running for public office.

In the light of the fact that Mr. Fahim is seen to be close to the New Delhi-Moscow-Teheran bloc, his marginalisation would mean a set back to India. At the same time, Hamid Karzai, largely owes his position to the blessings of the United States. The military presence of the United States in Afghanistan and the significance of retaining its influence in that country would ensure that a ruler like Karzai whose influence barely crosses the geographical limits of Kabul comes to power.

The role of religion has been one of the most sensitive areas in drawing up the draft, with Islamic parties, made up of former fighters of the Mujahideen (holy warriors), arguing for a more conservative approach than moderates in the government. The document describes Afghanistan as an ‘independent, unitary and indivisible state’, but in an explicitly religious context. The constitution asserts Islam as the state religion and bans any law ‘contrary to the sacred religion’.  The draft contains the same language as the country's 1964 Constitution to guarantee that ‘in Afghanistan no law will be made which will oppose Islamic principles’. Optimists take heart that Article 2 stipulates: ‘followers of other religions are free to perform their religious ceremonies within the limits of the provisions of law.’ But the document’s language leaves room, for suppression of speech and crimes against women.

As differences mount over the content of the constitution, analysts have expressed their doubt over the readiness of the country to gift itself a constitutional document. Barnett Rubin, who advised Afghanistan’s drafting commission, suggests that ‘Afghanistan is ‘not ready’ to produce a constitution that represents a genuine political consensus within the society or to implement many of its provisions – and will not be ready until stable state institutions develop.’ ‘Without a mass demobilization of militia troops or a means of training judges in constitutional law’, he points out, ‘there’s no reason anyone’s behavior would change as a result of a constitution’.

In addition, as the Taliban defies prophecies of doom and reorganizes itself targeting not only its traditional foes and also every symbol of western presence in the country, the engagement in constitution making process seems to be inconclusive if not meaningless. According to estimates, since August 2003, more than 400 people have been killed in Taliban attacks. While the elusive Taliban leader Mullah Omar has condemned the draft constitution, the religious clerics are extremely unhappy with the thought of Islam being accorded a secondary position. This could have major implications for the path Afghanistan constitution making process will take as it delicately treads between Islam and democracy.

It is imperative that the United Nations and the international community push for provisions ensuring the protection of core human rights in this document. The Loya Jirga includes many who want to make the final document more conservative. The time is right for the international community to weigh in. This constitution must provide an enduring promise to all the Afghan people that their most basic freedoms are inalienable, not to be granted or withdrawn easily by a government, its courts or its religious leaders.