(CNSNews.com) - The plight of an Afghan Christian facing death for converting from Islam is refocusing attention on the new, post-transition constitutions of Afghanistan and Iraq, both of which give primacy to Islamic law but also include apparent contradictions.
Abdul Rahman, 41, was arrested last month after his family alerted authorities that he was a Christian. He converted about 16 years ago, but the allegations were raised now because of a custody dispute, according to reports.
The judge hearing his case was quoted as saying Rahman could face the death penalty if he refused to return to Islam.
The U.S. government, which led the campaign to oust the fundamentalist Taliban militia and oversee a democratic transition in Afghanistan, said Monday it was watching the case closely.
"Tolerance, freedom of worship, is an important element of any democracy," said State Department spokesman Sean McCormack.
"These are issues, as Afghan democracy matures, that they are going to have to deal with increasingly."
He urged the authorities to deal with the case transparently and according to the rule of law.
But exactly what the law says appears open to interpretation.
Afghanistan's constitution, signed into law in January 2004, includes in the preamble adherence to "the holy religion of Islam" as well as respect for the Universal Declaration of Human Rights.
Article two states that Islam is the official religion, but "followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rights."
Article three, however, states that "no law shall contravene the tenets and provisions of the holy religion of Islam."
When the constitution was being drafted, experts at a workshop hosted by the Rand Corporation suggested that the drafters use the formulation "the basic principles of Islam" rather than simply "Islam" or "shari'a" (Islamic law).
"Insertion of the term 'principles' contributes to the idea that application of Islamic teachings cannot be mechanistic, based on a frozen interpretation of Islamic law," they said in a 2003 report.
Noting that some Islamic countries were instituting extreme applications of Islamic laws, the experts said that using the "principles of Islam" phrase in the Afghanistan constitution "avoids possible misunderstanding."
In the end, however, the constitution approved and instituted in January of the following year contained the controversial article three.
"In effect, the requirement of article three abrogates any perceived suggestion of religious liberty in article two," Elizabeth Kendal of the World Evangelical Alliance's Religious Liberty Commission commented this week.
In the case of Iraq's new constitution, the document states that freedom of religion is upheld, but also says that "no law may be passed that contradicts the constitution, the undisputed laws of Islam, or the principles of democracy." (Some translations have "established" or "fixed" instead of "undisputed.")
That clause caused Iraqi Christian leaders such concern they issued a last minute plea to amend the draft, to no avail.
Ninety-nine percent of Afghanistan's 29 million people are Muslim, although a tiny Christian community has been reported since 2001 to have been boosted by the return of Afghan refugees who converted to Christianity while living abroad.
In Iraq, Christians comprise some three percent of the population of 26 million.
Under shari'a, any Muslim who abandons his faith is guilty of apostasy. According to some Islamic scholars the offense is punishable by death.
The reasoning is usually based on the Hadith, or collected sayings of Mohammed, one of which (the Sahih al-Bukhari) cites the Muslim prophet as saying: "Any [Muslim] person who has changed his religion, kill him."
But there are also passages in the Koran which appear to contradict that.
The religious freedom group International Christian Concern (ICC) on Monday cited some of these verses, including sura 2:256 ("There is no compulsion in religion") and sura 88:21-22 ["And so, (O Prophet!) exhort them, your task is only to exhort; you cannot compel them to believe."]
"If even Mohammed was commanded not to carry out punishments on those who turned away from Islam, how much less should Afghanistan's courts prosecute anyone who decides freely to convert to a different religion?" ICC said.
It noted the reference in the Afghan constitution to the Universal Declaration of Human Rights, and pointed out that article 18 upholds freedom of religion and freedom to change religion.
ICC called on President Hamid Karzai to defend freedom of religion by pardoning Rahman.
'Read the riot act'
Kendal predicted that Karzai would face "immense internal pressure to prove his Islamic credentials." She said he should also be under immense pressure from outside from donors and allies to defend Rahman's right to religious freedom.
"How can we congratulate ourselves for liberating Afghanistan from the rule of jihadists only to be ruled by Islamists who kill Christians?" asked Family Research Council president Tony Perkins.
He said President Bush should send Vice President Cheney or Secretary of State Condoleezza Rice to Afghanistan "to read ... the riot act."
"Americans will not give their blood and treasure to prop up new Islamic fundamentalist regimes."
In its most recent report on global human rights, released earlier this month, the State Department highlighted several other areas of concern linked to Islam's place in Afghanistan's laws.
Although no law prohibited proselytizing, the authorities viewed it as contrary to the beliefs of Islam, the report said, noting that both blasphemy and apostasy were offenses carrying capital punishment.
Non-Muslims faced discrimination in obtaining land and housing and in schools.
The report also noted that the law prohibited dissemination of information that "could mean insult to the sacred religion of Islam and other religions."
Ambiguity about what material was considered offensive could potentially restrict press freedom, it said.
U.S.-led forces ousted the Taliban in late 2001 after the radical militia, which then controlled most of Afghanistan, refused to hand over al-Qaeda terrorists following the 9/11 terror attacks.
Karzai in October 2004 became the first democratically-elected president, and legislative elections last year paved the way for the inauguration of a National Assembly in December.
In order to help secure the government from attacks by resurgent Taliban elements, the U.S. deploys 15,000-plus military personnel as part of a combined joint task force which also includes 4,300 troops from coalition partners including Canada and Britain.
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