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Privacy in Muslim constitutions and Karzai's refusal to sign the Bilateral Security Agreement

- January 2, 2014

Corri Zoli is an assistant research professor at the Institute for National Security and Counterterrorism (INSCT) – a joint graduate research center at Syracuse University’s Maxwell School and College of Law. Emily Schneider is a research assistant at the New America Foundation in the National Security Program. She is a recent graduate of Syracuse University’s College of Law.
Afghan President Hamid Karzai attends the Afghan loya jirga on Nov. 24, 2013. (Massoud Hossaini/AFP/Getty Images)
As the original Dec. 31 deadline set by the United States passes, Afghan President Hamid Karzai is causing a potential setback in international and U.S. relations in his refusal to sign the Bilateral Security Agreement (BSA) — the long-awaited deal to right-size U.S. force commitments after December 2014 (from 47,000 to 10, 000) and provide a legal framework for U.S. training and counterterrorism operations.  Instead of the quick fix expected by all, including Karzai who had agreed to the deal, the BSA has become the latest object of the president’s political schemes as he prepares to leave office in the spring. The Loya Jirga, the grand assembly of Afghan tribal leaders, convened on Nov. 21 to review the security agreement’s details offered unanimous support and asked for the president’s signature without delay. Karzai, present at the conclusion of the jirga’s four days of deliberation, refused to sign. As former Afghan President, parliament speaker, and chairman of the jirga Sibghatullah Mojaddedi said to Karzai: You should sign it; this is our request, …and if the president does not sign it, I will promise you that, as I am a servant of this nation who has served these people for 40 to 50 years, I will resign and I will leave this country. Mohaddedi has since left for Turkey.
In his most recent comments, two main sticking points appear to be driving Karzai’s delay: (1.) his demand for a total ban on counterterrorism (CT) raids by NATO forces, particularly as these raids include entering Afghan homes at night; and (2.) greater U.S. initiative to broker a peace process with the Taliban. The second issue is complicated by Karzai’s conspiratorial belief in U.S. “secret contacts” with the Taliban and his desire for a legacy as a strong leader outside U.S./foreign influence.
Constitutional Language and the Sanctity of the Home
Our focus — using social science data collected over the last two years — is on the first issue: the seemingly outsized emphasis on the sanctity of Afghan homes. While it’s no secret that negative Afghan public opinion swirls around civilian deaths from raids — rightfully so — Karzai’s antipathy toward raids, we believe, reflects something deeper, beyond his political machinations, embedded in norms shared across Muslim communities.
While there are many ways of identifying such norms and many challenges in moving beyond often individually-focused western notions of human rights, our research has examined the constitutional language of all Muslim states’ constitutions from 1947 forward. Thus far, we have examined each constitution for contributions from both Islamic law (or Shari’a) and modern international law, notably the Universal Declaration of Human Rights (UDHR), whose articles are prevalent among many constitutions. A closer examination of the constitutional language of the 57 Muslim states that belong to the Organization of Islamic Cooperation (OIC) shows that Karzai’s sensitivity to raids on homes — with an emphasis on the home’s inviolability — is a view widely shared by Muslim states.
Of the 57 states, all but two, Malaysia and Brunei, recognize the right to privacy in the home as a constitutional guarantee. Afghanistan’s constitution, Art. 38, holds: “property is immune from invasion,” and “no one, including the state, is allowed to enter or inspect a private residence without prior permission of the resident or holding a court order.” Iraq’s constitution holds that the “sanctity of the homes is inviolable and homes may not be entered, searched, or put in danger, except by a judicial decision, and in accordance with the law.” Pakistan’s constitution states that “the dignity of man and, subject to law, the privacy of home, shall be inviolable.” Saudi Arabia’s constitution (or the Basic law, adopted 1992) uses expressly religious language in Art. 37: “The home is sacrosanct and shall not be entered without the permission of the owner or be searched except in cases specified by statutes.”
In certain obvious ways such articles echo privacy protections, conventional across modern constitutions, and evident in Art. 12 of the UDHR:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
But this equation — the simplistic link to generic privacy in constitutions — would be limited and somewhat flawed, not the least because it ignores the evocative and often religious language (sanctity, sacrosanct, inviolable) attached to this right. In fact, this norm taps into values that offer distinctive insights across the Muslim world whose resonance gives clues for achieving postconflict stability in Afghanistan and elsewhere.
While the academic study of Islam and human-rights norms has evolved from divergence, to concern with harmonies, to a present focus on context-sensitive interpretation, well-known polemical discussions by Islamist philosophers during the 1970s Islamic revivalism often still frame public debate. Syed Abul A’la Maududi, for instance, whom many credit with the Islamization of human rights, explains the “sanctity and security of private life” under Islam “as the right of every citizen, that there should be no undue interference or encroachment on the privacy of his life.”  What Maududi makes clear is how much sanctity and security go together in the special venue of the home and, further, how this view of security includes a pathway for freedom from (and resistance to) government intrusion, domestic or foreign. In making this link, Maududi grounds his case in the Koran, typical in this genre: “Do not enter any houses except your own homes unless you are sure of their occupants’ consent” (24:27). He expands privacy by noting the Prophet himself instructed “that a man should not enter even his own house suddenly or surreptitiously,” but must “inform or indicate to the dwellers . . .that he is entering. . . so that he may not see his mother, sister or daughter in a condition in which they would not like to be seen.” In keeping with the Shari’a focus on both formal law and rules for interpersonal behavior, privacy protections for the home have moral, modesty, and gender implications and comprise highly regulated interpersonal rules for entry. Failure to comply with these codes and norms on a regular basis translates into a blatant disregard for cultural customs in the eyes of ordinary Afghans that may delegitimize military operations, undermine the credibility of postconflict stability operations, and even strengthen rival power centers or leadership.
Maududi goes further, arguing that such is “the sanctity of privacy that Islam grants to individuals” that this perceived right, laid down in the Quran, stretches so far as to permit religious prohibitions — or checks — against government itself, evident in this injunction against espionage: “Do not spy on one another” (49:12). “Peering into the houses of other people has also been strictly prohibited, so much so that there is the saying of the Prophet that if a man finds another person secretly peering into his house, and he blinds his eye. . . he cannot be called to question nor will he be liable to prosecution.” Maududi refutes how espionage is often “justified on moral grounds” as “necessary to know the secrets of dangerous persons” — evidence of “the fear and suspicion with which modern governments look at their citizens who are intelligent and dissatisfied with the official policies.” Such excuses are “exactly what Islam has called as the root cause of mischief in politics,” he notes, turning to Amir Mu’awiyah’s hadith: “If you try to find out the secrets of the people, then you will definitely spoil them or at least you will bring them to the verge of ruin.” By “spoil them,” Maududi refers to “when spies…spread all around the country to find out the affairs of men” and “the people begin to look at one another with suspicion,” thus, becoming “afraid of talking freely in their houses lest some word should escape from the lips of their wives and children which may put them in embarrassing situations.” “In this manner,” he argues, “it becomes difficult for a common citizen to speak freely, even in his own house, and society begins to suffer from a state of general distrust and suspicion.”  Here, the house protects against corrosive government intrusion, signifying one of the few arenas in which freedom of expression is practiced and religiously guaranteed in modern Muslim life.
It is no surprise, then, that Karzai invokes this elemental Muslim norm to achieve multiple goals at once: political credibility in the eyes of the people (not Afghan elites); an opportunity to bolster international support for Muslim notions of human rights in postconflict settings; a chance to call into question a counterinsurgency tactic that has questionable utility; and the desire to reserve control of the home for the individual, or at least, the Afghan government, better at navigating the religious guarantees surrounding privacy in the home than NATO forces.
The Social Science-Security Policy Nexus
There is little doubt that constitutions — and contestation over them — in the post-Arab Spring moment (and beyond) are bellwethers for transition processes. These elemental documents often become the ‘go to’ means by which victorious political coalitions consolidate power and identity, and for our purposes, define its terms. But these documents may also provide context for when transition fails.
There is no doubt that the push and pull between Karzai and the United States is reverberating in Afghan society — a USIP survey finds Afghan political elites support the BSA — in U.S. domestic politics, where many see an ungrateful Afghanistan unconcerned with U.S. sacrifices in blood and treasure, and across the wider international community, as NATO partners hesitate until the BSA is signed. Iraq’s own refusal to sign its security agreement in 2011 (as a rare visit by top Iraqi foreign minister Hoshyar Zebari made clear) and its subsequent descent into chaos stands as a cautionary tale to Afghan domestic communities and would-be investors. While it’s thus fair to blame Karzai’s leadership for the diplomatic drama, the long-term health of Afghan governance is better served if we ignore the mouthpiece and focus on the message — one that reverberates across the Muslim world and sets (implicit or explicit) conditions for good faith partnerships for stability. While Karzai’s predations will likely continue (even after he leaves office), it is best not to give him and other conflict actors cover for manipulating already contested values in the service of narrow politics, including the politics of violence. That Afghan political elites are clamoring to adopt the BSA, including its CT measures, indicates, at the very least, a desperate need for postconflict international support in and beyond security initiatives.
Our research, thus, aims to mitigate the all too common pattern in which cultural differences (on both sides) are misunderstood or neglected, then exacerbated in the conflict environment, and, finally, underestimated in their policy implications, particularly for stability efforts. This is not to say that NATO and Afghan security force partners can’t come up with alternative CT tactics — indeed, they must for the sake of Afghan security — but they will need to do so in the context of hot button issues, interlaced with international and local norms and power hierarchies, that frame sustainable, multilateral partnerships.