Recently in Afghanistan a young man–Parwez Kambakhsh–was arrested, imprisoned, tried, found guilty, and sentenced to death. After the death penalty was announced, demonstrations were held in the streets applauding the verdict and prominent clerics declared that he deserved execution.
Kambakhsh was condemned for blasphemy—the crime of holding an idea—against Islam in the Islamic Republic of Afghanistan. He also attempted to disseminate those ideas and was tried for that as well.
What was the blasphemous idea? That a woman is a human being and has rights.
Many commentators have said that this case shows the lack of independence of the Afghani judiciary. Media and human rights organizations have expressed their concern over the apparently growing influence of Islam seen in this case. Brad Adams, the Asia director for Human Rights Watch, decried the lack of “judicial independence” shown by this case.
As to how the trial was conducted, one reporter noted that “Kambakhsh’s supporters have said the case should be thrown out because the previous trial was held in secret and he was denied legal representation—not an uncommon occurrence in Afghan courts. Reformers say the case exemplifies the continuing failure of the Afghan government to establish a free and independent judiciary.”
To many in the West, it seems obvious that the judiciary should be free from Islam and conducted according to the rules of due process. And after a worldwide outcry against the court’s original ruling, an appeals court recently commuted the sentence to 20 years in prison. But what is responsible for the courts’ rulings in the first place?
Most commentators agree that the courts’ decisions were undemocratic. But democracy per se does not tell you what type of decisions a court will make. Democracy is just majority rule. It does not guarantee any particular policy (such as the protection of free speech). All that democracy means is that laws are enacted on the basis of popularity. The courts’ decisions and treatment of intellectual beliefs as criminal acts are perfectly consistent with what’s popular in Afghanistan. Contrary to common belief, including the beliefs of media and human rights organizations commenting on this case, intellectual freedom and due process are not a part of democracy.
The judicial system is a branch of government, not a different tree – not an independent entity. There is no such thing as a court free from the government and laws that govern it. The legislature writes the laws and the judicial system is the messenger of those laws. In a democracy, the foundational principle is that the will of the majority directs the actions of government. Kambakhsh’s case is a straightforward reflection of this–the majority has voted for and endorsed the implementation of religious law.
Reports condemn what they regard as an unfair trial without identifying that the lack of due process is merely a symptom. The sickness itself is mob rule, which in this case happens to be based on Islamic ideals.
If one wants to oppose such governmental power, one ought to ask: What is the argument for the limitation of democratic process to the election of the political representatives rather than the core policies of government?
The argument is the original American idea of individual rights. It is the idea that an individual is properly free to pursue his own happiness, regardless of what a majority thinks. The only argument against the condemnation Kambakhsh may suffer is that a government’s proper function is to act in accordance with a Constitution specifically formulated and dedicated to protecting individual freedom—and that any other form of government is evil and invalid.
The American Founders, who fought a war for rights, understood that the answer to dictatorial, monarchical tyranny is not mob tyranny, but individual rights. A lesson we would do well to remember as an Afghan man is condemned for joining that fight.
