Introduction
President Biden’s declaration of US withdrawal from Afghanistan has raised concerns about the future of the Afghan constitutional system. Afghanistan’s current Constitution was adopted in 2004. During the process of the drafting of this Constitution, the role of Islam in the legal system and the type of the government were two most contentious issues. Foreign powers and Western media were skeptical about the compatibility of Islam with international human rights law especially related to the rights of women and religious minorities. Therefore, the Constitution assigned a symbolic role to Islam in the legal system while requiring the State to observe the UN Charter and the Universal Declaration of Human Rights. Such was the fear of the enforcement of Sharia in the legal system that the Constitution opted to embrace powerful Presidency and weak Supreme Court to dilute the effect of Islamic repugnancy clause as laid down under its article 3 that tried to appease Islamists. (President Hamid Karzai dropped the idea of the Constitutional Court from the Draft Constitution, arguing that it may act like Iran’s Guardian Council to establish theocracy). An unintended or perhaps intended consequence of such constitutional design has been the absence of adequate institutional check on the executive authority and lack of enforcement of constitutionally guaranteed human rights that have been frequently violated by the Afghan government, foreign troops, and non-state actors such as local warlords and the Taliban.
Now that the foreign troops are set to leave Afghanistan by September this year, will the current constitutional system survive or accommodate the changed political reality? It is this specific question that I want to explore in this blog post.
Embracing Ideals but Not Institutions
One of the key strengths of the 2004 Constitution is that it combines allegiance to Islam and adherence to human rights. The Constitution declares Afghanistan an Islamic Republic and provides that “no law shall contravene the beliefs and rulings of the holy religion of Islam in Afghanistan.” Such endorsement of Islam in the Constitution is unsurprising as Islam had a prominent role in all Afghan constitutions since the adoption of its first constitution in 1923 simply because the overwhelming population of Afghanistan (about 99.7%) professes Islam as its religion. Indeed, Islam plays a crucial role in state-building in ethnically diverse Afghan society. Simultaneously, the Constitution enshrines several fundamental rights and freedoms including the right to equality, life, liberty, property, work, due process of law and education, and freedom of expression, thought and association.
While the 2004 Constitution succeeds in combining Islam with human rights norms, it fails to establish an institutional mechanism for the realisation of the ideals of the rule of law and accountable, limited, government — endorsed both by Islam and human rights law. This is a fatal constitutional flaw since one of the most important functions of a constitution in divided societies is to provide an institutional mechanism to resolve political conflicts through negotiations to avoid recourse to violence. Rather than resolving political differences through dialogue, the institutional structure under the 2004 Constitution has exacerbated them by ambiguously assigning the interpretative and review authority to the Supreme Court as well as the Independent Constitutional Implementation Commission. As a result, human rights abuses and corruption became rampant while the executive authority of the President and other government functionaries remained unchecked. This has adversely affected the public perception about the legitimacy of the current constitutional order.
Islamic Republic v Islamic Emirate
Indeed, it is the rampant corruption and ineffective governance that bolster the Taliban’s rejection of the republican form of government in favor of their “Islamic Emirate”. Ostensibly, the Emirate system of governance bears a close resemblance with the Afghan presidential system. The Taliban constitutional charter, available in the draft of 1998 ratified in 2005, however, does not specify the selection process of the Amir. The Amir, who will be a male Muslim and follower of the Hanafi school, appoints the members of the legislature, the Islamic Council, and the judges of the supreme court. While the Taliban charter ensures independence of the judiciary, it assigns the duty of the interpretation of the charter to the Islamic Council rather than the supreme court. This however does not mean that the Taliban do not appreciate the institutional structure of the modern nation state. The Taliban charter proposed the office of the prime minister and recognized the distinction between the head of the State, Amir, and the head of the government, the prime minister.
Curiously, the Taliban charter also enshrines a bill of rights that includes human rights such as the presumption of innocence, prohibition of torture and forced confession, rights to life, liberty, privacy, due process of law, legal representation, freedom of expression (within the limits of Sharia), peaceful assembly, property, and work, and primary education. But the Taliban charter does not mention public participation, not even through the participatory process of loya jirga (grand assembly) that is deeply entrenched in Afghan history.
Reconciliation between the Republic and Emirate
Frequent references to Sharia in the Taliban charter and their public statements indicate that they believe that the source of legitimacy for state governance is Sharia rather than public support. The republic under the 2004 Constitution vests sovereignty in the people to be exercised through their chosen representatives in a system based on the separation of powers. The emirate in contrast vests sovereignty in Allah (ordained through Sharia) to be imposed by the Amir in consultation with a council in a system that is based on the presumption of the piety and incorruptibility of the Amir and his chosen council (hence there is no need for separation of powers). Such formulations of the republic and the emirate make them not only conflicting but also mutually exclusive. The clash between the sovereignty of the people and the sovereignty of Allah appears irreconcilable. Is there a way out?
Like all ideals, republic and emirate systems are prototypes, pristine and exclusive as ideas but flexible to accommodate reality. Afghans need not see far back in their own constitutional history or in the contemporary constitutional models in neighboring Muslim countries that have assimilated Allah’s sovereignty with public representation. For instance, the 1964 Constitution of Afghanistan declared Islam as the state religion but provided that national sovereignty belonged to the Afghan people. An example of the combination of God’s sovereignty with the representative form of government could be found in the preamble of the Constitution of the Islamic Republic of Pakistan, which provides, “Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust.” Similarly, the experience of neighboring Islamic Republic of Iran, run by fuqaha (jurists) for the past four decades, provides many insights about the workings of an ideal type within the intuitional framework of a modern nation state.
In many Muslim-majority countries, public debates have progressed from the question of compatibility of democracy with Islam, and are now focused on devising the institutional form of democracy specific to their respective social realities and determining the role of Islam in political governance. After much scholarly debate, it has been realised that, far from being conflicting, theocratic sovereignty and public sovereignty are mutually reinforcing since God’s authority on earth is vested neither in rulers nor in jurists but in the entirety of Muslim ummah.
Conclusion
The history of Afghanistan suggests that its current constitutional system is capable of accommodating the Taliban’s demand of the enforcement of Sharia as interpreted by the Hanafi jurists. Indeed, adherence to the Hanafi school has been the permanent feature of the Afghan legal system ever since the amendment of its first Constitution in 1925. (The modernist King Amanullah Khan, who promulgated the first Constitution in 1923, was forced in 1925 to declare that the Hanafi school was the official school of jurisprudence). More pressing issues that will require consideration relate to the role of Islam in political governance and the vesting of interpretative authority of Islam in particular persons or institutions in Afghanistan. Precisely, these issues relate to the questions: what and how much role should Islam have in the political and legal system? Who should have the authority to interpret the divine texts of Islam and in which institutional form e.g., advisory board of ulama or Islamic judicial review and under what procedures? It seems that both the Taliban and the current Afghan government are least likely to discuss these structural issues because it will expose their idealist positions and will subject their conduct to public scrutiny and accountability—dreaded by both religious and political elites.
Suggested citation: Zubair Abbasi, Beyond Republic or Emirate: Afghan Constitutional System at Crossroads, Int’l J. Const. L. Blog, Apr. 27, 2021, at: http://www.iconnectblog.com/2021/04/beyond-republic-or-emirate-afghan-constitutional-system-at-crossroads/
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