As talks between the US and the Taleban move forward, we are starting to see the contours and obstacles to peace in Afghanistan. One of the possible obstacles to reaching an agreement is the Taleban’s view that Afghanistan’s current constitution is unsuitable and unacceptable. Ghizaal Haress, a prominent Afghan lawyer and a member of the Independent Commission for Overseeing the Implementation of the Constitution, takes a closer look at the Taleban’s position and discusses how this relates to the realities of Afghanistan’s constitution and how it was arrived at.
During the February meeting in Moscow, Taleban representative Sher Mohammad Abbas Stanikzai highlighted the constitution of Afghanistan as a major impediment to peace. He labelled it “the constitution of the Kabul Administration” and dismissed it as invalid, copied from the West, imposed on a Muslim society, and arbitrarily implemented. According to the Taleban, for the constitution to be acceptable to them it must be based on Islamic principles, national interests and historical achievements. It must also ensure human dignity, national values, social justice and human rights, as well as guaranteeing Afghanistan’s territorial integrity. The draft of such a constitution, he added, should be prepared by autonomous Afghan scholars in an atmosphere of freedom.
As a commissioner on the Independent Commission for Overseeing the Implementation of the Constitution, I would be the first to acknowledge that Afghanistan’s constitution has numerous shortcomings and challenges to its implementation. However, I believe, the Taleban are wrong on multiple counts regarding the Afghan constitution. I will argue below that the constitution is in fact a constitution of the Afghan People, that Islamic principles have been written into the very fabric of the document, and that what the Taleban consider its vagueness, in fact provides necessary flexibility for interpreting and adapting the document. I finally make the case that rather than discarding this historical achievement, it would be much better to find ways to bridge our political differences within the framework of the current constitution.
A constitution of the Afghan people
The constitution of 2004 is in many ways unique compared to all its predecessors. With the exception of the constitution of 1964, all previous Afghan constitutions were drafted as a result of regime change, and were used to consolidate the power of the new ruler. Public participation was a missing element in the formulation of all these constitutions, with the Jirgas that approved them being mostly appointed. These constitutions were thus made and endorsed by a circle of people close to their rulers, without the involvement or consensus of the wider population. Therefore, these constitutions did not endure when these regimes changed, as the people – often disillusioned – saw them as the tools of failed administrations, rather than a constitution by and for the people.
In this long view, the 2004 constitution cannot simply be seen as “of the Kabul Administration”, since its formation between 2002-2003 was the most rigorous and consultative in the history of Afghanistan. The process, outlined in the Bonn Agreement, was led by Afghans. The process took 18 months and was led by two commissions – the Constitutional Drafting Commission and the Constitutional Review Commission – comprised of Afghan experts (with 9 and 35 members respectively) that drafted and reviewed the draft constitution. It included travel to the then-32 provinces, and two neighboring countries (Iran and Pakistan) to consult with the Afghan diaspora and an electoral college of 19,000 people. They, in turn, elected 502 Loya Jirga members who discussed and approved the constitution. This makes it one of the earliest and biggest achievements of the post-2001 generation.
An informal men’s caucus at the 2003/04 Constitutional Loya Jirga. Photo: Thomas Ruttig/2003
The Constitutional Review Commission, over the course of two months, managed to run an unprecedented public consultation. As described in this UN Report, the commission initiated the public consultation after a month-long awareness campaign on the role and importance of the constitution. The report indicates that “178,000 Afghans, 19 per cent of whom were women, participated in more than 556 meetings to discuss the draft. In addition, over 50,000 written surveys were submitted.” According to the International Crisis Group, the commission solicited views of people from various backgrounds and walks of life, including “elders, ulema (Islamic scholars), women, business groups, youth groups, Afghan employees of NGOs and international organisations, and former Emergency Loya Jirga delegates.”
The public consultation process also included institutions and individuals taking the initiative to present their recommendations and concerns to the constitution-making entities. In 2003, hundreds of institutions and associations, as well as numerous individuals, presented written submissions to the Commission. I remember how my office at the time, Global Rights, facilitated a process whereby a group of 40 judges, lawyers and prosecutors held several discussions, and then presented their collective views to the Constitutional Review Commission.
Public participation has many strategic advantages. I would, however, like to focus on two in this piece. First, participation and consultation reinforce the legitimacy of the constitution as “the people’s constitution.” Second, they lay the foundations for the acceptance and respect of the prospective constitution by citizens. Thus, public consultation empowered the Afghan people to engage in the making of their constitution and allowed them to participate in the public affairs of their war-torn country. This enhanced the legitimacy of the document, ensured its broad consensus and endurance and left less space for grave disagreements in the years to come.
The implementation of the public consultation faced a number of challenges (as described in the ICG report), including inadequate public education, the absence of a draft constitution during the consultations, and uncertainty around the use and incorporation of the comments into the final draft. Nevertheless, despite minimal experience, resources and the availability of technological facilities, the process was kept open to recommendations and submissions, and the commission reached out to a vast number of Afghans, as well as the diaspora in Iran and Pakistan, and brought back common insights and concerns to the commission in Kabul. The Commission may not have had time to process all the data or to systematically use it in the final draft, but the fact that the commission reached out to people, and was accessible to all citizens, made it an inclusive and participatory process that was broadly hailed by the Afghan people.
Islam in the Afghan constitution
The Taleban claim that the constitution is not based on the principles of Islam; however, Islamic principles and values are written into the fabric of the constitution. The very first two articles of the constitution define Afghanistan as an Islamic Republic and recognize Islam as its religion. Article 3 proscribes laws that contravene the tenets and rulings of Islam in Afghanistan. (1) Articles on education require the state to focus on developing religious teachings, regulate and improve religious institutions, including mosques, and devise educational curricula that includes the tenets of Islam. (2) The constitution requires presidential, and vice-presidential candidates to be Muslim, and to obey and protect the religion of Islam. (3)
On the judicial front, the constitution requires members of the Supreme Court to ensure justice in accordance with the tenets of Islam. It also obligates judges to apply provisions of Hanafi or Shi’a jurisprudence (as applicable) while deciding on cases, in the absence of relevant provisions in the Constitution or other laws. (4) The constitution guarantees the right to form political parties, but prohibits their manifesto or charter to contravene the religion of Islam. (5) The combination of these provisions enshrines Islam as the bedrock of the state.
An Afghan or a western document?
The Taleban’s claim that Afghanistan’s constitution has been copied from the West is part of a wider view that often dismisses the progress of the last fifteen years as “western” in nature. This argument is often presented without much rigour and, for the 2004 constitution in particular, the argument does not hold. The 2004 constitution drew heavily on the 1964 constitution, so much so that it created disputes within the drafting and review commissions, with some arguing that Afghanistan should adopt more modern constitutional provisions, rather than going back to a constitution adopted 40 years before. The structure and powers of judiciary and parliament, as well as the fundamental rights provisions, all have strong similarity in content and wording with the 1964 constitution.
Western influence and cooperation
While I claim that the constitution was Afghan-made and led, it can be argued that this was offset by the fact that there was considerable international influence and cooperation in the process. Decades of war and political turmoil in the country, particularly between 1992 and 2001, had left Afghanistan devastated. The state’s institutions and infrastructure were largely destroyed, poppy had become the main cash crop and a major driver of the nation’s economy, formal legal and judicial institutions became dysfunctional, and women were systematically denied their basic human rights.
Given how the country was left shattered in 2001, there was great need for international support, as recognized by both Afghans and the administration of the time, to rehabilitate state institutions and begin processes for social and political development in the country. Without international support, the broad-based constitution-making process would never have been realised. While in an ideal situation, Afghans would have wished to see the process solely handled by Afghans, dependency on foreign aid left Afghanistan reliant on donor countries.
Notwithstanding the claims of intervention in the process, there is little evidence of direct international influence in the substance of the constitution, particularly none that goes against accepted social and religious norms. For instance, during the drafting of the Afghan constitution there were international technical advisors, but their role was minimal. The Afghan members paid little attention, if at all, to their international and comparative expertise, as they wished to maintain Afghan ownership of the process. One of the advisors, Professor Yash Pal Ghai, an internationally renowned constitutional lawyer from Kenya, who I met in 2015 in Budapest, told me how underutilized he had been at the commission. The commission and its leadership largely ignored the discussion papers that were written by Ghai and his international colleagues.
One of the issues that the Taleban particularly tend to associate with the influence of the international community is the issue of human rights. It is true that there were efforts by the international community to ensure that the new constitution would safeguard fundamental rights. However, in view of the widespread violations of human rights and women’s rights in the period before 2001, this was obviously not a purely international concern. A large number of national organisations, including the members and secretariat of the Constitutional Review Commission, were heavily involved in demanding better protection of fundamental rights, particularly those of women and minorities. It would be unjust to argue that human rights were only a concern of the international community and that Afghans did not voice their concerns after decades of violations of their rights.
Women delegates sat separately during the the Constitutional Loya Jirga of 2003/04 (left to right: Suraya Parlika, unknown, Massuda Jalal). Photo: Thomas Ruttig/2003
One should also look back at the previous constitutions of Afghanistan, and assess the scope of fundamental rights. Starting from the constitution of 1923, every subsequent constitution in Afghanistan has had provisions with regard to fundamental rights. For instance, the constitution of 1923, among others, upheld the equal rights and obligations of Afghan citizens, guaranteed human liberty and abolished slavery, guaranteed freedom of the press, and prohibited torture. Furthermore, Afghanistan, as a member state of the United Nations, had international obligations with regards to the rights and liberties of its citizens.
Listing the specific rights enshrined in the constitution and discussing how they reflect the realities, history and obligations of Afghanistan with regard to its international commitments, is beyond the scope of this article. However, it is noteworthy, that these fundamental rights were not imposed on Afghans, but were rather reinforced, in response to past systematic violations and breaches.
It is also important to note that constitutions serve as the guarantors of fundamental rights, and not as the imposers. It is for citizens to decide how they wish to enjoy and practice these rights. In other words, the constitution guarantees citizens’ rights, but does not inflict them on them. As an example, a citizen’s right to vote is guaranteed by the constitution, to ensure that the government does not deprive the person of this right. However, the citizen has the freedom to choose whether to exercise this right or not.
On the other hand, the Afghan constitution explicitly recognises its own supremacy over international treaties and covenants, and requires their conformity with the constitution. (6) International scholars as well as a body of literature have repeatedly pointed out the constitution’s weakness of provisions on international law, and its lack of strong provisions to ensure Afghanistan’s commitments to its international obligations. The Islamic provisions of the constitution, in contrast, are much stronger than those on international law and human rights: where the former has received extensive attention, the latter has not. The constitution thus presents moderate language on international treaties and human rights documents, and requires the state to ‘observe’ them, as compared to Islamic provisions that ‘obligate’ the state.
Vagueness or flexibility?
Where the Taleban claim there is vagueness in the constitution, I would argue that there is necessary flexibility. When constitutional drafters write constitutional provisions, they leave gaps and ambiguities, both intentionally and unintentionally. The latter is due to the inability of the drafters to foresee all possible scenarios that may arise in a constitutional regime. The former is to leave room for innovations and reforms; providing law makers with the ability to adapt to needs of the time. Constitutions also prescribe methods for amendments to be made where provisions are unclear, contradictory, need further details, or need to be changed.
There are indisputably ambiguities and gaps in the constitution of 2004. But it is not unique to Afghanistan. When the current constitution of the United States was drafted, it did not include any provision on fundamental rights. The rights of citizens were included in the US constitution through amendments.
The Afghan constitution describes three categories with respect to amendments. First, provisions that cannot be amended: the principles of Islam and Islamic Republicanism. Second, provisions that can be amended conditionally: amending fundamental rights of the citizen, on the condition that the intention is only to strengthen them. Third, the amendment of anyother provision with respect to new requirements of the time. (7) The constitution also presents the mechanisms for constitutional amendments, which would allow for the refinement of outstanding and significant ambiguities or points of contention.
A constitutional amendment process can be initiated at the proposal of the president or a majority of National Assembly members. In order to process the amendment, a commission will be established to prepare a draft proposal. The commission will have members from the government, National Assembly and Supreme Court. At the third stage, the Loya Jirga will be convened to approve the amendment (with a two-thirds majority). The amendments come into force after endorsement by the president.
Conclusion: Better to bridge political differences without discarding the constitution
The constitution making process was not perfect. There were flaws and shortcomings. Likewise, there are gaps and limitations in the substance of the constitution that have posed challenges to its implementation during the last 15 years. There have also been instances of violations and extra-constitutional acts. However, given how shattered the country was at the time, it was arrived at through an imperfect but democratic process. Like all other constitutions, the Afghan constitution reflects an ambition for its society to struggle towards, for its government to uphold, and for its citizens to be able to hold their governments to account. What matters most is the political will to uphold the constitution. In the absence of any commitment to the rule of law and constitutionalism, no constitution, however well-drafted, can help a government succeed.
A constitution may be written in the best way possible, but still not be implemented. The constitution of North Korea is a perfect example of a constitution that protects the rights of its citizens on paper, but not in practice. On the other hand, a constitution may be written with shortcomings and gaps, but if there is a political will to uphold the principles of constitutionalism, it can be best practiced.
What makes the Afghan constitution of 2004 different and worth retaining, is its inclusiveness. It combines and reconciles Islam, democracy, pluralism, human rights and social justice; a combination that is unprecedented in Afghanistan.
The Taleban say they envision a constitution based on Islamic principles, national interests, historical background, social justice, human dignity, and human rights. While these principles and values are explicitly enshrined in the Afghan constitution, the Taleban claim they are not. It is understandable that the Taleban would like to see changes in the constitution; however, the current constitution is open for amendment, in order to remain a living document and one that can respond to the emerging needs and demands of society.
There will remain deep ideological divisions within Afghanistan, regardless of our constitution. Our history shows that creating a new constitution will not solve this. It is important to note that people of different political backgrounds came together and agreed on this law, endorsed it, accepted it, and respected its provisions. In doing so, they built broad consensus and vested the highest level of legitimacy in the constitution, more than any legal document ever has in Afghanistan. Therefore, rather than throwing out this constitution and creating a new one, it would be better to find ways to bridge our political differences without discarding this truly historic achievement.
Ghizaal Haress is a commissioner of the Independent Commission for Overseeing the Implementation of the Constitution
(1) Article One. Afghanistan shall be an Islamic Republic, independent, unitary and indivisible state.
Article Two. The sacred religion of Islam is the religion of the Islamic Republic of Afghanistan. Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals.
Article Three. No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.
The full text of the constitution can be found here:
(2) For articles on education see articles 43-46, in particular: Article Forty-Five. The state shall devise and implement a unified educational curricula based on the tenets of the sacred religion of Islam, national culture as well as academic principles, and develop religious subjects curricula for schools on the basis of existing Islamic sects in Afghanistan.
For religious education, see: Article Seventeen. The state shall adopt necessary measures to foster education at all levels, develop religious teachings, regulate and improve the conditions of mosques, religious schools as well as religious centers.
(3) Article Sixty-Two. The individual who becomes a presidential candidate shall have the following qualifications:
- Shall be a citizen of Afghanistan, Muslim, born of Afghan parents and shall not be a citizen of another country;
- Shall not be less than forty years old the day of candidacy;
- Shall not have been convicted of crimes against humanity, a criminal act or deprivation of civil rights by court.
No individual shall be elected for more than two terms as President. The provision of this article shall also apply to Vice-Presidents.
Article Sixty-Three. Before assuming office, the President shall take, in accordance with special procedures set by law, the following oath of allegiance:
“In the name of God, Most Gracious, Most Merciful, I swear by the name of God Almighty that I shall obey and protect the Holy religion of Islam, respect and supervise the implementation of the Constitution as well as other laws, safeguard the independence, national sovereignty and territorial integrity of Afghanistan, and, in seeking God Almighty’s help and support of the nation, shall exert my efforts towards the prosperity and progress of the people of Afghanistan.”
(4) Article One Hundred Thirty. In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.
Article One Hundred Thirty-One. The courts shall apply the Shia jurisprudence in cases involving personal matters of followers of the Shia sect in accordance with the provisions of the law. In other cases, if no clarification in this Constitution and other laws exist, the courts shall rule according to laws of this sect.
(5) Article Thirty-Five. To attain moral and material goals, the citizens of Afghanistan shall have the right to form associations in accordance with provisions of the law. The people of Afghanistan shall have the right, in accordance with provisions of the law, to form political parties, provided that:
- Their manifesto and charter shall not contravene the Holy religion of Islam and principles and values enshrined in this constitution;
- Their organizations and financial resources shall be transparent;
- They shall not have military or quasi-military aims and organizations; and
- They shall not be affiliated with foreign political parties or other sources.
Formation and operation of a party on the basis of tribalism, parochialism, language, as well as religious sectarianism shall not be permitted. A party or association formed according to provisions of the law shall not be dissolved without legal causes and the order of an authoritative court.
(6) Article One Hundred Twenty-One. At the request of the Government, or courts, the Supreme Court shall review the laws, legislative decrees, international treaties as well as international covenants for their compliance with the Constitution and their interpretation in accordance with the law.
(7) Article One Hundred Forty-Nine. The principles of adherence to the tenets of the Holy religion of Islam as well as Islamic Republicanism shall not be amended. Amending fundamental rights of the people shall be permitted only to improve them. Amending other articles of this Constitution, with due respect to new experiences and requirements of the time, as well as provisions of Articles Sixty-Seven and One Hundred Forty-Six of this Constitution, shall become effective with the proposal of the President and approval of the majority of National Assembly members.
Article One Hundred Fifty. To process the amendment proposals, a commission comprised of members of the Government, National Assembly as well as the Supreme Court shall be formed by presidential decree to prepare the draft proposal. To approve the amendment, the Loya Jirga shall be convened by a Presidential decree in accordance with the provisions of the Chapter on Loya Jirga. If the Loya Jirga approves the amendment with the majority of two thirds of its members, the President shall enforce it after endorsement.
This article was last updated on 9 Mar 2020
Constitutional Loya Jirga
Constitutional Oversight Commission