International Journal of Law and Legal Jurisprudence Studies

Constitutionalism in Post Conflict Afghan society: A case study -Snigdha Rishika Ravulapati (O.P. Jindal Global University , BA.LLB (Hons.) III year)

 Abstract

 The paper attempts to elaborate on the role of constitution in the post conflict plural Afghan society.  It tracks the legal, political and constitutional history of Afghanistan and thus provide for the trajectory of the current constitution.  The political climate in the region has an impact on the legal structures; the consequence being legal pluralism, the methods of reconciliation amongst multiple legal structures is elaborated.  The provisions in the constitution are looked into so as to understand how the constitution addresses the problems of a post conflict society, the significance of the role of judiciary in furthering the constitutional principles and the jurisprudence of Shari’a is addressed in this regard.  The current political structure of Afghanistan is problematized and finally, a comparative analysis is provided with the constitutional framework of India.  The reseach exposes as to how foreign interference in the constitution making, weak governance structure and the mistrust in people on the state institutions distance them from formal legal structures.  Hence, mechanisms have to be developed for the coexistence of formal and informal legal institutions.

Keywords: Legal Pluralism, Constitutionalism, Shari’a, Customary law, Post conflict society.

Introduction:

When seen from the Western lens, constitution serves as the foundational document for any legal system, it is almost incomprehensible for the modern liberal democratic state to exist without a constitution.[1]  However prior to the twentieth Century, Afghanistan had no written constitution, the governance was characterized by the Islamic Shari’a and the customary laws passed by the Jirga/Shura[2] which composed of the local tribal leaders.[3]

The concept of nation state with a constitution started to become the order of the day, this was and is imposed on the non-European countries through colonization and the western imperialism.  Consequently there began to exist plural legal systems[4], in today’s Afghanistan, despite having a written constitution, the hangover of the past still lingers and hence customary law, Islamic law and the statutory law coexist.  This is otherwise known as legal pluralism.[5]

Seemingly, they have inherent contradictions and thus they do not always complement each other, hence the challenge of the constitutionally validated judiciary is to reconcile the differences and yield the much needed legality in the modern nation state framework.[6]

Hence, firstly, we look at the political, legal and constitutional history of Afghanistan, this helps in providing a theoretical framework for our understanding of the current situation in Afghanistan and the mechanisms provided for in the constitution and the evolution of Islamic jurisprudence.

 

  1. Political history of Afghanistan:

The monarchy of Zahir Shah which began in the 1933 ended in 1973 with Mohammed Daud declaring himself as the first president of the Republic.[7]  Mohammed Daud’s reign lasted till 1978, he was overthrown by the Saur revolution led by the Communist People’s Democratic Party of Afghanistan, the uncertainty in the communist rule led to soviet occupation in 1979, Soviet entered the country with the Red Army and Barbarak Kamal was installed as the ruler in the year 1980.[8]

The communist social reforms clashed with the long established social standards of Afghanistan and hence the support for the PDPA[9] soon crumbled.[10]  To counter the Soviet invasion, the Mujahideen i.e.  The guerilla fighters from the rural areas of Afghanistan organized themselves into an army and fought back the Soviet, this tumultuous period of struggle was characterized by bloodshed leading to the killing of a million of Afghans.[11]

The Mujahideen were organized into many political factions, it was armed and supported by Saudi Arabia, Pakistan and the US.  It was during this time that Osama Bin Laden had entered the politics of Afghanistan, he was leading the Mujahideen.  It needs no mention that the Mujahideen was mainly supported by the US as a strategic foreign policy to check the spread of communist regime and have a control over the region.[12]

In 1986, Najibullah was replaced as the head of the Soviet backed regime.  And in 1988, when the war was ongoing, Afghanistan, USSR, the US and Pakistan had signed peace accords; subsequently, the Soviet Union of Russia began pulling out its troops.  The last troop left in 1989, however the civil war still continued as the Mujahedeen tried to topple Najibullah’s government.  After the overthrowing of the Najibullah’s government in 1992, the factions of the Mujahideen fought amongst themselves until the Taliban seized control of Kabul and solidified its rule in 1996.  The Taliban ruled the country from 1996-2001.[13]

Theoritical connections can be made to the “state of nature” proposed by Thomas Hobbes, he was the earliest philosophers, who witnessed the terrors of the English Civil War and thereby concluded that the inherent nature of the man is “short, brutish and nasty” hence he conceptualised the notion of a “Levaithan”, whose purpose is to protect the man from spilling into the state of nature, ever since the communist coup in 1978, Afghanistan has been the ground for warring factions, this has allowed for the budding of extremist muslim groups, the international community’s response to the chaos and the stringent rule of Taliban has been a Hobbesian’s approach, this lead to the installation of Hamid Karzaia as the Levaithan in 2001.[14]

How and why did this happen? In 1998, the USA launched missile strikes in the militant bases of Osama Bin Laden as he was accused of bombing the US embassies in Africa.  It was followed by the UN imposing an embargo and financial sanctions on the Afghanistan to handover Osama Bin Laden, this was the beginning of USA’s uncomfort with the Mujahiadeen.  Later, as a response to the September 112001 Pentagon attacks, US led bombing started in Afghanistan, the pseudonym of the “global war against terror” had become the policy of the United States and hence it started targeting the Taliban.[15]  The Anti-Taliban Northern Alliance which fought a war against the Taliban entered during the same time.[16]  The Taliban was over thrown in 2001.   As the result of the negotiations that happened in Bonn, Germany; Afghan groups agreed for the establishment of an interim government.  Loya Jirga elected Hamid Karzai as the interim head till 2004.  In 2004 the Loya Jirga adopted the new constitution which provided for a strong presidency.[17]

 

 

 

 Brief Timeline of events

 

 1933:  Zahir Shah ascends the throne as a Monarch.

1973:  Mohammed Daud declares himself as the first president of the Republic.

1978: Saur revolution, Mohammed Daud overthrown, Communist People’s Democratic Party of Afghanistan

1979: Soviet occupation

1980: Barbarak Kamal was installed as the ruler in the year 1980.

1986: Najibullah was replaced as the head of the Soviet backed regime.

1988: Afghanistan, USSR, the US and Pakistan had signed peace accords.

1989 : Soviet leaves the country.

1992: Najibullah’s government over thrown

1996: Onset of the Taliban regime.

2001: The Taliban rule ends.  Interim Government formed.

2004: Promulgation of the new constitution.

 

 

 

  1. Constitutional History of Afghanistan:

Having tracked the political history, it is evident that Afghanistan’s fragile politic barely gave any opportunity to actually implement the constitutional principles.  However it had too many constitutions.  Since the first constitution in 1923, Afghanistan had eight different sets of constitution.  The first two constitutions of 1923 and 1931 were established by the monarchy but they barely had any public participation and were totally elitist conferring all the power on the monarchy without leaving any room for popular vote.[18]  In 1963, after thirty years of stability under the regime of King Zahir, he called in for the formation of the constitution.[19]  This constitution was drafted democratically over a period of eighteen months, it provided for a popularly elected parliament, provincial advisory councils, elected city councils, and an independent legislature.[20]  This era marked the beginning of democracy in the region, two parliamentary elections were also held, however it was short lived.  In 1973, Sardar Daoud, took power by coup, Afghanistan was declared Republic and the constitution that was drafted in 1963 was suspended.[21]  A new constitution was promulgated in 1977 without popular consultation; again, during the communist coup, the 1977 constitution was suspended.  Another constitution was put in place in 1980 by Babrak Karmal, this came to an end with the Soviet invasion, the government of Najibullah introduced yet another constitution in 1987, it only lasted till the exit of the Soviet union.  After the Soviet withdrawal in 1992, the new interim Mujahideen government proposed a new constitution, but it never came into fore as the fighting broke out between the internal elements, and later on the Taliban never introduced a constitution at all.

Thus in this whole period, Afghanistan had three spells of unconstitutionalism between 1973-1977, 1980-1987 and 1992-2001.[22]  Hence due to the instability in political structure and governance, people took to the local Jirga and Shura for their dispute resolution as there was no continuity in the legal system.

  1. Legal pluralism in Afghanisthan

 

Jirga and Shura fall outside the purview of state institutions, the chthonic law that is adjudicated upon in such institutions is diverse due to different ethnicities and varies with regions, it isn’t a uniform system of law, however it plays a significant role in dispute resolution.[23]

Prolonged conflict in the society, multiple constitutions and a lack of centralized authority propelled people, particularly people living in the rural areas to take up to non-state chthonic law, rural population constitutes eighty percent of the Afghan population and hence one cannot dismiss the pervasive and binding effect of chthonic law in Afghanistan.[24] Even today, Hamid Karzai’s government is largely composed of the old war lords of Northern alliance, and hence due to the lack of separation of powers people are still dependent on the local non state entities for the purposes of security and justice.[25]

The reasons as to why people prefer chthonic law over the state law boils down to the following:[26]

a) Chthonic law focuses on substantive justice instead of procedural justice;[27]

b) It focuses on compensation and reconciliation instead of punishment;[28]

c) The parties have a sense of faith in the institution and hence are bound by it.[29]

Pashtuns are the dominant ethnic tribe in Afghanistan, their chthonic law is the pasthunwali, it is an amalgamation of Shari’a law, customs and ethical values of the tribe.  The decision making process in a jirga is driven by consensus rather than voting; parties to the dispute and the communities meet for the resolution of a dispute.  It has an appeal procedure as well, the first level of appeal is taken to another jirga with more elder members, the second level of appeal is taken to a tribal assembly which has representatives of pashtuns from other lineages.[30]

In a Shura, the Shari’a plays a significant role when compared to a jirga, it is composed of imams and the “local religious figures” for the resolution of dispute, the local practices of the geography play a major role in dispute resolution.[31]

Now, with the emergence of a constitution, there surfaces a problem of deeply embedded legal pluralism, the question then remains, how do we reconcile the state and non state entities? Specifically in a culture which lacks constitutional morality.  The normative laws guiding a constitutionally validated judiciary would inevitably come into conflict with the diverse normative framework of a non state entity.[32]

United States Institute of Peace proposes the interaction of both, in cases where chthonic law isn’t in congruence with the state law, the state should ensure that the chthonic law doesn’t violate “the basic human rights” or “principles within the law”, thus the government should act as a bridge between the both, the model posits that the government should prescribe the areas where non state institutions can be beneficial and work positively, the state shall have supremacy on important realms such as criminal law and property law, the rationale for such supremacy is the conception that the state’s objective is to further justice and hence it must have finality over issues of such issues of significance, the jirgas have their own conceptions of justice, but however the model ascribes finality and supremacy to the state conception’s of justice.[33]

Wardak on the other hand proposes for an active human rights unit along with jirga/shura and the formal legal institutions.  The role of the human rights unit is to interact with the educational institutions at the local level for the production of material pertaining to issues that are culturally sensitive in nature and sensitise people on human rights abuses such as domestic violence and so on, thus it works at the ground level.  The formal mechanism of the state on the other hand is to deal with civil issues that are usually not dealt by the informal mechanisms and other major criminal offences.  It is to aid the informal institutions and the human rights unit in their functioning.[34]

In some way, both the models hierarchize the institutions at hand, despite giving due recognition to chthonic institutions, major powers are given to the state instilled formal legal institutions; however the ground reality remains that, even in the matters pertaining to major criminal offences, the mechanisms adopted by the informal institutions secure more authority.[35]

Hence, the judge then, while assessing the decisions must weigh it in terms of two different normative frameworks: legal and chthonic.  He must analyse the extent to which it is consistent or comes into contradiction with such frameworks.  While doing so, he must also incorporate into his decisions, the universal principles of international human rights and the shari’a law. A standard set of priori rules will not be able to resolve the conflicts that arise due to legal pluralism; hence an assessment has to be done on a case-by-case basis depending upon the facts and circumstances of each case.[36]

The constitution of Afghanistan also provides for fundamental rights such as the freedom of expression[37], presumption of innocence[38], right to liberty[39], right to form social organization[40], and the right to legal defence if accused of an offence under the law[41]; the philosophy of fundamental rights is to encapsulate human rights, the aim of the state is to protect the fundamental rights, thus the discourse of fundamental rights can also serve as a framework to evaluate the decisions of jirga/shura.  A concern can be raised if there is a deviation of fundamental right.[42]

The state may as well identify major avenues i.e.  Issues related to women, major criminal offences etc. that could potentially give space for conflict and then oversee the rulings of jirga/shura pertaining to such matters.[43]

Judicial review needn’t always be one sided, decisions can also be made from the vantage point of chthonic law.  For an instance, in the south African case of Bangindawo and Other v Head of Nyanada Regional Authority & Another, the court while deciding on the role of a traditional ruler- who was a judge and the legislator, opined that such duality could hamper judicial independence, however, it was careful enough to not impose the western notion of separation of powers and held that, such duality can be allowed as the adherents of such customary law trust the impartiality of the ruler when he is a judge.  Mechanisms have to be developed to provide for the working multiple legal systems, trying to annihilate entities outside the purview of state can turn counter productive.[44]

Now, we are going to examine the legal history of Islamic law in Afghanistan and track the making of the current constitution.

  1. Legal History of Afghanistan:

The population of Afghanistan is 80–85% sunnis and 15–20% shei’ite.[45]  The majority of sunnis in Afghanistan are followers of the hanafi school and the Shias follow the jafari jurisprudence.[46]

In the 1950’s and 1960’s the rulers started to modernize the justice system in line with the Western world, hence during this process of consolidation, Hanafi version of Shari’a law along with the customary laws provided the foundation for the legal system in Afghanistan.  Islamic scholars acted as Judges in the state courts.  During the process of modernization, a lot of these laws were also codified, since then, the state law rather than the Islamic law began to be the primary source of the law.[47]

Thus, Afghanistan substantially altered its structure of governance through the 1964 constitution, the political atmosphere during the time was relatively peaceful and hence there was public participation at the time of making the constitution.[48]

In the 1964 constitution, Article 69[49] explicitly stated that in the event of no codified law, the Hanafi jurisprudence of the Shari’a law will be considered as the law.  Thus this justice system tried to reconcile between the Islamic Shari’a law and the modern state law, it regulated the interaction between the both.  State law was recognized as the primary source of law and the Shari’a law to be the secondary source of law.  The impact of this transition in reality is minimal; the corruption embedded in the legal system and the lack of faith in the state authority distanced people from formal legal structures.[50]

Later, the reforms that were introduced during the communist regime were totally at odds with both Islam and Afghan traditions, hence the whole system of governance and its judicial reforms (decrees) were rejected by the people, and instead they took to the local traditional institutions for the purposes of dispute resolution.[51]

After the collapse of the Marxist government, the Mujahideen government (1992–1996) declared Shari’a as the substructure of their “Islamic State of Afghanistan”.  They attempted to impose a totalitarian theocracy. The Taliban’stheocratic regime (1996–2001) imposed an even more regressive version of Shari’a[52]

 

  1. Bonn Agreement and the 2004 Constitution: An analysis

Thus owing to the relevance of Shari’a in the justice system, the Bonn agreement emphasized on rebuilding the justice system in accordance with Islamic principles, the rule of law and the Afghan legal traditions.  In other words, it tried to put in Shari’a that is compatible with the Afghan traditions and the fundamental principles of human rights that are in vogue in the contemporary international arena.

Article 3[53] of the Constitution makes it explicit that no statute can be contrary to the “beliefs and rulings” of the sacred religion of Islam, it is important for us to mark the phrase “beliefs and rulings” as it awards the Supreme Court with ample discretion so as to decide on what a belief is, Shari’a law has been given a due constitutional recognition, fears were expressed that this clause can have the potentiality to introduce Taliban like theocratic regime.

Under the new constitution, the Supreme Court, “can review compliance of laws, legislative decrees, international treaties and international conventions with the Constitution and interpret them, in accordance with the law.”  The constitution grants the Supreme Court in Article 121[54], the power of judicial review i.e. “power to reject virtually any law or treaty as un-Islamic[55].

On the other hand Article 7 states that “The state shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights.”[56]

The constitution has been aspirational to include relevance of the Universal declaration of Human Rights and make it a mandate to abide by it.  But, if a law has to pass through the filters of Article 3 it is subject to much skepticism as to whether both the Articles can be reconciled and implemented.

Thus, it is important for us to examine whether article 3 is justiciable or non justiciable. Most of the Islamic constitutions have a Shari’a clause of this kind in their constitution and had explicitly made it non justiciable[57], which means that the Supreme Court cannot enforce it, or otherwise the courts have read the clauses to be non justiciable;

When it comes to Afghanistan, it is not explicit in the constitution as to whether this clause is justiciable or non justiciable, all Afghan judges and scholars believe that the clause is justiciable, if so, then it is important to arrive at a mechanism as to how the review of laws has to be done so that they are in consonance with Islam.  Due to multiple ethnicities, and different Islamic jurisprudential schools in place, there is no consensus on the interpretative mechanism in Afghanistan.

Article 130 states that the court would decide in accordance with Hanafi jurisprudence in the instance when there is no provision in the Constitution or other laws pertaining to the ruling on an issue.  Majority of Sunnis follow the Hanafi school of jurisprudence and hence the Hanafi school of jurisprudence has been given a priority in the constitution.

However, the Article merely makes a reference to the instance when there is no particular ruling on an issue but doesn’t prescribe for the interpretation of laws in general.  Article 130 is problematic as not all Sunni Muslims follow the Hanafi school and this is not agreeable to the minority Shias either, moreover Article 3 doesn’t make any reference to the adherence to Hanafi fiqh, it merely states “beliefs and rulings” of the sacred religion of Islam.  It is important to give space for these concerns and hence while evaluating the “islamicness” of any legislation, it is advisable for the courts to not stick to one classical school but instead they have to take to the broader principles that reinforce the protection of human rights.[58]

Now, it is important for us to make a reference to the interpretation of Islamic law, the difference between classical view and the modern view; this would help us in understanding how Islamic principles are to be synchronized with liberal values of a democratic state.  A reference is made to Egypt so as to examine how modern Islamic jurisprudence has evolved.

Shari’a is basically an Arabic word which simply means “the path to follow”[59].

The primary sources of Shari’a are the Quran and the Sunnahs[60];

Quran is the Holy book and the Sunnahs are the Statements and Deeds of the Prophet Mohammed which are used to interpret the Quran.[61]

The secondary sources for the Islamic law are the Qiyas, anological reasoning i.e.  Reasoning deduced from the cases in Quran and Ijma is the consensus of Islamic jurists.[62]

The science of interpreting Shari’a is called ‘ilm usul al-fiqh, a scholar’s interpretation of it is known as fiqh.[63]

Classical jurists adopted two methods to interpret Shari’a and develop fiqh.[64]

Namely, Ijitihad and taqlid.[65] 

Ijtihad understands God’s law through four sources[66], namely the

The Qur’an,

The hadith literature: Account of events in Prophet’s life.

The juristic logic (qiyas) and

The juristic consensus (ijma).

Taqlīd entails adopting the jurist’s rulings despite having no evidence; it is the personal religious view of the jurist and is trusted to be correct.[67]

Using the sources, a scholar had to look at the scripture and then evaluate the authenticity of the text and the clarity of its command.  Thus only few scriptures were finalized to be certain with respect to authenticity and clarity, these came to be known as “qat’i”, the rest are presumptive in nature, and are believed to be “Zanni”[68].

Whenever there is no evidence, the classical jurists using the Taqlid form of interpretation believed that the principles of Zanni also highly reflect God’s will and hence are presumptively binding, the modern jurists deviate from such a conception, they believe that the classical interpretation of Islamic law must be only relied to the extent of “qat’i”.  This departure gives the leverage for the modern jurists to interpret Islamic law from a utilitarian perspective and also accommodate the customs of the State.  The benchmark that was set to be achieved by the modern jurists are the “goals of Shari’a”[69]

On this note, a reference must be made to the Egyptian constitution; Article 2 of the Egyptian constitution requires all the legislations to be consistent with the Islamic principles.[70]  The constitutional court in Egypt while resorting to modern jurisprudence required the laws to be furthering the principles of “justice” and “public utility”, it advocated legal liberalism and thus protected negative liberties in the arena of human rights and economic regulation.  Through this, the court expanded the scope of Islamic review and tried to harmonize the liberal values with Islamic principles.[71]

Country’s system for implementing a Shari`a Clause reflects the country’s institutional, political and social environment.  Hence when such an interpretation as like in Egypt is advocated by the Supreme Court in Afghanistan, it would build judicial power and bolster the constitutionalist culture that protects many liberal rights.[72]

The power of judicial review in Afghanistan is subject to debate, it doesn’t rest solely with the Supreme Court, the constitution through its article 157[73] created a constitutional commission to supervise the implementation of the constitution.  However like in Egypt it doesn’t have specialized constitutional benches to deal with the issues of Shari’a.[74]

 

Now, let us look at the political structure in the country and the rationale for adopting such structure.

 

  1. The current political structure in Afghanistan and its rationale

 

1.1.          The separation and balance of powers in the government:

Afghanistan’s political system is presidential[75] in nature with a directly elected President[76], two vice presidents[77], a bicameral legislature[78], and an independent judiciary.  The president can choose his cabinet but it is subject to the approval of the legislature.  The legislature[79] and the judiciary also have a significant role to play in the constitution.  The lower house of the bicameral legislature requires a minimum of 68 members to be women out of the total 249 members, this is to safeguard and ensure the political participation of women and is constitutionally mandated by Article 83[80] of the constitution.  This is definitely a progressive step towards the empowerment of the women especially after the regressive policies towards women in the Taliban regime for a period of ten years.[81]

However in a country like Afghanistan, it is skeptical as to how much a meaningful political choice can people make as to the direct election of president as the electoral politics are still in the budding state and the means of communication to be able to approach people is still underdeveloped.  The concentration of power in the hands of a single person is dangerous especially in an unstable political situation as the rewards for illegitimate capture of the presidency stands high, and thus increases the risk of it happening.  The President cannot even be impeached by the legislature which can make him a strong Monarch.  Moreover, in a Presidential system, the executive and the legislature usually belong to two different parties and hence the legislature’s control over the budget can be a medium to brake the executive and hence lead to dead lock between the both and delay the decision making process.[82] The president has been given wide discretionary powers to pick and choose members for the purposes of allocating ministries, the ground reality remains that the key ministries in the post Taliban government have been given to the anti taliban Northern alliance leaders who were once involved in pillaging Kabul.  Nepotism, institutional abuse of power fructuate the promises of reconstruction, protection of human rights and the progress of democracy in the country.[83] 

On the other hand, given the atomic structure of the Afghanistan’s society, when we think of the political structure in terms of a parliamentary system, it is highly probable that no one party would attain majority in the legislature and it would be composed of multiple political parties, the executive would be a fragile coalition leading to slow decision making process.

People of the Country wanted a system where in there would be strong prime minister and the President as the ceremonial head acting as a mediator; this is more akin to India and is a partial parliamentary system.  The political considerations of USA which was a party in the constitution making cannot be denied, it has a significant role to play in determining the political structure of the country, to have a control over the region, presidential system in Afghanistan is best suited to its interests rather than a strong parliament, because presidential system entails dealing with a single person and the executive is under the control of the President[84].

Fear that the country would break apart lead to the creation of a centralized authority having firm control at the top.  The tragedy of policy making in Afghanistan is that it has largely been Hobbesian, Jefferson’s Republican vision of decentralized authority, checks and balances on power or the Gandhian vision of village level panchayat justice system didn’t inform the constitution making.[85]

Usually, the Supreme Court acts as the check to the power of the constitution through its power of the judicial review and interpretation.  The Supreme Court of Afghanistan has been awarded with the same power, through the power to interpret the constitutionality of laws and treaties and may even review them; however the nascent judges interpret it according to their own religious view which can be often conservative owing to the Taliban regime in the region.

For instance, ten days after the constitution had been ratified, the Supreme Court announced that airing a female singer on Kabul TV is unislamic and hence unconstitutional, the Supreme Court had neither a case before it nor a law which could back such an order.  Hence the court’s decree wasn’t enforced; this sort of makes the legality of the Supreme Court a little shaky.[86]

1.2       Unitary State

 

Article 1 describes the State to be a “unitary state”[87] owing to the fragmented nature of the country in the past.  Ethnic groups that were disenfranchised in the past now have autonomous military and political, structures. The party structures that came up during Jihad times (the war with the Russian government) almost functioned as mini state governments and indulged in activities like issuing the visas, carrying foreign relations and printing currency.  The interference of the foreign neighbor states that is leading to the disintegration of the country also prompted the constitution makers to call it an “independent, indivisible and a unitary state.”[88]

Owing to the historical past of authoritarianism and brutality, the local populations always resented the decisions made by the centre and thus they have developed their own independent social organization and a culture of self governance, the country even lacked the requisite infrastructure to run the government from the Centre.  The war period created the Gap between the Centre and the local provinces, Among Pashtun tribe, the jirga or tribal assembly is consensus-building device for resolving disputes and  for non pastuns councils called as  (shura)[89]

However, without consolidation of the State, establishment of fiscal control and legitimate power structures, there is high probability of the country being torn apart and hence despite the circumstances in the past, Afghanistan aspired to be a unitary structure.

1.3 Elements of consociationalism in Afghanistan’s constitution:

Consociationalism gives space for the recognition, representation and political participation of all major social segments in the governance of the Country.  Afghanistan is an ethnically divided society and the period during the Taliban regime witnessed the division of the society on ethnic lines and of their own political consciousness.  For instance during the Taliban regime, “Jihad” was declared on the minority Shia Hazaras, they were severely persecuted[90], and other minorities like the Tajik, Uzbek who formed a part of Northern Alliance which aimed at overthrowing the Taliban were also badly targeted by the Taliban and severe human right violations had been perpetrated on them.[91]  Hence giving them a constitutional recognition would help in assuaging their fears of the tyranny of majoritarian democracy.

Recognizing this need, Article 4 of the Afghanistan’s constitution makes it explicit that “The nation of Afghanistan is comprised of the following ethnic groups: “Pashtun, Tajik, Hazara, Uzbak, Turkman, Baluch, Pashai, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, Brahwui and others.”[92]   This is understood to be the constitutional recognition of minorities and guaranteeing them citizenship in Afghanistan.

Moreover, Article 6 of the Constitution makes it an obligation on the part of the state to ensure “equality among all ethnic groups and tribes and to provide for balanced development in all areas of the country.”[93]

Liberal consociational rules aim at broadening the spirit of inclusion and leave the decision to the electorate to decide upon the terms of such inclusion.  On the other hand, corporate rules perceive individuals as group members and make explicit provisions for power sharing, like the case of Bosnia and Herzegovina.  Afghanistan in such sense can be called a liberal consociation as it allows for diverse participation through its provisions but doesn’t make explicit provisions for power sharing among the ethnicities.[94]

Moreover, the 2004 Afghanistan constitution contains several components that could induce power-sharing, such as the Single Non-Transferable Vote electoral system for legislative elections and the proviso for two vice-presidents, this could be utilized to provide for ethnic diversity in the executive, however, the discretion rests with the President.[95]

 

  1. A compartitive analysis: India and Afghanistan

The historical trajectories of Afghanistan and India differ greatly, the constitution highlights the contemporary political problems in a country and it’s to-do aspirations, Indian constitution had no foreign interference in its decision making process and was democratically drafted, the constitution in Afghanistan despite being drafted by the interim government, the foreign forces had a definite role to play, this can be partially deduced through its adoption of a presidential model despite people having an inclination to choose a parliamentary model.  If they had adopted parliamentary system, it would have eliminated the fear of power concentration in a single person and would have better suited for the current political culture in Afghanistan, for instance, the Indian system allows for a proper check on the executive through its no-confidence motion.

The epochs in which the respective constitutions were born also differ, the Afghanistan’s constitution made it a mandate to enforce various UN conventions similar to the South African constitution but India has no such provision as international treaties weren’t in their full sway during the 1940’s.

India has diverse religious communities; communal card was played by the British in their divisive politics during the colonial period and due to the painful partition with Pakistan on religious grounds right after its independence, it chose to be a Secular country to assuage the fears of the minorities, historically, India always aspired to be a secular country[96].  On the other hand, Afghanistan has always been an Islamic society and its ideals are deeply penetrated in the society and hence it chose to be a theocratic state, however, the society is divided along ethnic lines and hence minority rights have been safeguarded through consociational model.

India could have adopted consociational model as like in Afghanistan but the limitations of consociation are well known, it can lead to further division of the society on religious lines.  India despite being a federal structure, it has a strong center fearing the secessionist tendencies.[97]  Afghanistan had the same rationale while adopting for a unitary structure but however, the constitution did not provide for power percolation mechanism at the local level as has been done in India for the reasons explained in the paper.

Judiciary in India has been quite proactive in interpreting fundamental rights and is devising new methods for constitutionalism for safeguarding the rights of people and checking the power of the government.[98]  As referred in the paper, the judiciary of Afghanistan has its own challenges and is in its budding state, it would take time to arrive at its own ways to interpret the constitution progressively.

 

  1. Conclusion

Having laid down the history of Afghanistan and its current political solutions, it is important for us to understand that the constitution is merely a bare text that can be brought to life only through positive judicial activism and the political will.  In the case of Afghanistan, the country has been a war ground for super powers and is still ravaged by the interference of foreign forces.  Instilling trust in the people is the need of the hour.  Being one of the most recent constitutions, Afghanistan’s constitution took birth amidst well laid constitutional principles and successful running of democracies, thus it has to import these foreign concepts and modify them so as to suit the requirements of the social, political, cultural and economic situation of the society.  Constitutional morality has to be instilled in people through the enforcement of fundamental rights and principles of natural justice.  This way, constitutionalism in the post conflict pluralist democracies can be one of the most important mechanisms to safeguard the rights and lives of people.

[1] M. Sornarajah, Power and Justice: Third World Resistance in International law, 10 SYBIL. 19, 24-28 (2006) (discussing the paradigm of democracy in the twentieth century)

http://www.commonlii.org/sg/journals/SGYrBkIntLaw/2006/4.pdf

[2]“ Jirga and Shura in every day practice refers to a local/tribal institution of decision making and dispute settlement that incorporates the prevalent local customary law, institutionalized rituals, and a body of village elders whose collective decision about the resolution of a dispute (or local problem) is binding on the parties involved”

Ali Wardak, Building a post-war justice system in Afghanistan 41 Crime, Law & Social Change. 319, 326 (2004) (Discussing the role of Jirga in Afghanistan)

http://www.usip.org/sites/default/files/file/wardak_article.pdf

[3] Hannibal Travis, Freedom or Theocracy? Constitutionalism in Afghanisthan and Iraq, 3 Nw. J. Int’l Hum Rts 1, 1-3(2005) (Discussing pre-constitutional period in Afghanistan)

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1015&context=njihr

[4] Masaji Chiba, Legal Pluralism in Srilankan society, towards a general theory of non western law,  journal of legal pluralism.  197, 198-200 (1993) (discussing the notion of non-western law and legal pluralism) http://www.jlp.bham.ac.uk/volumes/33/chiba-art.pdf

[5]Ali Wardak, Building a post-war justice system in Afghanistan 41 Crime, Law & Social Change. 319, 319-320 (2004) (Discussing the role of law making in Afghanistan)

http://www.usip.org/sites/default/files/file/wardak_article.pdf

[6] Esther Meininghaus, Legal Pluralism in Afghanistan, 1 (ZEF Center for Development Research, Working Paper No. 8, 2007) (Discussing the constitutional history of Afghanistan and the role of judiciary in the respective constitutions)

http://www.zef.de/fileadmin/webfiles/downloads/zef_wp/wp72.pdf

[7] William Byrd, lessons from afghanistan for the current transition and beyond, 1-7, USIP special report314 (2012)

http://www.usip.org/sites/default/files/SR314.pdf

[8]Id.

[9] People’s democratic party of Afghanistan.

[10]Id.

[11]Id.

[12] Pervez Hoodbhoy , The Bomb: Iran, Saudi Arabia, and Pakistan, So what happens if Iran goes nuclear, and Saudi Arabia wants to follow?, The Tribune, January 22, 2012.

http://eacpe.org/content/uploads/2014/02/The-bomb-Iran-Saudi-Arabia-and-Pakistan.pdf

[13] Modern Conflicts: Conflict profile by Political economy research institute, University of Massachusetts Amherst http://www.peri.umass.edu/fileadmin/pdf/dpe/modern_conflicts/Afghanistan.pdf

[14] John Braithwaite and Ali Wardak, Crime and War in Afghanistan, Part I: The Hobbesian Solution, BRIT. J. CRIMINOL,1, 1-2 (2012) (Discusses the Hobbesian analysis of the Afghanistan situation)

http://bjc.oxfordjournals.org/content/early/2012/12/11/bjc.azs065.full.pdf?keytype=ref&ijkey=PimEnX5jDJZnd9b

[15]Id.

[16] United States Bureau of Citizenship and Immigration Services, Afghanistan: Background on the Anti-Taliban group, the Northern Alliance, (14 December 1999) http://www.refworld.org/docid/3ae6a6a7c.html

[17]Afghanistan Profile: A chronology of key events.

http://www.bbc.co.uk/news/world-south-asia-12024253

[18] J Alexander Their, The Making of a Constitution in Afghanistan, 1, 1-2(2003) (Constitutional history of Afghanistan),

http://eprints.lse.ac.uk/28380/

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Nafay Choudhury, Reconceptualising Legal Pluralism in Afghanistan, Windsor Rev. Legal &

Soc. 21, (25-31) (2010)(Discussing the role of customary role in Afghanistan)

[24] Id.

[25] John Braithwaite and Ali Wardak, Crime and War in Afghanistan, Part I: The Hobbesian Solution, BRIT. J. CRIMINOL,1, 6 (2012)

http://bjc.oxfordjournals.org/content/early/2012/12/11/bjc.azs065.full.pdf?keytype=ref&ijkey=PimEnX5jDJZnd9b

[26] Nafay Choudhury, Reconceptualising Legal Pluralism in Afghanistan, Windsor Rev. Legal &

Soc, 21, 25-40 (2010) (Discussing the customary law, legal pluralism and workable legal approaches in Afghanistan)

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34]Id.

[35]Id.

[36]Id.

[37] Afg. Const. art. XXXIV

[38] Afg. Const. art. XXV

[39] Afg. Const. art. XXIV

[40] Afg. Const. art. XXXV

[41] Afg. Const. art. XXXV

[42]. Nafay Choudhury, Reconceptualising Legal Pluralism in Afghanistan, Windsor Rev. Legal &

Soc, 21, 25-40 (2010) (Discussing the customary law, legal pluralism and workable legal approaches in Afghanistan)

[43] Id.

[44] Id.

[45]Nadjma Yassari, Mohammad Hamid Saboory, Sharia and national law in Afghanistan, Jura Gentium Journal of Philosophy of International Law and Global Politics (2010)

http://www.juragentium.org/topics/islam/en/yassari.htm

[46]  Nafay Choudhury, Reconceptualising Legal Pluralism in Afghanistan, Windsor Rev. Legal &

Soc, 21 (2010)

[47] Id.

[48] Id.

[49] Excepting the conditions for which specific provisions have been made in this constitution, a law is a resolution passed by both houses, and signed by the King.  In the area where no law exists, the privisions of the Hanafi jurisprudence of the Shariaat of Islam shall be considered as law.  The constitution of Afghanistan, 1964 available at

http://www.afghan-web.com/history/const/const1964.html

[50]Nafay Choudhury, Reconceptualising Legal Pluralism in Afghanistan, Windsor Rev. Legal &

Soc, 21 (2010)

[51] Ali Wardak, Building a post-war justice system in Afghanistan 41 Crime, Law & Social Change. 319, 326 (2004) (Discussing the role of Jirga in Afghanistan)

[52]Nadjma Yassari, Mohammad Hamid Saboory, Sharia and national law in Afghanistan, Jura Gentium Journal of Philosophy of International Law and Global Politics (2010)

http://www.juragentium.org/topics/islam/en/yassari.htm

[53] Afg. Const. art. III

“In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.”

This was a shift from the 1964 constitution which merely required the laws to confirm to the “general principles of Islam.”  The present constitution widened the scope by using the word “belief” which is generic in nature and can lead to arbitrary judicial discretion.

[54] Afg. Const. art. CXXI

“The Supreme Court upon request of the Government or the Courts can review compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them, in accordance with the law.” http://www.afghan-web.com/politics/current_constitution.html

[55] Hannibal Travis, Freedom or Theocracy? Constitutionalism in Afghanisthan and Iraq, 3 Nw. J. Int’l Hum Rts 1, 17-20(2005) (Discussing the drafting of constitution in Afghanistan)

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1015&context=njihr

[56] Afg. Const. art. VII

[57] For example, according to Article 65 of Sudan’s constitution, the legislators must ensure that the laws they make are consistent with Shari’a but such laws are judicially unreviewable.

Article 8 in Bangladesh’s constitution requires that state laws and state action to be guided by “faith

in the Almighty Allah” but however this cannot be enforced.

Pakistan’s constitution once suggested that state law would have to be consistent with Shari`a, but declared at the same time that this rule was not judicially enforceable.  This was however later amended.

Clark B. Lombardi, Designing Islamic constitutions: Past trends and options for a democratic future, 11

Int J Constitutional Law, 615 (2013)

[58] Clark B. Lombardi , The Challenges and Opportunities of Islamic Review: Lessons for Afghanistan from the Experiences of other Muslim Countries,  USIP Position Paper (University of Washington School of Law)

http://www.usip.org/sites/default/files/ROL/USIP%20Paper%20KAS%20CBL.pdf

[59] Lombardi, Clark B. and Nathan J. Brown. “Do Constitutions Requiring Adherence to Shari’a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law.” 21Am. U. Int’l L. Rev., 374, 394-410 (2006) (Description of the classical and modern  islamic schools of interpretation)

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1054&context=auilr

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id

[67] Abdulaziz Sachedina, Taqlid: Blind Adherence or Rational Acceptance? University of Virginia, http://people.virginia.edu/~aas/article/article5.htm

[68]Lombardi, Clark B. and Nathan J. Brown. “Do Constitutions Requiring Adherence to Shari’a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law.” 21Am. U. Int’l L. Rev., 374, 394-410 (2006) (Description of the classical and modern  islamic schools of interpretation)

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1054&context=auilr

[69] Id.

[70] Egypt.  Const.  art II

“Islam is the Religion of the State. Arabic is its official language, and the principal source of legislation is Islamic Jurisprudence (Shari’a)”

[71] Clark B. Lombardi , The Challenges and Opportunities of Islamic Review: Lessons for Afghanistan from the Experiences of other Muslim Countries,  USIP Position Paper (University of Washington School of Law)

http://www.usip.org/sites/default/files/ROL/USIP%20Paper%20KAS%20CBL.pdf

[72] Id.

[73] Afg.  Const.  CLVII

“The Independent Commission for the Supervision of the Implementation of the Constitution will be established by law. Members of this Commission will be appointed by the President.”

[74] Clark B. Lombardi , The Challenges and Opportunities of Islamic Review: Lessons for Afghanistan from the Experiences of other Muslim Countries,  USIP Position Paper (University of Washington School of Law)

http://www.usip.org/sites/default/files/ROL/USIP%20Paper%20KAS%20CBL.pdf

[75] Afg.  Const.  art.  LX

“The President is the head of state of the Islamic Republic of Afghanistan, and conducts his authorities in executive, legislative, and judiciary branches in accordance with the provisions of this Constitution”

[76]Afg.  Const.  art.  LXI

“The President is elected by receiving more than 50% of the votes cast through free, general, secret, and direct voting”

[77] Afg.  Const.  art.  LX

“The President shall have two Vice Presidents, one first and one second”

[78] Afg.  Const.  art.  LXXXII

“The National Assembly consists of two houses: Wolesi Jirga (the House of People) and Meshrano Jirga. (House of Elders)”

[79] The lower house of the bicameral legislature, wolesi house consists of 249 members.  The upper house is called the Mishrano Jirga, it consists of elected provincial councils, elected district councils and the presidential appointees.

http://www.afghan-web.com/politics/current_constitution.html

[80] “Article 83: In the election law measures should be adopted for so the election system shall provide general and just representation for all the people of the country, and at least two female delegate should be elected from each province.” Afghanistan constitution, available at , http://www.afghan-web.com/politics/current_constitution.html

[81] Chris Johnson, William Maley, Alexander Thier and Ali Wardak, Afghanistan’s political and constitutional development, UK Department for International Development  (2003)

http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/5888.pdf

[82] Id.

[83] John Braithwaite and Ali Wardak, Crime and War in Afghanistan, Part I: The Hobbesian Solution, BRIT. J. CRIMINOL,1, 7-10 (2012) (Governance in Afghanistan after the 2004 constitution)

http://bjc.oxfordjournals.org/content/early/2012/12/11/bjc.azs065.full.pdf?keytype=ref&ijkey=PimEnX5jDJZnd9b

[84]Ramtanu Maitra, The perils of presidency in Afghanista, Asian Times, Jan. 15, 2004

http://www.atimes.com/atimes/Central_Asia/FA15Ag02.html

[85] John Braithwaite and Ali Wardak, Crime and War in Afghanistan, Part I: The Hobbesian Solution, BRIT. J. CRIMINOL,1 (2012)

http://bjc.oxfordjournals.org/content/early/2012/12/11/bjc.azs065.full.pdf?keytype=ref&ijkey=PimEnX5jDJZnd9b

[86] Chris Johnson, William Maley, Alexander Thier and Ali Wardak, Afghanistan’s political and constitutional development, UK Department for International Development  (2003)

http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/5888.pdf

[87] Afg.  Const.  art I

[88] Chris Johnson, William Maley, Alexander Thier and Ali Wardak “Afghanistan’s political and constitutional development”, UK Department for International Development (January 2003) available at http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/5888.pdf

[89] Id

[90] The situation of Hazaras improved after the coming of the new constitution Two members have been inducted in President hamid Karzai’s cabinet.

http://www.minorityrights.org/?lid=5440&tmpl=printpage

[91] United States Bureau of Citizenship and Immigration Services, Afghanistan: Background on the Anti-Taliban group, the Northern Alliance, (1999)

http://www.refworld.org/docid/3ae6a6a7c.html [accessed 17 May 2013]

[92] Afg.  Const.  Art IV

[93] Afg.  Const.  art 6

[94] Allison McCulloch Consociational settlements in deeply divided societies: the liberal-corporate distinction, Democratization, (2012)

http://www.tandfonline.com/doi/pdf/10.1080/13510347.2012.748039

[95] Id

[96]Anandita Bajpai, Imagining a ‘Secular’ India: Roots, Offshoots and Future Trajectories of the Secularism

Debate in India, South Asia Chronicle (2012)

http://edoc.hu-berlin.de/suedasien/band-2/189/PDF/189.pdf

[97] Alistair Mcmillan, Deviant Democratization in India (2008)

http://faculty.washington.edu/acs22/SinklerSite/PolS%20204/McMillan_Deviant_Democratization_in_India.pdf

[98] Y.K. Sabharwal, Role of Judiciary in Good Governance http://supremecourtofindia.nic.in/speeches/speeches_2006/good%20governance.pdf

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