Security-related analyses about Afghanistan after the expected complete withdrawal of the US abound. On 11th June 2021, the latest Congressional Research Report titled “Afghanistan: Background and US Policy: In Brief” was issued that touched upon both security dynamics as well as democracy and human rights aspects in the aftermath of the US ‘Drawdown’ (and not the ‘Withdrawal’ as is being stated in the national press in Pakistan).
Without examining the larger potential constitutional challenges that befell the conflict-torn country, the report assumes that there will be a ‘democratic’ system of government in Afghanistan. The assumption may be true, but there are larger constitutional challenges, which must be considered before firming up an opinion on the subject.
For a primer, it may be noted that the extant government is working under the Constitution of 2004, which was a product of an internationally managed Bonn-Agreement that was blessed by the United Nations Security Council (S/2001/1154). The Bonn-Agreement, realizing that transfer of power is a constitutional and legal function, was constrained to involve Afghanis.
The Agreement provided constituting an Interim Administration (IA), which had, in turn, to use the Constitution of 1964 as its constitutional document. The IA had then to elect an Emergency Loya Jirga, which had then to appoint a Transitional Authority (TA).
After eighteen months of its establishment, the TA was required to establish a Constitutional Loya Jirga, which was required to finalize a constitution for Afghanistan. The Constitutional Loya Jirga, after deliberations, agreed and approved the Constitution of 2004.
The purpose of narrating all this is that transfer of power is a constitutional challenge, which was reckoned then and will soon be discussed again in the context of Afghanistan after the exodus of the US and after the Taliban and present government comes to terms with each other.
The present assessment is that the two entities (present Afghan Government and Taliban) will fight with each other leading to, God forbid, civil war. An alternate view is that after initial testing of power alignment, there may be an opportunity to enter into some sort of constitutional arrangement for international peace and security, and above all, for the sake of Afghanis.
It is this alternative scenario that is not getting much space in the national security discourse of Pakistan, where the constitutional challenges for Afghanistan must be examined and studied. The constitutional challenges of Afghanistan are many, but some may be discussed here.
Challenges: Form of government, religion, and rights
The first and foremost is the form of the government. There are three experiences before the Afghans. Hereditary monarchy, Islamic Emirate, and the Republic with a presidential form of government. Each form of government has its own features and ideologies.
The 1921 and 1964 Constitutions were more about hereditary monarchy, whereas the Taliban proclaimed their Islamic Emirate in 1994 and the 2004 Constitution provided for Republic. One of the three forms might become ultimately the future form of government.
The second issue is which version of Islam is to be embraced by the Afghans. The 1964 Constitution, in its article 2, recorded that Islam is the state religion, but the religious rites by the state were to be in accordance with Hanafi doctrine. The 2004 Constitution, on the other hand, did not subscribe to one doctrine but generally stated Islam to be the state religion.
A common feature between the 1964 and 2004 Constitutions was that both laid down rights and duties (Pakistan’s constitutional law, in contradistinction, only provides for rights). The component of the rights is very progressive, but the larger issues are that how do these rights granted by the state and rights granted by religion reconcile.
Besides reconciliation, the issue of enforcement and adjudication of rights also is part of the larger discourse because the formal institutions of police, prosecution, courts, and prisons will have to be accordingly designed.
Making the Loya Jirga more inclusive
The relationship between Loya Jirga (Grand Assembly) and constitution is not certain as the former is a traditional institution, which has been recognized by 1964 and 2004 Constitutions, but the writer constitution requires constitutionalism to prevail over any traditional things, or in other words, requires the rule of law instead of the rule of traditions.
The Loya Jirga has to be inclusive with the representation of all ethnic, minority, and vulnerable sections of the society. Article 110 of the 2004 Constitution states that Loya Jirga is the highest manifestation of the will of the people of Afghanistan.
The composition includes members of national, provincial, and district assemblies. While it remains democratic and operates at all three levels of government, it must be accorded normative hierarchical place vis-à-vis the written constitution and Islam.
There have been voices about centralist tendencies of the 2004 constitutional arrangements. The centralized versus a decentralized form of government has ethnic tones as noted by Barnett R. Rubin in his Special Report on Constitutional Issues in the Afghan Peace Negotiations published by the United States Institute of Peace (USIP) in November 2020:
“The question of whether or not to change both the structure of the executive and the centralization of the administration splits opinion largely along ethnic lines. While there are individual exceptions, Pashtuns generally support a presidential system with a centralized administration, while non-Pashtuns have favored executive power-sharing and some measures of decentralization and local control, up to and including federalism. The proponents of presidential centralization won out at the Loya.
“There is a myth that the United States imposed a centralized government on “traditionally decentralized” Afghanistan. [However,] centralized administration was established in Afghanistan by Amir Abdul Rahman Khan in the nineteenth-century jirga, but the conflict has continued, with opposition candidates contesting presidential elections with a platform of constitutional reform to establish an office of prime minister and decentralization.”
Read more: Why do countries want peace in Afghanistan?
Impact of politicizing legal matters
Because of these decentralized tendencies, the position of Chief Executive Officer was carved out through an executive order to put Abdullah Abdullah in a Prime-Minister like position in Afghanistan. Anyhow, the point will remain a constitutional challenge in the coming years.
By way of concluding remarks, it may be noted that regional countries must examine the constitutional challenges that post-US exodus Afghanistan will face. In this regard, it may be noted that India’s Modi has already used legal-craft in its Indian Citizenship Amendment Act, 2019 (CAA) where he amended India’s Citizenship Act, 1955 to provide for citizenship for persecuted religious minorities from Afghanistan (which does not share a border with India).
The politicization of legal matters of constitutional nature for Afghanistan is likely to fuel the conflict that may emerge there. Pakistan has wisely stayed away from any such legal adventure, but it must study the system to support Afghans in building their nation.
Kamran Adil is currently serving as Deputy Inspector General of Police. He studied law at Oxford University and writes and lectures on international law. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.