III Indonesian Journal of International & Comparative Law 183-205 (April 2016)
because it gives Islam and the Sharia a far dominant position in the country’s
social and political aairs. While it shows a strong commitment to Islamic prin-
ciples of law and government, it does not leave room to satisfy its commitments
to rule of law and international standards. rough this analysis, this article
provides the rst work on the 1993 dra constitution of the Islamic State of Af-
ghanistan. It will thus help us see this dra’s uniqueness in terms of its references
to Islam, the Sharia and the Hana School of jurisprudence in a way that the
dra’s authors understood them.
Keywords: Constitutional Law, Constitutional Design, Islamic Law, Comparative
Law, Law and Religion, Human Rights.
Like many countries around the world, Afghanistan did not have a
written constitution until the rst quarter of the twentieth century. e
country adopted its rst written constitution in 1923 under the reign
of Amir Amanullah Khan (1919-1929). Since Afghanistan has a tra-
ditional and Islamic society, the implementation of constitutions and
constitutionalism represented a great challenge.1 Specically, the jux-
taposition of the role of Islam and the Sharia, tradition, statutory laws
and other elements challenged its legitimacy. ese factors have always
been a test for any constitution promulgated in Afghanistan.2 us,
while Afghanistan has seen many constitutions over the past 90 years,
it has struggled to maintain and establish a stable and workable tradi-
tion of constitutionalism. is failure has been mainly due to the fact
that Afghanistan’s constitutional history has been linked with crisis,
coup d’ etat and popular revolts.3 In the absence of a popular mandate,
new regimes that came to power were inclined to use constitutions as
instruments of gaining political legitimacy.4As a result, each change
1. Mohammad Hamid Saboory, e Progress of Constitutionalism in Afghanistan,
in T S C A, I E:
I P L 5-22, 5 (Nadjma Yassari, ed. Max Planck,
2. Id. at 5.
3. Mohammad Hashim Kamali, Islam and Its Sharia in the Afghan Constitution of
2004-with Special Reference to Personal Law, in id. at 24.