Islam and the Sharia in the 1993 Mujahideen Draft Constitution of Afghanistan: A Comparative Perspective

• Author: Shamshad Pasarlay
• Position: University of Washington School of Law, Seattle
• Pages: 183-205

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

islam and thE sharia in thE 1993

mujahidEEn draft Constitution of

afghanistan

a ComparativE pErspECtivE

Shamshad Pasarlay

University of Washington School of Law, Seattle

E-mail: shamshad.bahar@yahoo.com

Since 1923, when Afghanistan adopted its rst Constitution under the reign of

Amir Amanullah Khan, the country has draed and adopted ten constitutions

(including the 1993 dra constitutions prepared by the Sunni and the Shi’ite

mujahideen parties). Islam features prominently in all Afghan constitutions, ex-

cept perhaps in the Interim Constitution of 1980 draed and adopted when the

Soviet Union had occupied Afghanistan. In studying the constitutions of Afghan-

istan in the 20thcentury, two factors are apparent. e constitutional process

operates in two divergent directions; on one hand, it moves towards initiating

modern reforms and on the other hand it preserves the religious and tradition-

al values of the Afghan society. Roughly all Afghan constitutions demonstrate

the coexistence of these two trends in an attempt to achieve a balance between

the two paradigms. But Afghanistan has always struggled to achieve an accept-

able constitutional balance between secular and religious values. At dierent

times, this eort manifested through dierent provisions, but the commitment

to balance remained—even under communist regimes. is desire to balance

represents an unusual and distinctly Afghan quality, a quality illustrated by the

fact that constitutions at either end of the spectrum ultimately failed. None of

the earlier Afghan constitutions, except arguably the 1964 Constitution and the

current 2004 Constitution of Afghanistan, have come closer to striking a balance

between these interests.

is article examines the role of Islam and the Sharia (Hana Sharia) in the

understudied 1993 dra constitution of the Islamic State of Afghanistan (dra-

ed by the then mujahideen government of Afghanistan, but never ratied). It

argues that the 1993 dra constitution is unique among Afghan constitutions

III Indonesian Journal of International & Comparative Law 183-205 (April 2016)

184

Pasarlay

because it gives Islam and the Sharia a far dominant position in the country’s

social and political aairs. 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.

I. INTRODUCTION

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 Specically, 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.4As 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,

2005).

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.

4. Id.