—Shamshad Pasarlay, Max Planck Foundation for International Peace and the Rule of Law
[Editor’s Note: This is one of our biweekly ICONnect columns. The views expressed in this column belong solely to the author and do not necessarily reflect the opinions of the author’s organization.]
On September 28, 2021, nearly two months after taking control of Afghanistan, the Taliban promised to install Afghanistan’s 1964 Constitution as an interim charter until a new constitution is written. Two months later, former President Hamid Karzai urged the Taliban to codify and regulate the exercise of public power and use the 1964 Constitution as a starting point. Notably, in 2001 after the collapse of Taliban’s first spell in power (1996–2001), the Bonn Agreement too inaugurated the 1964 Constitution as an interim basic law. On both occasions, a broader set of amendments accompanied the Constitution: the Taliban said the document’s norms that contradict the sharia would not be implemented, whereas the Bonn Agreement muted its chapters on the monarchy and the parliament. Setting aside what impacts these broad “amendments” may have on the basic identity of the 1964 Constitution, its use as an interim basic law has engendered exceptional praise and glory for a document that, in theory, moved Afghanistan from an absolutist monarchy to a constitutional one in the 1960s.
Importantly, the praise for the 1964 Constitution goes back to the time it was crafted. Scholars have lionized the document from all corners. It was called the “finest in the Muslim world,” a “cherished symbol,” a “liberal, enlightened, forward-looking, comprehensive and definitive” constitution that “set a progressive orientation for the future,” and a valuable case of the “meeting of liberal constitutionalism and Islamic modernism.”
If constitutions are judged by their liberal content or methodological perfection, then the 1964 Constitution may merit the credit that is bestowed upon it. It protected a long list of liberal rights, entrenched, for the first time in the country’s history, separation of powers, and codified a proper set of checks and balances. However, a close, contextual analysis of the document and the process through which it was drafted paints an entirely different picture. It died in less than a decade and failed to generate useful outcomes that could legitimate the state or pilot political disputation through peaceful mechanisms. In fact, it exacerbated extant conflict and generated new sources of political tensions so much so that they ultimately brought down the Afghan monarchy in 1973.
The Making and the Wrecking of the 1964 Constitution
Before the 1964 Constitution was drafted, Afghanistan had been governed relatively peacefully under the terms of its longest-lived constitution, the 1931 Constitution. In the early 1960s, King Zahir Shah’s (1931–1973) cousin, Prime Minister Daoud Khan (1953–1963), advised the King to replace the 1931 document. Daoud complained that the monarch exercised too much power under the 1931 Constitution, and that a new constitution should be drafted to move Afghanistan to a “constitutional monarchy” or a “parliamentary democracy.” Daoud’s proposal would found a state in which the monarch only exercised symbolic powers. Zahir Shah, however, declined Daoud’s advice and forced the premier to resign. The King thereafter appointed a committee that drafted the 1964 Constitution.
The draft that the committee produced included a provision that barred members of the Royal Family from holding political office. Its article 24 stated that members of the Royal Family should not become a prime minister, justice of the Supreme Court, or member of the parliament. The constitution’s architects praised article 24 for its democratic virtues, arguing that it was necessary for the creation of a constitutional monarchy. But the true purpose of the article was to prevent Daoud from ever returning to politics again. Although Daoud Khan was precluded from partaking in the drafting process, King Zahir Shah sought his former premier’s opinion on the draft constitution. Inevitably, Daoud suggested that the ban on the members of the Royal Family be removed. The King’s loyalists in the constitutional committee rejected Daoud’s request.
The King then appointed a constitutional Loya Jirga (CLJ), Afghanistan’s constitutional convention, to ratify the constitution. Daoud was once again excluded from partaking in the CLJ proceedings although he had requested to participate. Assuming that the CLJ would approve the article 24 ban, Daoud indicated that he might form a political party and through it participate in the political process. To take away such an opportunity from Daoud, the CLJ amended article 24 and imposed another ban on the members of Royal Family to form or become part of a political party. Daoud did not hesitate to find a way around the ban: he contemplated abandoning his membership in the Royal Family. The CLJ in turn amended article 24 again to make membership in the Royal Family permanent.
The drafting of the 1964 Constitution, not unlike many constitutions elsewhere, was effectively a self-interested act of removing political rivals and muting alternative viewpoints. It gave Daoud and his allies no peaceful route to participate in the political process. Daoud and his allies thus felt “betrayed” by the Constitution and became, as one historian has said, a “sworn enemy” of the Constitution. Other powerful figures and the leaders of nascent political groupings (e.g., the communists, the Islamists, and the nationalists) who felt threatened by the new constitutional order began to consider alternatives to the monarchy, and some gathered around Daoud to topple the system. Ultimately, Daoud and his comrades toppled the monarchy in a coup and abrogated the 1964 Constitution in 1973.
The 1964 Constitution thus fails spectacularly when measured against certain yardsticks scholars use to measure constitutional performance including, among others, legitimating the state, piloting political disputation peacefully and making democratic politics possible. Instead of creating venues where political conflict could be formally addressed, and where the nascent political movements could air their grievances peacefully, the Constitution gave the King expansive power that he abused throughout the lifespan of the Constitution. Unsurprisingly, when the Constitution made peaceful politics impossible, violent contestation of the state became inevitable. Admittedly, constitutions, typically, may not be the only reason for the collapse of a political order, but it is hard not to blame the fall of the Afghan monarchy, at least in a large part, on its founding charter, particularly on the process that produced it.
The Revival of the 1964 Constitution
If we accept that the 1964 Constitution and the process that produced it were deeply flawed, then why Afghanistan’s governing elites use it as an interim constitution? Is the revival of this Constitution evidence of its “goodness”? The answer is a simple “no.”
The 1964 Constitution comes back to life for reasons not related to its performance. In 2001, it was implemented because it founded a state that aligned closely with the interests of the post-Taliban political class and their international allies. The Constitution creates a highly centralized state with a powerful monarch at its apex. Fearing that the post-war country was headed towards partition, Afghan political elites argued that Afghanistan required a centralized state with a powerful president to unify the divided country and to protect its territorial integrity. This view was shared by the Western superpowers who sponsored Afghanistan’s post-Taliban political reconstruction. The 1964 Constitution perfectly fit this narrative.
Similarly, the Taliban’s references to the 1964 Constitution are driven more by desires to present their government to the world free from the flaws of their past. By so doing, they hope to polish the external face of their government as one that purportedly abides by the rules of Afghanistan’s most liberal constitution. The talk of the 1964 Constitution as an interim charter is not inspired by the Taliban’s respect for the ideals written in that Constitution. In fact, there are deep tensions between the 1964 Constitution and the one championed by the Taliban. The Constitution’s liberal, democratic values, which form its core identity, do not conform with the Taliban’s brand of Islam.
Suggested citation: Shamshad Pasarlay, The Myth of a Constitution’s ‘Goodness’: What We Get Wrong about Afghanistan’s 1964 Constitution, Int’l J. Const. L. Blog, Jan. 26, 2022, at: http://www.iconnectblog.com/2022/01/the-myth-of-a-constitutions-goodness-what-we-get-wrong-about-afghanistans-1964-constitution/
 Ayaz Gul ‘Taliban Say They Will Use Parts of Monarchy Constitution to Run Afghanistan for Now’, VOA (28 September 2021) https://www.voanews.com/a/taliban-say-they-will-use-parts-of-monarchy-constitution-to-run-afghanistan-for-now/6248880.html
 Abdul Raqeeb Sail, ‘Karzai wants Taliban to convene Loya Jirga’, (16 December 2021) < https://pajhwok.com/2021/12/16/karzai-wants-taliban-to-convene-loya-jirga/ >
 Louis Dupree, Afghanistan, (Princeton University Press 1937) 565.
 Ebrahim Afsah, ‘Afghanistan: An Aborted Beginning’ in Kevin Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia, (Hart 2021) 261.
 Donald Wilber, ‘Constitution of Afghanistan,’ (1965) 19 Middle East Journal 215, 216.
 Sayed Qassem Rishtya, Afghanistan: The Making of the 1964 Constitution, Leila Rishtya Enayat-Seraj (trans.) (Publi-Libris, Eng. ed. 2005) 42. Qassem Rishtya was one of the Constitution’s key craftsmen.
 Saïd Amir Arjomand, ‘Constitutional Developments in Afghanistan: A Comparative and Historical Perspective,’ (2005) 53 Drake Law Review, 943, 952.
 Abdul Hameed Mubarez, Tahlil-e Waqiat-e Siyasi-ye Afghanistan: 1919–1996 (An Analysis of Afghanistan’s Political Developments) (1996), 209. However, the alternative that Daoud offered after toppling the monarchy in 1973 was outright autocratic. He crafted a constitution that vested unrestrained powers in the presidency.
 Rishtya (n 6), at 68.
 Ibid. 50–53.
 The process for the crafting of the 1964 Constitution and the tensions between Daoud and the King are thoroughly reported in Sabahuddin Kushkaki, Daha-ye Qanun-e Assasi (Decade of the Constitution) (1986), chapter 1, and Dupree, (n 3), chapter 24.
 Kushkaki, (n 11), at 16.
 Tom Ginsburg and Aziz Huq, ‘What Can Constitutions Do?: The Afghan Case,’ (2014) 25 Journal of Democracy 116.
 Thomas Barfield, ‘Afghanistan’s Ethnic Puzzle: Decentralizing Power Before the US Withdrawal,’ (2011) 90 Foreign Affairs, 54, 54.