—Shamshad Pasarlay, Visiting Lecturer, The University of Chicago School of Law
[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]
One of the closely observed aspects of the Taliban’s recent takeover of Afghanistan has been the group’s views on constitutionalism, and how they may address the validity of the country’s 2004 Constitution. The Taliban, however, are remarkably ambivalent and deliberately vague when it comes to the future of the 2004 Constitution or to drafting a new fundamental charter. In fact, they have sent mixed signals about what type of a constitutional order they envisage for a transformed Afghan society. In September 2021, the Taliban Acting Minister of Justice stated that their government planned to “implement” Afghanistan’s 1964 Constitution as an interim charter. In February 2022, in a meeting with the European Ambassador to Afghanistan, Taliban Acting Foreign Minister pledged to “respect [the 2004] Constitution.” Likewise, the head of the Constitutional Oversight Commission, an institution originally established under the 2004 Constitution, indicated that Afghanistan’s Constitution remains “operative,” but its chapters on the president and the parliament are effectively “suspended.”
Perhaps most strikingly, the 2004 Constitution is still labeled as Afghanistan’s “enforced constitution” on the website of the Ministry of Justice. This is startling because the Taliban have made some fundamental changes to the Justice Ministry’s website including removing the biography of the former Minister of Justice and replacing it with the Taliban Justice Minister as well as replacing Afghanistan’s tricolor flag with that of the Taliban’s own ensign.
These maneuvers by the Taliban beg the question of the constitutional vision of an Islamist group, which in the past had not ratified a written constitution, claiming, instead, that the sharia, God’s commands, was all the constitution they needed. More markedly, they raise the question of the continuity of the 2004 Constitution: whether that constitution is still effective, suspended, or dead? Both questions merit closer scrutiny.
The Taliban do not view the 2004 Constitution approvingly. In the past, they had argued that the Constitution was a foreign imposition, a document written essentially “under the shadow of B-52 bombers of the foreign invaders.” They had also blasted the Constitution to be inadequately divinely ordained and decried the document for containing elements that are, in their view, inspired by secular, western constitutions. According to the Taliban, a legitimate Islamic constitution is one that is drafted by a constitutional assembly of “Islamic scholars” versed, arguably, in the Taliban’s brand of Islamic law. It should be a constitution which includes no single provision contrary to Islamic dictates. A “truly Islamic constitution,” according to the Taliban, should vest abundant discretionary power in the state to efficaciously build an Islamic society by enforcing God’s commands.
Therefore, many believed that, upon their return to power in August 2021, the Taliban would immediately remove the 2004 Constitution. Curiously, however, the Taliban’s disdain towards the 2004 Constitution seems to have softened since their return to power. This change of attitude does not strictly align with the Taliban’s professed constitutional vision. In fact, there is deep tension between the Taliban’s constitutional imaginations and the ideals written in the 2004 document. For one thing, the Taliban argue that “the sovereignty of God must be the foundational normative commitment” of a truly Islamic constitution. Only when constitutions recognize God’s sovereignty and oblige the state to enforce it, they will be considered legitimate. Conversely, if constitutions vest the authority to determine the extent of acceptable and legitimate government behavior in the people, then the constitution is neither Islamic nor legitimate. This is the foundation on which the Taliban wish to build their state – a premise that leaves no room for democratic elections and only limited space, if at all, for fundamental rights. The 2004 Constitution, by contrast, vested sovereignty in the people and bound the state to build a democratic society based on the will of the people expressed through general elections. Therefore, the Taliban’s gesture towards the 2004 Constitution seems to be directed at the international community to attract foreign approval rather than proclaiming respect for genuine constitutional underpinnings of their state.
Practically, the mismatch between the Taliban’s interim governance and the ideals written in the 2004 Constitution cannot be more visible. No dimension of the Taliban’s interim government draws on the 2004 Constitution, and no values of that document are afforded respect in actual, real governance. The Taliban’s current, de facto government structure resembles the model defined in the 1998 Taliban Charter, not the presidential executive written in the 2004 Constitution. The Taliban have provided no evidence that their government respects the basic rights and freedoms rooted in the 2004 basic law; instead, with arbitrary detentions, forced disappearances of rights activists, and compulsory house to house searches in Kabul and its vicinities, all evidence is given to the contrary.
Although it is hard to make sense of the Taliban’s position on the continuation of the 2004 Constitution, their references to the document may mean one of the following things. First, because the Taliban never recognized the 2004 Constitution as a legitimate document, they ostensibly do not wish to dignify it by formally removing it. Instead, they may prefer to treat it as no constitution at all and thus not worthy of formal revocation. Second, the Taliban may be waiting to draft a replacement of the 2004 Constitution, after the ratification of which the latter will be automatically rescinded. This is a common method of constitutional abolition in Afghanistan. The final article of nearly all Afghan constitutions included a nullifying clause which formally declared the death of the previous constitution. The 1998 Taliban Charter, itself, included a provision which nullified “all laws [including constitutions] of the previous regimes” except for those that did not contradict the “provisions of the sacred religion of Islam.” Hence, it seems that the Taliban may abrogate the 2004 Constitution by the force of a new basic law that would replace it. A third, but less likely, reason could be that the Taliban simply did not notice that the 2004 Constitution is still posted on the Ministry of Justice’s website as Afghanistan’s constitution in force, or they may have forgotten to take it down.
In any case, the 2004 Constitution is apparently alive and enduring, but its endurance has become meaningless. It has ceased to organize politics and society in ways its framers projected. Political contestation is no longer within its reach, and its values have been effectively muted. Constitutions are expected to shape politics and society in a certain fashion; when they fail do so, they are viewed as failed constitutions even though they may be enduring. The 2004 document is still a breathing constitution, and its status as such has been unscathed by the fall of its authoring regime. However, the unfolding of recent events in Afghanistan has rendered this once relatively successful document into a constitution in name only.
Suggested citation: Shamshad Pasarlay, Dead or Alive?: The Taliban and the Conundrum of Afghanistan’s 2004 Constitution, Int’l J. Const. L. Blog, Mar. 23, 2022, at: http://www.iconnectblog.com/2022/03/dead-of-alive-the-taliban-and-the-conundrum-of-afghanistans-2004-constitution/