–Shamshad Pasarlay (Visiting Lecturer, The University of Chicago Law School)
[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]
The fall of the Islamic Republic of Afghanistan in August 2021 marked yet another abrupt rupture in political power in the country’s long and tumultuous history. The new de facto Taliban regime quickly dismantled democratic institutions established under the 2004 Constitution and are on path to impose upon the country an entirely different, autocratic constitutional regime. Sadly, Afghanistan is no stranger to abrupt political ruptures. In fact, the country’s modern history is beset with violent regime changes and armed conflict. Over the past century, each violent break in political continuity in Afghanistan has produced a new constitution, but the basic building blocks of the country’s constitutional order have remained largely unscathed. Put differently, Afghanistan’s many constitutions have remained faithful to the basic structure and the core identity of the country’s constitutional order even as the making of these constitutions has hardly been divorced from abrupt swings in political power.
Take the 2004 constitution of Afghanistan as an example. That document was ratified at the dawn of a new era with massive international involvement, but it did not betray the country’s core constitutional identity. In fact, the 2004 Constitution “was largely based on [Afghanistan’s] 1964 constitution.” The 1964 Constitution, itself, was written under the shadow of the country’s earlier monarchical constitutions, but it made explicit some principles that had been implicit in the practices and conventions that emerged during those early constitutional orders. Although the 2004 Constitution codified certain further changes, those alteration can, at best, be viewed as what scholars have described as “continuous changes,” meaning that they were constitutional modifications that remained faithful to the core identity and the basic structure of the constitutional order. For example, the 1964 basic law proclaimed Islam as the “sacred religion of Afghanistan” and required that state legislation should not contradict the “basics of Islam.” It declared further that the norms of the Hanafi fiqh (Islamic law as developed over the century by scholars associated with the Hanafi school) would be residual, applied in cases before courts if (and only if) statutory (state) law provided no guidance. The 2004 Constitution borrowed these same provisions from the 1964 basic law without any notable alternations. Further, constitutional continuity before the fall of the Islamic Republic last summer was visible in constitutional norms that defined the prerogatives of the head of the state, the fundamental rights and freedoms of citizens, the organization and jurisdiction of courts as well as the structure and prerogatives of the legislature although some peripheral elements continued to change and evolve.
I do not wish to argue that all constitutional principles from the early monarchical constitutions (1923, 1931 and 1964) up through 2004 had been consistently applied. Admittedly, the communist government’s interim 1980 Constitution represented profound departure from early constitutional norms, but those changes were retreated in favor of continuity when a permanent constitution was written in 1987. Such continuity has been in evidence in terms of the powers of the head of state, a degree of democratic legitimacy through general elections, Islam and liberal values (articulated deliberately vaguely) as the guiding principles of state behavior and respect for a long catalogue of basic rights.
However, the constitutional order in Afghanistan is headed towards a significant overhaul under the Taliban. The changes that the new de facto Taliban regime envision are sweeping in scale and betray the spirit of the 2004 Constitution. To put it differently, with the re-establishment of the Taliban’s Islamic Emirate in Afghanistan, we are faced with changes that are not only “discontinuous” but are so enormous in magnitude that some scholars may recognize them as “constitutional revolution.” This is because the modifications the new regime has subtly, but significantly, introduced (and may make in the future) profoundly reorient the fundamental principles that guided Afghan governance under the 2004 Constitution. This radical departure from the way constitutionalism was practiced is markedly visible in a book the Chief Justice of the Taliban regime published in May 2022. The book represents the most detailed elaboration, to date, of the Taliban’s constitutional imagination and their official government practices. There is no space here to evaluate all these changes in detail, but I discuss a couple of the most telling ones.
The 2004 Constitution vested sovereignty in the people, and the state derived its legitimacy from the nation. The Constitution provided that the government of the Islamic Republic should be elected through free and direct popular elections. The Taliban’s Islamic Emirate, by contrast, view only God as the source of sovereign power and reject popular elections as a western imposition. They deem elections as an institution completely unrelated to Islamic governance. The Taliban’s Islamic Emirate rejects further the idea of electing the head of state, the Amir al-mominin (commander of the faithful), through popular elections not only because general elections are futile but also because not everybody’s votes are equal in the pure Islamic tradition. Citing Quranic verses, the leaders of the Taliban argue that the votes of those “who speak and understand [educated] are worthy of [more] respect and deference because the establishment of governance and the question of the choice of a leader is an extremely important and complex issue,” and not everyone is suited to voice opinions in that venture. Only the wise ones – those versed deeply in Islamic law – would select the head of the Taliban state.
Additionally, although the theoretical underpinning of the state in the Taliban’s constitutional rhetoric remains underdeveloped, the state and its machinery in the Taliban’s constitutional vision seems to have one major task: to guide individuals to the right path by enforcing God’s laws, the sharia. It must promote virtue and prohibit vice and evil by whatever means it has at its disposal. According to the Chief Justice of the Taliban, the new rulers of Afghanistan desire to rule under what they view as the “government of guidance” (al-Hukuma al-Hidaya). This is a government ordained exclusively by divine law, and its core duty is to enforce the sacred law on earth and guide Muslims to the right path. This conception of the state deployed primarily as a vehicle to enforce God’s commands rather than to protect the rights and freedoms of its citizens is consistent with views expressed by the Taliban’s founding leader, Mullah Mohammad Omar. In March 1996, when the Taliban first took Kabul, Mullah Omar, addressing a large gathering of religious leaders, stated that the purpose of the Taliban state is “to implement the Din [religion] of God on God’s land, to serve […] God’s word, and to establish” God’s commands. It is through such a state that a “purely” Islamic society can be fostered. This conception of the state decidedly displaces the state defined under the 2004 Constitution, which derived its legitimacy from the people and was mandated to take effective measures “to create a prosperous and progressive society based on social justice, preservation of human dignity, protection of human rights [and] realization of democracy.”
Finally, almost all of Afghanistan’s past constitutions protected, at least on paper, a long catalogue of basic rights and fundamental freedoms – rights that are the hallmark of liberal, democratic constitutions and were among the highlights of the 2004 Constitution. However, the Taliban has completely backtracked on the constitutional status of basic rights and fundamental freedoms both practically and theoretically. In fact, the Taliban’s conception of fundamental rights is in deep tension with the version of the rights protected under the country’s 2004 Constitution. This is true particularly with respect to civil and political rights. The Taliban laws largely speak in terms of the duties of citizens towards religion than any rights they may hold. In their conception of rights, citizens are envisaged in relation to the obligations they own to the Islamic society as ordained by God. Citizens are not imagined as free and sovereign beings who are capable of shaping the society and the state. Instead, they are to obey God, and the state must shepherd them toward that direction. In this view, the state is not required to refrain from policing the private life of its subjects or refraining from intruding upon the peoples’ basic liberties; by contrast, in the pursuit of an ideal Islamic society – one in which God’s commands are observed by all Muslims – the state is required to force citizens to fulfill their religious obligations so that both the ruler and the ruled achieve prosperity “on earth and salvation in the hereafter.” Therefore, the state’s power is not limited by respect for fundamental rights and basic freedoms. Conversely, the state may be obligated to eliminate rights and freedoms that the country’s 2004 Constitution enshrined if they hinder the establishment of a “truly Islamic society.”
Finally, this new constitutional order that the Taliban plan to install in Afghanistan has a profoundly institutional dimension. The basic institutional arrangements under the 2004 Constitution seemed to be inadequate to effectuate the new responsibilities that the Taliban’s favored constitutional order imposes on the state. This is why the Taliban have dissolved many institutions created under the 2004 Constitution and have replaced them with ones that, in their view, are best suited to the new constitutional ordering. Notably, the Taliban have not yet ratified a written constitution. At this point, however, their “unwritten” constitutional framework, as manifested in publications by regime insiders and the emerging practices of the fledgling Taliban regime, seems to be embedding far-reaching changes to a long constitutional tradition.
Suggested citation: Shamshad Pasarlay, The Taliban and the Fall of Afghanistan’s Constitutional Tradition, Int’l J. Const. L. Blog, July 22, 2022, at: http://www.iconnectblog.com/2022/07/the-taliban-and-the-fall-of-afghanistans-constitutional-tradition/
 For a detailed exploration of Afghanistan’s turbulent constitutional history, see Shamshad Pasarlay, Making the 2004 Constitution of Afghanistan: A History and Analysis Through the Lens of Coordination and Deferral Theory (June 2016) (Unpublished PhD Dissertation, University of Washington) (on file with the author).
 See Alexander Thier, Big Tent Small Tent: The Making of a Constitution in Afghanistan, in Framing the State in Times of Transition: Case Studies in Constitution Making 544 (Laurel Miller ed., 2010).
 Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions 150 (2019).
 Mohammad Qasim Hashimzai, The Separation of Powers and the Problem of Constitutional Interpretation in Afghanistan, in Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Rainer Grote and Tilmann Röder eds., 2012).
 On “discontinuous changes,” see Albert, supra note 3.
 On large scale alternation in constitutional principles that may be viewed as “constitutional revolution,” see Garry Jacobsohn, Theorizing the Constitutional Revolution, 2 J. L. & Crts. 1 (2014).
 Abdul Hakim Haqqani, Al-Emarat al-Islamiyya wa Nizamoha (The Islamic Emirate and Its [Political] System) (2022).
 Id. at 74–75.
 Id. at 20–22.
 Id. at 141–143.