—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.Read the rest of this entry…