—Shamshad Pasarlay and Ilaria Vianello
On 12 September 2020, representatives from the Afghan government and the Taliban held the first ever direct talks in Doha, Qatar, to negotiate an end to the Afghan conflict. On 15 December 2020, some media outlets published a list of questions both sides wished to discuss during the talks. An “Islamic system of government” and changes to the country’s constitutional order are at the top of the Taliban’s agenda whereas a comprehensive ceasefire is at the heart of the Afghan government’s wish-list. The Afghan government is willing to consider amendments to the 2004 Constitution, but at this initial stage it has been disinclined to discuss constitutional changes. Although both sides have shown different preferences, any long-term solution will require significant constitutional reform.
How such constitutional arrangements will actually proceed is contentious. Cracks have already opened up over some divisive constitutional questions, including, chiefly, the credos of the Afghan state and its relationship with Islam. The Taliban reject the system of government established under the 2004 Constitution, an “Islamic Republic” embracing democratic methods of selecting a government. The Afghan government in turn has clarified that any proposals for a Taliban style “Islamic Emirate” would be unacceptable.
The debate over the constitutional place of Islam has always been contentious in Afghanistan. Constitution makers have historically agreed that Islam is important, and that it should be assigned a chief role within a constitution. However, those constitution makers have disagreed deeply about the questions of how Islam and the institutional arrangements for its interpretation could be practically embedded in a constitution. It is thus not surprising that the debate over Islam and the particularities of an “Islamic system of governance” have become heated at the intra-Afghan peace negotiations. It is also expected that the debate will focus on the following questions: who should interpret Islam and what methodology of Islamic legal reasoning/interpretation those interpreters should employ. Afghanistan’s constitutional history, particularly its recent experience of making and governing under the current (2004) Constitution, offers invaluable insights about how these questions ought to be tackled.
Constitutional Treatment of Islam in Afghanistan
Constitution makers in Afghanistan have invariably embraced the idea that the state must respect Islam, but they have almost always disagreed over which form of Islam a constitution should promote or who should be empowered to ensure compliance of state actions with it. As disagreement over Islam threatened consensus over less controversial issues, constitution framers chose strategically to defer answers to these questions to some less conflict-ridden time in the future. Successful Afghan constitutions were drafted only when incrementalist techniques (e.g., including ambiguous language, inserting ostensibly conflicting provisions and deploying “by-law” deferrals) were adopted to postpone answers to deeply divisive questions.
For example, the process for the drafting of the 2004 Constitution brought to the constitutional bargaining-table groups who had engaged in fierce fighting and had drafted rival ideological constitutions during the civil war of the 1990s. Inevitably, these rival factions disagreed greatly on the nature of the state and the values the state should be empowered to promote. In response, the makers of the Constitution extensively used deferral/incrementalism as a strategic tool to put the most explosive questions out of sight and focus, instead, on issues that enabled them craft workable arrangements and ultimately draft a constitution. Constitutional framers used deferral to signal that they disagreed on a particular question and that these questions would continue to be tackled at a later stage through the ordinary political and legislative processes. For instance, Article 3 of the Constitution provides that “no law should contradict the beliefs and provisions of Islam.” This language avoids to clearly state which version of Islam should be guiding. Likewise, Article 7 guides the state to respect human rights treaties, but it does not provide any guidance about how these human rights values relate to Islam or how a possible conflict between these values would be reconciled in practice. By embracing such techniques, the makers of the Constitution wished to craft a constitution that could govern without resolving these tense divisive questions up front.
Additionally, although there is no trustworthy account that allows us to know with confidence how the Taliban debated and negotiated their constitution – a document they drafted in 1998 and ratified in 2005 when the group was ousted from power – a closer look at the text reveals, that it defers on the main question of the role of Islam. For example, Article 5 of the Taliban constitution provides that “the Islamic sharia is the only source of legislation” and that no law shall “contradict the basics of the sharia.” Like the 2004 Constitution, some basic Taliban era laws avoided making any explicit references to a particular version of Islam or a specific form of Hanafi fiqh. Moreover, they ostensibly do not resolve the question of the specific implications of Islam to laws and governance; instead, they require constitutional institutions to resolve them at a different point in time. The Taliban purport to present themselves as endorsing a unified vision of Islam and an “Islamic state,” but the group apparently does not follow a uniform approach to “Islamic governance,” and its members seem to disagree on some key issues of appropriate governance.
Options for the Future: Can Incrementalism Work?
Would an incrementalist approach be effective in tackling the current challenges? What interim default constitutional arrangements could be envisaged to allow for a fruitful discussion over the role of Islam that could help to dissipate the protraction of the current conflict? If the Afghan government and the Taliban embark upon a process for constitutional reform, incrementalism might be inevitable. Some have further suggested that the parties currently involved in peace talks should consider postponing debate on the divisive issue of an “ideal” system of Islamic government.
The implementation of the 2004 Constitution thus far suggests that incrementalism helped to prevent conflict over the role of religion and inspired a dialogue over the most explosive questions about Islam and its relationship with the state. However, deferral begot certain problems of its own. Therefore, a caveat is in order. Afghanistan’s recent constitutional history highlights that constitutional deferring techniques might pose some dangers for the institutions that are expected to make decisions regarding divisive issues. As Hanna Lerner notes, exporting the discussion over disruptive issues from the constitutional arena into the reality of ordinary politics might have a “polari[z]ing effect” “on inter-institutional relations.” This becomes even more problematic in the context of fragile institutional settings – such as Afghanistan – where these “unresolved disputes can act like a live grenade, quickly tossed from the constitutional arena to the political and judicial domains, and from there to the explosion of renewed hostilities.”
The conflict over divisive issues erupted on many occasions within constitutionally recognized institutions: the judiciary, the executive and the parliament. On various instances courts persecuted charges of blasphemy and apostasy, but the executive branch interfered and issued pardons or dismissed charges “on procedural grounds.” Similarly, the executive often intervened and adopted laws through presidential decrees that the parliament had already rejected on religious grounds. Although the executive’s interference attempted to keep the ambivalent constitutional bargain alive, tensions between liberals, traditionalists and modern Islamists were tangible. The executive’s intervention in taking a stance over the cases of blasphemy and apostasy and the adoption of religiously questionable laws through presidential decrees undermined the legitimacy and independence of courts and the parliament. Such interferences also offered an occasion for traditionalists and Islamists to feel unheard and side-lined. These factions reasonably suspected that the state sold out to the liberals at the expenses of the Islamic nature of the Constitution. In short, the incrementalist approach to drafting the 2004 Constitution was the most realistic one. However, the Constitution did not create an institutional cooperation mechanism that could help involve the proponents of rival visions of Islam in following the debates. In the years following the adoption of the 2004 Constitution, as many venues as possible (formal and informal) to discuss the practical role of Islam were not fully exploited. Instead, there was excessive strain on a single institution, be it the judiciary or the legislature, to resolve such high-profile issues. As a result, the relevant institution predictably appeared unable to constructively mitigate such heated questions. A “dialogic” approach to these questions may have reduced strain on a single institution. Therefore, the parties involved in any future constitutional dialogue in Afghanistan might not need consensus over the role of Islam; they might still be able to draft a constitution by embracing incrementalism. But in doing so, it is vital that they create institutional mechanisms that allow room for an inclusive dialogue moving forward.
Suggested Citation: Shamshad Pasarlay and Ilaria Vianello, The Afghan Peace Process and the Prospects for Constitutional Change: Can Incrementalism Work?, Int’l J. Const. L. Blog, Jan. 8, 2021, at: http://www.iconnectblog.com/2021/01/the-afghan-peace-process-and-the-prospects-for-constitutional-change-can-incrementalism-work
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