The withdrawal of the Taliban from power has marked a new phase in Afghan history. The draft was then scrutinized by the twenty-nine members of the Constitutional Advisory Commission. After six months, no progress had been made in drafting the intended draft of the constitution.
35 “The Constitutional Process,” above note 23; The Secretariat of the Constitutional Commission of Afghanistan, "The Constitution-Making Process," 7-8. In the end, thousands of comments were received and recorded by the staff of the Constitutional Commission.36. The delay in the release was mainly caused by the Centre's efforts to enforce its interest in the draft constitution.
Several members of the Cabinet and other influential persons were dissatisfied with the draft of the Commission. The Secretariat of the Constitutional Commission was tasked with organizing, holding and convening the election of the CLJ's members (Article 7). At the plenary meeting on the draft, the delegates would decide on and discuss the content of the draft (Article 18).
Islam and Shari'a in the Afghan new constitution The drafting of the Islam-related clauses is a.
The Place of Islam in the Previous Constitutions Two dominant factors are deemed as
Islam is the sacred religion of Afghanistan and the religious rites performed by the state will be according to the provisions of the Hanafi doctrine.” In Article 19 it is laid down that "no one shall be punished except by the order of the Shari'a and Islamic Constitution of Afghanistan".55. Under his leadership, the 1931 Constitution remained to govern the country until the promulgation of the 1964 Constitution.
As with the 1931 constitution, Article 2 of the 1964 constitution stated that Islam is the official religion of Afghanistan and that the state should uphold the Hanafi doctrine.58 The constitutional status of Islam was guaranteed by the king, who according to article 7 is “the protector of the basic principles of the holy religion of Islam”. The power of parliament to legislate was limited so as not to reject “the basic principles of the holy religion of Islam” (Article 64). One of the reasons for King Amanullah's withdrawal was his failure to accommodate Islamic traditionalist aspirations in drafting the 1931 constitution.
Furthermore, the 1964 Constitution notably departed from the 1931 Constitution in its continued reference to statutory laws (legislative acts) rather than Sharia. This is likely to be a consequence of the principle of the supremacy of Parliament. In essence, referring to Article 64 (“there shall be no law contrary to the fundamental principles of the holy religion of Islam”), there was no significant change from the 1931 Constitution in its adherence to Sharia.60.
In the preamble, the first statement refers to the statement of conviction to. Its democratic character is enshrined in the preamble of the constitution (“to establish an order based on the will and democracy of the people”). In fact, the drafting of Islam-related clauses was one of the most negotiated constitutional clauses.
Vice President Nematullah Shahrani specifically requested the inclusion of the words "Islamic Republic of Afghanistan" in the new constitution. Does this explanation reflect the reality of creating clauses of Islam in contemporary Afghanistan? This clause of the Islamic Republic was debated along with the title of the constitution, namely whether to read it.
Kamali and other members of the CRC position on the subject shows that the concept of an Islamic state (Afghanistan as an Islamic republic) is clouded by uncertainties and vagueness. The idea was then accepted under the CLJ Convention.73 The final version of Article 2 establishes Islam as the religion of the state of the Islamic Republic of Afghanistan.
The New Role of Islamic Law
The earlier draft of this article agreed upon by the CDC stated that “the religion of Afghanistan is the holy religion of Islam. Followers of other religions are free to exercise their creeds within the provisions of the law".72 The sweeping reference to 'Afghanistan' was considered problematic as it would ignore other religions followed by the Afghan people. This factor together with the influence of Iran necessitated that the religion clause had to be stated in general without reference to specific schools or rites.75 The robust status of the Shiite school is further emphasized in Article 131 which provides a guarantee on the application of the Shi'a jurisprudence for its followers in matters related to personal matters.
The 2003 draft constitution, which sought to reinstate this wording, changed its provisions to "the holy religion of Islam and the values of this constitution." 74 See Saïd Amir Arjomand, "The Role of Religion and the Hanafi and Ja'fari Jurisprudence in the New Constitution of Afghanistan," in Afghanistan: Towards a New Constitution (Center for International Cooperation, New York University and the Reconciliation Committee).77 Adopted the proposal passed in the new constitution stipulated that the principle underlying the non-violation clause is "the teachings and regulations" (mu'taqadāt wa aḥkām) of Islam, while the words. For many observers, this is highly regarded as the entrenchment of Sharia law.79 This also showed that the demand of international actors to remove any reference to Sharia from the constitution has been rejected accordingly.80.
Article 121 of the 2004 Constitution states that “At the request of the Government or courts, the Supreme Court shall review the laws, legislative decrees, international treaties and international treaties for their compliance with the Constitution and their interpretation in accordance with the Constitution.” law". One optional opinion recommended the establishment of a constitutional court, arguing, among other things, that such a court would solve the existing problem of the irresponsible judiciary and state bureaucracy whose staff were largely unqualified for the new system.81 The Commission approved the proposal and took it to the CLJ, but the proposal was rejected out of fear that such a court would be similar to the Council of Guardians of Iran.82 The final draft of the new constitution was concluded with the entrustment of the power of constitutional review to the Supreme Court (Article 121).
Although the idea of establishing a specialized constitutional court was not accepted, the CLJ agreed to establish the Independent Commission for Supervision of the Implementation of the Constitution (Article 157).84 This article was drafted for the transitional purpose as the its provision has been placed in the Transitional Provisions chapter. The other line, on the other hand, may suggest that the Court should consider the principles and provisions of Islam together with other constitutional provisions, such as on equality between men and women and compliance with international human rights norms. In addition, the conclusion that the reference to Islamic law in the constitutional revision will undermine international human rights norms and principles of democracy comes from the underlying assumption that Islamic law is incompatible with human rights and the ideals of democracy.
Esposito and Emad El-Din Shahin (eds.), The Oxford Handbook of Islam and Politics (Oxford: Oxford University Press, 2013), 68. With this in mind, it is plausible and justified that the interpretation of the teachings and provisions of The Islam would go hand in hand with constitutional provisions that uphold human rights and democratic values. Islamic” that Article 3 of the Constitution would be taken into account in the constitutional revision, along with Article 7 (human rights) and Article 22 (gender equality).
Conclusion
The international and foreign involvement in the constitution-making process was evident in the making of the post-world war constitutions. The essay shows the role of international experts in the preparation of the draft and the negotiation of the content of the draft. However, the role of these foreign actors in the formulation of constitutional provisions could not be exaggerated.93 For some observers, as discussed above, the creation of the Islam clauses was the result of the negotiations between international actors, who generally proposed the provisions has. entrenched in the western liberal constitutions, and domestic Islamic actors, who pushed for the establishment of Islamic norms in the constitution.
In this sense, it has failed to provide a fair account of constitution-making in Afghanistan. 93 Shamshad Pasarlay demonstrates that the international community had little, if any, influence in the constitution-making process in Afghanistan. Agreement on Interim Arrangements in Afghanistan Pending the Restoration of Permanent Governmental Institutions, UN Doc S December 2001).
The Role of Religion and Hanafi and Jafari Jurisprudence in the New Constitution of Afghanistan.” In Afghanistan: Towards a New Constitution. Decree of the President of the Islamic Transitional State of Afghanistan on the convening of the Constitutional Loya Jirga. Impromptu remarks by Special Representative of the Secretary General Lakhdar Brahimi at the closing ceremony of the Constitutional Loya Jirga (2004).
The Islamic State: Origins, Definition and Salient Characteristics.” In K S Nathan and Mohammad Hashim Kamali (eds.). Islam and its Shari'a in the Afghan Constitution 2004 with special reference to personal law. In Nadjma Yassari (ed.). The Role of Constitution-Building Processes in Democratization: Case Study Afghanistan.” International IDEA Democracy-building & Conflict Management (DCM), 2004.
Order of the President of the Islamic Transitional State of Afghanistan on the Rules of Procedure of the Constitutional Loya Jirga.
