Islam and the Sharia in the 1993 Mujahideen — Draft Constitution of the Islamic State of Afghanistan: A Comparative Perspective

Posted: 16 Jan 2016

See all articles by Shamshad Pasarlay

Shamshad Pasarlay

University of Washington, School of Law, Asian and Comparative Law

Date Written: January 11, 2016

Abstract

Since 1923, when Afghanistan adopted its first Constitution under the reign of Amir Amanullah Khan, the country has drafted and adopted ten constitutions (including the 1993 draft constitutions prepared by the Sunni and the Shi’ite mujahideen parties). Islam features prominently in all constitutions of Afghanistan, except perhaps in the Interim Constitution of 1980 drafted and adopted during the Soviet occupation of the country. In studying the constitutions of Afghanistan in the 20th century, two factors are apparent. In other words, the constitutional process operates in two divergent directions; on one hand, it moves towards initiating modern reforms and on the other hand it preserves religious and traditional values of the Afghan society. Roughly all Afghan constitutions demonstrate the coexistence of these two trends in an attempt to achieve a balance between the two paradigms, but perhaps with varying degrees of emphasis on the modernist and traditionalist ideals. Thus, Afghanistan has always struggled to achieve an acceptable constitutional balance between secular and religious values. At different times, this effort manifested through different provisions, but the commitment to balance remained — even under communist regimes. This desire to balance represents an unusual and distinctly Afghan quality, a quality illustrated by the fact that constitutions at either end of the spectrum ultimately failed. None of the earlier Afghan constitutions, except arguably the 1964 Constitution and the current 2004 Constitution of Afghanistan, have come closer to striking a balance between these interests.

This paper examines the role of Islam and the Sharia (Hanafi Sharia) in the understudies 1993 draft constitution of the Islamic State of Afghanistan, drafted by the then mujahideen government of Afghanistan, but never ratified). It argues that the 1993 draft constitution is unique among Afghan constitutions by giving Islam and the Sharia a far dominant position in the country’s social and political affairs. While it shows a strong commitment to Islamic principles of law and government, it does not leave room to satisfy its commitments to rule of law and international standards. Though this analysis, this paper provides the first work on the 1993 draft constitution of the Islamic State of Afghanistan. It will thus help us see this draft’s uniqueness in terms of its references to Islam, the Sharia and the Hanafi School of jurisprudence.

Keywords: Afghanistan, Constitutional Failure, Constitutional History, Draft Constitution, Hanafi Sharia, Islam, Islamic State of Afghanistan, Political Legitimacy Devices, Mujahideen Draft Constitution

JEL Classification: K29

Suggested Citation

Pasarlay, Shamshad, Islam and the Sharia in the 1993 Mujahideen — Draft Constitution of the Islamic State of Afghanistan: A Comparative Perspective (January 11, 2016). Available at SSRN: https://ssrn.com/abstract=2714049 or http://dx.doi.org/10.2139/ssrn.2714049

Shamshad Pasarlay (Contact Author)

University of Washington, School of Law, Asian and Comparative Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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