Journal of Afghan Legal Studies
Volume 2 (2017 / 1396)
Chief Editor: Ass. Prof. Lutforahman Saeed
Editors: Prof. Dr. Mohammad Hashim Kamali Dr. Tilmann J. Röder Ass. Prof. Lutforahman Saeed
Vazhah Publication
Journal of Afghan Legal Studies (Majallah-ʾi muṭāliʿāt-i ḥuqūqī Afghānistān) Volume 2 (2017 / 1396)
Chief Editor Ass. Prof. Lutforahman Saeed
Editors Prof. Dr. Mohammad Hashim Kamali, Dr. Tilmann J. Röder and Ass. Prof. Lutforahman Saeed
Editorial Team Dr. Wahidullah Amiri, LL.M. (Seattle), University of Nagarhar Dr. Wali M. Naseh, LL.M. (Seattle), University of Kabul Dr. Shamshad Pasarlay, LL.M. (Seattle), University of Herat H.E. Abdel-Ellah Sediqi, Ambassador of the Islamic Republic of Afghanistan, Paris Ass. Prof. M. Ayub Yousufzai, University of Mazar-e Sharif Bahishta Zahir Hillali, LL.M. (Toulouse), J. W. Goethe University Frankfurt
Editorial Assistants Ahmad Shah Ahmadyar Aisha Mahmood
Publisher Foundation of Vazhah Publication Second edition: Kabul, 2018 Circulation: 500 ISSN: 2522-3070
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Journal of Afghan Legal Studies Volume 2 (2017 / 1396)
Academic Advisory Board H.E. Sarwar Danesh, Second Vice President of the Islamic Republic of Afghanistan The Chancellor of the University of Kabul, Prof. Dr. Hamidullah Farooqi Ass. Prof. Dr. Ebrahim Afsah, University of Copenhagen Dr. Mohammad Amin Ahmadi, Ibn-e Sina Institute of Higher Education (Kabul) Dr. Noah Coburn, Bennington College (Bennington, USA) Dr. Ghazaleh Faridzadeh, Shahid Beheshti University (Tehran) Ass. Prof. Ghizaal Haress, LL.M., American University of Afghanistan Prof. Dr. Clark B. Lombardi, University of Washington (Seattle) Prof. Dr. Muhammad Munir, International Islamic University Islamabad Dr. Idris Nassery, Paderborn University Dr. Orzala Nemat, Afghanistan Research and Evaluation Unit (Kabul) Dr. Abdullah Shefaee, Ibn-e Sina Institute of Higher Education (Kabul) Prof. Dr. Ali Wardak, University of South Wales (Pontypridd, UK) Dr. habil. Nadjma Yassari, Max Planck Institute for Comparative and International Private Law (Hamburg)
Table of Contain
Editorial Note...... 11 Abstracts of Dari/Pashto Articles (in English)...... 15 Lessons on Global Legal Transfers from Afghan Taxi Drivers:A Social Network Approach..29 Nafay Choudhury
The Uses of Legal Ambiguity: Issues with Legal Protections of International Workers in Afghanistan...... 53 Noah Coburn
Legal Pluralism and Militia Regulation: International, Domestic, and Community Accountability Frameworks for Sub-State Forces in Afghanistan...... 73 Erica Gaston
Enforcing Article 3 of the Afghan Constitution: Lessons from the Pakistani Federal Shariat Court...... 101 Malthe Hilal-Harvald
Countering Global Terrorism and its Manifestations in Afghanistan: Advancing New Shariah Perspectives...... 131 Mohammad Hashim Kamali
Examining Ethnic Accommodation and Coalition-Building Under Alternative Forms of Government in Afghanistan...... 169 Mohammad Bashir Mobasher
Non-Violation Of Islamic Law Under The Afghan Constitution...... 193 Mohammad Rasekh
Complementarity and Conflict: State, Islamic, and Customary Justice in Afghanistan...... 213 Tilmann J. Röder
Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan...... 245 Warda Yasin
Editorial Note
The Journal of Afghan Legal Studies (JALS) is the first peer-reviewed, trilingual scientific law journal in Afghanistan. It provides a unique intellectual venue for national and international scholars and researchers in the field of Afghan law. The purpose of the JALS is to spread the findings of high-quality research concerning important legal and juridical issues of concern to the country and matters of topical interest in Afghanistan’s on-going efforts to strengthen the rule of law. The JALS also provides reviews and expositions of new challenges emerging from the implementation of the existing laws in the country. Most of the contributions are written by Afghan researchers in Dari, Pashto or English. In addition, a number of international scholars have written articles in English or Farsi. Pashto is much of a newcomer as an academic language and although JALS contributions in Pashto have been somewhat limited in number compared to those in Dari and English, effort is being made to widen the Pashto coverage so as to respond to the needs of Pashto students, scholars and practitioners. The editors will pursue their efforts to contact capable researchers in Afghanistan and abroad to write articles in Pashto, and we are optimistic to having more in the next volumes of the JALS. Most of the articles in this volume were presented at one of the Afghan Legal Studies Conferences, which we organize in Kabul on an annual basis, and after careful review by two members of the Editorial Committee of the JALS, selected papers have been included in this volume. This journal was initiated in 1395/2016 by Prof. Dr. Mohammad Hashim Kamali, Founding CEO of the International Institute of Advanced Islamic Studies (IAIS) 12 / Journal of Afghan Legal Studies in Malaysia, the German scholar Dr. Tilmann J. Röder, and Assistant Professor Lutforahman Saeed of the Shariah Faculty of Kabul University. Afghanistan is still grappling with endemic violence and security issues that are sapping the country’s vitality in so many ways. Academic publications require focus, capacity building and resources, which are limited under these circumstances. It is due to the valuable efforts of many supporters that the JALS has become the only law journal in Afghanistan that is registered with the International Standard Serial Number (ISSN) organization in Paris. The first volume of the JALS was distributed to national and international libraries last year and was warmly welcomed and appreciated by numerous law scholars and researchers. We take this opportunity to thank all of them, and also those who dedicate their valuable time and effort to write scientific contributions for this journal. We are appreciative of the constructive efforts of all who work for the restoration of peace to Afghanistan and a better future for this country. We were exceedingly encouraged by the positive responses to our invitation of a number of eminent national and international academic figures and public personalities to become members of the Academic Advisory Board of the JALS. Their names and organizational affiliations are mentioned on the first pages of this issue. The Editorial Committee takes this opportunity to record their appreciation for them all. It is hoped that the esteemed members of the Academic Advisory Board will avail us of their valuable advice and also to introduce and promote the JALS in their respective countries and organizations in the future. The Editorial Team is composed of postdoc scholars and PhD students who are introduced to the art of journal editing by the Editorial Committee. They carefully reviewed all the contributions in their respective areas of expertise, and shared with us their valuable views. We also acknowledge the hard work of our Editorial Assistants, Mr. Ahmad Shah Ahmadyar and Ms. Aisha Mahmood, who were actively involved in all stages of preparing this volume, and to Ms. Amena Hosseini and Ms. Fatima, for their very good translation of the abstracts of the papers. It is important to us to mention that all persons involved, without any exception, are doing this work as volunteers and without payment. With a view to improve the production process and the visibility of the JALS in Afghanistan. Dr. Tilmann J. Röder and Professor Mohammad Hashim Kamali decided to appoint Ass. Prof. Lutforahman Saeed as the Chief Editor of the JALS. Editorial Note / 13
He has taken control since then and much of the editorial tasks of the present issue were carried under his supervision. Last but not least we acknowledge with profound appreciation the Foreign Office of the Federal Republic of Germany for generously providing financial support to conduct the Afghan Legal Studies Conferences that in many ways facilitated the publication of this journal. We are actively looking for donors who will help us to continue our Afghan Legal Studies Project, which we intend to continue for many years to come. The Editors Prof. Dr. Mohammad Hashim Kamali, Dr. Tilmann J. Röder and Chief Editor, Ass. Prof. Lutforahman Saeed
Abstracts of Dari/Pashto Articles
Eid Mohammad Ahmadi: The Need for Alternatives to Imprisonment and Criminal Law Mechanisms in Afghanistan Abstract: The Enlightenment in the Western world, especially from the late 18th and early 19th centuries, led to a new thought on the usage of jail as a method of punishment. In this approach, imprisonment was the focus of attention for punishing perpetrators, but imprisonment went along with serious challenges in terms of humanitarian, family, economic and social problems. Therefore, criminal lawyers looked for alternatives to the prison system. Meanwhile, prison sentences in Afghanistan are, more than many other countries, confronted with many challenges and problems. The reasons for these shortcomings are clear, because Afghanistan inherited its system from an outdated and unprofessional justice system that complicates punishment and makes it difficult or impossible to achieve punishment. On the other hand, the use of alternatives, which is considered as a solution to the problems of imprisonment, is useful and effective if there is a reasonable and appropriate structure in their application that enable judicial institutions to perform their functions properly. Therefore, policy- making and the implementation of alternative punishments must be put into action by appropriate arrangements based on professionalism and the national culture. About the author: Dr. Eid Mohammad Ahmadi has been teaching criminal law and jurisprudence at private law schools since 2010. From 2011 to 2015, he was a member of the academic board of Khatamulnabiyin University and since 2016 he has been a member of academic board of Dunya University. He has implemented training programs with the Max Planck Foundation in the fields 16 / Journal of Afghan Legal Studies of administrative law, fundamental rights and criminal law in Kabul and several other provinces of the country. Dr. Ahmadi studies jurisprudence and Islamic science to the highest levels. He obtained his bachelor’s and master’s degrees in criminal law and criminology at the Imam Khomeini University in Qom, and a PhD degree in law and criminology at Shahid Beheshti University in Tehran. Mohammad Amin Ahmadi: The Position of the Traditional Loya Jirga in the Constitution of Afghanistan Abstract: This article discusses the role of the Loya Jirga in the Afghan Constitution. The Loya Jirga can be classified into two general types: democratic and non-democratic. Democratic Loya Jirgas can be further distinguished between Constitutional Loya Jirgas and Customary Loya Jirgas. The article firstly seeks to define the Constitutional Loya Jirga and analyses its organizational structure, the scope of its jurisdiction and its strengths and weaknesses. The article secondly focuses on the Customary Loya Jirga and its organization, referring to historical examples. It argues that such Loya Jirgas should be classified as local rather than customary. It assesses the use of such Loya Jirgas in emergency situations. Finally, non-democratic Loya Jirgas are those organized by high-ranking office holders. The article first uses historical examples then discusses the legitimacy of non-democratic Loya Jirgas, particularly the claim that their legitimacy is rooted in the customs of the country and that it can be considered as a legal State practice. About the author: Dr. Amin Ahmadi obtained his PhD in law. He is a former deputy director of the Commission Overseeing the Implementation of Constitution. He is not working as president of, and lecturer at the Ibn-e-Sina University of Afghanistan. In the past, he also taught at the International University of Al- Mustafa, Iran University and Kateb University in Kabul. In 2010 he established Ibn-e Sina University, which is a non-profit university, in 2010 together with colleagues. Dr. Ahmadi also served as member of Afghanistan’s Constitutional Review Committee from 2003 to 2005. He held many other offices, including at the Center for the Cultural Writers of Afghanistan in Iran (1993-2003), Iran Strategic Research Center (1993-1997), and Research Center And Islamic Culture, Qom (1998-2005). He is the author of numerous academic books and articles. He is also member of the Academic Affairs Coordination Board of the Ministry of Higher Education of the Islamic Republic of Afghanistan. Abstracts of Articles Published in Dari or Pashto / 17
Yahya Balaghat: Criminal Justice and Transparency as Tools in Afghanistan’s Combat against Corruption Abstract: This article is organized in three sections. The first section discusses the formation of systematic and macroeconomic corruption in post-Taliban Afghanistan. In this section the process of the formation and expansion of this phenomenon, the main areas, factors and consequences of administrative corruption in Afghanistan are briefly described. The second part describes the importance and effectiveness of preventive measures against this dilemma in criminal policy. Consequently, the role of transparency in the prevention of corruption in Afghanistan, with emphasis on access to information and review of Afghanistan’s Accessibility Law, its implementation and its effectiveness in preventing corruption and the role of the general and free media (investigative journalism) are described. The third section identifies the gaps and challenges in preventing corruption. This specifically concerns in the problem of access to information and investigative journalism in Afghanistan, and its impact on the lack of progress of national unity government’s efforts in the fight against corruption. Finally, the article discusses how these problems can be overcome. About the author: Dr. Mohammad Yahya Balaghat has been teaching law at Kateb University since 2010. He also trains staff of the Attorney General’s Office. For one year, he has been the director of the postgraduate education department and then for three years scientific teaching assistant of the University of Kateb. He holds a Bachelor of Law, a Master of Laws in Criminal Law and Criminology and a Ph.D.; he wrote his PhD dissertation on The Pathology of Afghan Criminal Policy in Combating Corruption in the field of criminal law and criminology at the University of Tehran. In addition to criminal law, he also studied Islamic jurisprudence as well as Arabic language. Gholam Hassan Gran: Constitutional Framework of the Armed Forces of Afghanistan Abstract: Pursuant to the history, the Armed Forces in reality are value-protecting, authoritarian institutions of the ruling political system in a countries; however, in 21st century, especially during the Cold War, due to the proliferation of military coups and the ensuing democratic process, political pluralism and the experience of totalitarian regimes, has opened a broad debate on the constitutional basis of the armed forces and their powers in the fields of and political sciences. Post- crisis countries are looking for a definition of the constitutional legitimacy of the 18 / Journal of Afghan Legal Studies actions of the armed forces and their role in the field of national policies and try to define their scope in accordance with the principle of civilian (governmental) oversight. The South African Constitution is a good example of this effort. This article reflects on the views of several scholars, considers various aspects of these issues, including leadership of the armed forces, the principle of the constitution of monitoring and balancing the armed forces and their political engagement, the constitutional legitimacy of the armed forces, and the responsibility of the armed forces in international law. The author also pays attention to the issue of civil- military relations. With a view to some coup d’état countries, such as Turkey and Pakistan, he discusses the safeguard for the democratic order from military intervention. About the author: Gholam Hassan completed his bachelor’s degree in law (LLB) and political sciences in the United States and legal training at Tulane University in the United States. He has been serving as Senior Advisor to the Ministry of Interior Affairs since 1396. He also served as the Director of the Chancellery of the Wolesi Jirga in the 15th and 16th parliamentary tenure; previously, he had served as legal advisor to the ICRC in Afghanistan. Moreover, he published essays and various legal articles (including on the constitution of Afghanistan) and accordingly political and historical articles. Moreover, he participated in drafting of laws, regulations, by-laws and internal regulations of the National Assembly of Afghanistan and in sixteen internal parliamentary bills. He is a member of the Afghanistan Constitutional Studies Institute. Ahmad Haneef Haneef: The Implementation of Substantive International Human Rights Obligations in Afghanistan: Examples from the ICCPR Abstract: Afghanistan has signed numerous international conventions on different fields of human rights. At the same time, Afghanistan has undertaken the implementation of substantive international human rights obligations. According to article 4, paragraph 2 of International Convention on Civil and Political Rights 1966 (ICCPR), contrary to general human rights, substantives human rights are those rights states cannot violate or restrict under any circumstances. These rights include prohibition of arbitrary deprivation of life (Article 6), prohibition of torture (article 7), prohibition of slavery and servitude (article 8), prohibition on the arrest of individuals because of the inability to perform a contractual obligation (article 11), the right to non-transmit criminal laws to preceding, except for benefit of offender (article 15), the right of individuals to legal personality (article 16) and Abstracts of Articles Published in Dari or Pashto / 19 the right to freedom of thought, religion and belief (article 18). This article, after providing brief information on substantive human rights and the responsibility of states towards them, will first shed light on Afghanistan’s international and national obligations towards the above substantive human rights and then will examine the status of implementation of these obligations in the country with its roots, causes and factors, based on reports of national and international reliable human rights institutions about the status of human rights in Afghanistan. About the author: Ahmad Haneef Haneef is a PhD candidate in Public International Law at the School of Law Shahid Behishti University, Tehran. The Max Planck Foundation for International Peace and the Rule of Law supported his PhD studies through the Hamida Barmaki Scholarship Program. Mr. Haneef obtained his BA from the Faculty of Law and Political Science, Kabul University in 2001, and his LL.M. in Public International Law from School of Law, Wuhan University, China, in 2008. Since 2001, Mr. Haneef has been a lecturer at the Faculty of Law and Political Science, Alberoni University, Kapisa (Afghanistan). He has been teaching Constitutional Law, Comparative Constitutional Law, and Public International Law. In addition to teaching, he served as a legal adviser to the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) of Afghanistan from 2011 to 2014. Mohammad Hashim Kamali: Divorce And Women’s Rights: Should Women have Equal Rights? Abstract: This article looks at the fiqhi formulations of the divorce law through the lense of the Qur’anic verse (al-Baqarah, 2:228). Whereas the leading schools of fiqh have articulated a regime of divorce law that is decidedly one- sided and generates a degree of insecurity in the Muslim family, the Qur’anic vision of divorce law and the rights generally between the spouses is one of parity and equivalence. It seems that some early interpreters of the Qur’an were also influenced by the medieval society values to provide lopsided readings of the Qur’an. This article develops that narrative. About the author: Professor Mohammad Hashim Kamali is Founding CEO of the International Institute of Advanced Islamic Studies, Malaysia. A world renowned scholar, he was previously Professor of Islamic Law and Jurisprudence at the International Islamic University Malaysia (1985-2004) and Dean of the International Institute of Islamic Thought and Civilisation (2004-2006). He was a member and sometime Chairman of Constitutional Review Commission 20 / Journal of Afghan Legal Studies of Afghanistan (2003), the CIMB Shariah Committee (since 2003), and Sunlife Takaful Malaysia (since 2011). The author of 35 books and over 210 academic articles, Professor Kamali has received the Isma’il al-Faruqi Award for academic excellence twice (1995 and 1997) and has featured in The 500 Most Influential Muslims in the World (2009, 2010, 2016). He has also been the recipient of both the King Abdullah II International Award 2010 and the 24th Iran World Award for Book of the Year 2016. Mohammad Ali Mirzaii: The Apparent Theory in Afghan Civil Law Abstract: Rights can only be enjoyed by either the true owner or any person authorized by the true owner; however, in some cases someone other than the true owner of the right may enjoy that right. The question arises what is the status of this transaction. It can be answered on the basis of a general principle of law that exhibits two in-executable or invalid situations. If we apply the rules of general principles of law, it appears that the third party is affected by the transaction that he has transacted with someone other than the true owner; moreover, this will affect the strength and stability of the transactions too. In this situation, the so- called Apparent Theory allows us to apply all the elements of valid transaction. Nevertheless, two contradicting situations arise in the Apparent Theory. Firstly, the legal situation that is in accordance with general principle of law, which is protected by law; and secondly, the current situation that is in contradiction with law. Thus witnessing such contradiction in two situations the current situation will prevail according to the Apparent Theory. In this article we seek to consider and discuss conditions, effects and elements of ostensible theory in the civil law of Afghanistan. About the author: Since January 2009, Dr. Mohammad Ali Mirzaii has been teaching private law at the Private University of Ibn Sina (Kabul). He previously served as a lecturer of law at the University of Kabul. Dr. Mirzaii has a five- year background and experience in defense Attorney and currently besides academic affairs; he is serving as advisor to the Second Vice-President on legal and parliamentary matters. He is a leading specialist on trade and civil law in Afghanistan. His fields of study are trade, civil law, intellectual property law, and administrative law. He has launched diverse training programs in Kabul and other provinces with the Max Plank Foundation in the fields of public law and international law. Dr. Mirzaii has got his Ph.D. from Shahid Beheshti University (Iran) in 2013 by presenting his doctoral thesis entitled Direct Litigation, his Abstracts of Articles Published in Dari or Pashto / 21 master’s degree from Tarbiat Modares University (Iran) by presenting his thesis entitled Collective Management in Copyright and Relevant Rights, and his bachelor’s degree from the Imam Khomeini International University (Iran). Mehri Rezaiee: The Relationship between Immigration and Human Trafficking with Emphasis on Afghanistan Abstract: Human trafficking and smuggling of migrants are both examples of international organized crime, incorporated into two separate protocols to the Convention for the Prohibition of Transnational Organized Crime (Palermo 2000). The phenomenon of immigration, which is the result of globalization, has grown increasingly unpopular in the world and is often illegal because of the closure of the borders of countries. Illegal immigration is directly related to human trafficking, since in most cases illegal immigration by smuggling networks leads to smuggling and exploitation of humans. In Afghanistan, due to war, economic and political instability, illegal immigration and human trafficking have been increased unprecedentedly and its harmful consequences have raised concerns for the government and the international community. Regarding the government’s legislative and executive measures to confront human trafficking crimes, unfortunately, there has not yet been significant success in this regard, and Afghanistan is still ranked second in terms of human trafficking among the countries of the world. Therefore, the basic measures by government and all-out cooperation from countries around the world, especially neighboring countries, are needed to combat against human trafficking. About the author: Mehri Rezaiee has received a bachelor’s degree at Shahid Chamran University of Ahwaz (Iran) in clinical psychology in 1384. Forthwith he received his master’s degree in international law from Tehran University in 1388. In 1389 (2011), he was assigned to the UNDP project at the Office of the High Office for the Suppression of Corruption as an Asset Recognition Expert. Is. At the same time, he worked as a professor in Goharshad and Ghorjestan Universities from (1389 to 1391), forthwith, he worked as a researcher at the Afghanistan Watch Institute, in a research project on women’s political participation in past elections. He has completed his PhD in international law at Allameh Tabataba’i University (Iran) in 1391 and has completed the comprehensive theory and exams course and approval of the thesis proposal and is currently writing his thesis. Since 2005, he has been teaching undergraduates and postgraduates at the Universities of Kateb, Goharshad, Afghanistan and Dawat. 22 / Journal of Afghan Legal Studies
Ahmad Reza Sadeqi, The Regional Criminal Law Framework for the Combat of Organized Crime Abstract: Today, powerful networks of criminal organizations with a range of coordinated activities in the form of organized crimes around the world with a great deal of impact in different fields are considered one of the most significant concerns in the national, regional and international societies in a way which not only poses a danger to the political, social and economic security, but is also known as the century-old threat, and as a result, our century is names the “century of organized crime”. The geographic region of the so-called ECO countries in Asia, considering its strategic nature, is one of the most vulnerable and the largest area in Asia prone to most organized crimes in Asia. Regarding the high volume, the variety and magnitude of organized crimes in the region, it can safely be called the Strategic Area of Organized Crimes in Asia. On the other hand, the response and policy adopted against these crimes by the countries in the region is not a response to these crimes due to the limitation to domestic or national criminal policy. Therefore, as the crimes are organized in this region, the adoption of a regional approach to these crimes is inevitable. This paper attempts to provide a framework for a regional criminal policy. About the author: Ahmad Reza Sadeqi is a Ph.D. student of criminal justice and criminology in Iran . He started his scientific career with founding the Legal Research Centre. Starting 2012, he has worked in the regional office of UNAMA in Bamyan for six years in the Administrative and Human Rights. In the meantime, he has been teaching at Bamyan University. From 2014 to 2016, he has been responsible for developing the legal curriculum in the International Legal Organization and has joined the Criminal Law Reform Working Group (CLRWG). The most valuable achievement of CLRWG meetings and seminars was the development of the Afghan Criminal/Penal Code. Since August 2016, he has served as the advisor to the Ministry of Justice. Dr. Sadeqi has numerously published journals and a book entitled, Afghanistan’s Legislative Criminal Policy on Administrative Corruption. Lutforahman Saeed: Memb e rship of Women in Afghanistan’s Supreme Court According to the Afghan Constitution and Hanafi Jurisprudence Abstract: The issue of women’s judgment (in law) among Islamic jurisprudents has been a long-standig argument and Muslim scholars have expressed different views on this issue. Some Islamic jurists stipulates the condition of being male Abstracts of Articles Published in Dari or Pashto / 23 in judgment and do not allow women to judge. But Hanafi school of thought have had a different view and thereupon given permission to woman’s judgment under certain condition s . In our country, the majority of citizens follow the Hanafi school of thought; and thereby the beliefs of therein school have a special place in the country. Moreover, Hanafi jurisprudence is also manifested in the laws of the country. Although according to the jurisprudential beliefs and the enacted law, the condition of only being male in the judiciary has not been set, however, by introducing a woman to the Supreme Council of Supreme Court, a woman’s membership in the Supreme Council has been questioned, as if this is the case against Shari’a. In this paper, with utilization of authoritative sources of Hanafi jurisprudence and laws of the country, the issue of female judgment has been analysed and the conditions of judiciary criteria are discussed in terms of Hanafi religion and the prevailing laws of the country. The findings of this paper show the gender is not the issue in judgment, but other conditions, that justice can be guaranteed by their existence. As a result, the findings of this paper show that according to the rules of Hanafi jurisprudence and the laws of the country, woman’s right of judgment is a permissible act and has no juridical and legal restriction. Therefore, the introduction of a woman to the Supreme Council of Supreme Court is a legal and juridical matter and is not in conflict with any of the principles of Hanafi religion and the laws of the country, especially in regards to the constitution. About the author: Ass. Prof. Lutforahman Saeed has been teaching at the Shari’a Faculty of Kabul University since 1994. He manages, as chairman, the Institute of Afghan Legal Studies (AILS) and the Afghanistan Constitutional Studies Institution (ACSI). Ass. Prof. Saeed graduated from the Shari’a and Law Faculty of Kabul University in 1991. In 2010, he completed his Master degree in Asian Comparative Law at Washington University in Seattle, USA and is currently pursuing his PhD at Erlangen University in Nuremberg, Germany. The Max Planck Foundation for International Peace and the Rule of Law supported his PhD studies through the Hamida Barmaki Scholarship Program. Ass. Prof. Saeed served as a member of the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) for four years (2014-2017). He also teaches at private universities and regularly writes in academic journals. 24 / Journal of Afghan Legal Studies
Javad Taghizadeh Doughikola: The Acting President in the Constitution of Afghanistan Abstract: Death, resignation, impeachment, dismissal, and illness are the conditions to replace President of Afghanistan. The President personally tenders his resignation to the National Assembly, and his resignation shall not require the approval of another authority or entity. Impeachment of the President shall demand the acknowledging his accusation of committing crimes against humanity, national treason or crimes approved by two-thirds of Wolesi Jirga (House of People) and majority of two-thirds of Loya Jirga (House of Elders). In the case of conviction of the President in a special court, the impeachment will be decisive and the president shall be dismissed. Realization of the incurable illness of the President shall be verified by an authoritative medical team assigned by the Supreme Court. The duties and authorities of the President will be transferred to his First Vice-President and, in the case of absence of the First Vice-President, the Second Vice-President shall act in accordance with the provisions of the constitution. In the event of simultaneous death of President and his First Vice- President, the Second Vice-President, the President of the Meshrano Jirga, the President of the Wolesi Jirga and the Foreign Minister shall respectively assume the duties of the President. The maximum period of presidential substitution, except in the case of realization of an interim impeachment, shall be three months. The First Vice-President as interim president shall not amend the constitution, dismiss the ministers and call for a referendum. About the authors: Dr. Javad Taghizadeh Doughikola is Associate Professor at the Faculty of Law and Political Sciences of the University of Mazadaran, Iran. He teaches public law. Dr. Taghizadeh is a renowned scholar of comparative constitutional law. He acquired his master’s degree at Mofid University, Iran (1997-1999) and his PhD at the University University of Paris 1 (Panthéon- Sorbonne). In his PhD thesis, which he wrote under the supervision of Professor Jean-Claude Masclet, he compares Iranian and French electoral law (Essai sur le droit iranien des élections politiques par comparaison avec le droit français). Dr. Taghizadeh, who is a member of the French Association of Constitutional Law, published in Persian and French. In recent years he also taught courses in Afghanistan. Kiumars Firuz Jahantighi is Associate Professor at the Faculty of Law and Political Science, Mazandaran University (Iran). He holds a master’s degree in public law from Mazandaran University. Abstracts of Articles Published in Dari or Pashto / 25
Nezam Abdullah: Civil Responsibility of the State in the Legal System of Afghanistan Abstract: This article discusses the civil responsibility of the state in the legal system of Afghanistan, which is based on Article 51 of Constitution. It begins with an explanation of two theories regarding the basis of the civil responsibility of the state: the theory of fault and the theory of risk, which lead to different results in some cases where a citizen or corporation claims compensation for some damage. However, the existing Afghan legislation lack some clarity; among others, the relevant actions of the state have not yet been defined and categorized. The article therefore explains the scholarly understanding of these activities and decisions that the state carries out, which include legislation, contracts, administrative decisions, judgment, and so on. Legal scholars further categorize them in sovereign and none- sovereign, political, administrative and judicial, and national and local actions. Another important question concerns the burden of proving the state civil responsibility, which has not been regulated in the legal system of Afghanistan, too. In order to pave the ground for the implementation of Article 51 of the Constitution, drafting and approval of a law on civil responsibility of the state – as it exists in the USA, the Islamic Republic of Iran and other countries – seem to be recommendable. About the author: Nezamuddin Abdullah has graduated from law and political sciences faculty of Kabul university in 2004 and has gotten his master’s degree in public law in 2012 from Azad Islamic University of Islamic Republic of Iran. From January, 2005 until September 2006 he has worked has legal assistant and senior legal specialist in LTERA-USAID project. From January until March 2007 he has worked as gender advisor in Save the children Sweden- Norway. From April 2007 until January 2012 he has worked has senior legal researcher and senior projects coordinator in Max Planck Institute for Comparative Public Law and International law. From February 2012 until December 2015 he has worked as senior policy and legislation advisor in Independent Administrative Reform and Civil Service Commission. At the same time, from January 2012 until 2017 he has taught law in Kardan university. From January 2016 until now he is working as assistant professor of law in American University of Afghanistan. He has written and translated many books from English into Dari. 26 / Journal of Afghan Legal Studies
Mohammad Qasim Hashimzai: The Separation of Powers and the Problem of Constitutional Interpretation Abstract: This article discusses the civil responsibility of the state in the legal system of Afghanistan, which is based on Article 51 of Constitution. It begins with an explanation of two theories regarding the basis of the civil responsibility of the state: the theory of fault and the theory of risk, which lead to different results in some cases where a citizen or corporation claims compensation for some damage. However, the existing Afghan legislation lack some clarity; among others, the relevant actions of the state have not yet been defined and categorized. The article therefore explains the scholarly understanding of these activities and decisions that the state carries out, which include legislation, contracts, administrative decisions, judgment, and so on. Legal scholars further categorize them in sovereign and none- sovereign, political, administrative and judicial, and national and local actions. Another important question concerns the burden of proving the state civil responsibility, which has not been regulated in the legal system of Afghanistan, too. In order to pave the ground for the implementation of Article 51 of the Constitution, drafting and approval of a law on civil responsibility of the state – as it exists in the USA, the Islamic Republic of Iran and other countries – seem to be recommendable. About the author: Dr. Mohammad Qasim Hashimzai is a Chairman of the Independent Commission Overseeing the Implementation of the Constitution and a former Deputy Minister of Justice of the Islamic Republic of Afghanistan. He earned his B.A. in Law from Kabul University, his master’s degree from Oxford University and did his Ph.D. at Sheffield University. From 1973 to 1977 he worked in Kabul as Deputy Head of the Supreme Court’s Research Department. In England he worked for the BBC Monitoring Service from 1981 to 1998 as Afghan Monitor, Chief Monitor and Duty Editor. After living in England for over 20 years Dr. Hashimzai returned to Afghanistan in 2002 under a UN scheme as an advisor to the Minister of Justice of the Transitional State of Afghanistan. Abstracts of Articles Published in Dari or Pashto / 27
Abdullah Shefaee: Collective Property in Afghan Legal System Abstract: Collective property – which is called “disseminative” in Afghan legal terminology – is based on specific legal provisions of Afghanistan’s Civil Code. They concern, among others, its formation, administration, profit sharing, and termination. These provisions are rooted in the fountains of jurisprudence, but not bound to the old jurisprudential debates that were seeking to regulate the simple life of the people of their era. Particularly urbanization has created new forms of collective property, which led to new legal debates. If we ignore some of the linguistic defects of the Civil Code, which result from wrong translations of the respective Egyptian law, civil law provides precise and clear provisions to mange the modern forms of collective property. However, legal advisers, attorneys, and real estate agents and sellers and others are not aware of these rules, and how to fulfil them. Correspondingly, scholars and law students have not sufficiently analyzed them and the judges did not establish a judicial interpretations in this regard. About the author: Dr. Abdullah Shafaee obtained his master’s degree from Mofid University and his Ph.D. degree in Private Law from Tehran University in 2013. He has published three books and over twenty articles in the field of the rights of the property and ownership, family rights, basic rights, and women’s rights, and teaches these subjects at the university as well as at the inception courses for judges. He was a member of the founding board of the Ibn-e Sina University in Kabul, a member of its academic board, and dean of the law faculty. He is a member of Afghanistan Constitutional Studies Institute and Andisha Foundation. Before to being elected as a member of the Independent Commission for the Supervision of the Implementation of the Constitution, he served as Parliamentary and Legal Advisor to the Second Vice-President.
Lessons on Global Legal Transfers from Afghan Taxi Drivers: A Social Network Approach
Nafay Choudhury Table of Contents 1. Introduction. 2. Social Networks as a Framework for Analysis 3. Contractual Relations of Taxi Drivers in Afghanistan 3.1. Development of Formal Contract Law 3.2. International Development Efforts to Improve the Legal System 3.3. Case Study of Taxi Drivers 4. Conclusion
Abstract This paper takes up the challenge presented by Gillespie and Nicholson of studying legal transfers through an interpretive approach. The notion of social networks is introduced as a framework for analysing legal transfers in local contexts. Since legal transfers target to reconfigure behaviour, the notion of networks can help to reveal the manner in which new stimuli may change the relationships between actors. This study involves on an empirical study of Afghan taxi drivers to show the impact of legal transfers on a seemingly innocuous group in society. The study of taxi drivers reveals that legal transfers have had an impact on their behaviour but in an unexpected way. Taxi drivers strongly rely on guarantors within their social network for their contractual transactions. The expanded government bureaucracy has helped to create a new set of guarantors, namely ‘government- guarantors’, whose authority is traced to the state but whose role can be absorbed into the existing network of social relationships between individuals. 30 / Journal of Afghan Legal Studies
1. Introduction The use of legal transfers in developing countries has come under renewed scrutiny in recent years.1 Much of the attention on legal transfers to date has focused on the aims, objectives, and intentions of developmental technocrats working to institute reforms in developing societies.2 Success is largely gauged by the ability of the receiving environments to replicate the intended outcome associated with the legal reform.3 Shortcomings associated with such reforms end up being attributed to lack of local know-how and thus not a problem with the transfers itself.4 Moreover, such inadequacies have often been the source of renewed and even bolder ambitions based on the belief that the problem has been ‘figured out’ thereby providing the requisite knowledge to successfully implement positive legal reforms the next time around.5 The prevailing discussion on legal transfers remains largely caught between the parameters laid out by Alan Watson and Pierre Legrand. Watson’s position of laws being decoupled and autonomous from society facilitates the notation of legal ideas and concepts readily migrating from one context to another.6 Such a perspective treats laws as a transcendent, universal ideal free from local bias. Legrand’s opposing view posits law as being deeply embedded within the culture,
1. Nafay Choudhury is a PhD candidate in the Dickson Poon School of Law at King’s College London. His PhD involves an ethnography of Afghanistan’s money exchangers to understand how trust relationships may sustain complex financial transactions. His research explores issues of social and legal ordering, economic exchange, identity, and legal development. Nafay is currently a residential Research Fellow at the Afghan Institute for Strategic Studies studying electoral representation in the country. He was previously Assistant Professor of Law at the American University of Afghanistan (AUAF), where he taught and researched in the areas of contract law, legal pluralism, legal education, Islamic education (particularly madrasas), sociology of law, legal development and the rule of law. He has contributed peer-reviewed articles to various journals and served as a Shari’ah Advisor for the Afghanistan International Bank. Nafay holds a LLB/BCL (McGill), MA (Queen’s University, Canada) in economics, and BA (McGill) in economics. A recent work by John Gillespie and Pip Nicholas, both scholars with decades of experience studying legal development in Asia, calls for a renewed exploration into the migrate of legal concepts from one context to another. J Gillespie and P Nicholson, ‘Taking the interpretation of legal transfers seriously: the challenge for law and development,’ in J Gillespie and P Nicholson (eds), Law and Development and the Global Discourses of Legal Transfers (Cambridge University Press 2012), 1-26. 2. P Nicholson, Borrowing Court Systems: The Socialist Experience of Vietnam (Brill Academic Publishers 2007), 17. 3. J Gillespie and P Nicholson, ‘Taking the interpretation of legal transfers seriously’, at 5 (“The yardstick used to make this assessment, more often than not, is whether the transplant has been rejected or accepted”). 4. B Garth, ‘Rethinking the Processes and Criteria for Success’ in RV Van Puymbroeck (ed.), Comprehensive Legal and Judicial Development (World Bank 2001), 11. 5. B Van Rooij and P Nicholson, ‘Inflationary Trends in Law and Development’ (2013) 24 Duke Journal of Comparative & International Law 297. 6. A Watson, ‘Comparative Law and Legal Change’, (1978) 37 Cambridge Law Journal, 313–15. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 31 practices, and social structures of society, which provide law its local meaning.7 Law is meaningless outside of the specific context in which it is housed, and thus a legal transfer become an impossibility, since legal ideas that enter a new environment lose their original meaning and take on new ones. At most what is transferring is words, but not actual normative concepts.8 Development reforms have been influenced by both these conceptions of legal transfers, and most understandings fall somewhere between the two. During his term as senior UN official in Kosovo, Bernard Kouchner commented that the “most important lesson to be learned from Kosovo… is that peacekeeping missions need a judicial or a law-and-order ‘kit’ made up of trained police officers, judges and prosecutors, plus a set of potentially draconian security laws or regulations that are available upon their arrival.”9 Many legal reform projects proceed in a similar vein by trying to introduce “best practices” in the foreign legal system. At the same time, there has also been increased attention on how foreign interventions affect the recipient environment.10 Donors have increasingly been interested in assessing the “local legal landscape” to better gauge the viability of the intended transfers.11 This increased sensitivity, however, does not necessarily represent a paradigm shift away from the foundational belief in the ability of the legal transfer to serve as a ‘conduit’ for change for the recipients.12 Instead, the benefit of the transfer is taken for granted, and the attention to local sensitivity is geared at understanding how its reception may be most successful.. More recently, John Gillespie and Pip Nicholson, being aware that present approaches to legal transfers – including those that claim great cultural sensitivity – remain fixated on the conduit metaphor, have called for an approach that gives great attention to the “social demand” for legal change within recipient environments.13 They suggest adopting an interpretive approach, which considers
7. P Legrand ‘What “Legal Transplants”?’ in D Nelken and J Feest (eds.), Adapting Legal Cultures (Hart Publishing 2001). P. Legrand, ‘The Impossibility of Legal Transplants’ (1997) 4 Maastricht Journal of European Comparative Law, 111–24. 8. Ibid. 9. AU Bali ‘Justice Under Occupation: Rule of Law and the Ethics of Nation-Building in Iraq’ (2005) 30 Yale J Int’l L 431, 454. 10. RK Merton, ‘The Unanticipated Consequences of Purposive Social Action’ (1936) 1 American Sociological Review 894. 11. Gillespie, and Nicholson, ‘Taking the interpretation of legal transfers seriously’, 7. 12. J Gillespie, ‘Relocating global scripts in local networks,’ in Gillespie J and Nicholson P (eds), Law and Development and the Global Discourses of Legal Transfers (Cambridge University Press 2012), 29-55. 13. Gillespie and Nicholson, ‘Taking the interpretation of legal transfers seriously’, 5 (“We suggest refocusing analysis on the social demand for legal transfers in recipient countries.”). 32 / Journal of Afghan Legal Studies how individuals in local environments construct local knowledge. Such an approach focuses on the existing frameworks through which recipients operate, recognizing that such settings are not devoid of regulatory forces. This approach goes beyond simply greater cultural awareness, as the goal is not to see how a transfer can be sensitive to the local setting, but rather to understand what impacts a transfer may have on the existing local dynamic. This exercise can hopefully create greater awareness of how recipient environments operate within their own systems of meanings and how different stimuli may lead to different responses. This paper takes up the challenge presented by Gillespie and Nicholson of studying legal transfers through an interpretive approach.14 The notion of social networks is introduced as a framework for analysing legal transfers in local contexts. Social network analysis focuses on the relationships between actors within a particular environment and norms and patterns that govern their interactions. Since legal transfers target to reconfigure behaviour, the notion of networks can help to reveal the manner in which new stimuli may change the relationships between actors. Business and contract law transplants represent a fertile area of study since much of the legal development enterprise is focused on the central role of law reforms for promoting economic growth.15 This study focuses on an empirical study of Afghan taxi drivers to show the impact of legal transfers on a seemingly innocuous group in society. The social networks of taxi drivers consist of a variety of actors who interact with one another according to certain norms of behaviour. At the same time, legal transfers have entered Afghanistan, which seek to reconfigure the way parties transact with one another. The receipt of a formal contract law regime provides greater clarity in the law in the hopes that parties will be more inclined to settle their disputes through the formal legal system. Furthermore, international organizations such as the World Bank have advocated that a strong judiciary can help to promote business transactions within the country. In line with this narrative, the international community has focused on developing the rule of law in Afghanistan, which has led to an overall expansion of the government bureaucracy, though with questionable outcomes concerning the actual rule of law. The study of taxi drivers reveals that these transplants have had an impact on their behaviour but in an unexpected way. Taxi drivers strongly rely on guarantors within their social network for their
14. Ibid., 7. 15. J Paquin, ‘Cross-Cultural Business Law Transplants: The Neglected Issue of the “Fit”’ (2008) 17 Transnational Law & Contemporary Problems 331. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 33 contractual transactions. The expanded government bureaucracy has helped to create a new set of guarantors, namely ‘government-guarantors’, whose authority is traced to the state but whose role can be absorbed into the existing network of social relationships between individuals. Thus, reforms intended to strengthen the rule of law have instead created a new set of actors whose role helps to bolster existing social structures. Part two of this paper provides an overview of social networks as well as the way in which a legal reform gains legitimacy within a network. Part three then applies social network analysis to a case study on the contractual transactions of Afghan taxi drivers. The research reveals that contract law plays a very insignificant role in regulating behaviour. However, the wider state apparatus, which supports justice institutions, has given rise to a new set of actors, ‘government-guarantors’, who taxi drivers may rely upon to guarantee their transactions. 2. Social Networks as a Framework for Analysis A social network refers to a set of actors interconnected through various sorts of relations where the sum of all these actors and relationships creates a “web-like” structure. When approaching a social issue in society, social network analysis does not adopt the conventional position of starting with the individual. Society should not be viewed as a collection of atomized individuals and their particular characteristics. Instead, actions and choices should be understood as being constrained by an individual’s relationships with others. Social network analysis treats networks of relationships rather than individuals as the building blocks of the social world. Social life only comes into existence when individuals interact with one another, thereby constraining and altering each other’s behaviour. These discursive relations cannot be tracked by analyses that simply focus on the individual as a rational (or even non-rational), self-interested actor. Social networks help to reveal the nature and patterns of relations that arise amongst groups of actors. A social network consists of “nodes” and “ties”.16 The concept of nodes is a very open one and includes actors that may be individuals, but also organizations, websites, neighbourhoods, countries, or otherwise.17 Individuals are connected to one another through ties or relationships. Relationships include all forms of
16. J Clyde Mitchell, ‘The Concept and Use of Social Networks’ in JC Mitchell, Social Networks in Urban Situations: Analyses of Personal Relationships in Central African Towns (Manchester University Press 1969). 17. D Watts, Small Worlds (Princeton University Press 1999). 34 / Journal of Afghan Legal Studies connections that individuals may have with one another, including kinship,18 economic relations,19 affective ties (such as friendship),20 knowledge ties,21 cultural ties, religious ties, legal ties, and so forth. A researcher may delineate a particular set of relations that she seeks to study within a network. However, a network can and almost certainly will contain a number of types of relations that tie actors together. The strength of the relationship between individuals will depend on a number of considerations including “the amount of time, the emotional intensity, the intimacy (mutual confiding), and the reciprocal services which characterize the tie.”22 These embedded ties may vary for different dyads within the network, both in type (economic vs. cultural) and intensity (strong vs. weak).23 Thus, the relationship between individuals will not be uniform across the network. However, certain network characteristics can still be adduced given the nature of the relationships between its actors. An approach focusing on social networks raises the possibility of exploring the “multiplex relationships” that parties within a network may have towards one another.24 Two parties may base their interactions on a number of social connections between one another. The greater the number of ties between parties, the stronger is the relationship. Thus, networks where actors share many such ties exhibit greater “cohesive.”25 A number of societal factors may impact the way in which networks operate. Smaller as well as geographically isolated societies will generally have stronger networks than larger and more complex settings.26 For example, consider how
18. DR White, ‘Kinship, Class, and Community’ in J Scott and PJ Carrington (eds), The SAGE Handbook of Social Network Analysis (Sage 2011). 19. SGoyal , Connections: An Introduction to the Economics of Networks (Princeton University Press 2009). 20. T Casciaro, KM Carley, and D Krackhardt, ‘Positive Affectivity and Accuracy in Social Network Perception’ (1999) 23 Motivation and Emotion, 285–306. 21. P Killworth, EC Johnsen, HR Bernard, GA Shelley, and C McCarty, ‘Estimating the Size of Personal Networks’ (1990) 12 Social Networks 289. 22. M Granovetter, ‘The Strength of Weak Ties’ (1973) 78 American Journal of Sociology 1360, 1361. 23. M Granovetter, ‘Economic Action and Social Structure: The Problem of Embeddedness’ (1985) 91 American Journal of Sociology 481. 24. M Gomez, ‘All in the Family: The Influence of Social Networks on Disputing Processing (A Case Study of a Developing Economy)’ (2007) 36 Georgia Journal of International and Comparative Law 291. The works of Manuel Gomez represent one of the few studies to date on the application of social networks to dispute resolution processes Importantly, Gomez employs the concept to capture the multiply overlapping relationships between parties situated within a social network, focusing on two case studies based in Venezuela: the judiciary and ADR mechanisms. For another work, see, e.g. Strahilevitz, L ‘A Social Networks Theory of Privacy’ (2005) 72 University of Chicago Law Review 919. 25. Ibid., 309. 26. Ibid., 311. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 35 neighbours in small towns usually all know one another, whereas a resident in an urban sky-rise may never see his neighbours. In small societies, individuals interact with those within their locale on a regular basis. These interactions will have the effect of creating embedded ties between members. Larger, more complex societies operate differently. Individuals will interact with much a larger number of individuals, sometimes occasionally or even just once. Thus, the immediate environment does not maintain the same types of embedded ties as those in smaller societies. Instead, the networks in larger societies tend to be more widely cast and more porous. In sum, the social distance between network actors is shorter in small societies than in large urban settings.27 Certain networked communities have been observed to play judicial and enforcement functions apart from the legal system. Earlier studies of these networks include the manner in which traders on the Californian coast in the 1830s and 40s were able to create a trading network through coalitions based on reputations.28 Similarly, Maghribi traders in the 11th century used coalitions to ensure transactional compliance, ostracizing individuals if they failed to provide the compensation owed.29 In these instances, the social network provides an architecture that regulates behaviour. Informal normative arrangements may arise provided that the embedded ties are sufficiently strong such that actors would be materially disadvantaged by severing such ties. Furthermore, such informal arrangement must either be more efficient than the formal legal system (like diamond merchants who are members of the New York Diamond Dealers Club)30 or provide regulation because of the absence of a formal legal order (like the Californian or Maghribi traders). Social network analysis initially developed within the field of sociology in the 1960s and 1970s to provide a critical examination of prevailing ‘structural’ theories of society that emphasized the existence of grand narratives that structure individual behaviour.31 It began to gain particular momentum after
27. Granovetter, ‘The Strength of Weak Ties’, 1361. 28. K Clay, ‘Trade Without Law: Private-Order Institutions in Mexican California’ (1997) 13 Journal of Law, Economics, and Organization 202. 29. A Greif, ‘Contract Enforceability and Economic Institutions in Early Trade: The Maghribi Traders’ Coalition’ (1993) 83 American Economic Review 525. 30. The New York Diamond Dealers Club provides its own dispute resolution mechanism, and members of the Club agree to submit any disputes with other merchants to this body. L Bernstein, ‘Opting Out of the Legal System: Extralegal Contracting in the Diamond Industry’ (1992) 21 Journal of Legal Studies 115. 31. PJ Carrington and J Scott, ‘Social Network Analysis: An Introduction’ in J Scott and PJ Carrington (eds), The SAGE Handbook of Social Network Analysis (Sage 2011), 1-8 at 2. The notion of embeddedness can also be 36 / Journal of Afghan Legal Studies the sociologist Mark Granovetter wrote a 1973 paper that focused on the significance of “weak” ties between individuals for understanding the nexus between micro-level interactions and macro-social structures.32 Since then, it has gained prominence in a number of other fields including, politics, social movements, political economy, economics, geography, and even physics.33 The domain of law remains conspicuously missing from this list, which is made all the more bizarre given the vibrant area of socio-legal studies within the wider legal scholarship. Socio-legal scholarship is specifically preoccupied with approaches that focus on law as a social phenomenon.34 Social network analysis has been showcased in only a limited number of studies with a legal focus,35 and has also been indirectly implied in such discourses as legal pluralism.36 However, it has not gained any significant traction in the legal domain, and certainly not within the law and development discourse. Having explained some of its salient characteristics, it is worth pointing out that social network analysis is generally considered to be an approach rather than a theoretical paradigm.37 Social network provides a lens for viewing the social world, namely by focusing on the multiple overlapping relationships between individuals. However, beyond the assertion that the increased embedded ties strengthen the relationship between parties, social network analysis does not does provide an understanding of how change and transformation occurs within networks. This is particularly important within the law and development enterprise, since one of the objectives of development efforts is to reconfigure the behaviour of individuals within a particular society. For this information about network dynamics, we need to look elsewhere. To understand how new ideas impact constellations of meaning within a social network, one must turn to social theory. The social theorist Mark Suchman proposes three types of legitimacy to explain the manner in which a new stimulus,
traced back to the works of Karl Polanyi that explain the social embedding within the economy. K Polanyi, The Great Transformation (Beacon Press 1957). 32. Granovetter ‘The Strength of Weak Ties’. 33. Carrington and Scott, ‘Social Network Analysis: An Introduction’, 2. 34. See, e.g. R Banakar, and M Travers (eds.), Law and Social Theory (2nd edn, Hart Publishing 2013) 35. Gomez, ‘All in the Family’. 36. Sally Merry, one of the principle figures in the legal pluralism discourse, has written about the “unofficial forms of ordering located in social networks or institutions.” S Merry ‘Legal Pluralism’ (1988) 22 Law and Society Review 869, 873. 37. Carrington and Scott, ‘Social Network Analysis: An Introduction’. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 37 such as a legal reform, affects a particular environment.38 Changes that are viewed as legitimate are more likely to gain the approval of – and thus be adopted by – the actors within the particular network. The first type is pragmatic legitimacy, which means that the newly introduced idea or reform confers a level of material benefit for at least certain members. Individuals are motivated to ascribe to the reform because they stand to gain from its adoption. For example, a legal transfer that carries with it a large of amount of funding (from some donor agency) will potentially confer a clear monetary benefit on certain individuals. Arguably, for a reform to gain pragmatic legitimacy, it should be pareto superior, meaning it should benefit certain actors without leaving others worse off, since otherwise, the reform would face staunch resistance. The second type is normative legitimacy, which relate to the moral foundation of a group of people. If people feel morally attached to a particular idea, they are more likely to accept it as their own. For example, it has been documented that the Norwegian Refugee Council in Afghanistan occasionally attended shuras or community mediation circles in rural areas where they have been able to influence the conversation by explaining the Islamic legal ruling on a particular matter.39 Shura members may be more receptive to such rules given the widespread reverence for Islamic normativity. The third type is cognitive legitimacy, which occurs when people see a particular idea as an inevitable outcome. Regardless of whether or not individuals empathize with or benefit from a particular legal reform, they may have no choice but to acquiesce. For example, a powerful authoritarian government may introduce a draconian law that drastically increases the tax rate. Individuals may strongly oppose the law but lack the power to meaningfully contest its implementation. The proposed approach of using social networks helps to situate the notion of legitimacy within a matrix of social relationships in which actors interact with one another according to certain norms. In societies with strong multiplex relations between individuals, informal norms will likely play a strong role in influencing behaviour. Conversely, in urban, modernized centres, such norms will likely play a less significant role, with the formal rules being more 38. J Gillespie ‘Relocating global scripts in local networks’ at 39; M Suchman ‘Managing Legitimacy: Strategic and Institutional Approaches’ (1995) 20 Academy of Management Review 577. 39. Norwegian Refugee Council, ‘The Relationships Between the Formal and Informal Justice Systems in Afghanistan’ (Norwegian Refugee Council 2007). Conversely, Scott Nelson argues that certain society use Islamic rhetoric but actively work to ensure that Islamic law in not implement as it interferes with the interests of certain actors. M Nelson, In the Shadow the Shari’ah: Islam, Islamic Law, and Democrary in Pakistan (Hurst & Co 2011). 38 / Journal of Afghan Legal Studies significant. Understanding the full influence of a legal transfer within the social network requires due consideration of the nature of the relationships between actors within the network, their salient norms, and the way in which new stimuli affect actors’ interests and behaviour. A social network approach to legal transfers represents a significant break from the prevailing approaches to legal development. The law and development movement has been greatly influenced by the works of the new institutional economists who adopt the position that good institutions can promote economic growth. Douglas North’s pioneering works considered institutions to be “any form of constraints that human beings devise to shape human interactions.”40 These may include formal laws but also the well-established and widespread informal norms that individuals adhere to within a given community. Institutions help to establish “a stable (but not necessarily efficient) structure to human interactions,”41 which constrains the ways in which individuals interact with one another.42 However, the process of establishing good institutions remains far from clear, particularly since developing societies are already replete with their own operating norms that constrain behaviour. A social network approach puts attention back onto the local environment. It is not simply concerned with whether a legal transfer is culturally sensitive to local norms. Rather, it views the local environment as a matrix of relationships embedded with meanings. Studying networks requires unearthing the local knowledge that impacts the behaviour of individual actors. A legal transfer serves as an irritation in a setting where actors are incentivized to operate in particular ways. A social network approach helps to put attention on not only whether such stimuli gain legitimacy, but also the way in which prevailing norms may be transformed, which may not follow the intended script. In the next section of this paper, social networks are employed to study how taxi drivers in Kabul conduct their contractual affairs.
40. DC North, Institutions, Institutional Change and Economic Performance (Cambridge University Press 1990), 4. 41. Ibid., 6. 42. Institutions change across societies as well as within the levels and corners of a given society. Hernando DeSoto’s work on the Peruvian economy showed the importance of informal institutions for the economy, and his recommendation was to formalize the existing informal processes. H de Soto, The Other Path: The Invisible Revolution in the Third World (Harper & Row 1989), 245. However, the law and development movement has largely adopted a “best practices” approach, which supports legal transfers as a means of re-configuring existing legal institutions, despite North’s cautionary note that “we know a good deal about the institutional foundations of successful development. […] [w]hat is still missing is how to get there.” World Bank, Doing Business 2010: Reforming Through Difficult Times (Palgrave Macmillan/World Bank 2009), v. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 39
3. Contractual Relations of Taxi Drivers in Afghanistan This section begins with a look at the development of the private law regime in the country. It then turns to the actual practices of taxi drivers and applies a social network approach to interpret their contractual affairs. 3.1. Development of Formal Contract Law In Afghanistan, the reception of private law has been a long and continuous process. The Civil Code of Afghanistan (hereinafter as CCA) was enacted in 1977 and comprehensively covers various areas of private law.43 The Code is largely based on the Egyptian Civil Code, authored by the preeminent Egyptian jurist Abdul Razzaq Al-Sanhuri. Al-Sanhuri was a scholar of both Islamic law and Roman-French civil law, and drafted the Egyptian Code in a manner that married the two.44 The Egyptian Code thus follows the structure of the French Civil Code though many of its substantive rules follow Islamic law. Many of these Islamic legal rules are, in turn, derived from the Ottoman Mejelle, a commercial code prepared in 1877 that specifically focuses on areas of private law including contracts, torts, and property law.45 Afghan legal elites have long had strong ties with Egypt, and many professors in shari’a faculties received training in Egypt from the 1970s onwards.46 The Islamic quality of the Egyptian Code was well suited for Afghanistan where the general population holds strong reverence for Islamic law. Furthermore, prior to 1977, judges would rely on the Mejelle when dealing with a dispute, and thus the transition to a civil code largely influenced by the Mejelle can be viewed as a natural progression rather than a static break from the past. The CCA is divided into four parts: personal laws, general obligations, designated contracts, and real rights.47 Part two on general obligations contains the general provisions on contract law as well as provisions on torts.48 Legal regimes provided
43. N Yassari and MH Saboory, ‘Sharia and National Law in Afghanistan’ in Michiel Otto (ed), Sharia and National Law: Comparing the Legal Systems of Twelve Islamic Countries (The American University in Cairo Press 2010), 284-286. 44. N Choudhury, ‘Pluralism in Legal Education at the American University of Afghanistan’ (2014) 37 Suffolk Transnational Law Journal 249, 253. 45. Mejelle: A Complete Code of Islamic Civil Law (Islamic Book Trust, 2000). 46. See, e.g. RF Williams, ‘Legal Education in Afghanistan Prior to the Soviet Occupation’ (1981) 6 Suffolk Transnational Law Journal 247; Choudhury, ‘Pluralism in Legal Education’. 47. Civil Code of Afghanistan, Official Gazette 353, No. 4, 15 Jadi 1355 (5 January 1977). 48. Ibid. The table of contents includes four books. Book Two, which focuses on general obligations (Art. 484- 1034), includes contracts, quasi-contracts, delicts, and quasi-delicts. 40 / Journal of Afghan Legal Studies by the code covers all of the stages of a contract including formation of contract,49 defects in consent,50 interpretation of contact,51 contractual options,52 third party to contracts,53 and enforcement in the event of non-performance.54 The sections on the various nominate contracts (e.g. sale, employment, etc.) specify the rules relating to each particular type of agreement. Thus, judges and lawyers have at their disposal a complete set of rules for any contractual dispute that may arise. The actual application of the CCA is far from uniform. In many parts of the country, judges continue to use the Mejelle to deal with their cases rather than the CCA.55 Many judges are trained in the shari’a and thus have a natural affinity towards the Mejelle, for which they may have received some formal (or informal) training. Furthermore, the government oversight of judges is very weak given the limited capacity of the government, particularly in rural areas. The defense lawyer added that when pleading before a court, lawyers sometimes cite the Mejelle before referencing the CCA (if the latter is even mentioned). This observation is particularly striking given the CCA clearly takes priority. Article 130 of the Constitution of Afghanistan states that enacted law shall serve as the first source of law and only in its absence will the shari’a – and Hanafi jurisprudence in particular – be permitted as a source of law. In recent years, another law has been passed covering the area of contact law. The Law on Commercial Contracts and Sale of Goods came into effect in October 2014 and regulates contractual transactions similar to the CCA.56 The new Law contains many of the same areas of contract law though in a compressed manner, as it does not go into as much detail on some topics. For example, while the area of “Subject of Contract” is contained over twelve articles in the CCA,57 it is only mentioned in one article of the new Law.58 The new Law introduces a number
49. Ibid., Art. 497-533. 50. Ibid., Art. 551-578. 51. Ibid., Art. 705-729. 52. Ibid., Art. 652-689. 53. Ibid., Art. 699-704. 54. Ibid., Art. 815-830. 55. N Choudhury, ‘Revisiting Critical Legal Pluralism: Normative Contestations in the Afghan Courtroom’ (2017) 4 Asian Journal of Law and Society 229. 56. A contract is defined in article 3 as “an agreement made for the purpose of creation, amendment, transfer or elimination of rights within the limits of this Law that shall be formed between natural or legal persons.” Thus, the law applies generally to all types of contracts. Law on Commercial Contracts and Sale of Goods, Gazette Issue Number 1150, 20 October 2014. 57. Civil Code of Afghanistan, Art. 579-590. 58. Law on Commercial Contracts and Sale of Goods, Art. 13. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 41 of changes, such as the statute of limitations being four years for all contracts,59 whereas in the CCA a general period of 25 years is provided, but with variations in specific cases. Though it is not clear what purpose the new law serves, one would speculate it is an attempt to provide a simplified set of legal instructions to judges and concerned individuals. Furthermore, the new Law does not repeal the CCA, and thus the CCA should be viewed as a residual source of law, providing guidance when the new Law falls silent. 3.2. International Development Efforts to Improve the Legal System One of the prerequisites for a functioning contract law regime is a functioning state, and in particular, a legal system that will protect the rights of individuals. As mentioned earlier, Douglas North stressed the importance of functioning institutions for a country’s economic growth.60 Law is one such institution that can help to strengthen a countries economy.61 The World Bank, IMF, and other international agencies have adopted what has come to be known as the Washington Consensus, which represent a set of standard ‘best practice’ policies for countries seeking to improve their economies and promote growth.62 In 2002, the World Bank launched its Doing Business project, which compares and ranks countries according to the ease of conducting businesses based on several indicators.63 The project is geared at encouraging economies to adopt policies and regulations that may help to promote business activities and investor confidence in a country. One of these indicators specifically focuses on the enforcement contracts, taking into consideration the quality of judicial processes.64 In considering judicial processes, the index considers such factors as the availability of specialized commercial courts, case management system, simplified procedure for small claims, publication of judgements, and arbitration/mediation services.65 Afghanistan is still reeling from decades of war, and thus it is unsurprising that the country’s
59. Ibid., Art. 39. 60. See main text accompanying footnote 40. 61. See, e.g. de Soto, The Other Path. 62. Somewhat paradoxically, the World Bank concedes that “[d]espite widespread academic debates on whether legal transplants are possible at all, they are common practice.” See World Bank, ‘Legal Transplants and Legal Culture’
66. For a comprehensive overview of the failing of US rule of law efforts in Afghanistan, see, e.g. G Swenson, ‘Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed’ (2017) 42 International Security 114. 67. A Suhrke, A and K Borchgrevink, ‘Negotiating Justice Sector Reform in Afghanistan’ (2009) 51 Crime, Law, and Social Change 211, 213. 68. SIGAR, ‘SIGAR 15-68 Audit Report: Rule of Law in Afghanistan—U.S. Agencies Lack a Strategy and Cannot Fully Determine the Effectiveness of Programs Costing More Than $1 Billion’ (SIGAR 2015). 69. For example, the Supreme Court was not truly independent and thus “judges had little incentive or ability foster the rule of law, particularly if it involved challenging executive power.” See Swenson, 124. Thus, funds spent on reform certain did not immediately equate to improvements in the justice system. 70. Ibid. at 125. During the same period, Checchi was contracted to work on projects targeting the informal justice sector. See Swenson, 127-129. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 43
Kabul, Afghanistan, in April 2015. A total of twelve taxi drivers were interviewed on the nature of their contractual transactions. These drivers covered a variety of ethnicities, economic conditions (gauged superficially by the state of their car), and types of clientele.71 The interviews also included a former judge and a defense lawyer, both of whom provided background information on the operation of local courts.72 The goal of this research is not to make any sweeping characterizations about all Afghan taxi drivers, or less so about Afghan society generally. Rather, it focuses on a localized set of actors, namely a small set of taxi drivers in Kabul, to illustrate the impact of the transfers of global scripts on a local environment. Taxi drivers are situated within the low to lower-middle class income bracket in society and generally have limited interactions with legal and governmental institutions. For this reason, the impact of legal development reforms on these actors is not immediately apparent. Furthermore, taxi drivers are deeply embedded within traditional social structures in society whose norms directly influence their behaviour. The structure of their interpersonal relationships lends to the use of social network analysis for understanding their behaviour. This study of taxi drivers concentrates on two general types of transactions. The first concerns the way taxi drivers make agreements with their clients. The second relates to the purchase and sale property, both movable and immovable. Before going into these transactions, some background remarks on taxi driving in Kabul are provided for greater context. Within Kabul, no metered taxis exist, and thus, all prices are negotiated. The city is divided into various areas, and customers who frequent two particular areas of the city are generally aware of the acceptable price ranges. Prices also increase during peak hours, when most people are seeking transportation to and from work.73 Beyond individual taxis, buses and mini-buses also provide shared transport between two areas of the city at a fixed price. Taxis drivers may choose whether to drive individual clients or provide a car-pooling service. Taxis are also of two kinds. Official taxis registered with the government are a distinctive white and yellow. These taxis are required to pay a yearly fee to the government. Unofficial taxis take the form of private cars, and owing to the lack of official registration, they do not pay any yearly fee. Registration entails certain benefits. Certain busy
71. Interviews on file with author. Supplementing this research is my own experience with taxi drivers during my four years living in Afghanistan. 72. For an overview of the comments of both the judge and lawyer, see N Choudhury, ‘Revisiting Critical Legal Pluralism’. 73. The morning congestion generally spans from 7-9 am, and in the evenings, it is from 4-6 pm. 44 / Journal of Afghan Legal Studies streets have areas specifically allocated for official taxis. Furthermore, female customers are more likely to seek the services of official taxis for safety reasons. The income of an official taxi driver is thus generally greater than that of an unofficial taxi driver, though many variables also affect one’s income including the number of hours worked daily, a driver’s network of clients, the condition of one’s car,74 the driver’s awareness of the city, and their overall driving skills.75 Interviews covered both official and unofficial taxi drivers, as this distinction was negligible for the purposes of this research. Turning first to the way taxi drivers contracted with their clients for transportation, the principle distinction was between regular clients and casual clients. For casual clients seeking one-off services, the two parties would negotiate and agree upon a price in advance, and the payment would be made at the end of the trip. Occasionally, a driver would agree to drive someone despite them being able to play only a fraction of the regular price. In other cases, a customer may wait until the end of the trip to inform the driver that he had no or limited funds to pay for the trip. In such instances, instead of getting into a prolonged argument, the driver may considered their service to be a religious act of charity (sadaqa).76 Driving regular clients was a largely different affair. A client would normally be introduced to a driver through someone within his or her social circle. The driver may be a relative, or the relative or friend of someone already well acquainted with the client.77 The relationship between the client and the customer would thus already consist of some level of social connectivity. When the service consisted of regular transport between two locations, such as daily travels to and from work, the two parties would agree to a price in advance. While there was some bargaining involved, neither party wanted to estrange the other party nor appear stingy, and thus a principle of flexibility governed such negotiations. Beyond regular services, a client may also ask for additional one-off rides from their driver. In such cases, the driver would leave it to the client to decide upon a
74. In Afghan society, honour plays a significant role for many individuals. Thus, the physical condition of the taxi one uses may be a significant consideration for many customers. 75. A skilled driver is able to find alternate routes in the event of road closures and is also more likely to avoid accidents in Kabul’s chaotic streets. 76. Of course, in some cases, a driver may prefer a confrontation. In a comparable study, David Engel looked at Tort cases in Thailand. In cases where the claimant could not get compensation for their claim, they would attribute their misfortune to karma and religious belief. See D Engel and J Engel, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand (Stanford University Press 2010). 77. On a limited number of occasions, a client may develop a regular service relationship with a driver who was a stranger. However, such cases are exceptional. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 45 price. The client would normally pay an amount equal to or slightly higher than the rate normally associated with driving between the two given areas of the city. The driver viewed the relationship as economically valuable and thus sought to maintain positive relations. At the same time, the client would seek to maintain a positive image within the social circle in which she and the driver were both a part of. On certain occasions, the client may not have enough money to immediately pay the driver because of financial difficulty. In such cases, the taxi driver would simply record the trip. In one instance, a driver had continued driving a client for three months without collecting any money since the client was jobless, stating: I understand that he is going through a difficult time right now. However, when he gets enough money, then he will pay me. Even if I force him to pay or stopped driving him, that would not be of great help since he has no money at the moment. The day-to-day interactions between taxi drivers and their clients are helpful for understanding the norms that exist within the network of relationships between individuals in their social network.78 For individuals within one’s social circle, flexibility was expected of both parties. This would ensure that the relationship would not be strained. Furthermore, it would help to account for unanticipated contingencies, like when a client could not immediately pay because of a lack of funds. Flexibility also depended on trust between the parties. The client relied on trust with another individual within their network to find a reliable driver. The individual who introduces the two parties is trusted by both and thus helps to solidify trust between the two. This individual is able to vouch for both parties, especially the driver, since it is his services that are being sought. Once the arrangement has been agreed upon, a driver will trust the client to decide fairly on the price of one-off rides as well as to repay any outstanding amounts without running away. Clients would in turn depend on their drivers to generally provide immediate services whenever called upon.79 Finally, the sustained relationship
78. The central unit of social organization in Afghanistan is the qawm. The qawm is a protean term that can loosely be defined as community and whose membership may consist of relatives, people of the same ethnicity or religion, or individuals living in the same geographic areas. The qawm or community itself defines the criteria of membership. See BR Rubin , The Fragmentation of Afghanistan: State Formation and Collapse in the International System (Yale University Press 2002); T Barfield, Afghanistan: A Cultural And Political History (Princeton University Press 2010). 79. In this sense, there is a clear level of reciprocity in the relationship. A rich body of anthropological literature explores the questions of whether philanthropic acts – sometimes called “gifts” – are really that philanthropic. Marcel Mauss’s work on the gifts and exchanges remains that most authoritative in the field. See M Mauss, The Gift: Forms and Functions of Exchange in Archaic Societies (Ian Cunnison tr, Cohen & West 1966). 46 / Journal of Afghan Legal Studies between the parties over a period of time entails a level of cooperation. Each party viewed the relationship as consisting of a series of future interactions that would be of mutual benefit to the parties. Thus, each had vested interest in cooperating with one another.80 Turning to transactions concerning property, the principle distinction is between immovable property and large movable property. First, concerning immovable property, transactions were either for property rental or property sale. A driver may own a house, which he rents out to a tenant. No written rental agreement was needed if the tenant was a family relation or within a driver’s network of friends. In the case that the driver was not familiar with a potential tenant, a contract was drawn, which – importantly – required the guarantee of an individual with stature in society on the part of the tenant. This person could be a government employee working in some official capacity or a storeowner whose business was registered with the government.81 The approval by this latter individual served as an assurance that the tenant would use the house for lawful habitation purposes. The guarantor signs the contract alongside the contracting parties and additionally provides a copy of his government issued ID or business registration number so that he could be tracked in the event any issue was to arise. Such assurances are necessary in Kabul where a real possibility exists that a property may be used for illicit purposes or a tenant may suddenly disappear. The process of buying and selling immovable property is comparable. If an individual within Kabul were to sell his house, he would provide the property deeds to the buyer and have an official individual – such as a government employee or registered storeowner – serve as a guarantor for the transaction. The documented transaction may or may not be filed with the government in a property registry. The volume of property sale transactions that are actually registered varies greatly between individuals and between areas of the city.82 In recent years, property transaction offices have sprouted up across Kabul, which help to connect potential buyers and sellers (working on a commission basis). One of the roles of these offices is to ensure that buyers and sellers do not face difficulties in their transactions. These offices face high social pressures to ensure
80. The work of Ian Macneil on relational contracts posits that contractual relations are part of ongoing relations between two parties. IR Macneil, Contracts: Exchange Transactions and Relations (Foundation Press 1978). 81. Government employees working in an official capacity have thorough character checks conducted on them and are provided special governmental IDs. Similarly, registered storeowners (as opposed to the plethora of unregistered street stalls) are provided unique IDs by the government confirming they are in good standing. 82. C Foley, A Guide to Property Law in Afghanistan (2nd edn, Norwegian Refugee Council 2011), 34. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 47 that transactions are completed without any issue, since an office risks losing all legitimacy if a transaction associated with its office is later impugned. Reputation is a very significant factor in their business. The sale of property in rural areas, i.e. outside of Kabul, also required the use of guarantors, but with certain differences. Land outside of Kabul is usually unregistered, and thus, the role of guarantors is particularly important in vouching for the sale. When an individual purchases an area of land, 4-5 individuals from the community - usually male elders as well as adjacent landowners - will confirm that the seller actually owns the land mentioned in the transaction. These guarantors all sign the document (if the contract is written) and the transaction is considered complete. This self-help approach ensures that communities can avoid legal dilemmas even without direct government involvement.83 Second, in the case of large movable property such as cars, normally no property registry would exist for such items, and thus particular care was need to ensure that the car was not previously used for any unlawful purpose. Once again, the parties relied upon a guarantor on the part of the seller who was either a government official or a registered business owner and who could vouch for the transactions. While the transaction would not be noted in any registry, cars need to be registered with the government once every three years, as well as once the ownership changes.84 If a car has been involved in any illegal activity, then the government will refuse to register the car and will also seek to find the perpetrator. One driver related the story of a problem that his friend faced because of the absence of a guarantor during the sale of a car. Someone had sold his friend a car but without a guarantor and at a discounted price. Seeking to acquire an otherwise expensive car, his friend agreed to the purchase. His friend then resold the car, this time providing a guarantor. Shortly thereafter, the buyer – as well as the police – tracked his friend down through his guarantor, as the car had previously been involved in criminal activity. The buyer was unable to register the car because of the previous illegal activity, which until then had been undisclosed, and thus sought to annul the transaction and get a refund. The seller refunded the driver, as the car was not sold free from problems as originally promised. Several factors in the surrounding environment placed strong pressures on the seller to return
83. R Gang, ‘Community-Based Dispute Resolution Processes in Balkh Province’ (Afghanistan Research and Evaluation 2010). Gang mentions that there has been a recent shift in rural communities to have transactions registered by the government to ensure the rights of the parties. Ibid., 35. 84. This rule is most strongly enforced in the cities and is certainly suffers from lapses in the rural areas. 48 / Journal of Afghan Legal Studies the fund. Refusing to return the funds would tarnish his reputation – and that of his guarantor – as he would be labelled as untrustworthy and of poor character within his social circle and in the wider community. Furthermore, the police had contacted the seller to question him about the illegal activities associated with the car and to track down the original owner. Unfortunately, as the initial sale had no guarantor, the original owner could not be tracked down. The seller who was now in possession of the car was thus unable to seek a refund and was also unable to register the car. All he could do was sell the car for spare parts at a vastly discounted price, thus incurring a heavy financial loss.85 This detailed narrative relating to taxi drivers can help to shed light on how legal transfers impact the social networks that permeate the local environment. The transactions that drivers have with their clients reveal how norms of flexibility, trust, and cooperation permeate their relationships. Moreover, the initial contact between drivers and their regular clients is established through a trusted acquaintance common to both parties. By guaranteeing both of their characters, this third party plays a central role in creating a new and direct relationship between the driver and the client, which is embedded within a wider set of social relationships. These norms within the social networks of drivers can be further examined through the sale and rent of property. The property transactions of taxi drivers clearly reveal the central role of guarantors. The drivers highlighted the importance of trust and reliability when dealing with another party. The guarantor’s assurance for the seller of property builds trust in the eyes of the buyer by providing a security in the event that an issue arises. Moreover, the guarantor must be a person of repute in society who can vouch for the seller’s integrity. In Afghanistan, the significance of one’s social connection to the greater community cannot be understated. An individual who loses standing amongst his network of peers, risks facing a form of “social death” i.e. being excommunicated from the community, which for many is considered worse than actual death itself.86 Social distance between actors is thus a significant consideration when undertaking a transaction, as the role of the guarantor is to reinforce the relationship by providing an additional embedded tie beyond the simple recording of the transaction between the two parties. The use of the guarantor ensures that the contract is closely enmeshed in social norms.
85. An alternative to selling the car for spare parts would be to sell the car on the black market. Of course, this would entail its own set of risks and challenges. 86. T Barfield, ‘Culture and Custom in Nation-Building: Law in Afghanistan’ (2008) 60 Maine Law Review 347. Lessons on Global Legal Transfers from Afghan Taxi Drivers / 49
Certain transactional norms can only be understood within the context of the prevailing social practices. For example, at one point, a driver was asked several times whether the guarantor would be liable if there was a problem with the seller’s property (e.g. the sellers deeds were fake) and he could not be located. The repeated response of the driver was simply that the guarantor would obviously be able to locate the seller and thus the question of the guarantor being liable was moot. Eventually, the driver did say that the guarantor would be liable in such a situation, though remaining unconvinced that such a situation would materialize. His response was not an attempt to elude the question but rather reflects the perspective of an individual operating as an insider to particular community norms. For drivers, to have a guarantor is to have certainty in being able to find the seller. A thorough discussion of the existing norms that inhabit the social networks of taxi drivers can help to provide a renewed discussion on how the legal transfer of a formal contract law regime into Afghanistan has had an impact on the local environment. The reception of the CCA, as well as the subsequent enactment of the Law on Commercial Contracts and Sale of Goods were intended to strengthen the formal legal system by providing a clear set of rules for parties seeking to engage in contractual relationships. Furthermore, the various international efforts to strengthen the courts and the legal system follow the global script prescribed by the World Bank of promoting economic growth through justice sector improvements. The goal of these reforms has been to strengthen the regime for contractual transactions by providing the courts with clear guidelines. Nonetheless, it remains questionable the extent to which these laws have gained widespread legitimacy. For a new law to have an effect on the operation of a legal system, it must be adopted by its operators, including judges and lawyers. This may pose to be a particular challenge in Afghanistan where the rule of law remains weak and confined to the cities, and even then the application of law remains inconsistent. Many judges and lawyers in the country continue to view the Mejelle with greater cognitive legitimacy than enacted statutes.87 Furthermore, the presence of enacted statute does not address the legal general mistrust that many people have towards the courts system. For taxi drivers, non-legal (in the sense of non-state sanctioned) norms play a significant role in shaping individual behaviour. The presence of a formal
87. See Choudhury, ‘Revisiting Critical Legal Pluralism’. 50 / Journal of Afghan Legal Studies contractual legal regime capable of ensuring the parties rights in courts at no point figured into how they conduct their transactions. This included instances when problems arose between parties. Formal contract law lacked cognitive legitimacy since the system of using a guarantor is simply ‘the way things worked’. In fact, none of the taxi drivers mentioned any process remotely associated with the court system or laws, even after being indirectly asked how the state may be able to deal with such issues. Contract laws lacked normative legitimacy as they trace their authority to the state, whereas the existing regulatory framework relies on social norms such as trust, which resonate far more strongly amongst drivers. The state legal system, on the other hand, did not rely on social relations, and in proposing a new normative framework, failed to convince these drivers of its normative superiority. It also remained unclear what pragmatic benefits taxi drivers would gain by vesting more authority - and money - in the state legal system. Nonetheless, one intriguing finding does arise concerning the impact of legal transfers on taxi drivers. In all of the property transactions mentioned (expect those in rural areas), the contracting parties will seek a guarantor who has some level of official governmental status, whether they are an officer of the state or a business-owner with a government license. An individual’s affiliation with the government means that he is registered in the government database and thus is more likely to be traceable. Furthermore, in the case of government employees, the government usually conducts security checks as a condition of employment, further adding a level of reliability on the part of the guarantor. The city centers in Afghanistan are often more cosmopolitan, as they host individuals who are originally from various provinces. Civil conflict has greatly contributed to the number of people relocating from rural areas into cities. As a result, people with a wide variety of backgrounds must interact with one another, and quite often, transacting individuals are outside of one another’s immediate social networks. The social distance between individuals is greater in Kabul, thus requiring new mechanisms to ensure cohesion between individuals in the absence of a strong state. The presence of a ‘government-guarantor’ allows distant individuals to interact with others with sufficient confidence that co-contractors can be located in the event of a problem. Legal transfers have thus affected the behaviour of the interviewed taxi drivers but in an unexpected way. The reforms advocated by the Washington Consensus as well as the Doing Business project at the World Bank include the strengthening of government institutions, and particularly courts. Legal reform projects, Lessons on Global Legal Transfers from Afghan Taxi Drivers / 51 alongside a variety of other international development initiatives in the country, have had the effect of greatly expanding the government bureaucracy. However, the significance of this expansion has not entailed the wider reach of the law, but rather a greater presence of government in daily life. Drivers remain influenced by the norms of the social networks, but operationalize new government structures to effectively ‘widen’ the potential reach of their networks. Thus, paradoxically, the officialdom associated with the government helps to bolster the regulatory force of informal norms rather than to reduce it. For these taxi drivers, the presence of the government is effectively absorbed into the existing social network. This is possible because these new government-guarantors are viewed with pragmatic legitimacy. They provide a quick and easy means of finding a party if necessary, with the assistance of the government – a government, it must be reminded, that is comprised of average citizens who also understand the value of social networks. Further, the role of these government-guarantors is viewed with normative legitimacy as they do not oppose existing social structures but rather build upon them. The government-guarantor is still within the social network of the person he is guaranteeing. If a recalcitrant contracting party were to disappear, then the government-guarantor would risk losing respect, not only within his social circle but also amongst his government colleagues and within society more generally. Thus, even with the addition of government-guarantors, network relationships remain essential for the contractual transactions of taxi drivers. In sum, the focus on social networks can help to provide new insights on the operation of legal transfers in recipient environments, which would fail to be captured by concentrating simply on the transfer itself. A social network approach puts attention on the varying responses of network actors to new stimuli. Actors within a network are embedded within a particular context in which various local norms affect their behaviour. A legal transfer does not enter into a space devoid of normative meanings but rather one where meanings and behaviours have been long established. A social network approach to studying legal transfers can help to reveal the reasons why intended reforms sometimes fail and, in other cases, lead to unintended consequences. 4. Conclusion The law and development movement has gone through a number of phases and despite its various shortcomings, it continues to play a central role in shaping 52 / Journal of Afghan Legal Studies the trajectories of many developing countries.88 Countries continue to rely upon legal transfers for structuring their legal systems in a way that may be conducive to economic development. Realistically, legal transfers will continue to play a significant role in development efforts for the foreseeable future.89 Thus, the challenge is not to limit their application but rather to understand their impact in new settings. This paper proposes the use of social networks to analyse the ways in which legal transfers operate in recipient environments. A social network approach aspires to uncover the existing actors, relationships, and norms that inhabit the space in which the legal transfer enters so that the reception of the latter can be studied alongside various other contingencies. Social networks have yet to become a mainstay in the law and development discourse, despite the revealing insights it may provide. Such a paradigm shift requires a revision in the way development agencies explore local contexts. It turns attention away from the immediate goals of the transfer and onto the rich diversity of meanings that inhabit diverse contexts. A social network approach places emphasis on the relationships that individuals within an environment have with one another. By understanding how the introduction of new stimuli may affect a social network, one can better appreciate that existing norms and modes of behaviour are not easily replaced but rather possess a resilience and adaptability to change. Such an approach can provide valuable insights on unexpected consequences of particular reforms. In the case of taxi drivers in Afghanistan, efforts to reform the legal system paradoxically serve to reinforce the existing social networks that structure interactions and transactions between individuals. A social network approach raises the possibility of understanding meanings within a local setting according to the framework of those who constitute the living environment.
88. DM Trubek and A Santos, ‘Introduction: The Third Moment in Law and Development Theory and the Emergence of a New Critical Practice’ in DM Trubek and A Santos (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge University Press 2006). 89. BZ Tamanaha, ‘The Primacy of Society and the Failures of Law and Development’ (2011) 44 Cornell International Law Journal 209. The Uses of Legal Ambiguity: Issues with Legal Protections of International Workers in Afghanistan
Noah Coburn Table of Contents 1. A Nepali at War 2. Illegality and Legal Ambiguity 3. Studying Labor Migration to Conflict Zones 4. Legal Challenges 5. The Limits of Legal Protection 7. International Cooperative Attempts at Worker Protection 8. The Future of Worker Protection in Afghanistan and Beyond
Abstract The U.S.-led invasion of Afghanistan in 2001 started a now seventeen-year international intervention in Afghanistan that brought thousands of international troops to the country. At the same time, and less commented on in the media or in international legal studies, these troops have been supported by tens of thousands of international contractors providing private security and other services.1 In
1. Dr. Noah Coburn is a socio-cultural anthropologist focusing on political structures and violence in the Middle East and Central Asia. He teaches at Bennington College (USA). He has conducted field research in Afghanistan, Kyrgyzstan, Uzbekistan, Nepal, India, and Turkey. His works include Bazaar Politics: Power and Pottery in an Afghan Market Town (Stanford University Press, 2011), Derailing Democracy in Afghanistan: Elections in an Unstable Political Landscape with Anna Larson (Columbia University Press, 2014) and Losing Afghanistan: An Obituary for the Intervention (Stanford University Press, 2016). Coburn received his doctorate in anthropology from Boston University in 2010; MA in regional studies, Columbia University; BA, Williams College. Most studies of international contractors focus on those working for security firms and spend much time examining the difference between types of private security contractors and private military contractors (e.g P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry, updated edition, (Ithaca, NY: Cornell University Press) and 54 / Journal of Afghan Legal Studies
December 2009, the U.S. Department of Defense alone funded over 96,000 private contractors in Afghanistan.2 Particularly those international contractors and laborers from non-Western countries, have faced a myriad of legal challenges ranging from fines for incorrect visa documentation to long term imprisonment on a variety of charges. In almost all cases, these workers are unsure of their rights and struggle to navigate the legal system. This article looks at some of the challenges faced by international, primarily non- Western, workers in Afghanistan, the limited legal support available to them and the legal ambiguity that often times surrounded their status. It begins with an ethnographic case study, from one of over two hundred and fifty interviews of contractors conducted by the author. As this case suggests, the maintenance of this legal ambiguity has allowed for further exploitation that primarily benefited the companies employing these workers and, less directly, the countries funding these contracts. Attempts to protect workers, both by the governments of their home countries, and by various international agreements have largely been ineffective. The protections that do exist are often inaccessible to poorer workers from non-Western countries. Ultimately, more robust protections by countries providing funds for international workers are the only way to guarantee legal protections in cases of conflict zones and places, like Afghanistan, where there is a significant international presence, but limited rule of law. 1. A Nepali at War Yash arrived in Afghanistan in 2006 to work as a cook on a U.S. military base.3 Coming from a poor family in southern Nepal, he like most Nepalis seeking Elke Krahmann, States, Citizens and the Privatization of Security (New York: Cambridge University Press 2010)). Laborers and other types of workers are generally not included in these studies. As an anthropologist, approaching these practices from the ground up, one is immediately struck by the fact that those competing for these positions do not actual differentiate between them (e.g. a young man hoping to be a security guard might very well take a job as an operator in a fuel depot instead). These different workers also tend to face similar legal challenges. For that reason, this article considers the groups together except where there are explicit differences. These differences, however, usually arise more from the different levels of support provided by various companies for their workers than the actual category of worker being discussed. For more, see Noah Coburn, Under Contract: The Invisible Workers of America’s Global Wars (Palo Alto: Stanford University Press, 2018). 2. Heidi Peters, Moshe Schwartz and Lawrence Kapp, ‘Department of Defense Contractor and Troop Levels in Iraq and Afghanistan: 2007-2017,’ (Congressional Research Service, Washington DC, (April 28, 2017). This does not include contractors employed by other U.S. government agencies, such as USAID, or contractors working for other governments or international agencies, like the UN. A complete census of contractors in Afghanistan is impossible, in part, because many of these organizations do not report or keep the number of contractors they fund. Of these various funders, however, the U.S. Department of Defense remains the largest. For more, see Coburn 2018. 3. Names and some potentially identifying details of those interviewed for this project have been changed throughout, except for in cases when interviewees specifically requested that their names be included. The Uses of Legal Ambiguity / 55 work in Afghanistan, relied on a broker to arrange his travel and employment. The broker promised him a good job, paying $500 a month, in exchange for a payment of approximately $3,000, according to Yash.4 Yash entered Afghanistan on a 30-day visit visa arranged by the broker. The broker arranged for an Afghan associate of his to meet Yash at the airport in Kabul and transport him to a compound where Nepali, Indian, Bangladeshi and other laborers from poor Asian countries stayed while looking for employment. Yash said he was one of the lucky ones at the camp and he found work quickly. Others living there had to wait months before finding employment. Depending upon the arrangements they had made with their brokers, many had to continue paying room and board, sinking deeper into debt while waiting for a job. Typically, these workers would also have to pay a finder’s fee to the broker who found them a job. This could vary, but according to many informants was typically around three months’ salary. Once Yash was brought to the military base where he was to be employed by an international contracting company that did catering for the military personnel living there, he was told that his pay would be $350 a month, instead of the $500 he had been promised. Yash was not happy about this reduction, but, he said, there was little he could do. Returning home without a job would have brought shame on him and his family. Besides, he was now sitting at the gate of a military base in a country at war, without a permanent visa. He did not speak any of the local languages and had no contacts other than the broker who brought him there. He had been told repeatedly by the broker how dangerous the country was. Where could he go? For a workers like Yash, walking away from a job like this was simply not an option, even when they were lied to or abused. As a result, Yash stayed. In his interview, Yash explained that working on the base was difficult, but not unbearable. He was a kitchen assistant and his main duties were to haul supplies and clean. He worked seven days a week, ten hours a day, with a 30-minute break for lunch. The night shift, during which he had to keep the kitchen open throughout the night in case a new group of hungry soldiers arrived was much
4. In the case of Yash’s experience migrating to and working in Afghanistan, many of the specific details of his experience are difficult to confirm. However, as discussed further in the methodology, during this project I interviewed approximately 250 contractors or individuals associated with the contracting world who largely collaborated the details here. In many instances, I was also able to confirm details through interviews with government officials and journalists, the use of media accounts and policy studies which are included in Coburn 2018. 56 / Journal of Afghan Legal Studies worse, he said, than work during the day, in part because other workers would attempt to steal supplies from the kitchen and he was punished when this happened. As a non-Western, low-level employee, Yash was also subject to “security restrictions” that limited his movement and his ability to communicate with others. These appeared to have little to do with actual safety, and had much more to do with the ways in which the company he was working for controlled him and his fellow workers. Yash was not allowed to have a cell phone or computer, since, he was told, this might enable a worker to give information about the base to the Taliban or other insurgents. In reality, Yash said, this did not make much sense since he was restricted to the dining hall, his sleeping quarters and a few other buildings. He had no access to most of the base and, besides, he added, Afghan workers had much more latitude to come and go and seemed far better positioned to have real information about the base. The limits on cell phones and access to the internet cut Yash off from his family and from other Nepalis in the country. His co-workers were from a mixture of primarily south Asian countries. His boss was an Indian who, Yash said, particularly discriminated against non- Indian workers. At one point, he protested this treatment and his boss beat him repeatedly, while the other workers laughed. On another occasion, Yash got into a dispute with an Afghan worker who threatened to have him killed. Because his supervisors had also been abusive towards him, he didn’t feel like there was anyone who would support him if he reported the incident. Yash doubted the Afghan could really do him serious harm while he was on the base, but was still fearful in the weeks that followed. Yash, however, was less concerned about insurgent attacks or other types of attacks than he was of the Afghan authorities. The firm that Yash worked for had an ongoing dispute with the Afghan government over tax payment, so the Afghan government refused to grant employees of the company new work visas. This did not greatly disrupt things for the firm since there were military flights to the base that went in and out of the country bypassing Afghan immigration. Yash initially never left the base so his lack of paperwork was not a major issue, though it still worried him somewhat. Technically, there was nothing preventing him from leaving the base during his limited time off, but in reality, the lack of a visa prevented him from leaving and doing things like visiting other Nepalis working The Uses of Legal Ambiguity / 57 for other companies in Kabul. Later in 2011, when the U.S. government began decreasing the number of troops in the country, the contracting firm that Yash was working for began reducing staff. Yash was given a new position on a different base closer to the center of Kabul. His housing, however, was still on the original base near the airport and so he commuted on a bus across town every day. This was more harrowing he said, since the road to the airport had been attacked on numerous occasions and they were not given the secured armored vehicles that Western contractors had. Beyond these attacks, however, they were also required to pass through numerous police checkpoints and he had heard of cases of other Nepalis who had be arrested for failing to have the correct documents. Once detained it was very difficult for them to secure their release. The Nepali government had no diplomatic representation in the country (their closest embassy was in Pakistan) and so many workers were left paying large fines, which were more likely to have been bribes, in order to secure their release. Once while driving across town, the police pulled the driver off the bus at a checkpoint and began asking about their paperwork. The driver made some quick phone calls and after some money exchanged hands, they were allowed to pass through. Yash, however, said that he remained terrified in the days that follow. The incident meant that he and his coworkers were even more concerned about leaving the base at all. Back in Nepal in 2015, describing his experiences in Afghanistan, Yash did not regret his time in Afghanistan, but it certainly did not turn out as he had expected. By the time he had paid his broker and for his various travel costs, he was left with almost no money remaining. He also remained somewhat amazed that he had escaped serious legal issues due to his lack of visa or work permit. All in all, the experience had been incredibly stressful and not particularly financially rewarding. In many ways, Yash’s experience could have been much worse. I interviewed other Nepali, Indian and Turkish workers who ran into more serious legal trouble. One had been detained for almost three years, following a trial which he did not understand, since no interpreter had been present. Others had been detained on more minor charges and were eventually released through legal processes that were almost entirely nontransparent to those involved.. Yash’s experience, however, was fairly typical of the non-Western, non-Afghan 58 / Journal of Afghan Legal Studies workers who did much of the labor of the war in Afghanistan and who existed in a legal limbo that allowed them to be further exploited and taken advantage of. 2. Illegality and Legal Ambiguity The international intervention that followed the U.S. led invasion in Afghanistan, created a political economy that favored certain groups and markets, largely building on America’s increasing neo-liberal approach to war. International and Afghan companies that supported the U.S. military, often times in construction or logistics, benefited most and in 2010, before U.S. spending peaked, an audit calculated that $17 billion dollars had already been allocated to over 7,000 different companies.5 Other sectors benefited more indirectly and the cell phone industry, for example, received more than $2.6 billion dollars of U.S. investment.6 Contracting companies in these sectors profited and this greatly increased the demand for labor. In the meantime, those at the margin of the economy did not benefit from this wealth. In 2006-7, 36% of Afghans did not have the buying power to satisfy basic material needs. Despite a massive influx of funds in 2011- 12, 36% of the population was still poor and the bottom 20% had experienced a decline of 2% in the amount of money they had to spend on basic necessities. In contrast with this, the top 20% had seen a 9% increase.7 The neo-liberal ideals that shaped the flow of funds into Afghanistan, particularly through the constant outsourcing of key projects, ranging from infrastructure, like roads, to capacity building and training of government officials deeply shaped the ways in which Afghanistan’s political economy developed after 2001. While narratives around war often times emphasize the supposed sovereignty of states, in actuality war often increases ambiguity around notions of sovereignty and legality. Charles Tilly’s study of state formation in Europe points to the ways in which banditry, crime, local violence and war all contribute to the rise and form of the modern state.8 These links continue to tie together both perceived licit and
5. Special Inspector General for Afghan Reconstruction (SIGAR), ‘DOD, State and USAID Obligated over $17.7 Billion to about 7,000 Contractors and Other Entities for Afghanistan Reconstruction During Fiscal Years 2007- 2009,’ (SIGAR Audit 11-4, Washington, DC, May 27, 2010) and, more generally, see Douglas Wissing, Douglas, Funding the Enemy: How U.S. Taxpayers Bankrolled the Taliban, (Amherst, NY: Prometheus Books, 2012) and Noah Coburn, Losing Afghanistan: An Obituary for the Intervention (Palo Alto: Stanford University Press, 2016). 6. Special Inspector General for Afghan Reconstruction (SIGAR), ‘Afghanistan’s Information and Communications Technology Sector: U.S. Agencies Obligated Over $2.6 Billion to the Sector, but the Full Scope of U.S. Efforts is Unknown’ (SIGAR 16-46AR/Afghanistan’s ICT Sector, Washington, DC, July 2016). 7. Omar Joya, Claudia Nassif, Aman Farahi, and Silvia Redaelli, ‘Afghanistan Development Update,’ (Washington, DC: The World Bank, October 2015) 17. 8. Charles Tilly, ‘War Making and State Making as Organized Crime,’ in Bring the State Back In, ed. Peter B Evans, The Uses of Legal Ambiguity / 59 illicit economies across the globe.9 This blurring is even more severe in cases where war practices are outsourced. As John and Jean Comaroff argue in their volume on Law and Disorder in the Postcolony that “[w]ith market fundamentalism has come a gradual erasure of received lines between the informal and the illegal, regulation and irregularity, order and organized lawlessness.”10 Gun running, drugs and other typically illicit practices take advantage of this space between legality and illegality, which Carolyn Nordstrom calls the “shadows” of war.11 These economic activities merge with more mundane economic practices, from construction on military bases with questionable building permits to the employment of private security guards to act as informal militias. Those who are best positioned to take advantage of the unclear legal distinctions between legal and illegal economies are those with the most economic and political power in both of these realms. These figures can then exploit those who do not have the ability to manipulate this boundary. This particularly became the case as more workers migrated to the conflict in Afghanistan. While Afghanistan has long been more connected to the global economy than commonly presumed, 12 this economic growth in specific sectors connected to global markets and connected it to certain global flows of labor migration in more extreme ways. This is most notable in the influx of private contractors and other workers supporting the war effort. These contractors were neither soldiers, nor militia members, and as such their legal status was often questioned, but rarely clarified.13 Existing in legally grey areas was both an advantage and a disadvantage for these workers. In particular, they could take advantage of the rapid growth of contracts that drove the wartime economy. Such economies rely on workers and others with questionable legal status that Daniel M. Goldstein suggest often
Dietrich Rueschemeyer and Theda Skocpol, (Cambridge: Cambridge University Press, 1985). 9. Carolyn Nordstrom, Shadows of War: Violence, Power and International Profiteering the Twenty-First Century (Berkeley, CA: University of California Press, 2004). 10. Comaroff, John L., and Jean Comaroff, Law and Disorder In The Postcolony (Chicago: University of Chicago Press, 2006) 5. 11. Nordstrom 2004, chpt 7 and 8. 12. See for example, Robert Crews, Afghan Modern: The History of a Global Nation (Cambridge, MA: Belknap Press, 2015). 13. Such outsourcing of security to mercenaries is, of course, not new. In America’s recent wars it has, however, taken on levels not seen in previous centuries. For more, see Sean McFate, The Modern Mercenary: Private Armies and What They Mean for World Order (New York: Oxford University Press, 2015). 60 / Journal of Afghan Legal Studies appear as the state begins outsourcing many of its traditional functions.14 These “illegal people” are legally marginalized, but necessary for the privatization of the economy and, particularly, state functions, including the work of wars. Such individuals who exist on the legal margins, their status rarely defined, include those who have built homes illegally on government land, permanent illegal migrants and private security militias. All of these figures exist in a type of legal limbo; they are essential to the functioning of global economies, yet also at risk at any time of arrest, or more often, shake down, intimidation and exploitation. The legal ambiguity of their status makes them vulnerable while also providing a means for companies to continue to keep costs low. In the case of the outsourcing of much of the war in Afghanistan, international contractors relied on this legal ambiguity to ensure the continued supply of stable, low cost labor, which did not require costly benefits like health insurance and secure housing. This legal ambiguity is in stark contrast with the status of those internationals, such as Western soldiers and officials with international organizations like the UN, who received diplomatic and legal protections. Even more marginal international civilian contractors from Western countries are able to maintain influence at Western embassies and largely able to protect themselves in the economically and politically unstable war economy, while workers from poorer countries can not. Securing legal protection for non-Western workers is challenging because of their lack of political influence, but also due to difficulties understanding the repercussions of contracting in conflict zones and simply researching these workers. 3. Studying Labor Migration to Conflict Zones Working in Afghanistan since 2005, I met numerous international workers, like Yash from a variety of countries working for the military, at embassies and even for small NGOs. Despite their near ubiquity, few commented on their presence and as I began to explore their roles in the conflict, I encountered challenges. Interviewing these workers in Afghanistan is almost impossible since in most cases, contracting firms are concerned about receiving negative publicity and it would have put the workers’ jobs at risk.15 As Yash’s case indicates, workers
14. Daniel M. Goldstein, ‘Illegality: Provocation,’ Cultural Anthropology website, https://culanth.org/ fieldsights/557-illegality-provocation (September 7, 2014). 15. I did interview several contractors in Afghanistan in fall 2016 after having initially interviewed them in Nepal The Uses of Legal Ambiguity / 61 had few opportunities to speak to anyone other than other workers on their bases. Following a series of incidents around 2007 in Iraq in which private contractors were responsible for civilian deaths, private security contracting companies, in particular began to receive more scrutiny by both the international press and the U.S. government.16 This made these companies, already secretive in nature, even more concerned with making sure their business practices remained as nontransparent as possible. Conducting extensive research in Afghanistan beginning in 2005 around a variety of issues concerning the rule of law and governance,17 the importance of rule of law and access to justice was clear both to me and, increasingly, to the international policy community. Almost all research and programming, however, was aimed at the ability of Afghans to access the legal system. While bilateral security agreements largely dictated the rights of international troops in the country,18 the rights of international civilian workers were less clear. In order to better understand the legal challenges for international workers and the wider effect of the war on this population, between the summer of 2015 and fall of 2016, I conducted interviews in Nepal, India, Turkey, the Republic of Georgia, Afghanistan, the U.S. and the U.K. with international contractors and others associated with labor migration to Afghanistan.19 Many of these workers returned home uninjured, having earned more money than they would have in their countries of origin. A smaller number that I interviewed were extremely abused and exploited. This included multiple workers that had been essentially imprisoned either by the Afghan government or, more informally, held by brokers. None of the two hundred and fifty that I interviewed, however, were clear on what exactly their legal rights were while in Afghanistan and most lived in fear of this legal ambiguity and the unknown legal consequences of their work. While significant work has been done on the importance of migratory labor for and India, but such arrangements were difficulty to make. 16. See Nathan Hodge, Armed Humanitarians: The Rise of the Nation Builders (New York: Bloomsbury, 2011) 204-207. 17. See in particular Noah Coburn, ‘The Politics of Dispute Resolution and Continued Instability in Afghanistan,’ (Washington, DC: USIP, 2011) and Noah Coburn, ‘Hybrid Forms of Dispute Resolution and Access to Justice in Afghanistan: Conceptual Challenges, Opportunities and Concerns, The Yearbook of Afghan Legal Studies (Kabul: Hamida Barmaki Organization for the Rule of Law and Max Planck Foundation, 2015). 18. This is not to say that their legal status was not controversial and President Karzai particularly called for the prosecution of U.S. troops in Afghanistan on several occasions. See for example Jack Healy, ‘Soldier Sentenced to Life Without Parole for Killing 16 Afghans,’ The New York Times (August 23, 2013). 19. Funding for this study was provided by a Fulbright Fellowship and a grant from the Gerda Henkel Foundation. 62 / Journal of Afghan Legal Studies
Nepal and other south Asian countries,20 much less has been done on the role of these workers in conflict zones, particularly in connection to America’s recent wars in Afghanistan and Iraq. This is despite the fact that Nepal, in particular, has a deep history of providing soldiers first to the East India Trade Company and later the British Imperial Army, the Indian Army, the Singapore Police and other foreign militaries.21 Those studies of contractors that have been produced tend to focus on quantitative data and on the financial implications of contracting and, when they do touch on the actual experiences of the contractors themselves, the focus is almost exclusively on Americans and other Western contractors.22 This is despite the fact that the large majority of contractors during the war in Afghanistan were, in fact, non-Western.23 The fact that there have been so few ethnographic studies done on the lived experience of these contractors has made it even more difficult to imagine policy solutions that might begin to protect these workers. 4. Legal Challenges Non-western, non-Afghan workers in America’s wars in Afghanistan and Iraq faced a series of challenges that other workers did not. In some instances, Western media sources have highlighted some of the most egregious cases of exploitation. These include unsafe working conditions, failure to receive payment and, in some cases, near slavery-type conditions leading to a series of riots in contractor compounds in Iraq.24 Interviews with contractors, however, reveal that while cases of extreme abuse and exploitation did occur, of more concern to the vast majority of contractors was low level harassment, difficulty securing payments, early and unjustified termination of contracts and general unsafe working conditions. Most of these practices were generally allowed to continue because they were not perceived as egregious by those supervising contracting companies and because of the limited 20. See, for example, Tristan Bruslé, ‘What Kind of Place is This? Daily Life, Privacy and the Inmate Metaphor in a Nepalese Workers’ Labour Camp (Qatar), South Asian Multidisciplinary Academic Journal (2012) 6 and Bandita Sijapati, Ashim Bhattarai and Dinesh Pathak, ‘Analysis of Labour Market and Migration Trends in Nepal’ (Kathmandu: GIZ and ILO, 2015). 21. See, for example, Mary Katherine Des Chene, ‘Relics of Empire: A Cultural History of the Gurkhas: 1815-1987’ (Phd dissertation, Stanford University, 1991). 22. See, for example, Singer 2007, McFate 2015 and Krahmann 2010. 23. While numbers fluctuated, non-Western contractors were almost always at least twice the number of Americans being contracted by the U.S. Defense Department (Peters, Schwartz and Kapp 2017). 24. See Sarah Stillman, ‘The Invisible Army: For Foreign Workers on U.S. Bases in Iraq and Afghanistan, War can be Hell,’ The New Yorker (June 6, 2011). The Uses of Legal Ambiguity / 63 legal recourses that most workers had. Companies in particular took advantage of the lack of oversight and the workers’ legally ambiguous status in the country to ensure continued imbalances that favored contracting companies. Yash’s case is exemplary of many of the challenges that these workers faced. Workers like Yash were never sure of their legal status and, in fact, there was ambiguity and disputes between contracting companies and the Afghan government over things such as the requirements of workers to have visas and pay taxes. A U.S. government audit conducted largely in response to this ambiguity in 2013 (after the peak of migration to Afghanistan for labor) concluded: “The Afghan government requires contractors to receive annual visas and work permits for each non-Afghan employee working in Afghanistan. While some bilateral agreements between various U.S. government agencies and the Afghan government may exempt certain U.S. personnel from requirements to obtain visas, other agreements are silent on the matter.”25 Despite this, through this period for workers like Yash there was virtually no clarity around their status and need for documents like work permits. Some larger companies had made arrangements with the Afghan government and many of those workers on large international bases, who rarely actually left these bases, had no work permits, while a few others did. In several instances I interviewed contractors who were assured by their employers that they did not need visas, when, in fact they did. In other instances employers seemed to encourage the ambiguity. For workers, the major fear was that if they were stopped off the base, they would be susceptible to arrest or simply shake down.26 As a result, instead of using terms like legal or illegal, Yash said that his position had been “set” by a broker and the contracting company. This term implied an arrangement that usually worked around legal structures and was based upon personal relations. In Yash’s case, he was almost always afraid of either arrest or deportation. Since his company refused to grant him a visa or clarify his legal status, Yash never left the base that he worked except in company vehicles and even then he was constantly worried. Others, however, had even more difficulties and some companies would take workers’ passports, which prohibited them from leaving their compounds. 25. Special Inspector General for Afghan Reconstruction (SIGAR), ‘Alert 13-3,’ SIGAR letter to Congressional Committees, https://www.sigar.mil/pdf/alerts/SIGAR%20Alert%2013-3.pdf (June 28, 2013) 2. The report also noted a conflicting set of fees and timing for processing various work documents. 26. This was true, though to a much lesser extent, of contractors from Western countries, which is discussed further below. 64 / Journal of Afghan Legal Studies
All this greatly restricted the movement of these workers and ensured that they could not search for new work elsewhere, meet up with other Nepalis and do things like seek medical attention beyond what was available on their compound. Accounts by workers make it clear that these brokers and the contracting companies they worked with further benefited greatly by emphasizing the danger that the workers were in and by creating a climate of fear. This meant that workers like Yash were willing to put up with abuse and exploitation on levels that normally they would have resisted since their supervisors could at any moment essentially remove them or, worse, hand them over to Afghan police. Similarly, workers had no real control over their living conditions, particularly around their own security. This became a more public issue after it was discovered that the 13 Nepali guards who were killed on their way to work at the Canadian embassy were unarmed at the time of the attack.27 Many others that I interviewed described being left in unsafe conditions, in some instances with contracting companies cutting back on weapons or other security measures to save on costs.28 Nepalis working at many embassies, for example, were provided with weapons while on duty, but were required to hand them over and travel unprotected back to their living quarters. With no way to file grievances in most companies (and even in companies that had such mechanisms, poor workers were convinced that such a complaint would lead to termination), migrant workers were highly reliant on the group of brokers from Afghanistan, Nepal, India and various other countries who facilitated their contracts. These brokers transported workers between the airport, informal labor camps and bases where the laborers worked. They also arranged contracts and connected them with firms. These individuals in turn often exploited workers, like Yash, demanding more money in certain instances and essentially handing workers over to the Afghan police in cases when they could not pay. In several instances, interviewees gave accounts of brokers demanding cash, cell phones and other valuables, before driving the worker to their new place of employment, essentially robbing them of all that they had in exchange for a job. The problem for Yash and others was that when they were exploited by either
27. The Himalayan Times, ‘Lift the Ban For Foreign Job-Seekers,’ https://thehimalayantimes.com/business/lift- ban-afghanistan-foreign-job-seekers/ (August 24, 2016). 28. Generally, laborers who had not been fully informed of the dangers of their job before arriving in Afghanistan were more critical of these practices than security contractors who generally assumed there would be certain risks associated with their employment. The Uses of Legal Ambiguity / 65 brokers or by the companies they worked for, there were few laws to protect them and, even when there were, the justice system was generally inaccessible to these workers. 5. The Limits of Legal Protection Workers from Nepal and other countries in the Global South face numerous challenges when working abroad and their unstable legal status is often linked to the ability of employers and brokers to take advantage of them. In countries with more developed legal systems, such as many in the Gulf for instance, these workers are rarely able to take advantage of local legal protections, even when these have technically been codified.29 In conflict zones like Afghanistan, accessing the legal system is even more of a challenge. None of the contractors I interviewed had been successful in using the Afghan legal system to correct any of the abuses they faced. In fact, the overwhelming majority viewed the Afghan justice system as corrupt and more likely to further exploit them in attempts to extract bribes, than to provide them with any sort of protection. Instead, workers felt the only potential avenues for protection where through the various internationals working in Afghanistan and, even these approaches were challenging. For international workers on contracts funded by the U.S. government, there were certain avenues of legal protection that were, unfortunately, rather difficult to access. American laws on issues ranging from human trafficking to unsafe work conditions were often not applicable in Afghanistan. One of the exceptions to this and a key protection for international workers on contracts funded by the U.S. is the Defense Base Act. The Defense Base Act outlines compensation for workers who are killed or injured while working on U.S. funded projects. It was established in the wake of World War II, meant primarily to provide protection for U.S. civilians working on Marshal Plan projects in Germany. The wording of the act, however, is expansive and does not specify that the worker need to be an American citizen. This means that contractors, Nepalis and others in Afghanistan and Iraq who were working on projects funded by U.S. government dollars were protected by the act. This is technically still true even if they were not working directly for a U.S. agency, but
29. Bandita Sijapati, Sarah Paoletti, Eleanor Taylor-Nicholson and Bassina Farbenblum, ‘Overseas Assistance for Nepali Migrant Workers Seeking Justice Abroad,’ Police Brief (Kathmandu: Centre for the Study of Labour and Mobility, 2014). 66 / Journal of Afghan Legal Studies were on a sub-contract or even a sub-sub-contract.30 In the case of death on the job, immediate family members are entitled to compensation based on a complex formula that include the salary of the contractor, the number of years of work they would have been expected to do, including potential salary increases. For twelve Nepalis killed in Iraq, primary beneficiaries collected some $223 dollars a month for the rest of their lives or around $150,000 for those requesting an immediate pay out.31 In other cases, these figures could be much higher and I interviewed one lawyer who represented an Iraqi family recently that received more than a million dollars through a settlement he arranged. These cases of death while working for the U.S. government all garnered media attention and received international legal assistance. This was not the case for more common instances of injury, several of whom I interviewed and none of whom had received compensation through the act. While the Defense Base Act provides a potential road for recourse and legal protection for international workers employed by U.S. funds, in many ways the law is more façade than true legal protection. Companies are expected to self- report injuries or deaths to the U.S. Department of Labor when they occur. There are not, however, mechanisms for making sure that this happens and workers who are not reported might receive little or no compensation.32 The reality of the Defense Base Act is that it is almost impossible for foreign nationals to invocate the law. As a lawyer I interviewed in Washington pointed out, if a worker is denied the benefits laid out in the Defense Base Act, the worker need a lawyer to file a claim in the U.S. None of those I interviewed knew anything about the Defense Base Act and the amounts of money that a few had received as compensation were so low that it suggested that the payments had been made simply aimed at preventing the worker from speaking to a journalist or someone else who might generate negative publicity for the contracting company. The
30. The cases involving the Defense Base Act that I collected were primarily against “primary” contractors, or those contracting directly for the U.S. government. I did hear of one case where the law was applied to a sub-contractor, but it is not clear whether it has been applied to sub-sub-contractors and those further down the contracting ladder, though theoretically it is possible. 31. Thakuri, Rajendra, ‘Finally, Justice Served to Families of 12 Nepalis Killed in Iraq,’ Nepal America Legal Information Center, https://anlus.wordpress.com/2008/05/22/finally-justice-served-to-families-of-12-nepalis- killed-in-iraq/ (n.d.). 32. A lawyer I interviewed suggested that since companies were required to have Defense Base Act insurance, failure to report incidents might have more to do with their desire to avoid scrutiny after an attack rather than the financial cost of making these payments. The Uses of Legal Ambiguity / 67 lawyer I interviewed in Washington had taken on some high-profile Defense Base Act cases, but he struggled getting into contact with those who had been injured. Those in Nepal similarly had no real means of finding the lawyer and several who I interviewed who had been injured described being rushed back to their home countries, perhaps so they could not speak with any journalists. In several cases, the workers were provided with virtually no paperwork about their injuries, despite having paperwork from the companies about a wide range of issues from before their injury. While not conclusive, this certainly seemed that it could be in part to make sure the workers had little documentation of their injury.33 Other legal attempts within the U.S. legal system to protect non-U.S. workers have been even less successful. Following some media criticism of the treatment of contractors, the U.S. Congress commissioned a study of the role of US funds in encouraging migration that led to exploitation. It eventually concluded that “globalization of the world economy has spurred the movement of people across borders, legally and illegally, especially from poorer countries, to fill low-skill jobs in support of the U.S. contingencies in Iraq and Afghanistan. Exploitation includes forced labor, slavery, and sexual exploitation.”34 Despite this, even in cases in which crimes occur, it is difficult to bring an actual case against the companies employing the contractors. One lawyer in Washington I contacted described how in one case he had been involved in a judge acknowledged that human trafficking occurred and lamented that he was still required to throw the case out: if a crime did not involve Americans and was not committed on American soil, it was nearly impossible to proceed with a case, even if the contractor had been employed by U.S. funds when the crime occurred. As if to further emphasize the difficulty of providing any real protection for international workers, several government reports highlight the difficulty that the U.S. government had monitoring or even simply maintaining a count of the number of contractors employed by the U.S. government. The Department of Defense has generally reliable numbers on contractors on Defense contractors, but the Special Inspector General for Afghan Reconstruction, the U.S.’s lead oversight body for U.S.-funded reconstruction in Afghanistan after citing Department of Defense numbers, complained that: “We could not obtain similar data for the number of
33. For more, see Coburn 2018. 34. Commission on Wartime Contracting in Iraq and Afghanistan, “Transforming Wartime Contracting: Controlling Costs, Reducing Risks,” Final report to Congress (Arlington, VA: Commission on Wartime Contracting, August 2011) 92 68 / Journal of Afghan Legal Studies non-Afghan contractors supporting State and USAID.”35 Instead other agencies either do not keep track of numbers or ask contracting companies to self-report. This also tends to be true of contractors employed by government funds from other ISAF coalition countries. Unsurprisingly, while media accounts of certain extreme cases of misdeeds in 2007 spurred Congressional hearings, contractors themselves reported no change in practices on the ground during this period and suggested that companies primarily got better at avoiding media criticism.36 While all civilian contractors in Afghanistan faced certain legal challenges, those from Western countries often had access to diplomatic support from their home embassies, this was in sharp contrast with those from countries with a less robust diplomatic presence. 6. Issues with Countries from the Global South in Protecting Workers For workers like Yash, there was little support available while they were in Afghanistan from their countries of origin. The Nepali government, for example, has no permanent diplomatic presence in Afghanistan and instead, the Nepali embassy in Pakistan provided representation for Nepalis in Afghanistan, Pakistan, Iraq and Iran.37 According to the cases I gathered of Nepalis who were arrested in Afghanistan, most described begin provided with little to no legal support.38 This was even more severe if the case occurred outside of Kabul. One Nepali I interviewed had been charged with espionage in a case that he described as a set up by a rival employer. He was sentenced to 18 years in prison without even being provided with a translator. In a less severe, but comparative case I looked at several instances where the Afghan government raided restaurants in Kabul serving alcohol to foreigners. In one instance American and Turkish contractors were arrested together: the American was released before the night was over, while the Turk remained in prison for several months.39 In other interviews, I heard of Nepalis who were 35. SIGAR June 28, 2013, 12 36. Ann Hagedorn, The Invisible Soldiers: How America Outsourced our Security (New York: Simon and Schuster, 2014) .This in some ways had an adverse effect by making contractors more secretive and nontransparent, further isolating their workers. 37. Those contractors I interviewed from countries with an active diplomatic presence, such as India and Turkey, often times had more legal options, but many other countries supplying workers, including Sri Lanka, Bangladesh, Kenya, Fiji and others did not have such a presence. 38. Technically they should have been supplied with a defense attorney, but the overtaxed, under-resourced Afghan legal system often did not supply these even for Afghan citizens. 39. Laura King, ‘Afghan Enforcement of Liquor Ban Rankles Foreigners,’ The Los Angeles Times, http://articles. latimes.com/2010/apr/26/world/la-fg-afghan-booze-20100426 (April 26, 2010). The Uses of Legal Ambiguity / 69 similarly detained for extended period. In some of these instances, individual diplomats reached out to assist Nepalis in need and I examined one case in particular where the Nepali ambassador to Pakistan was instrumental in securing the release of a Nepali laborer who had been imprisoned. In general, however, workers like Yash relied on personal contacts to secure such support and ordinary workers received no legal assistance from their countries of origin. To compound the issue, workers had no knowledge whether support was available and, often, workers were concerned that government involvement would only get them into more problems and potentially mean that they would lose their employment. The Nepali government did not provide much additional support or even information for Nepalis at home in Nepal. In fact, most of the information provided was confusing and, at times, contradictory. At times, particularly after the killing of Nepalis working at the Canadian embassy, Nepalis were “banned” from working in Afghanistan. In actuality, these prohibitions rarely lasted and were not enforced – even at the height of the crisis, Nepalis could still cross into India by land with no paperwork, then fly from Delhi to Kabul. The Nepali government’s Department of Foreign Employment’s website had a list of countries where Nepalis could technically work and where they could not. Afghanistan was on the list of permitted countries when I visited their offices in late 2015. The only two countries that were noted as banned at that point were Libya and Iraq. However, other countries were completely left off the list, such as Guatemala, while Costa Rica and Panama were there. Congo listed as ok, but Zimbabwe was not on the sheet at all.40 It was easy to see how confusing the process was for poor workers and this only made them more susceptible to brokers and other traffickers. The annual report from the Department of Foreign Employment also listed workers heading to Afghanistan as receiving 605 permits the previous year (598 for men and 7 for women).41 This number was thousands lower than the number of Nepalis actually working there, suggesting a systematic avoidance of the government registration system. This was confirmed in interviews and most Nepali workers I spoke with said that they found it easier to attempt to completely
40. Government of Nepal Ministry of Labour and Employment, ‘Recognized Countries,’ Department of Foreign Employment (Kathmandu: n.d.). 41. Government of Nepal Ministry of Labour and Employment, ‘Year Report FY 2070-71,’ Department of Foreign Employment (Kathmandu: n.d.). 70 / Journal of Afghan Legal Studies avoid any interactions with the Nepali government regarding their work abroad. A few workers I interviewed did secure work permits to work abroad, but others managed to avoid this by either lying about where they were going at the airport in Kathmandu, taking a land exit to India or paying a small bribe. Since there were no direct flights between Kathmandu and Kabul, most could simply claim they were headed elsewhere at the airport to avoid further scrutiny. Almost all of the workers felt that instead of providing real protections the Nepali government structures were mostly aimed at extracting small bribes from them, leaving them feeling almost entirely alone in struggling in the legally ambiguous system. 7. International Cooperative Attempts at Worker Protection While attempts by the individual governments of countries providing the funds for these contractors and attempts by the governments of the countries supplying the laborers have largely failed to provide legal protection for international workers in conflict zones, there have also been international, multi-organizational attempts at more cooperative approaches to worker protection, particularly in the security sector. The most significant of these was a gathering in Switzerland in 2008 of government officials from several of the key funder governments and company representatives from several major security companies, including G4S and Aegis. This group drafted the “Montreux Document,” an agreement outlined the legal obligations of private security firms and laid out a code of ethics in an attempt to try and create business norms.42 The pact prohibited signatories from some of the most egregious practices associated with private security contracting. While many of the ideals and practices laid out in the doctrine would make work conditions better for private security contractors in conflict zones better, there is no way for signatories to enforce or even monitor the guidelines outlined in the document. (The fact that the Defense Base Act has not been implemented more rigorously suggests that firms are extremely unlikely to self-regulate in ways that would be detrimental to their business practices.) This has led some analysts to conclude that such attempts were little more than the industries attempt to pacify its critics and generate a more positive media image.43
42. See International Committee of the Red Cross (ICRC), ‘The Montreux Document’ (Geneva, Switzerland: ICRC: August 2009). 43. For a complete account of the issues surrounding the signing of the Montreux Document, see Hagedorn 2014, chapter 9 and 11. The Uses of Legal Ambiguity / 71
Furthermore, the Montreux Document and other attempts at reforming contracting practices and assuring certain legal protections for workers addresses only those contractors working for private security firms. While outsourcing security to this group of workers in many ways present the most legal concerns around sovereignty in this era of neo-liberal intervention, the number of non- security contractors will continue to grow and in some ways be even more challenging to monitor since these workers are employed by such a wide range of companies receiving their funds from numerous donor countries and international organizations, like the UN.. 8. The Future of Worker Protection in Afghanistan and Beyond While the number of international contractors in both Afghanistan and Iraq has declined significantly in recent years, the neo-liberal practices of outsourcing that have become embedded in international interventions is likely to continue. As Western countries become increasingly concerned with the political costs of military casualties and with the economic costs of paying higher wages, outsourcing companies will continue to hire both security contractors and workers from the Global South. These workers will be entering a world of legal ambiguity where they have few protections and where brokers and the companies hiring them will actually be profiting from their unstable legal status. Such processes, however, are not purely inevitable and smart, sensitive policies can help ensure the protection for workers in a range of ways. As this article has argued, putting the onus on either contracting companies or the countries supplying the laborers is unlikely to provide better protection for workers. Companies do not have an incentive to make their systems transparent since they are competing against other firms and actually benefit from some of the legal insecurity that their workers are subject to. The governments of the countries supplying the workers often times lack both the economic and diplomatic resources to provide real support. Thus far, attempts at international cooperation in setting up standards for the protection of international workers have largely failed because they primarily rely on companies to self-report. It is these donor governments which are the key to reform and the promotion of legal protections. Already, various governments handle the outsourcing of private security in very different ways.44 A more collaborative effort between these 44. See Krahmann 2010 for some of the differences between the U.S., the U.K. and Germany in their security contracting practices. 72 / Journal of Afghan Legal Studies governments to create minimum standards of legal protection is an important first step. Even more important, however, is pro-active monitoring of contracting companies and their treatment of their workers. The U.S. Special Inspector General for Afghan Reconstruction provides one such model for this work, but most of their focus has been on financial auditing. More attention should be paid to the actual treatment of workers and transparency around their legal rights. Without some effort, donor countries that are continuing to claim that they are working to protect human rights, while not ensuring the rights of those working for them, will only appear more hypocritical and make these international efforts more difficult. Legal Pluralism and Militia Regulation: International, Domestic, and Community Accountability Frameworks for Sub-State Forces in Afghanistan
Erica Gaston Table of Contents 1. Introduction 2. Background: Militias in Afghanistan and Development of the ALP 3. Legal Framework: From International Law to Informal Justice Mechanisms 3.1. Community Control Mechanisms 3.2. Afghan State Oversight and Domestic Law 3.3. International Law & Foreign Law Applicability 3.3.1. Foreign Law Application: U.S. Leahy Law and Other Mechanisms 3.3.2. International Humanitarian Law & Due Diligence 3.3.3. International Criminal Law – the ICC Investigation 4. Conclusions
Abstract This article1 will examine how these different accountability and regulatory
1. Erica Gaston is an international human rights lawyer who has been working in and writing on Afghanistan since 2007. Her past academic publications include three books on the legal, ethical, and practical dilemmas emerging in modern conflict and crisis zones, as well as articles on the laws on mercenaries and private security companies in modern practice, property damage awards in international tribunals, and the international humanitarian project. She holds degrees from Stanford University and Harvard Law School. The research supporting this paper was conducted as part of a larger project on militias and sub-state forces in Afghanistan and Iraq, supported by the Netherlands Research Organisation. Selected excerpts and source material for this paper were previously shared as a working draft in the following: Erica Gaston and Kate Clark, ‘Literature Review of Local, Community or Sub-State Forces in Afghanistan’ (January 2017) Global Public Policy Institute Working Paper
2. For a summary of militia formations and allegiance patterns since 1979, see Gaston and Clark (n1). 76 / Journal of Afghan Legal Studies
Following on the heels of a near complete dominance by militias in the 1990s, reining in local commanders and militia groups, and developing an accountable state force has been a particular challenge since 2001. After the U.S.-led intervention forced out the Taleban in 2002, there was no standing national force. Taking control of the country and establishing stability depended for the most part on turning to existing, primarily former Northern Alliance, militias and vesting them with some state authority. Militias were incorporated wholesale into early iterations of the Afghan National Security Forces (ANSF). Despite more than a decade and a half of reform and demobilization efforts to try to break up these militia structures, significant parts of the current ANSF are still dominated by the patronage networks and militia commanders of the 1990s.3 Meanwhile, the continued weakness of the Afghan state, an emerging protection racket, growing sources of illicit economy, and other factors enables powerbrokers to support and maintain militia forces (often through quasi-state or privatized force structures) outside of the ANSF. Notwithstanding the general state-building trend of enhancing central state forces and control, throughout the post-2002 decade, international forces and Afghan state actors looking to improve their reach into regional areas have at times built up local and regional powerbrokers and forces. This has included sometimes vesting local or so-called ‘community’ forces with quasi-state authority to legitimize the effort.4 Most important for the focus of this article, beginning in 2009 and 2010, international military forces began experimenting with different models of standing up local or community forces to fill gaps in state security provision. This local security force initiative, which de facto deputized local militias to work with state forces, was anchored in the counterinsurgency strategy that gained traction from 2009 onward. The new counterinsurgency strategy proposed a greater focus on communities: the theory was that using community actors to provide security and other services would both address the gaps in government service provision (the lack of which was itself a grievance among communities) and provide those services through actors who were seen as less corrupt, more legitimate, and so less likely to spur anti-government sentiment. In this way, the thinking presumed that this locally focused approach would address some of the
3. ibid; Deedee Derksen, ‘Non-State Security Providers in Afghanistan’ (2016) Centre for Security Governance Papers
5. Erica Gaston and Erik Jensen, ‘Rule of Law and State-Building in Afghanistan: Testing Theory with Practice’ in Scott Smith and Colin Cookman (eds), State Strengthening in Afghanistan: Lessons Learned 2001–14 (USIP 2016) 69–81; Astri Suhrke, When More is Less: The International Project in Afghanistan (Columbia University Press 2012). 6. Suhrke (n5) 563–564; Gaston and Jensen, (n5) 69–81. 7. ibid; Frances Z. Brown, ‘The U.S. Surge and Afghan Local Governance’ (2012) United States Institute of Peace Special Report < https://www.usip.org/publications/2012/09/us-surge-and-afghan-local-governance> accessed 30 March 2018; Hamish Nixon, ‘The Changing Face of Local Governance’ (2008) Afghanistan Research and Development Unit
10. For a discussion of the inception of the ALP program, see generally, Mathieu LeFèvre, ‘Local Defence in Afghanistan: A Review of Government Backed Initiatives’ (2010) Afghanistan Analysts Network Thematic Report
Directorate of Security (NDS) version of the ALP known as “uprising groups”, a proposal for an ANA-affiliated version of the ALP, the Afghan Territorial Force (ATF) proposed in late 2017,13 and countless unofficial ALP – militias taking the name of ALP (and sometimes backed by those who also commanded ALP forces) but with no official government salary or position. This paper will primarily focus on the ALP because is it the largest and most long-standing example of deputized local forces, and so the accountability mechanisms, both formal and informal, have developed to a greater degree. 3. Legal Framework: From International Law to Informal Justice Mechanisms Although a major critique of local armed groups, and ALP in particular, is the lack of accountability, there have been significant attempts (at least on paper) to extend a range of local, national and international legal regimes to these groups. First, because the ALP were developed within this larger élan toward bottom- up, grassroots initiatives, and alternatives to the state, some of the accountability mechanisms that were proposed for these forces mirrored the wider embrace of legal pluralism and community-based governance and justice mechanisms. Second, in addition to these community-based accountability mechanisms, there have been incremental efforts to increase Afghan government oversight over the ALP. Thirdly, due to the heavy U.S. (and specifically SOF) involvement, some foreign law oversight and control mechanisms have also applied to ALP. Given this heavy international involvement, and the weakness of domestic mechanisms to control local armed actors or enforce the law against them, other considerations of international liability and state responsibility must also be considered. This section will overview these three different types of accountability frameworks applicable to ALP, and their relative effectiveness: first the community-based mechanisms; then those under domestic law; and finally foreign or international accountability frameworks or mechanisms.
13. United Nations Assistance Mission in Afghanistan, Afghanistan: Annual Report 2015 (UNAMA and UNOHCHR 2016) 65-66; Kate Clark, ‘More Militias? Part 1: Déjà vu double plus with the proposed “Afghan Territorial Army”’ Afghanistan Analysts Network (Kabul, 21 September 2017)
3.1. Community Control Mechanisms No specific efforts were made to link forces stood up in the early years of engagement in Afghanistan with local communities they were policing and securing. In fact, the opposite could be observed – the initial structure for the ANSF was based on centralizing authority and trying to break down local links. Recruitment was national, with ANSF deployed away from their home areas. There were no explicit or formal community links or controls of the early quasi- state militia forms, including the Afghan Guard Forces (AGF), Afghan Security Guard (ASG), and Afghan Security Forces (ASF) (however, notably, significant elements of these forces were captured by local commanders and so had a negative form of localized links). Military analysts later engaged in developing community defence forces cited these groups’ abusive behaviour and responsiveness only to their militia commanders (implicitly not to communities) as a key factor that turned communities away from the nascent Afghan government and helped drive a Taliban resurgence.14 With the proto-ALP models and the ALP itself, there was an explicit attempt to address this by developing forces that were linked to, and presumably more accountable to, local communities. In the AP3 project local community councils were supposed to help select the AP3 members and have some oversight role over them.15 U.S. Forces piloting the different VSO models (LDI/CDIs and other) also created different mechanisms for communities to take part in selection (at least on paper). Some of the VSOs vested responsibility for community vetting in district governors together with Community Development Councils or village shuras, while in other local force initiatives, SOF simply organized meetings of local elders, wherein members of the local VSO force would be selected.16 One early LDI model proposed making local aid contingent
14. See, generally, Derksen (n3); International Crisis Group, ‘A Force in Fragments: Reconstituting the Afghan National Army’ (2010) Asia Report N°190 < https://www.justice.gov/sites/default/files/eoir/legacy/2014/09/29/ icg_05122010.pdf> accessed 30 March 2018. 15. Initially it was proposed that councils established under the government-run Afghanistan Social Outreach Program (ASOP) should do the selecting and vetting but after objections from European countries, it was instead switched to simply community councils. Goodhand and Hakimi (n9) 20. 16. Initially, the model was supposed to be for U.S. Special Operations Forces to organize meetings of local elders in the target communities on an ad hoc basis, a role later formalized into village councils for the VSOs. LeFèvre (n10) 6. Anecdotal evidence suggests that in practice this manifested as SOF engaged in local clearing operations making contact with community elders, identifying those willing to work with them against the Taleban, and then allowing those commanders to recruit a team of men, in essence a more SOF-driven selection process, albeit in consultation with local actors. For example, among the first ALP-precursor units were established by U.S. forces in Kas Kunar, in Kunar province. U.S. forces identified and appointed the original commanders. Many of the commanders recruited at Legal Pluralism and Militia Regulation / 81 on members of the community participating in the local defence forces, in order to incentivize community support and investment in the force, but this ultimately did not prove to be a sufficient recruitment tool and was dropped, according to LeFèvre and Moyar.17 Interestingly, those behind the original design of the ALP were more in favour of community control and oversight as opposed to control and oversight by Afghan government actors, preferring a model in which ALP were locally autonomous and reporting only to local shuras (and not to the Afghan government).18 However, the Afghan government ultimately refused to accept the ALP unless it was vested in Afghan state structures.19 As the ALP evolved, the three key mechanisms of community control established were: 1. ALP would only be created in communities that desired it. 20 2. ALP members would be nominated by the community, as represented by community elders. 21 This would implicitly also build in a level of community vetting as to the character and past conduct of the members. For example, if a nominated ALP member successfully passes MoI criminal and intelligence background checks, but the local community presents evidence of local crimes or issues with that individual’s character, then according to procedures, the community veto should prevail.22 this original inception period in Kunar province were still in in charge of ALP units at the time of writing, and enjoyed very high community support. Author interview with Shahmahmoud Miakhel, Kabul, Afghanistan, 14 November 2017. See also Fazl Muzhary, ‘How to Replace a Bad ALP Commander: in Shajoy, Success and Now Calamity’ Afghanistan Analysts Network (Kabul, 21 September 2016) < https://www.afghanistan-analysts.org/how-to- replace-a-bad-alp-commander-in-shajoy-success-and-now-calamity/> accessed 15 November 2017 (noting initial U.S. SOF selection of local ALP unit in Kas Uruzgan). 17. Final draft, Local Defence Initiative Strategy (March 2010), cited by LeFèvre (n10) 15. Mark Moyar, ‘Village Stability Operations and the Afghan Local Police’ (2014) JSOU Report 14-7, 29 < https://www.socom.mil/JSOU/ JSOUPublications/JSOU14-7_Moyar_VSO_FINAL.pdf> accessed 10 November 2017. 18. See, e.g., Moyar (n17) 10, 13; Goodhand and Hakimi (n9) 14. 19. A former advisor to President Karzai who participated in the negotiations between President Karzai and international military representatives over the development and structure of the ALP noted that the Afghan government argued that the ALP had to be embedded in Afghan mechanisms, specifically MoI, but also argued against some of the more stringent vetting and selection requirements proposed by U.S. forces. Author interview with former Karzai Advisor, Washington, D.C., 27 August 2017. 20. Evidence of this community consent in the initial development of the ALP model are available in Final draft, Local Defence Initiative Strategy (March 2010) cited in LeFèvre (n10)15. It is also established in the current ALP procedures. Kate Clark, ‘Update on the Afghan Local Police: Making Sure they are Armed, Trained, Paid, and Exist’ Afghanistan Analysts Network (Kabul, 5 July 2017)
3. There was also an assumption that drawing locals from the community would activate “kinship and familial” ties (as one SOF commander framed it).23 In theory, these would then continue to provide a form of oversight and restraint on ALP conduct. The first two of these mechanisms are formally written into the ALP procedures that still regulate the force today; 24 the third is an overall presumption built into the model. While these community controls and accountability measures have been core to the ALP model since the beginning, it is unclear how robustly they have been implemented, either in the initial phase or in its present, more state-regulated form. Early research and documentation of the ALP precursors and the first ALP units suggest that in practice, in very many cases, the community was not consulted about whether they wished to have a local force, and in quite a few cases ALP were stood up against and over the wishes of locals (negating the first control principle). For example, Goodhand and Hakimi and LeFèvre noted that the initial AP3 forces (later phased into the ALP) in Wardak were created expressly against the request of communities, who feared the long-term effects of militias and instead requested more Afghan National Police (ANP) forces to address local security.25 Moyar notes that as ALP expanded, the sites were increasingly chosen based on strategic location, not based on popular desire or support, a factor he correlated with the ineffectiveness of many of the later ALP sites.26 Community wishes, either to have an ALP or input on who would be in it, were also frequently disregarded in cases where local commanders and strongmen were tapped to form a force. These local strongmen were often selected by U.S. SOF or by Afghan authorities because they could organize forces and command loyalty to fight against the Taleban locally (or at least whomever they categorized as Taleban – a persistent issue has been that groups receiving foreign support would use their position to target local rivals in the name of counter-insurgency).
23. Author interview with Special Forces Commander involved in ALP oversight, Kabul, Afghanistan, 12 November 2017. The SOF commander was present at the initial inception stage, and observed several different Village Stability Operations (VSO) sites, and was also involved in ALP program oversight in 2017. 24. Author interview with Brigadier General Ghulam Sakhi Gharany, Kabul, Afghanistan, 13 November 2017 (stating community controls are still part of the ALP procedures, and insisting that any new ALP units or members should come first through nomination by community elders). 25. LeFèvre (n10); Goodhand and Hakimi (n9). 26. Moyar (n17) 17, 62–66. Legal Pluralism and Militia Regulation / 83
However, many of these local strongmen had a reputation for abusive behaviour, and so were opposed by local communities. Many locals were no doubt aware that further empowering and militarizing them could escalate local conflict. Examples of bypassing community selection – and tapping local commanders opposed by locals – exist throughout documentation of the ALP program, from the earliest days up to the present. Moyar notes that the decision to make Nur al Haq an ALP commander in Baghlan and incorporating the men under his control was made without community consultation, and despite his record on rights abuses and predatory behaviour toward communities.27 In the Associated Press examination of the initial ALP sites, Vogt described the recruitment of ALP in Shindand as driven by central authorities, with only cursory community consultation. One local community member quoted in the story said that police officials initially consulted them but then abandoned the process and simply made their own selection, while the local district police chief was quoted as saying, “The Interior Ministry just told me to sign them up, so I signed it. This has all been imposed.”28 In the early stages of AP3 in Wardak, LeFèvre and Goodhand and Human Rights Watch provide evidence that the AP3 was co-opted by former mujahedin and Taliban commander named Ghulam Muhammad, who pressured elders to select his men.29 Goodhand and Hakimi suggest many pre-existing militias were integrated directly into the ALP forces with neither training nor vetting. Although there is less documentation of how new ALP units have been selected in later years of the program, it appears that community engagement in selection and monitoring is still minimal or non-existent in many sites. New ALP units are still being created annually, although at a much slower rate than at their initial expansion in 2010 (to 10,000), or their increase from 2012 to 30,000.30 In 2017, new forces tend to be recruited to address attrition,31 and new units to address a
27. Moyar (n17) 22. 28. Heidi Vogt, ‘Afghans see Warlord Footprints in New Police Force’ Associated Press (New York, 21 February 2011) http://www.rawa.org/temp/runews/2011/02/21/afghans-see-warlord-footprints-in-new-police-force.html accessed 7 November 2017 29. LeFèvre (n9) 9-11, 14-19; Human Rights Watch ‘Just Don’t Call It a Militia: Impunity, Militias, and the “Afghan Local Police”’ (2011) 46–47 (describing elders’ testimony that Ghulam Mohammad gave them a list of his men as candidates for AP3 and forced them to sign). 30. International Crisis Group, ‘The Future of the Afghan Local Police’ (2015) International Crisis Group Asia Report 268 < https://www.crisisgroup.org/asia/south-asia/afghanistan/future-afghan-local-police> 10 November 2017; Clark (n20). 31. ALP have the highest per capita casualty rate of the different ANSF forces, and also are only under a one-year contract. Author interview with Special Forces Commander involved in ALP oversight, Kabul, Afghanistan, 12 November 2017. Clark (n20). 84 / Journal of Afghan Legal Studies perceived need for a greater number of forces in particular areas due to the security situation.32 The Commander of the ALP Directorate insisted in an interview that where new ALP units are created, the first step in the process is still that the local community nominates and selects.33 However, since local selection was not significant even in the early years, when there were significant community-level outreach resources (notably, troops on the ground), it seems unlikely that the largely Kabul-based and under-staffed MoI and US SOF advisors overseeing program today would be able to conduct substantial community consultation. The ALP Directorate members interviewed were unable to provide any examples of recent community consultation processes, when asked.34 A SOF advisor to the ALP Directorate noted that in many cases the recruitment of new units is challenged by the lack of ground presence (either by international forces or ALP directorate officials) to work with communities in identifying local members.35 In part because of these limitations, where new units are created, he said, they tend to be driven by local powerbrokers who are on the ground, and often used to legitimize pre-existing armed groups – in contradiction to the procedures and the overall model of ALP.36 In addition, the ALP Director also admitted that interference by powerbrokers in selection of ALP is an issue.37 Breaking with these community controls at the initial phase, when ALP are created, can significantly undermine the third level of community accountability. ALP members not chosen by the community do not necessarily have the same ‘familial and kinship ties’ nor relationship of respect that creates informal levers of control and restraint. Where ALP units were created and selected at the behest of local powerbrokers or foreign actors and against the wishes of local communities, community actors would then feel powerless to make complaints.38
32. This does not result in a change in the overall number, but a shift in where units are allocated. If there is a perceived need for more forces in a given province, the number of ALP forces allocated to another province will be decreased (effectively disbanding some number of forces in that province), and an equivalent number recruited locally in the target province/district. Author interview with Special Forces Commander involved in ALP oversight, Kabul, Afghanistan, 12 November. 33. Author interview with Brigadier General Ghulam Sakhi Gharany, Kabul, Afghanistan, 13 November 2017. 34. Author interview with Brigadier General Ghulam Sakhi Gharany and staff, Kabul, Afghanistan, 13 November 2017. 35. Author interview with Special Forces Commander involved in ALP oversight, Kabul, Afghanistan, 12 November 2017. 36. ibid. 37. Author interview with Brigadier General Ghulam Sakhi Gharany, Kabul, Afghanistan, 13 November 2017. He also noted that addressing this is one of the goals or hopes for future reform. ibid. 38. Some testimony and documentation of such complaints is available in Human Rights Watch (n29); Goodhand and Hakimi(n9) 22, 25 Legal Pluralism and Militia Regulation / 85
This is not to suggest that there are no examples of communities monitoring and attempting to check ALP behaviour, although they are not common. There are community complaints referred to the ALP directorate,39 although a greater number of referrals and complaints comes from the UNAMA human rights unit or other actors. The Afghanistan Analysts Network’s Fazl Muzhary documented one unusual example in Shajoy, Uruzgan, in which locals successfully pressured to replace an ALP commander, named Muhammadullah, who had been instituted without consultation with them initially, and used his position to extort illegal taxation and abuse the community.40 Muzhary’s reporting suggested that the initial ALP commander was chosen through heavy influence by U.S. SOF, and district and provincial officials, including the district and provincial police chiefs. After 2013, community petitioning and pressure with higher-level provincial and national authorities resulted in Muhammadullah being replaced with a well- respected elder, who turned the ALP unit (largely with the same forces who were under Muhammadullah) into an effective and respected local force, according to locals interviewed. However, this was possible only after U.S. SOF left the area in late 2013, and the provincial police chief was replaced.41 On a positive note, this example points to the potential effectiveness of this local force model where there is a well-respected local commander, who has the support of the community and who consults with local leaders. Where ALP works the best, it is often because it is embedded in local communities. In these communities, ALP often out-perform other ANSF forces in terms of providing security, and are preferred by locals. Thus where they are active and functioning, local community controls might work the best; the problem is that in most areas, these community controls were never implemented and are severely hampered. The negative take-away from the above Uruzgan example is that the appointment of strong, well-liked local actors, and the turn-around in security and community safety, was only possible once the foreign and Afghan government actors who backed the problematic commander, Muhammadullah, left or were demoted. This points to a larger weakness with the premise of community controls – even if they have the potential to be an effective check on local forces, community wishes and controls are not strong enough to override state or foreign actors’ interests, which 39. Author interview with Brigadier General Ghulam Sakhi Gharany, Kabul, Afghanistan, 13 November 2017. 40. Fazl Muzhary, ‘How to Replace a Bad ALP Commander: in Shajoy, Success and Now Calamity,’ Afghanistan Analysts Network (Kabul, September 21, 2016),
47. LeFèvre (n9) 9. 48. International Crisis Group (n30) 16. 49. Article 7 of the Afghan Constitution provides that the state, and all its representatives, “shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed.” As such, Afghan forces are responsible under the Geneva Conventions and Additional Protocols, Convention against Torture and membership of the International Criminal Court. A summary of these laws is available in: United Nations Assistance Mission in Afghanistan, Afghanistan: Midyear Report 2017 (OHCHR 2017) 62-65. 50. United Nations Assistance Mission in Afghanistan, Afghanistan: Midyear Report 2014 (OHCHR 2014) 41. 88 / Journal of Afghan Legal Studies of investigations, arrests and prosecutions of ALP members accused of abuse tended to hover around 100 cases annually in the early years of the program.51 According to an ICG interview with the department overseeing ALP, 65 ALP officers had been imprisoned or convicted based on allegations of abuse as of January 2015.52 UNAMA’s mid-year 2016 report noted that nearly 2000 ALP members had been dismissed in the first half of 2016, and suggested that at least some of these were removed due to problematic behavior.53 UNAMA credited these reform measures with helping reduce the number of civilian casualties by ALP in the first half of 2016.54 UNAMA reported that in the first half of 2017, 106 allegations of abuse by ALP had been investigated, and 15 referred onward for prosecution.55 Interestingly, although no one would describe Afghan state control as strong, nor Afghan accountability mechanisms as robust, they do appear to have had some impact on improving accountability and control over ALP. Although most accounts of ALP in early studies were highly negative, more recent descriptions by reporting groups such as UNAMA have been somewhat more moderate, suggesting that as they became more formalized in the ANSF and MoI, their conduct may have improved. UNAMA statistics suggest relatively better behaviour by ALP than ANP, and their analysis suggests that MoI accountability mechanisms, while still far from perfect, have improved. Through longitudinal perception studies of ALP and other non-ALP militia forces in 40 districts in north-eastern Afghanistan, Jan Koehler and Kristóf Gosztonyi found that negative perceptions and fear of ALP, which they treated as a proxy for level of abuse, decreased as they were formalized into the ALP.56 Nonetheless, the ALP Directorate is severely hindered by its lack of a provincial- level presence and reliance on MoI for field missions and the cooperation of local ANP to investigate allegations.57 The ALP Directorate is primarily a policy unit,
51. Ibid. 52. International Crisis Group (n30) 11. When asked in November 2017, the ALP Directorate did not provide the number investigated and prosecuted since 2015, and declined to offer a range. Author interview with Brigadier General Ghulam Sakhi Gharany, Kabul, Afghanistan, 13 November 2017. 53. United Nations Assistance Mission in Afghanistan, Afghanistan: Midyear Report 2016 (OHCHR 2016) 90. Later investigations by Kate Clark suggest that many of the 2000 dismissed may have been ghost soldiers, or due to other non-conduct based, bureaucratic reforms. Clark (n20). 54. Ibid. 55. UNAMA, Midyear Report 2017. 56. Jan Koehler and Kristóf Gosztonyi, ‘The International Intervention and its Impact on Security Governance in North-East Afghanistan’ (2014) 21 (2) International Peacekeeping 231-50 57. United Nations Assistance Mission in Afghanistan, Afghanistan: Midyear Report 2012, (OHCHR 2012) 51-52 Legal Pluralism and Militia Regulation / 89 with no direct personnel below the regional (or “zone”, as Afghanistan is divided into zones in terms of military organization) level. Its staff will conduct routine monitoring, travelling to provinces and districts to engage with ALP units, but the staff available to do so is limited and so monitoring visits happen on an ad hoc basis.58 Additionally, the command authorities are not synched in a way that might allow the MoI directorate to have total control and accountability. ALP units fall under the command of the local Chief of Police, and ultimately answer to the Provincial operational command (PCOP) and the Zone commander, who direct their day-to-day activities.59 These provincial and zone commanders have daily operational command, which creates somewhat of a disconnect with the ALP Directorate in charge of accountability. Where there is a conflict between these operational authorities and ALP Directorate the zone commanders (which tend to be one-star generals) outrank the Brigadier General in the ALP Directorate. 60 A clash is more likely (one hopes) to arise in operational matters than over a violation of rights.61 Nonetheless, the fact that the ALP Directorate in charge of ensuring sound conduct and that ALP are following their rules and remit are outranked by the ground commander may has the potential to impair overall formal accountability. In addition, while potentially better than nothing, the institutional structures in charge of ALP have not won robust praise for accountability. The Attorney General’s office has a long-standing reputation for poor performance and corruption, notably worse than other Afghan institutions. Since the Attorney General would be responsible for any criminal charges over ALP, this weakens ALP accountability. U.S. officials involved in monitoring ANSF forces for rights compliance said accountability has been stronger for forces under the command of the MoD than the MoI because of the issues in the Attorney General’s office.62 58. Author interview with Special Forces Commander involved in ALP oversight, Kabul, Afghanistan, 12 November 2017; Author interview with Brigadier General Ghulam Sakhi Gharany, Kabul, Afghanistan, 13 November 2017. Two staff interviewed from the ALP Directorate had just returned from a field visit to forces in Kunar, and appeared to have a regular schedule of visiting ALP in the field, although given their limited numbers, there may be limited reach. 59. Author interview with Special Forces Commander involved in ALP oversight, Kabul, Afghanistan, 12 November 2017. 60. Author interview with Special Forces Commander involved in ALP oversight, Kabul, Afghanistan, 12 November 2017. 61. A more common example of a clash over operational orders is that Zone commanders and their subordinates have a tendency to use ALP as any other units within the area of operations and may use them to fill security gaps or address tactical needs even where it goes beyond the ALP defensive mandate, or would cause them to violate the rule of not operating beyond 1 kilometer outside their local village. ibid. 62. Author interview with staff at the Bureau of Democracy, Human Rights and Labor, U.S. Department of State, Washington, DC, 29 August 2016. Author interview with representative dealing with Afghanistan Leahy Law 90 / Journal of Afghan Legal Studies
UNAMA has documented repeated examples of impunity for serious human rights violations by ALP and noted that the Ministry of Interior “appears to show a tolerance… for human rights violations alleged to have been perpetrated or carried out by ALP.”63 In its investigation of ALP, ICG found “an absence of effective mechanisms for registering and responding to complaints” in part because of intimidation by strongmen connected with ALP.64 UNAMA and ICG both noted that direct threats to victims and witnesses left them afraid to testify.65 Such findings suggest that while formal accountability has improved, and the overall institutionalization can improve the conduct of local forces in comparison to completely irregulated militias, it is still a far cry from a robust accountability framework. In late 2015, prompted by a critical report from the U.S. Special Inspector General for Afghanistan Reconstruction, the MoI embarked on a new reform program for the ALP.66 The reforms had a largely administrative and force strengthening bent, but important for this paper, they did appear to result in the removal of some ALP units or commanders who had committed abuses in the past, and to generally tighten the oversight over the ALP.67 3.3. International Law and Foreign Law Applicability The final layer of accountability to discuss is that provided by international actors, under foreign or international law. This could happen in a number of forms, three of which will be considered in this section: 1. Extraterritorial application of foreign law, administrative or judicial (notably U.S. legal and regulatory mechanisms). 2. General obligations under international law, specifically under international humanitarian law (IHL), as applicable to foreign actors working with and supporting actors like the ALP (notably the U.S.). issues at the U.S. Department of Defence, Washington, DC, 1 September 2016; Skype interview with former U.S. Department of Defence dealing with Afghanistan Leahy Law application, 19 February 2017. 63. UNAMA, Midyear Report 2016, 42 64. International Crisis Group (n30) 10 65. United Nations Assistance Mission in Afghanistan, Afghanistan: Midyear Report 2013 (OHCHR 2013) 51. See also International Crisis Group (n30) 10 (providing a gruesome account of a man who tried to complain about ALP who were engaged in theft and sexual abuse of young boys being captured by ALP, tied by his beard to a pickup and killed by dragging him through the streets). 66. For a more thorough examination of this reform agenda and its success, see Clark (n20). 67. ibid. Legal Pluralism and Militia Regulation / 91
3. Application of international criminal law mechanisms, notably the ICC. The legal obligations and accountability mechanisms applicable to U.S. engagement is particularly relevant in this case because U.S. SOF created the ALP model, and in the initial years, were the main ones providing support, direction, and any oversight. This role has decreased with the full integration of ALP into MoI, transition of security responsibility to the Afghan government in 2014, and the drawdown of numbers of SOF forces from 2014 onward. Nonetheless, the U.S. is still the sole funder of the ALP and has continued to keep some level of control and engagement with the ALP program through a SOF advisory role.68 3.3.1. Foreign Law Application: U.S. Leahy Law and Other Mechanisms In the early years, U.S. SOF were arguably the best positioned to provide any oversight or accountability for ALP units. The majority of ALP and proto- ALP units in the years 2009 to 2012 were developed and trained by U.S. SOF. Notwithstanding the model of community nomination and selection, in many cases, SOF selected the local partners as they entered an area to “clear” it. Although this became more difficult as the number of ALP expanded, the early model of ALP was for U.S. SOF to embed with ALP for a few months after their inception to continue providing mentoring and informal training and guidance. Anecdotally, the embedding of SOF mentors within ALP did provide a check on behaviour. Because they were working closely with these actors on the ground, they were in a position to see any abuses or misconduct that happened. A U.S. SOF survey of ALP mentors in 2011 found that 20 per cent of ALP mentees had committed “physical abuse/violence”, with additional, lessor reports of bribe- taking, fraud, rape, and drug trafficking.69 There were very few formal reprimands that resulted during this period (or at least that have become public), so while it is possible that SOF were able to use their influence to stop such violations or enforce disciplinary measures, it is difficult to tell how much of a control or restraint this really created. Following the 2011 HRW report that documented numerous human rights abuses by ALP, Combined Forces Special Operations Component Command (CFSOCC-A) also issued a memorandum clarifying and solidifying requirements for reporting allegations of abuse by ALP and requiring
68. Ibid. 69. Radha Iyengar, Daniel Egel, Walt Perry, and Todd Helmus, ‘Assessment of Opinion Poll and Team Reporting for Village Stability Operations in Afghanistan: Wave 5’ (Briefing slides, February 2012), cited in International Crisis Group (n30) 8. 92 / Journal of Afghan Legal Studies that where “probable cause” existed, CFSOCC-A units should cease contact with the alleged perpetrators.70 However, there is no public evidence of whether or how frequently this happened. One issue is that as the program expanded, SOF forces were spread thin, not enabling the original close mentorship and monitoring model to be carried out. Based on a 2010 research trip exploring ALP functioning, Felbab-Brown observed that in parts of Kunduz, SOF may only have visited the ALP once a week.71 This level of oversight further decreased over time. The high point of SOF oversight and “eyes on” the program was 2013, according to one SOF advisor.72 As of 2017, he said, we have no “touch points at the tactical level” so any level of oversight or reports about ALP behavior is more ad hoc and difficult to verify.73 In addition to any informal oversight, the fact that the ALP were supported by U.S. funding also meant that they were subject to additional layers of vetting and censure by U.S. domestic regulatory mechanisms. A number of U.S. domestic regulations require some level of vetting or due diligence over those receiving U.S. funding and support, either to prevent potential connections to terrorists or those believed to have engaged in human rights abuses. The U.S. Leahy amendment or Leahy Law prohibits any assistance from the Department of Defence (DoD) or the U.S. Department of State (DoS) to any individual unit of foreign security forces where there is credible evidence of the commission of gross violations of human rights.74 This includes “torture or cruel, inhuman or degrading treatment or punishment” and “flagrant denial of the right to life, liberty or the security of the person.”75 There are parallel, but not identical 70. Memorandum for all Combined Forces Special Operations Component Command-Afghanistan (CFSOCC-A) Personnel, SUBJECT: CFSOCC-A Policy on reporting allegations of crimes and abuses committed by Afghan partner forces 27 September 2011. Cited in Lisa Saum-Manning, VSO/ALP: Comparing Past and Current Challenges to Afghan, (RAND Working Paper WR-936, 2012) FN 52. 71. Vanda Felbab-Brown, ‘Hurray for militias? Not so fast: Lessons from the Afghan Local Police experience’ (2010) 27(2) Small Wars and Insurgencies 258-281 72. Author interview with Special Forces Commander involved in ALP oversight, Kabul, Afghanistan, 12 November 2017. 73. ibid. 74. The State Department version of the Leahy Law is found in Section 620M (22 U.S.C. 2378d) of the Foreign Assistance Act of 1961, as amended, and affects funds under the Foreign Assistance Act and the Arms Export Control Act. The Defence Department version of the Leahy Law is a recurring provision attached to the annual Congressional appropriations bill for Department of Defence funding. Bringing the two different versions or interpretations of the Leahy Law into alignment has been a continuing process over the last decade. For a larger discussion of the differences and legislative efforts to reform both provisions, see Nina M. Serafino, June S. Beittel, Lauren Ploch Blanchard, and Liana Rosen, ‘“Leahy Law”— Human Rights Provisions and Security Assistance’ (29 January 2014) Congressional Research Service Issue Overview. 75. The Foreign Assistance Act of 1961 (Pub L No 87-195, 75 Stat 424, 1961) Legal Pluralism and Militia Regulation / 93 provisions of the Leahy amendment in the annual Foreign Appropriations Act and the Defence Appropriations Act, applicable to funding by the Departments of State (DoS) and Defence (DoD), respectively.76 In 2010, the State department, which has responsibility for ensuring implementation of both the DoS and DoD versions of the law, created a database known as INVEST, to track credible allegations of human rights worldwide.77 Where new assistance is proposed, the units or individuals who would receive the assistance must be vetted against the information in the INVEST database, to ensure there are no credible allegations of rights abuses against them. However, where assistance is provided on a force level, what is likely to be vetted is the unit as a whole, or the specific commander, not each individual member of the unit.78 Even in the early years, when ALP forces were being created and so were undergoing de novo vetting, it is likely that only the commanders underwent even a cursory Leahy review; this type of vetting would likely not have extended to individual members. In some ways, because of the deep and long U.S. engagement in Afghanistan, the Leahy law developed more detailed mechanisms, with more regular vetting and exclusion, in Afghanistan than anywhere else.79 U.S. officials have had more resources on the ground to investigate complaints, and to observe and generate reports about other units.80 In particular, beginning in 2014, the DoD rebooted the way it applies the Leahy law in Afghanistan, and created a more proactive system of monitoring intelligence, news reports, and staff or non-governmental referrals for evidence of Gross Violations of Human Rights (GVHR) and investigating them.81 Thus the structure was better positioned to increase accountability from
76. Foreign Operations, Export Financing and Related Programs Appropriations Acts of 2001 (Pub L No 106-429, 114 Stat 1900, 2000) 563; Department of Defence Appropriations Act of 2001 (Pub L No 106-259, 114 Stat 656, 2000) 8092(2). See also, Serafino et al. (n75). 77. State department guidance has noted that the standard of what is “credible” for Leahy vetting is not the same standard as would be required for evidence in a court of law. U.S. State Department, ‘Overview of the Leahy Vetting Process,’ https://www.humanrights.gov/2013/07/09/an-overview-of-the-leahy-vetting-process/ accessed 1 March 2017. 78. Skype interview with former U.S. Department of Defence dealing with Afghanistan Leahy Law application, 19 February 2017; interview with representative dealing with Afghanistan Leahy Law issues at the U.S. Department of Defence, Washington, DC, 1 September 2016. 79. Erica Gaston, ‘The Leahy Law and Human Rights Accountability in Afghanistan: Too little, too late or a model for the future?’ Afghanistan Analysts Network (Kabul, 5 March 2017). 80. Skype interview with former U.S. Department of Defence dealing with Afghanistan Leahy Law application, 19 February 2017; interview with representative dealing with Afghanistan Leahy Law issues at the U.S. Department of Defence, Washington, DC, 1 September 2016. 81. Skype interview with former U.S. Department of Defence dealing with Afghanistan Leahy Law application, 19 February 2017. The language of the Leahy law would suggest that it only has to be applied to other states’ forces, so it arguably would not have had to be applied in the initial years when there was a less formal integration of ALP into 94 / Journal of Afghan Legal Studies
2014 onward – both because the threat of funding cut-offs might potentially create deterrents against misconduct (assuming ALP leaders were aware of this stick) and pressure the Afghan government to apply its own accountability mechanisms. Particularly from 2014 onward, several prominent units have been blocked from U.S. support due to the Leahy law, although reporting on which units is not public and many of the units or commanders were later remediated.82 However, the strengthening of the Leahy law’s top-level framework coincided with the withdrawal of many of the ground resources who might have tipped off or investigated allegations of rights violations, including the pullback of most SOF forces from a tactical level of engagement with ALP. This would significantly counter-balance the structural improvements, especially over the forces operating in remote, rural districts, and with the weakest institutional constraints like the ALP. In addition, while interviews suggested that the Leahy law’s mechanisms were strengthened in Afghanistan, there is also substantial evidence that in many cases the DoD did not apply it as regularly or rigorously as the mechanisms might suggest. A 2017 U.S. DoD Inspector General’s report into allegations of child sexual abuse by ANSF found that DoD was not applying the Leahy law “in a timely manner” and that loose definitions and mixed messages to subordinates created a risk that personnel would not consistently catch gross violations of human rights committed by Afghan forces receiving U.S. funding.83 3.3.2. International Humanitarian Law & Due Diligence Although the larger bulk of this article is focused on accountability for local
MoI. U.S. officials have long said that regardless of this policy they have applied it to the ALP as a policy matter, although this may not have been true in the very earliest period. However, there are exceptions to whether the Leahy law must be applied, with particular waivers in Afghanistan. For a broader discussion, see Gaston (n80). 82. Author interview with Deputy Assistant Secretary of State Dafna Rand and colleagues, U.S. Department of State, Washington, DC, 29 August 2016 (author interview available upon request. According to State department and department of defence sources, the highest rates of ‘remediation’ (the process by which funding can be restored when some form of judicial or administrative measures are taken to address the violation) were at the time in Afghanistan. ibid. Author interview with representative dealing with Afghanistan Leahy Law issues at the U.S. Department of Defence, Washington, DC, 1 September 2016; Skype interview with former U.S. Department of Defence dealing with Afghanistan Leahy Law application, 19 February 2017. 83. United States Department of Defence, Inspector General, ‘Implementation of the DoD Leahy Law Regarding Allegations of Child Sexual Abuse by Members of the Afghan National Defence and Security Forces’ (Washington, DC, 16 November 2017)
84. International Law Commission (ILC), ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (2001, Yearbook of the International Law Commission 26, art. 8) http://legal.un.org/ilc/texts/instruments/ english/draft%20articles/9_6_2001.pdf accessed 9 November 2017. 85. International Court of Justice, Military and Paramilitary Activities (Nicaragua v U.S.), 1986, §115. 86. International Court of Justice, Military and Paramilitary Activities (Nicaragua v U.S.), 1986, §115. 96 / Journal of Afghan Legal Studies
U.S. forces explicitly ordered the acts that gave rise to international law violations. The Nicaragua decision has received a fair amount of criticism, and scholars and international criminal jurisprudence have proposed alternate standards. In Prosecutor vs. Tadic (1999), the ICTY Appeals Chamber rejected the Nicaragua “effective control” standard and established a standard of “overall control beyond mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations.”87 Although how this would be extended is also debatable, it arguably creates a level of responsibility closer to what might capture U.S. engagement with ALP. Nonetheless, the ICJ standard is arguably considered the more authoritative, , and under this standard, the U.S. likely bears no direct responsibility for the conduct of ALP or other militia groups. In addition to state responsibility, the U.S. may also owe some obligation to regulate militias it supports under international humanitarian law (IHL), the lex specialis in times of conflict. Within IHL there is a basic principle of due diligence for ensuring respect for IHL, which stems from Common Article 1 of the Four Geneva Conventions and Additional Protocol I. Common Article 1 obliges all state parties “to respect and ensure respect for the [Conventions] in all circumstances.” This provision is also considered to be part of customary international law. While likely relevant, but the exact interpretation and level of obligation imposed by this due diligence principle is unclear and disputed. The ICJ in Nicaragua interpreted it as an obligation for states to avoid actions that might assist IHL violations.88 The jurisprudence so far has not gone so far as to impose a strong affirmative duty to prevent violations.89 However, many have argued that state practice has implied a more affirmative obligation, or that at a minimum, this provision requires a basic level of due diligence, such that where states are in a position to do so, they should use their influence to prevent violations.90 This would seem to imply a greater obligation in situations in which
87. Tadic §145. 88. See for example Military and Paramilitary Activities in and Against Nicaragua (Nicar. v U.S.) (1986) I.C.J. 14, § 220. 89. Id. For an article arguing for a more affirmative obligation, see Knut Dörmann & Jose Serralvo, ‘Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations’ (2015) International Review of the Red Cross 1, 5 – 6. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (2004) I.C.J. §131. 90. For a larger discussion, see Bruce Oswald, Civil Defence Groups: Developing Accountability (United States Institute of Peace Special Report, August 2014) https://www.usip.org/sites/default/files/SR350_Civil_Defence_ Groups_Developing_Accountability.pdf accessed 9 November 2017; Knut Dörmann and Jose Serralvo, ‘Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations’ (2015) International Review of the Red Cross 5, 6. Legal Pluralism and Militia Regulation / 97 a state is in a position to influence and prevent potential violations, for example, because it has an active support relationship with an actor who might engage in such violations. These standards suggest that despite the close support and relationship between the U.S. and the ALP, among other groups, it would have no direct responsibility for any ALP violations. Under Common Article 1, it would have an obligation not to encourage violations by ALP and some amorphous obligation to use its influence to prevent and deter violations. While some might argue it had not done all that it might, the U.S. has arguably met a basic level of due diligence through its encouragement of vetting and monitoring, and provision of basic training, including insisting on some level of basic training and awareness on laws of war and human rights.91 3.3.3. International Criminal Law – the ICC Investigation Afghanistan became a state party to the Rome Statute of the International Criminal Court (ICC) in 2003. Under Article 17, where a state party is not willing or able to prosecute international crimes committed on its territory (those crimes defined in the Rome Statute), the ICC may exercise its jurisdiction.92 In November 2016, the chief prosecutor of the ICC submitted a request to a pre-trial chamber of judges to open an investigation into war crimes in Afghanistan.93 If this request were approved, it would be the first step toward a formal ICL inquiry and potential exercise of international criminal law jurisdiction over crimes committed in Afghanistan. The chief prosecutor’s request (non-public) likely included allegations against a range of Afghan authorities, anti-government actors, and international actors, in particular U.S. actors.94 Although the scope of the request, and which parts of it might go forward, is not clear, some of the allegations reportedly involved ALP units and so may provide an additional
91. Many observers and human rights advocates have been justifiably sceptical of whether such training achieves even basic compliance and awareness. 92. For a summary of the applicable crimes, as applied to the most prevalent allegations in Afghanistan, see UNAMA, Midyear Report 2017, 62-65. 93. Kate Clark & Ehsan Qaane, ‘One Step Closer to War Crimes Trials (2): ICC Prosecutor requests authorisation to investigate,’ Afghanistan Analysts Network (Kabul, 5 November 2017)
95. This was a problem across all efforts to create bottom-up, grassroots structures, whether in security, governance, or rule of law. Discussing the parallel efforts to stand up community dispute resolution structures, Gaston and Jensen argue that the bottom-up strategy failed in part because in the areas where donors sought to use community actors as a stand-in for the weak or failing state, community mechanisms were also frail and not up to the challenge. “[C] ommunity mechanisms tended to also be weaker in areas that the state was weak, for the same reasons” – namely the repeated cycles of conflict, political upheaval, and direct Taliban targeting. Gaston and Jensen (n5) 74. See also Noah Coburn and John Dempsey, ‘Informal Dispute Resolution in Afghanistan’ (August 2010) United States Institute of Peace Special Report, 3
Enforcing Article 3 of the Afghan Constitution: Lessons from the Pakistani Federal Shariat Court
Malthe Hilal-Harvald1 Table of Contents 1. Introduction 2. The origin of the Islamic repugnancy clause and its development in Afghan legal history 2.1. The origin of the Islamic repugnancy clause 2.2. The Constitution of 1923 2.3. The Constitution of 1931 2.4. The Constitution of 1964 2.5. The Constitution of 1990 2.6. The Constitution of 2004 3. The dogmatic ideal of the Islamic repugnancy clause 4. Enforcing the Islamic repugnancy clause in Pakistan 4.1. The Pakistani constitution of 1973 and the shariat courts 4.2. An examination of Pakistani case law 5. Conclusion
Abstract This article illuminates the possible negative consequences of enforcing Art. 3 of
1. Malthe Hilal-Harvald earned his LL.B. from the University of Southern Denmark in 2013 along with a diploma for subsidiary studies in contemporary Middle East studies in 2015. He finished his LL.M. from the University of Copenhagen (UCPH) in 2016 with a thesis entitled “A Comparative Study of the Islamic Repugnancy Clauses in the Constitutions of Iran, Afghanistan and Pakistan”. After graduation, he worked for six months as a Research Fellow for the Max Planck Foundation for International Peace and the Rule of Law (MPFPR), implementing legal development projects in Afghanistan and Pakistan. Since January 2017, Mr. Hilal-Harvald has been a member of the Faculty of Law, UCPH, where he is currently writing his PhD thesis with the preliminary title “Negotiating Islam: A Comparative Study of the Constitution-Drafting in Tunisia, Algeria, and Morocco”. 102 / Journal of Afghan Legal Studies
2004 Constitution of Afghanistan through judicial review. The argumentation is based on a historical survey of the origin and development of the Islamic repugnancy clause in Afghan legal history, a conceptual critique of the dogmatic ideal expressed in the Islamic repugnancy clause, ending with a comparison with the Pakistani experience with enforcing a similar clause through judicial review. It concludes that the current enforcement mechanism creates the fundamental risk of transferring quasi-legislative powers to a small un-elected group of officials by opening a gate to a supra-constitutional level of law that is not compatible with modern constitutionalism. 1. Introduction Since the Supreme Court in Afghanistan has not yet had an opportunity to use its competence to enforce Art. 3 of the 2004 Constitution of Afghanistan, this article will draw on Pakistani case law in order illustrate some possible consequences connected with enforcing an Islamic repugnancy clause. Much has been written about the questions of human rights and the conflicting values between European and Islamic state models. There may be much merit in such value-based analysis, and there shall be no doubt that ensuring human rights including in particular the equal rights of women is of utmost importance in Afghanistan. However, this article will not address these questions, but rather focus on how the enforcement of the Islamic repugnancy clause in Art. 3 may affect the functioning of the rational legal order. The article is divided into three parts: the first part examines the origin of the Islamic repugnancy clause and its development in Afghan legal history, the second part explores the dogmatic ideal of the Islamic repugnancy clause through the prism of legal mentalité, and the third part consists of a comparison with the enforcement of the Islamic repugnancy clause in Pakistan. 2. The origin of the Islamic repugnancy clause and its development in Afghan legal history 2.1. The origin of the Islamic repugnancy clause The history of the Islamic repugnancy clause begins a few decades before its arrival in Afghanistan. The first appearance was made in Art. 2 of the Persian constitution of 7 October 1907, supplementary to the constitution of 30 December 1906. The article reads: Enforcing Article 3 of the Afghan Constitution / 103
“At no time must any legal enactment of the Sacred National Consultative Assembly [...] be at variance with the sacred rules of Islam and the laws established by [the Prophet Muhammad].” Apart from its specific Shi’ite and Persian flavor, this clause “bears credit for introducing the very language of repugnancy that would migrate transnationally into future constitutions.”2 While a complete genealogy of this clause is outside the scope of the present article, it is very likely that the drafters borrowed the concept of a repugnancy clause from then neighboring British India. The idea of a repugnancy clause dates back to 1668 when the British Crown leased the island of Bombay to the East India Company. In the charter accompanying the lease, “the company was required to enact laws ‘consonant to reason and not repugnant or contrary to’ and ‘as near as agreeable to English law’.”3 The British repugnancy clause survived all the way up to the India Independence Act of 1947 when it was officially abolished (Section 6 (2)), and Tom Ginsburg and Dawood I. Ahmed argue that it is exactly from the colonial rule in British India, that the Persian constitutionalists found inspiration when introducing the first Islamic repugnancy clause in 1907.4 2.2. The Constitution of 1923 Twelve years later in Afghanistan, the young Shah Amanullah ascended to the throne after the assassination of his father Habibullah. Soon, Amanullah launched a series of administrative, financial, social, and legal reforms in order to modernize the country.5 Most importantly for our examination, he initiated Afghanistan’s first constitution in 1923 modeled on the Persian constitution of 1906 and Mustafa Kemal Atatürk’s administrative codes in Turkey;6 both rather secular documents. Thus, Afghanistan’s 1923 constitution did not contain any Islamic repugnancy clause despite numerous symbolic references to Islam and sharia. As with Amanullah’s other reforms, the constitution was met with fierce resistance from religious and tribal leaders as well as the king’s conservative advisers who pressured him to call a loya jirga7 which could amend the constitution in favor
2. Ahmed, Dawood I. & Tom Ginsburg. “Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions”. Virginia Journal of International Law, vol. 54, no. 3 (2014), p. 18 3. Pearl, David. A Textbook on Muslim Law. London: Croom Helm, 1979, p. 23 4. Ahmed & Ginsburg (n 1), p. 18 5. Barfield, Thomas. Afghanistan: A Cultural and Political History. Princeton: Princeton University Press, 2010, p. 182f 6. Dupree, Louis. Afghanistan. Princeton: Princeton University Press, 1980. First published in 1973, p. 462 7. Since the concept of a loya jirga appears several times in the legal history of Afghanistan, it deserves some attention. 104 / Journal of Afghan Legal Studies of Islam.8 Although no repugnancy clause was introduced,9 these amendments were great enough to satisfy the ulama10 (at least for a while). However, there is difference in opinion about how important the amendments actually were – Louis Dupree calls them “minor”,11 while Ahmed and Ginsburg call them “major”.12 At this point, one should bear in mind how Persia’s first constitution came into being and how it differed from the Afghan experience. While the desire for modernization (including modern constitutions) in both countries was driven by strong anti-imperial sentiments and a wish for independence and a stronger position vis-à-vis foreign powers, the courses of development were very different. Where the first Persian constitution was the result of a broad coalition of forces, the Afghan constitution of 1923 was an exclusively top-down project. This factor is crucial when considering the role of the ulama in the constitutional process: with Abdur Rahman’s centralization of power, the ulama had been incapacitated vis-à-vis the monarch. Furthermore, during the latter part of Habibullah’s reign, the ulama had been alienated from the court. Therefore, when Amanullah imposed Afghanistan’s first constitution, the ulama was not very close to the circle of power. Thus, the ulama was not included in a constitutional bargain as the one in Persia and could not in the same way demand what Ahmed and Ginsburg call an “insurance swap”. The failure to give Islam a more prominent position in the constitution of such a deeply religious country as Afghanistan, Ahmed and Ginsburg argue, eventually led “to its demise and replacement with a constitution that provided robust Islamic supremacy clauses.”13
In this regard, I will rely on Thomas Barfield’s ((2010), p. 96) examination and critique of the concept: “An invented tradition is most effective when people believe it is a long-existing practice. What made the loya jirga appear to be such a tradition was its similarity to the smaller-scale jirgas used by Pashtun communities to resolve problems and approve collective actions. Raising the jirga to a national level could be made to appear as part of that tradition, even though historically it was not. The jirga process also fit the dynamics of Afghan politics well in three aspects. First, its legitimacy depended on meeting an accepted level of participation. [...] Second, votes on individual issues were never taken during a jirga; only when a consensus on a total package was agreed on would the results then be approved by acclamation. [...] Third, the people who participated in a jirga agreed to be bound by its results and stand behind its decisions.” 8. Dupree (n 5), p. 462f 9. See Art. 72 of the 1923 Constitution: ”In the process of legislation the actual living conditions of the people, the exigencies of the time and particularly the requirements of the laws of sharia will be given careful consideration.” 10. Ulama is plural of the Arabic word alim, which can be translated to scholar. In principle, ulama can refer to any type of scholars, but is usually understood as a specific class religiously and legally trained clergymen in a Muslim society. Some ulama may as well be muftis who can pass down fatwas, i.e. non-binding legal opinions on the right conduct of believers. 11. Dupree (n 5), p. 462 12. Ahmed & Ginsburg (n 1), p. 53 13. Ahmed & Ginsberg (n 1), p. 48 Enforcing Article 3 of the Afghan Constitution / 105
While the ulama were more or less excluded from formal power under Amanullah, they still exercised great influence over the general population, and the public objections to Amanullah’s reforms were formulated in religious terms.14 After having further alienated the ulama,15 and repeatedly provoked the conservatives and opposed tribes, in 1929 “anti-Amanullah elements, both inside and outside Afghanistan, combined to overthrow the King.”16 2.3. The Constitution of 1931 In the wake of the civil war that brought Amanullah’s reign to an end, a former general and diplomat, Mohammad Nadir Khan, returned from his retirement in France to assume power.17 In September 1930, Nadir Khan summoned a loya jirga who “confirmed him as King of Afghanistan, announced support of his November 1929 proclamation (which renounced Amanullah’s reform programs), and promised to move Afghanistan back into the mainstream of the Hanafi Shari’a of Sunni Islam.”18 Nadir Shah approved a National Council of 105 members who in October 1931 passed Afghanistan’s second constitution. This new constitution have been characterized as “a hodgepodge of unworkable elements” with large parts “borrowed at random from various sources.”19 While the “Constitution of 1931 [...] in some respects [was] significantly more liberal than that of 1923,”20 it “also contained more references to Islam,”21 and it introduced the second Islamic repugnancy clause in the world with the wording: “Articles passed by the National Council should not contravene the provisions of the sacred religion of Islam or the policy of the Kingdom.” (Art. 65) Although we here see the first Islamic repugnancy clause in Afghan constitutional law, Islam is juxtaposed with “the policy of the Kingdom” which makes the repugnancy clause in the Afghan 1931 Constitution less firm than that of the Persian 1907 supplementary constitution. Furthermore, the Afghan 1931 Constitution “did not invest any organ or person with the power of judicial review
14. Barfield (n 4), p. 183 15. Ibid., p. 189 16. Dupree (n 5), p. 463 17. Ibid., p. 458 18. Ibid., p. 463 19. Ibid., p. 464 20. Arjomand, Saïd Amir. “Constitutional Developments in Afghanistan: A Comparative and Historical Perspective”. Drake Law Review, vol. 53 (2004-05), p. 948 21. Ahmed & Ginsberg (n 1), p. 55 106 / Journal of Afghan Legal Studies of laws for conformity with the Šarī’at or the Constitution [...]”22 However, “Nādir Shah decided to submit all laws and regulations to a certain Jam’iyyat al-’Ulamā’ (society of the ulema) to ascertain their conformity with the Šarī’at.”23 This abstract review mechanism ultimately depended on the goodwill of the monarch and was not enshrined in the constitution. Even with this rather complex and at times self-contradictory system, Nadir Shah’s constitution survived 33 years with only some minor amendments,24 but as with so many Afghan rulers before him, Nadir Shah’s reign ended abruptly and violently, when he was assassinated in November 1933.25 He was succeeded by his youngest son, Zahir Shah, who was to remain king of Afghanistan for forty years.26 2.4. The Constitution of 1964 An unusually long period in terms of Afghan constitutional history ensued before Afghanistan adopted a new constitution, but in “1963, after over thirty years of relative stability and slow but steady economic and political progress, King Zahir (who had been on the throne for thirty years at the time) called for the drafting of a new constitution.”27 Dupree praises the constitution of 1964 as “the finest in the Muslim world,”28 and another scholar, Abdul Satar Sirat, calls it “modern and progressive.”29 Saïd Amir Arjomand joins the two contemporary commentators’ praise of the 1964 Constitution with the words: “It was the product of the meeting of liberal constitutionalism and Islamic modernism that proposed to interpret the principles of Islam without undue restriction from the rigidities of medieval Islamic jurisprudence and succeeded in finding the finest formula for the reconciliation of Islam and constitutionalism in the Middle East to that date or since.”30 It is no coincidence that of all Afghanistan’s historical constitutions it was the one
22. Arjomand (n 19), p. 950 23. Ibid. 24. Ahmed & Ginsburg (n 1), p. 55 25. Dupree (n 5), p. 463 26. Barfield (n 4), p. 197 27. Thier, Alexander J. “The Making of a Constitution in Afghanistan”. New York School Law Review, vol. 51 (2006-07), p. 560 28. Dupree (n 5), p. 565 29. Sirat, A. S. “The Modern Legal System of Afghanistan”. The American Journal of Comparative Law, vol. 16, no. 4 (1968), p. 564 30. Arjomand (n 19), p. 952 Enforcing Article 3 of the Afghan Constitution / 107 from 1964 that was chosen as the model for the 2004 Constitution. The 1964 constitution includes many important features, but we will focus our attention on its Islamic repugnancy clause and how the legislation was supposed to be reviewed for conformity with Islam. The wording of the 1964 repugnancy clause is very similar to that of 1931: “There shall be no law repugnant to the basic principles of the sacred religion of Islam and the other values embodied in this Constitution” (Art. 64) According to Sirat, this “requirement illuminates the concept of modernization in the legal system of Afghanistan and the relationship between modern laws and traditional laws.”31 This relationship was finely balanced indeed: since the constitution did not include a review clause for the conformity with Islam, it became the task of the National Center for Legislation in the Ministry of Justice (a purely secular institution under the King) to examine all laws for conformity with Islam and the constitution.32 This delegation was arguably warranted in Art. 7 that simply stipulated that “[t]he King is the protector of the basic principles of the sacred religion of Islam”. Art. 64 must be read in conjunction with Art. 69, which stipulates that “in the area where no [law that has been passed by both Houses and signed by the King] exists, the provisions of the Hanafi jurisprudence of the shariaat of Islam shall be considered as law.” Sirat analyses the relationship thus: “By this constitutional principle, the Afghan Legislature will adhere only to the basic principles of Islam, and will benefit from the advantages of all Islamic teachings (Hanafi, Shaffi, Malaki, Hanbali, etc.). The interesting point is that although the laws to be made are based on broad Islamic principles, if a case arises which is covered by no new law, the prevailing law in the court is only the Hanafi Doctrine. By choosing only the Hanafi Doctrine, the Constitution limits the courts’ power and restricts conflicts of decisions.”33 According to Dupree “several religious leaders [in the constitutional loya jirga] demanded to know why the Hanafi Shari’a had been placed in a secondary position to secular laws.” They were explained that Art. 64 “covered repugnancy to Islam for all time,” and in the end, only few voted against Art. 69, which Dupree optimistically considers “a great triumph for the new breed of liberal religious
31. Sirat (n 34), p. 566 32. Dupree (n 5), p. 580 33. Sirat (n 34), p. 566f 108 / Journal of Afghan Legal Studies thinkers in Afghanistan.”34 2.5. The Constitution of 1990 In the following decades, Afghanistan experienced major political and societal upheavals, including the abolition of the monarchy and the Soviet invasion, but some constitutional development was made with the 1990 Constitution of Afghanistan. For our purposes, the most relevant development was the establishment of a Constitution Council, which according to Art. 123 had the power to: “Evaluate the conformity of laws, legislative decrees, and international treaties with the Constitution.” This, of course, included Art. 2 of the 1990 Constitution: “The sacred religion of Islam is the religion of Afghanistan. In the Republic of Afghanistan no law shall run counter to the principles of the sacred religion of Islam and other values enshrined in this Constitution.” To this end, the Constitution Council had the right to: “Scrutinize the legislative documents presented for the President’s signature and express opinion on their conformity with the Constitution of the Republic of Afghanistan.” (Art. 124) The Constitution Council was to be composed by a chairman, a deputy chairman, a secretary, and eight members appointed by the President. Thus, the 1990 Constitution introduced a separate (although not independent) institution for performing an abstract, a priori review of legislation. However, because of the civil war and the coming to power of the infamous Taliban, the 1990 Constitution had a short life and a limited legacy. Also, in the making of the 2004 Constitution, the 1964 Constitution rather than the 1990 Constitution was chosen as a point of the departure, and the Constitution Council was not kept in the new Afghan state. 2.6. The Constitution of 2004 Following the terrorist attacks by Al-Qaeda on 11 September 2001, the US together with its coalition partners invaded Afghanistan. Militarily the Taliban was quickly defeated and routed from Kabul. Unlike earlier foreign interventions, the regime was toppled without any new candidate in mind, so the US turned to the United Nations for this task. The UN convened a conference in the former
34. Dupree (n 5), p. 579 Enforcing Article 3 of the Afghan Constitution / 109 capital of West Germany, Bonn.35 The result of this conference was the Bonn Accords,36 which “set out a process rather than a detailed settlement of major political issues.”37 The Accords established an interim authority, which among other things was tasked with convening a constitutional loya jirga “in order to adopt a new constitution for Afghanistan. In order to assist the Constitutional Loya Jirga prepare the proposed Constitution, the Transitional Administration shall, within two months of its commencement and with the assistance of the United Nations, establish a Constitutional Commission.”38 Until the new constitution came in place, it was decided that the 1964 Constitution should be applicable on an interim basis.39 However, before turning to the Islamic repugnancy clause in the 2004 Constitution, it may be useful to quickly outline the power of judicial review that the Supreme Court holds. Although Art. 3 of the 2004 Constitution first and foremost is a duty put on the legislator, the Islamic repugnancy clause must be read in conjunction with Art. 121, which states: “At the request of the Government, or courts, the Supreme Court shall review the laws, legislative decrees, international treaties as well as international covenants for their compliance with the Constitution and their interpretation in accordance with the law.” The power to perform judicial review by the Supreme Court thus covers the constitution in its entirety, including Art. 3. However, Art. 121 does not specify the consequence of incompliance with the constitution. Rainer Grote argues with reference to Art. 162 that it must “be assumed that the Supreme Court possesses the power to declare void laws and legislative decrees which it holds to be in violation of the Constitution.”40 As we shall see, this in effect means that the power of the Supreme Court to review legislation for compliance with Art. 3 is rather similar to that of the Federal Shariat Court (FSC) in Pakistan. However, one major difference is that ordinary citizens
35. Barfield (n 4), p. 283 36. Officially entitled Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment Of Permanent Government Institutions (concluded on 5 December 2001) 37. Rubin, Barnett R. “Crafting a Constitution for Afghanistan”. Journal of Democracy, vol. 15, no. 3 July (2004), p. 6 38. Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions (I.6) 39. Ibid. (II.1.i) 40. Grote, Rainer. ” Separation of Powers in the New Afghan Constitution”. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 64 (2004), p. 912 110 / Journal of Afghan Legal Studies cannot bring a constitutional case before the Supreme Court in Afghanistan. Furthermore, the enforcement through judicial review should be seen as the last bastion of the Islamic repugnancy clause for as Muhammad Hashim Kamali writes: “a legal bill that is in clear conflict with the principles of Islam is hardly likely to be presented to, let alone passed by parliament, and even less likely to be promulgated by the head of state, as that would most likely go against public opinion and prove politically inexpedient. One is, in other words, more likely to be concerned with implicit and more subtle cases of repugnancy.”41 While the text of the 1964 Constitution was used as a point of departure for the drafting of the 2004 Constitution, the final document shows some significant differences – especially with respect to the role of Islam. Art. 64 of the 1964 Constitution was kept in its original wording in the first draft for the 2004 Constitution: “there shall be no law repugnant to the basic principles of the sacred religion of Islam and the other values embodied in this Constitution.” However, in its final and approved version the repugnancy had changed slightly to: “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan” (Art. 3).42 This means that now the conformity is measured against “the tenets and provisions” instead of the concept of “the basic principles” of Islam. Also, the reference to other “other values” has been omitted. This deliberate change has attracted the attention of various scholars. Kamali, who was among the drafters of the 2004 Constitution, explains the change thus: “The 1964 constitution contained a similar clause to the effect that legislation may not contravene ‘the basic principles of the sacred religion of Islam’ (Art. 64). The 2004 constitution instead adopted the phrase ‘beliefs and ordinances’ of the sacred religion of Islam. These provisions seem to be essentially conveying the same message although somewhat differently in respect of detail. Neither of these two, nor in fact, any of the other constitutions of Afghanistan, however, elaborated on the precise meaning and import of these phrases, leaving the question therefore unanswered as to what exactly the ‘basic principles’ were as opposed to subsidiary rules of Islam that constituted the criteria of repugnancy. The 2004 constitution has, in fact, phrased the test of repugnancy more widely to include not only the basic principles, but also 41. Kamali, Muhammad Hashim. ” References to Islam and Women in the Afghan Constitution” In Arab Law Quarterly, vol. 22 (2008), p. 286 42. Note on translation: “tenets” are some places translated as “beliefs”, and “provisions” as “ordinances”. Enforcing Article 3 of the Afghan Constitution / 111
virtually all the beliefs and ordinances of Islam. The word ‘ahkām, plural of hukm: ruling, ordinance, judgment’ may be said to have a legal connotation and may refer mainly to the Shari’a, but even this explanation is of little help to lay down a pragmatic test by which to determine the conformity or otherwise of a particular statutory ruling with Islam.”43 Andrew Finkelman interprets the reference to “the tenets and provisions” of Islam as a reference to sharia specifically.44 However, a specific reference to sharia was deliberately avoided in the draft presented to the constitutional loya jirga after having being inserted in an earlier draft by the Islamist lobby.45 So by inference we must conclude that “tenets and provisions” does not mean the same as sharia. But what does it then mean? Said Mahmoudi calls it “a legally vague concept and prone to broad interpretations” and argues that it can be “a reference not only to the Sharî’a stricto sensu, but also to the fiqh and perhaps even to the doctrine of Islamic law.”46 While J. Alexander Thier argues that “[t]he use of ‘provisions’ in particular indicates something closer to reliance on the established Islamic sharia”47 and Nathan J. Brown writes that the word ahkam (provisions) “might also be translated as rulings and is difficult to interpret as other than a reference to Islamic law,”48 Ramin S. Moschtaghi explains that “since it is very common in Darī/Farsī to use a pair of words conveying a single meaning, the term “beliefs” (mo’taqedāt) combined with “ordinances (aḥkām) does not necessarily provide an additional meaning to aḥkām.”49 Thus, there seems to be little consensus in the academic literature on how to interpret this deliberate change in wording. Perhaps this tells us that there can be no final and authoritative interpretation of a so vaguely formulated provision. Taking a step back, the following section will offer the broader framework
43. Kamali (n 46), p. 286 44. Finkelman, Andrew. “The Constitution and Its Interpretation: An Islamic Law Perspective on Afghanistan’s Constitutional Development Process, 2002‐2004”. Al Nakhlah, art. 2 (2005), p. 2 45. Biloslavo, Fausto. “The Afghan Constitution between Hope and Fear”. CEMISS Quarterly, vol. 2, no. 1 (2004), p. 67 46. Mahmoudi, Said. “The Sharî’a in the New Afghan Constitution: Contradiction or Compliment?”. ZaöRV, vol. 64 (2004), p. 870f 47. Thier (n 32), p. 578 48. Brown, Nathan J. “Bargaining and Imposing Constitutions: Private and Public Interests in the Iranian, Afghani and Iraqi Constitutional Experiments”. In Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran and Afghanistan, pp. 63-76. Ed. by Saïd Amir Arjomand. Portland: Hart Publishing, 2009, p. 72 49. Moschtaghi, Ramin S. “Constitutionalism in an Islamic Republic: The Principles of the Afghan Constitution and the Conflicts between Them”. In Constitutionalism in Islamic Countries: Between Upheaval on Continuity, pp. 683- 713. Ed. by Rainer Grote & Tilmann J. Röder. New York: Oxford University Press, 2012, p. 692 112 / Journal of Afghan Legal Studies to which any Islamic repugnancy clause ultimately refers; in other words, the dogmatic ideal of the Islamic repugnancy clause. 3. The dogmatic ideal of the Islamic repugnancy clause To approach this dogmatic ideal in a systematic manner, I have borrowed the concept of legal mentalité defined as “(the collective mental programme), or the interiorised legal culture, within a given legal culture.”50 The inventor of this concept, Pierre Legrand, admits that the pitfalls of applying such a concept are manifold,51 but I believe that it is the best way to examine a legal culture that is interiorized but not essential; enduring but not unchangeable; overarching but not holistic. In other words, “[o]ne is thus, ideally, looking for a representative common core – always bearing in mind, however, that one may have to settle for an imperfect approximation thereof.”52 Also, the concept of legal mentalité holds no promise of going into all particularities. In the following, two central aspects of the Islamic legal culture will be examined in order to expose the legal mentalité: 53 The sources of law, and the method of reasoning. To begin with the very basics, the sources of Islamic law are the Quran, the sunnah, and ijma. Some scholars suggest that also qiyās or ijtihad are to be counted among the sources of law, but I must maintain that these concepts strictly speakingcover methods of legal reasoning and are not sources in themselves. Naturally, the Quran holds a special place in the Islamic legal mentalité as it is believed to be the authentic record of the word of God, which makes it “the first basic source for locating the foundation of a particular norm of law.”54 The Quran contains some five hundred verses of a legal nature,55 which is less than one tenth of the complete number of verses. These can be divided and categorized in different ways. First of all, some parts of the Quran were revealed to the Prophet Muhammad while the early Muslim community resided in Mecca, and later
50. Legrand, Pierre. “European Legal Systems are not Converging”. International and Comparative Law Quarterly, vol. 45 (1996), p. 60 51. Ibid., p. 63 52. Ibid. 53. A note on terminology: “The term Islamic law generally is used in reference to the entire system of law and jurisprudence assosicated with the religion of Islam, including (1) the primary sources of law (Shari’ah) and (2) the subordinate sources of law and the methodlogy used to deduce and apply the law (Islamic jurisprudence called fiqh in Arabic).” Abdal-Haqq, Irshad. “Islamic Law: An Overview of Its Origin and Elements”. In Understanding Islamic Law: From Classical to Contemporary, p. 2ff. Ed. by Hisham M. Ramadan. Oxford: AltaMira Press, 2006, p. 3 54. Hassan, Farooq A. “The Sources of Islamic Law”. Proceedings of the Annual Meeting (American Society of International Law), vol. 76 (1982), p. 65 55. Hallaq, Wael B. An Introduction to Islamic Law. New York: Cambridge University Press, 2009, p. 16 Enforcing Article 3 of the Afghan Constitution / 113 other parts were revealed in Medina. Both parts contain verses of legal relevance, but whereas the Meccan part contain “the essentials of belief and monotheism, matters of worship, and disputation with unbelievers” as well as “legal rulings on the permitted and forbidden varieties of food, the prohibition of murder and infanticide, safeguarding the property of orphans, the prevention of injustice (ẓulm)” etc., the Medinan part emphasises “rules to regulate matters of war and peace, the status and rights of conquered people, the organisation of family and principles of government [...]”56 Another distinction is between qatʿi (definitive) and zanni (speculative) rulings. A qatʿi ruling is clear and explicit why only one interpretation can exist. On the contrary, a zanni ruling is formulated in a way that leaves it open for several different interpretations and therefore open for the exercise of ijtihad.57 The second basic source of Islamic law is the sunnah (the exemplary sayings and deeds of God’s messenger Muhammad):58 “Since the word of God was revealed to the Prophet Muhammad, his actions and sayings were and are believed to have been the best possible interpretation of God’s commandments contained in the Quran.”59 Thus, the actions and pronouncements of the Prophet are canonical.60 The sunnah consists of the hadith (which can both refer to the body of hadith and to a single hadith).61 The number of hadiths originally exceeded half a million, but through retrospective selection, sifting and validation it was reduced to about 5,000 sound hadiths that can be applied.62 These were compiled in a number of books and “[h]adiths not contained in them were considered weak and unreliable, while those included became authoritative.”63 Depending on the nature of transmissions from the first class of transmitters (who had sensory perception of what the Prophet had said and done) to the last narrator, some hadiths provide certain knowledge and some only probable knowledge.64 However, it is acknowledged that the solution of everyday legal problems only requires probable knowledge (while theological questions, on the other hand, require
56. Ibid., p. 23 57. Ibid., p. 27f 58. Hallaq (n 60), p. 16 59. Hassan (n 59), p. 66 60. Zubaida, Sami. Law and Power in the Islamic World. London; New York: I.B. Tauris, 2003, p. 13 61. Hallaq (n 60), p. 16 62. Zubaida (n 65), p. 18; Hallaq (n 60), p. 16 63. Zubaida (n 65), p. 30 64. Hallaq (n 60), p. 17 114 / Journal of Afghan Legal Studies certain knowledge).65 As with the verses of the Quran, the sunnah can be divided into legal and non-legal (and some in between). The legal sunnah can further be “divided into three types, namely the Sunnah which the Prophet laid down in his capacities as Messenger of God, as the head of state or imam, or in his capacity as a judge.”66 When solving a legal problem the jurist may encounter one or more contradictory hadiths, but different methods exists to determine which hadith is then preferable.67 Thusly, the two basic sources of Islamic law are God’s will mediated either through the wording of the Quran or through the deeds and utterings of His messenger, which means that in “Weberian terms, Islamic law itself is irrational to the extent that it depends on divine sources without rational justification.”68 This reference to Weberian69 irrationality, however, needs to be nuanced. In the introduction to his anthology on legal and ethical norms in Islamic law, Baber Johansen discusses the legacy of Max Weber’s analysis of Islamic law as sacred law. He writes: “Wherever revelation is a source of the law and its norms are established through legal revelation, the law is, according to Max Weber, “procedurally irrational” (formell irrational) because the sources through which the legal norms are brought about cannot be rationally controlled and, therefore, the process of the derivation of law follows an irrational procedure.”70 However, a sacred legal system may develop a type of legal formalism, but “according to Weber, the kind of “formal rationality” which they develop, does not have the force to build logically coherent legal systems.”71 Thus, Weber took the first step in conceptualizing one of the fundamental differences between Islamic law and secular law.72 As we shall see in this article, this difference plays a central role when assessing the effect an Islamic repugnancy clause may have on the positive legal order. The last source of Islamic law is ijma which Wael B. Hallaq defines technically as
65. Ibid. 66. Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence. 3rd ed. Cambridge: The Islamic Texts Society, 2003. First published in 1989, p. 69 67. Hallaq (n 60), p. 18f 68. Makdisi, John. “Legal Logic and Equity in Islamic Law”. The American Journal of Comparative Law, vol. 33, no. 1 (1985), p. 92 69. Max Weber (1864-1920), German economist and sociologist. 70. Johansen, Baber. “The Muslim Fiqh as a Sacred Law”. In Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh, pp. 1-76. Ed. by Baber Johansen. Leiden: Brill, 1999, p. 49 71. Ibid., p. 50f 72. See Ibid., p. 51ff, for a discussion of Weber’s legacy in the study of Islamic law Enforcing Article 3 of the Afghan Constitution / 115
“the agreement of the community as represented by its highly learned jurists living in a particular age or generation, an agreement that bestows on those rulings or opinions subject to it a conclusive, certain knowledge.”73 The classical definition is even stricter: “nothing less than a universal consensus of the scholars of the Muslim community as a whole can be regarded as conclusive ijmāʿ.”74 Considering the decentralized nature of Islamic law, it is not hard to imagine that there exists a considerable gap between the theory and practice of ijma. Nonetheless, according to Kamali “Ijmāʿ plays a crucial role in the development of Sharīʿah” and it “ensures the correct interpretation of the Qur’an, the faithful understanding and transmission of the Sunnah, and the legitimate use of ijtihād.”75 However, ijma is itself ultimately a product of human (intellectual) labour and not revelation,76 and can therefore never abrogate rulings in the Quran or sunnah.77 However, the sources do not make the law alone and it “may well be argued that law is [...] the product of the premises and methods from and through which it is derived.”78 In fact, the importance of legal reasoning to the Islamic legal mentalité cannot be overstated, for as Joseph Schacht points out, Islamic law is “a doctrine and a method”,79 and Bernard Weiss writes: “[Islamic law] affirms with equal emphasis that the Holy Law is not given to man ready-made, to be passively received and applied; rather, it is to be actively constructed on the basis of those sacred texts which are its acknowledged sources.”80 The sources in themselves contain only relatively few actual legal provisions, and these are usually formulated in a general and metaphorical manner.81 Therefore, they are ill-equipped to stand alone as a legal system, why the majority of legal norms instead are found through applying different methods of legal reasoning to the sources.82 These different processes form the concept of ijtihad,83 which directly
73. Hallaq (n 60), p. 21 74. Kamali (n 71), p. 228 75. Ibid., p. 231 76. Ibid., p. 228 77. Ibid., p. 204 78. Hallaq, Wael B. “The Logic of Legal Reasoning in Religious and Non-Religious Cultures: The Case of Islamic Law and the Common Law”. Cleveland State Law Review, vol. 34, no. 79 (1985), p. 79 79. Schacht, Joseph. “Problems of Modern Islamic Legislation”. Studia Islamica, no. 12 (1960), p. 108 80. Weiss, Bernard. “Interpretation in Islamic Law: The Theory of Ijtihād”. The American Journal of Comparative Law, vol. 26, no. 2 (1978), p. 199 81. Hallaq (n 60), p. 19 82. Makdisi (n 73), p. 92 83. Hallaq (n 60), p. 27 116 / Journal of Afghan Legal Studies translates into endeavor or self-exertion.84 Contrary to ijtihad is the concept taqlid, which mean (uncritical) imitation (of earlier jurists).85 While the sources of Islamic law may be characterized as defined, exhaustible and ultimately irrational, the methods of ijtihad applied by Islamic jurists are multiple and involve a high degree of human intellectual effort. Thusly, Sunni Islamic jurists apply a variety of methods of deductive and inductive nature to derive substantive and positive rules: qiyas, istishab, istislah, and istihsan. The exact classification and hierarchy of these methods differ from legal school to legal school and from scholar to scholar and the following will, admittedly, generalize in this regard. Qiyas has been characterized as the “chief tool [...] which serve[s] to harness textual legal evidence to cover yet unsolved cases arising in real life”,86 which makes it the most common legal argument in Islamic law.87 As stated above, Islamic law builds on divinely revealed sources, but since these sources only give indications about right conduct, Muslims must apply the sources to real life problems by drawing parallels between the two.88 A proper exercise of qiyās consists of four elements: “the new case that requires a solution (far’); the original case, in the canonical sources, to which the analogy is to be made (asl); the rationale (‘illa) common to the two cases, which makes analogous; and the rule (hukm), attached to the original case and transferable to the new one because of their supposed similarity.”89 Obviously, the decisive factor in such an analogical argument is the quality of the ‘illa,90 but “[o]nce it is known beyond doubt that both cases, the original and the assimilated, share one and the same ‘illa, the judgement of the original case is transferred to the assimilated, thus ensuring that the judgement decreed by God was extended to another case of the same genus.”91 The concept of istihsan has erroneously been perceived as the Islamic equivalent of equity, i.e. a system of natural justice allowing a fair judgement in a situation which is not covered by the existing laws. The difference between istihsan and equity is due to the fact that Islamic legal mentalité does not recognise natural law as we know it in the West. However, according to Mohammad Hashim Kamali
84. Weiss (n 85), p. 199 85. Ibid. 86. Hallaq, Wael B. “Considerations on the Function and Character of Sunnī Legal Theory”. Journal of the American Oriental Society, vol. 104, no. 4 (1984), p. 680 87. Zubaida (n 65), p. 14 88. Hallaq (n 91), p. 680 89. Zubaida (n 65), p. 14 90. See Hallaq (n 83), p. 88f, for an analysis of the logical tools employed for determining the ’illa. 91. Hallaq (n 91), p. 680 Enforcing Article 3 of the Afghan Constitution / 117 this difference should not be overemphasized, since “the values upheld by natural law and the divine law are substantially concurrent.”92 John Makdisi has shown how istihsan should be seen as a “reasoned distinction of qiyas”,93 because “the use of istihsan in Islamic legal reasoning may [...] be identified as a rational method for the determination of decisions when conflicting principles compete for consideration. The basis for decision-making through istihsan rests on a valid recognized source of Islamic law; istihsan merely determines the choice of that source, and it does so either through a system of priorities or through a logical analysis of meaning in concepts.”94 While Islamic legal mentalité does not recognise the concept of natural law,95 it does allow for consideration of maslahah (or istislah) which can be translated as “welfare”, “public utility” or “the common good”.96 According to Kamali, “[i] stiṣlāh derives its validity from the norm that the basic purpose of legislation (tashrīʿ) in Islam is to secure the welfare of the people by promoting their benefit or by protecting them against harm” and the “ways and means [hereto] are virtually endless.”97 Be that as it may, as opposed to rational and utilitarian legal orders, “law in Islam is conceived not as a means employed in the service of society, but, rather, in the service of God, who alone knows what is best for society. Islamic law delineates the dictates of divine will, and it is perceived as the ideal way in which man can worship his Creator.”98 In this connection it should also be mentioned that no matter how rational the various methods of ijtihad may be, they cannot override clear textual or sunnaic rules.99 It has been widely assumed that the so-called “gate of ijtihad” was closed somewhere around the third or fourth century (AH).100 Hallaq shows how even such acknowledged scholars as J. N. D. Anderson and H. A. R. Gibb asserted this notion, and also Joseph Schacht was an early proponent of this coinage. The idea of the closed “gate of ijtihad” builds on the assumption that around the third or fourth century (AH) all possible legal topics had been derived from the sources
92. Kamali (n 71), p. 323 93. Makdisi (n 73), p. 92 94. Makdisi (n 73), p. 90 95. Ibid., p. 91 96. Afsaruddin, Asma. “Maslahah as a Political Concept”. In Mirror for the Muslim Prince: Islam and the Theory of Statecraft, pp. 16-44. Ed. by Mehrzad Boroujerdi. Syracuse, New York: Syracuse University Press, 2013, p. 16 97. Kamali (n 71), p. 352 98. Hallaq (n 83), p. 81 99. Zubaida (n 65), p. 15 100. Ibid., p. 24 118 / Journal of Afghan Legal Studies by the founding fathers of the four schools of Sunni Islamic legal thought with the consequence that it was no longer desirable to interpret the sources through human reason and that Islamic jurists instead had to follow taqlid.101 In other words: the worldly influence on Islamic law was now a fait accompli. However, this point of view is not shared by more recent scholars. Most prominently has Hallaq disputed the claim that the infamous “gate of ijtihad” was ever closed. He systematically refutes the various assumptions about the concept of ijtihad and the closing of its gate. The first claim is that the gate closed because no one could fulfil the requirements for being a mujtahid (a jurist of such a calibre as to perform ijtihad). But with reference to the writings of the classical Islamic legal scholars, he can conclude “with a fair amount of confidence that legal theory, including the qualifications required for the practice of ijtihad, [hardly can] be held responsible for narrowing the scope of ijtihad’s activity, much less closing its gate.”102 After that preliminary conclusion, Hallaq turns to an investigation of how anti-ijtihad trends ultimately were excluded from Sunnism. Throughout the third, fourth and fifth centuries (AH) different extreme legal and theo-political groups condemned the use of qiyās but as the juristic schools were shaped, these elements either had to assimilate and thereby adopt the methods of ijtihad (including qiyās) or see themselves excluded from the legal development.103 However, this naturally leads to next question of whether the establishment of these juristic schools had the effect of closing the gate of ijtihad. To answer this question Hallaq examines in length the practice and theory of ijtihad in the centuries following the supposed closing of its gate. The particularities of the argument should not be repeated here, but on the basis of overwhelming historical evidence Hallaq can conclude “that in practice and in theory the activity of ijtihad during the period under discussion was uninterrupted. Furthermore, mujtahids proved to have existed at all times, a fact which finds full support in the ample material available from the period itself.”104 Furthermore, Hallaq finds that even though there since the sixth century (AH) have been controversies about ijtihad and the existence of mujtahids, it has been impossible to reach a consensus about the closure of its gates which is ascribed to three different factors: “First, and most important, is the continual existence of renowned mujtahids
101. Weiss (n 85), p. 208 102. Hallaq (n 91), p. 7 103. Ibid., p. 7ff 104. Ibid., p. 20 Enforcing Article 3 of the Afghan Constitution / 119
up to the tenth/sixteenth century. Though the number of mujtahids drastically diminished after this period, the call for ijtihad was vigorously resumed by premodern reformists. Second is the Muslim practice of choosing a mujaddid at the turn of each century. Though this practice may not have had the full support of the entire community of jurists, it proved that at least one mujtahid was in existence each century. Third, the opposition of the Hanbali school which was supported by influential Shafi’i jurists who, by their support, not only added substantial weight to the Hanbali claim that mujtahids existed at all times but also weakened the coalition in which Hanafis and Malikis took part.”105 Hallaq’s analysis has subsequently found resonance with other scholars. Two points about the Islamic legal mentalité should be kept in mind when turning to the following sections of the article: 1) The sources of Islamic law are believed to be divinely revealed and therefore unalterable and uncriticizable, which in Weberian terminology makes the whole legal system procedurally irrational; 2) the methods of Islamic jurisprudence (ijtihad) are various which the system flexible and adaptable but also severely limits the possibility of meaningful codification of the law. While earlier scholars maintained that the “gates of ijtihad” had been closed more than a millennium ago, more recent research has shown that this was in no way the case. Rather Islamic law has found its place in numerous historical and geographic settings, and there is no reason to believe that this will not continue to be the case. These two points may seem as a paradox. However, in Islamic legal mentalité the different nature of the sources and the methods should rather be seen as complementing each other in a way that makes Islamic law practically applicable while maintaining a religious foundation for it. How this dogmatic ideal – fundamentally different from a positive, rational legal order as it is – affects the positive legal order will be considered in the following examination of a selection of Pakistani case law from the shariat courts. 4. Enforcing the Islamic repugnancy clause in Pakistan 4.1. The Pakistani constitution of 1973 and the shariat courts Before turning the case law of the Pakistani shariat courts, it may be useful to give a quick introduction to the Islamic repugnancy clause in the current constitution 105. Ibid., p. 33 120 / Journal of Afghan Legal Studies of Pakistan and the shariat court system. The independence of East Pakistan (Bangladesh) in 1971 required a new constitution to be drafted for the remaining territories. This meant that “the ‘secular oriented’ Bengalis were no longer present in the Constituent Assembly and the orthodox elements in the western part of the country, though defeated in the general elections of 1970, gathered together to put up a brave fight to preserve cherished Islamic values and traditions.”106 To appease this reinvigorated Islamist wing, President Zulfikar Ali Bhutto did as his predecessors had done and put the usual Islamic provisions in the constitution,107 including the following Islamic repugnancy clause: “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.” (Art. 227 (1)) However, no mechanisms were put in place to actually enforce the clause. As G.W. Choudhury puts it: “While such a [repugnancy clause] appears to have far-reaching implications and might be expected to engender radical reforms in legal and social systems in Pakistan in pursuance thereof, Pakistan has long been accustomed in actual practice to such high sounding constitutional phrases without any change either in its legal system or in socio-religious spheres.”108 Though the constitution of Pakistan since then has “been amended so many times that one can hardly refer to it as still being the same constitution as it was at its inception”,109 Part IX of the 1973 Constitution, which contains the so-called Islamic provisions, has remained largely unchanged. However, the way these provisions have been implemented has developed dramatically due to a change in political will and the introduction of new enforcement mechanisms. On 5 July 1977, General Zia ul-Haq assumed power in a coup d’état.110 With
106. Choudhury, G. W. “”New” Pakistan’s Constitution, 1973”. Middle East Journal, vol. 28, no. 1 (1974), p. 11 107. Ibid. 108. Ibid. 109. Lau, Martin. “Sharia and national law in Pakistan”. In Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, pp. 373-432. Ed. by Jan Michiel Otto. Leiden: Leiden University Press, 2010, p. 407 110. Ibid., p. 397f Enforcing Article 3 of the Afghan Constitution / 121
Zia ul-Haq in front, the first serious attempts of fulfilling the lofty promises about Islamization in the Pakistani constitutions were made. According to Martin Lau, Zia ul-Haq’s motivation for this was two-fold: “Firstly, it provided a justification for his coup and his failure to hold elections: according to Zia, successive governments had failed to make Pakistan an Islamic state. Assuming the role as the saviour of Pakistan’s destiny, Zia resolved to return the country to democracy only as and when it had been turned into a truly Islamic state. Secondly, by taking command of the Islamisation project, Zia was able to sideline Islamic parties and take control of the Islamic discourse. By adopting the agenda of the Islamists, Zia effectively silenced them.”111 So although “Zia ul-Haq eagerly presented himself as the saviour of Islam, opted for a strict, conservative interpretation of Islam, and indeed made this interpretation the backbone of his political leadership[, m]any historians retrospectively see Zia’s policy as an ill-disguised attempt at legitimising his coup d’état [...]”112 Zia ul-Haq’s regime ended suddenly when he died in an air crash in August 1988, but his efforts to Islamize the Pakistani society have left a deep mark on the legal system.113 Most importantly for the subject of this article was the introduction of the Federal Shariat Court (FSC): “For the first time a special court was set up with the express purpose of judicially reviewing certain parts of the legal system to determine whether those parts were in accordance with Islamic law.”114 The FSC was instituted by Chapter 3A in 1980 by presidential ordinance but the specific provisions were changed several times in the following years. The powers and, jurisdiction of the FSC are laid down in Article 203D and can be summed up as follows: 1) The Court can either of its own motion or on petition from a citizen or the federal or provincial government review whether or not any law or provision of law is repugnant to the injunctions of Islam; 2) If the Court decides that a law or provision is repugnant to the injunctions of Islam, the court
111. Ibid., p. 398 112. Ibid., p. 423 113. Ibid., p. 399 114. Lau, Martin. “Islam and the Constitutional Foundations of Pakistan” In Constitutionalism in Islamic Countries: Between Upheaval and Continuity, pp. 171-199. Ed. by Rainer Grote & Tilmann J. Röder. New York: Oxford University Press, 2012, p. 196 122 / Journal of Afghan Legal Studies shall give its reasons for that opinion, specify to what extent the law or provision is repugnant, and specify the date on which the decision shall take effect; 3) If the Court decides that a law or provision is repugnant to the injunctions of Islam, the executive shall take steps to bring the law or provision into conformity with the injunctions of Islam, and the law or provision ceases to have effect. Naturally, the repugnancy clause and the Islamic Council115 were strengthened considerably with the establishment of the FSC, and whenever the latter deemed a law to be contrary to Islam, it was the task of the former to draft an Islamic alternative for the legislature.116 Jeffrey A. Redding puts the role of the Court in perspective: “It would be easy, and not entirely wrong, to think of the Shariat judicial system as an occasionally undemocratic check on the democratic exercise of power by Pakistan’s parliament. Such a ‘criticism,’ however, would have to explain how this role is different than the role a judiciary may play – and is often expected to actually play – in almost any other society. It is true that Pakistan’s Shariat judicial system is different than many other judicial systems in that the 1973 constitution requires it to examine laws only on the basis of “the injunctions of Islam, as laid down in the Holy Qur’an and Sunnah of the Holy Prophet.... Thus it might be true – given a certain view of Islam – that the Shariat judicial system plays an especially undemocratic role in Pakistan.”117 He follows up with the question, “what is the actual situation on the ground, and how truly interested is this system in interfering with the operation of democratic legislative processes in Pakistan?”118 This question will the subject of investigation in the following examination of a selection of case law from the FSC. 4.2. An examination of Pakistani case law A natural starting point for this examination is the arguable most well-known case from the shariat courts, namely the so-called Riba case. Knowing about the Islamic rules regarding riba (literally meaning addition or growth, but commonly translated as usury or interest), it was inevitable that the financial sector would become subject of scrutiny by the FSC. Probably for this exact reason, “any
115. See 1973 Constitution of Pakistan, Arts. 228-231 116. Lau (n 119), p. 410 117. Redding, Jeffrey A. “Constitutionalizing Islam: Theory and Pakistan”. Virginia Journal of International Law, vol. 44, no. 3 (2003-04), p. 784 118. Ibid. Enforcing Article 3 of the Afghan Constitution / 123 law relating to [...] banking or insurance practice or procedure” was given a ten years exemption from the FSC’s jurisdiction upon its institution in 1980.119 Nonetheless, the banking system in Pakistan was officially Islamized in 1985 but “it made little real difference in the way they conducted their business” and “[a]ll that had happened was that there had been ‘a shift in nomenclature’,”120 why “many Pakistani ulema and advocates of Islamic banking considered the post- Zia Pakistani form [...] to be seriously flawed.”121 Thusly in 1991, promptly after the expiration of the exemption, 115 people filed a petition to the shariat court claiming that provisions found in 20 different financial laws122 were repugnant to Islam due to their endorsement of riba.123 The many petitions were together with three suo moto cases turned into a class-action suit before the FSC in November 1991.124 Later the same month, the FSC gave a verdict that would shake the financial sector of Pakistan. In an extensive and scholarly document, the court gave its very detailed reasoning for declaring all 20 laws in question (i.e. the entire financial system of Pakistan) repugnant to the injunctions of Islam and therefore unconstitutional. The court gave the government until 30 June 1992 to bring the said laws into conformity with the injunctions of Islam; otherwise, they would be invalid from 1 July 1992.125 The FSC suggested a complete transformation to a riba-free, PLS126-based
119. See 1973 Constitution of Pakistan, Art. 203B (c) 120. Khan, Feisal. “Islamic Banking by Judiciary: The ‘Backdoor’ for Islamism in Pakistan?” South Asia: Journal of South Asian Studies, vol. 31, no. 3 (2008), p. 543 121. Ibid., p. 546 122. I. Interest Act 1839; II. The Govt. Saving Banks Act, 1973; III. The negotiable Instruments Act, 1881; IV. The Land Acquisition Act, 1894; V. The Code of Civil Procedure, 1908; VI. The Co-operative Societies Act 1925; VII. The Co-operative Societies Rules, 1972; VIII. The Insurance Act, 1938; IX. The State Bank of Pakistan Act, 1956; X. The West Pakistan Money Lenders Ordinance, 1960; XI. The West Pakistan Money Lenders Rules, 1965; XII. The Punjab Money Lenders Ordinance, 1960; XIII.The Sindh Money Lenders Ordinance, 1960; XIV. The N.W.F.P. Money Lenders Ordinance, 1960; XV. The Baluchistan Money Lenders Ordinance, 1960; XVI. The Agricultural Development Bank of Pakistan Rules 1961; XVII. The Banking Companies Ordinance, 1963; XVIII. The Banking Companies Rules, 1963; XIX. The Ban (Nationalisation) (Payment of Compensation) Rules, 1974; XX. The Banking Companies (Recovery of Loans) Ordinance, 1979. 123. Khan (n 131), p. 546, n. 49 124. Ibid., p. 546 125. Ibid. 126. PLS stands for “profit and loss sharing” and encompasses essentially two different modes of financing: Mudarabah and Musharakah. Mudarabah consists of two parties where one contributes with money capital and the other with human capital and know-how. Each party takes an agreed (but not necessarily equal) share of the profit. In case of losses, the financier bears the financial loss while the other party gets no pay for his work and time. In a Musharakah arrangement “two or more persons contribute their funds and managerial skills to undertake a business enterprise on the basis of mutual risk-sharing.” As with the Mudarabah partnership, the partners can agree on any ratio for profit sharing, but losses are shared in proportion to their investment. Rights and responsibilities to manage 124 / Journal of Afghan Legal Studies financial system. While these modes of financing admittedly seem more fair than the Western, interest-based system, they are badly suited for society as the Pakistani which is “characterised by substantial information asymmetry (and hence moral hazard and adverse selection) problems, weak property rights and considerable expropriation risk” as well as “high levels of tax avoidance, unreliable accounting standards, and corruption [...]”127 This makes “taking direct-equity stakes in enterprises an extremely risky and thus unappealing proposition.”128 Furthermore, “the reluctance of many bank clients to pay a commensurate share of the profits in a successful venture versus their willingness to share the losses of an unsuccessful one makes PLS banking extremely unattractive to bankers.”129 Adherence to a PLS-based system would thusly be highly inefficient and most likely lead to a financial collapse. This looming risk was also sensed by foreign investors and donors, who “were concerned about the structure of the Pakistani economy and banking sector and the status of interest after implementation of the FSC judgement” which led to “a sharp decline in the flow of foreign investment, aid and loans into Pakistan [...]”130 Since the government at the time depended on the parliamentary support from the Islamists and already had made public declarations in favor of further Islamization,131 the FSC judgement put it in a difficult situation. On one hand, a financial collapse was approaching, but on the other, it had already made a firm promise to the Islamists that it would not appeal the FSC judgement to the Shariat Appellate Bench (SAB) of the Supreme Court.132 Therefore, it encouraged the banks of Pakistan to appeal instead, which all 55 decided to do.133 However, just two days before the expiration of the appeal limit of six months (Art. 203F) and about one month before the coming into force of the judgement, the government decided to also lodge an appeal against FSC judgement.134 Since the implementation was postponed due to the appeal, only few had an on the other hand are shared equally. (Khan & Bhatti (2008), pp. 45-48) 127. Khan (n 131), p. 544f 128. Ibid. 129. Ibid. 130. Khan, Mohammad Mansoor & M. Ishaq Bhatti. Developments in Islamic Banking: The Case of Pakistan. New York: Palgrave Macmillan, 2008, p. 131 131. Khan (n 131), p. 547 132. Khan & Bhatti (n 141), p. 132 133. Khan (n 131), p. 548 134. Khan & Bhatti (n 141), p. 132 Enforcing Article 3 of the Afghan Constitution / 125 interest in accelerating the appeal case.135 However, on 22 February 1999 the SAB commenced the hearing of the appeals, which continued for almost six months.136 The final judgement was presented in a 400-pages document where the SAB meticulously stated the reasons for its decision with testimonies from numerous experts on the topic and several direct references to the Quran. Besides upholding the FSC 1992 Judgment, the SAB went even further and ruled “that all transactions must be real: ‘No purely monetary transactions should be made because such transactions lead to opening the door of Riba’.”137 This also included “any interest stipulated in the government borrowings, acquired from domestic or foreign sources.”138 The SAB gave the government until 30 June 2001 to make all the necessary changes.139 On 14 June 2001, the government appealed for extension of the time limit until 30 December 2005 on the grounds that it was not possible to implement the judgment within the original timeframe. However, the extension was granted only until 30 June 2002.140 As the extended time limit approached, the attitude of the government changed – not even a month before the deadline the government filed a review petition at the SAB on its judgment of 1999.141 In the meantime the government had used “a ‘carrot and stick’ approach to ensure that a favourable ruling was delivered [...]”, including the forced retirement of some judges and a raise in salary for the remaining.142 And a favorable ruling was what they got. Much unlike the FSC Judgment of 1991 and the SAB Judgment of 1999, the SAB Review of 2002 was only 22 pages long and gave the government exactly what it wanted.143 However, since the judgment was merely sent back to the FSC,
135. Khan (n 131), p. 547 136. Khan, Khalil-ur-Rehman. The Supreme Court’s Judgment on Riba. Islamabad: Shari’ah Academy, International Islamic University, 2008, p. xiv 137. Khan (n 131), p. 548 138. Khan (n 147), p. 358 139. Khan (n 131), p. 548 140. Khan & Bhatti (n 141), p. 166 141. Ibid., p. 167 142. Khan (n 131), p. 550f 143. Ibid., p. 551f: “It found that the earlier ruling had been fatally flawed in several key aspects: (i) that the SAB did not properly distinguish between ‘usury’, ‘riba’, and ‘interest’; (ii) that the directives made by the SAB in the 1999 ruling were not ‘practical’ or ‘feasible’ and, if implemented, would ‘pose [a] high degree of risk to the economic stability and security of Pakistan’; (iii) that the SAB had failed to distinguish between the ‘legal and moral aspects’ of riba; (iv) that the court had misread the commentary of various eminent jurists who had different views regarding the nature of riba; (v) that the SAB had wrongly applied its decision to non-Muslims; (vi) that indexation is not repugnant to Islam; (vii) that Tanzil ur Rahman had approached the 1991 case in a ‘predetermined’ state of mind and the SAB should have taken this into account when forming its decision in 1999; (viii) that the SAB did not fully consider all of the jurisdictional issues related to the implementation of its directives; and (ix) that the SAB did not make sufficient 126 / Journal of Afghan Legal Studies
“[t]here is nothing to prevent the FSC from coming back, after ‘suitable’ study, and reaffirming its original ruling; and for the SAB to uphold it.”144 Thus, the dogmatic ideal of a financial system in conformity with Islam had to give way to the interest-based system – at least for now. The legal framework of the financial system in Pakistan was not the only area of law to become the object of scrutiny. In a series of cases beginning from 1986,145 the FSC applied the Islamic repugnancy clause to deem parts of the Punjab Pre- emption Act of 1913146 un-Islamic and therefore void. This created serious uncertainty about the parts of the law not mentioned specifically by the court and about the validity of the Pre-emption Act as a whole. In order to ensure the continued efficacy of the law, new legislation was passed.147 However, this passing legal confusion was not the gravest result of the assault of the FSC on the preemption legislation. More problematic was the question of whether The Pre-emption Act of 1913 would become void ab initio and thereby annul all the transactions, which had been based on the law since its inauguration.148 In the case Aziz Begum v. Federation of Pakistan149 this question was answered in the affirmative, which according to the counsel of the petitioners meant that “thousands of innocent parties who [had] invested all their life savings in prosecuting their suits for pre-emption, which were instituted on the strength of statutory provisions validly in force for decades, [were] ruined and their lifelong efforts reduced to nought for no fault of theirs.”150 This in turn meant that the “[t] housands of petitioners who had relied on the preemption laws to purchase the agricultural land they had been cultivating as landless tenants found themselves deprived of the one opportunity ever available to them to gain title to land.”151 :In response to this social argument, Justice Nasim Hasan Shah held “[I] cannot overlook the glorious struggle waged by millions of Muslims to establish this Islamic State of Pakistan and the heart rending sacrifices allowances for the effects of inflation in determining what constituted riba.” 144. Ibid., p. 553 145. PLD 1986 SC 360, PLD 1989 SC 771, PLD 1989 SC 314 146. The Punjab Pre-emption Act of 1913 gave the landless tenants the right to ”acquire agricultural land or village immovable property or urban immovable property in preference to other persons” (art. 4) 147. Lau, Martin. Unpublished PhD dissertation from the University of London (SOAS) entitled ”The Role of Islam in the Legal System of Pakistan” 2002, p. 299f 148. Lau (n 158), p. 300 149. PLD 1990 SC 899 150. PLD 1990 SC 899, p. 913 151. Lau (n 158), p. 299 Enforcing Article 3 of the Afghan Constitution / 127
made by them for bringing into being this great polity wherein they could fulfill their cherished wish of conducting their affairs in accordance with the Injunctions of Islam, as enshrined in the Holy Quran and the Sunnah. The price they are now called upon to pay on account of the overthrow of the un- Islamic provisions of the Punjab Pre-emption Act, 1913 to pave the way for the Islamic law of preemption is, I believe, one further sacrifice that they must make in the course of establishing this Islamic polity and for ensuring that the generations to follow will be governed by the laws of Islam and Islam alone.”152 This quote illustrates how the well-being of the population and the will of the sovereign legislator are sacrificed in order to establish compliance with the court’s interpretation of the injunctions of Islam. Preemption was not the only tool, which had been applied by the state to limit the freedom of property rights in order to achieve more socially just objectives ensuring the functioning of the economy in especially the rural areas. Section 24 of the Land Reforms Regulation of 1972 restricted the possibility of dividing land into pieces too small for sustaining a family; in other words, every piece of land must have economic holding. This section was held to be un-Islamic in the case Sajwara v. Federal Government of Pakistan.153 Several other pieces of legislation related to land reform and property rights were likewise held to be un- Islamic by the FSC.154 Martin Lau concludes that the current legislation on preemption and other land reform measures is a direct result of the work of the shariat courts, and that future attempts of land reform from the legislature will have to fit the judges’ understanding of Islamic law. However, he also notes that the interpretation by the judges may change.155 To this, one can add that we here see the legislators’ ability to rationally adopt policies and legislation benefitting the rural population and the economy has been severely limited. Instead, the shariat court judges de facto have been able to lead the hand of the legislators to write legislation that follows their at times ambiguous interpretation of Islamic dogmas. That the judges’ interpretation may change over time to allow for a more socially and economically conscious application of the Islamic repugnancy clause may sound comforting, but it does change the underlying problem of letting an ultimately
152. PLD 1990 SC 899, p. 913 153. PLD 1989 FSC 80; Lau (n 158), p. 303 154. See Lau (n 158), p. 303ff, for further examples 155. Lau (n 158), p. 304f 128 / Journal of Afghan Legal Studies irrational way of law making overrule the power of the legislature. 5. Conclusion This article has been an attempt to illuminate the possible negative consequences of enforcing Art. 3 of 2004 Constitution of Afghanistan through judicial review. The argumentation has been built on a historical survey of the origin and development of the Islamic repugnancy clause in Afghan legal history, a conceptual critique of the dogmatic ideal expressed in the Islamic repugnancy clause and a comparison with the Pakistani experience with enforcing a similar clause through judicial review. On that basis, the following can be concluded. The Islamic repugnancy clause, which is now found in Art. 3 of the current constitution, has a history going back to the early decades of Afghan constitutional history. In fact, Afghanistan was the second country in the world to include such a clause in its constitution. Despite being a part of all Afghan constitutions since 1931, the Islamic repugnancy clause has rarely had a strong enforcement mechanism; usually it has only been implemented by grace of the king and only in very limited cases. This changed with the current constitution of 2004, where Art. 3 (like the rest of the constitution) can be enforced through judicial review performed by the Supreme Court. But according to Art. 121 only lower courts and the government may file a petition for the review of a law on the basis of Art. 3, and no case has been filed at the time of writing. Furthermore, there appears to be little scholarly consensus on how the clause shall be interpreted in such a case. However, regardless of the exact interpretation of the Islamic repugnancy clause, it must be acknowledged that any Islamic repugnancy clause ultimately refers to the same dogmatic ideal, i.e. the Islamic legal mentalité. Two points became clear in the examination of Islamic legal mentalité: 1) The sources of Islamic law are believed to be divinely revealed and therefore unalterable and beyond critique which makes the whole legal system procedurally irrational; 2) the methods of Islamic jurisprudence (ijtihad) are various which makes the system flexible and adaptable but also severely limits the possibility of meaningful codification of the law. The effect of this dogmatic ideal was examined with reference to the enforcement of the Islamic repugnancy clause in the Pakistani constitution. Through an admittedly selective examination of case law related to financial legislation and legislation on land reform including preemption laws, two things became Enforcing Article 3 of the Afghan Constitution / 129 apparent: 1) the effect of enforcing the Islamic repugnancy clause may become so threatening to the state that it resorts to unconstitutional means to circumvent the court’s decision; 2) the court may put so narrow restrictions on certain types of legislation that the judiciary de facto assumes legislative powers and thus violates the fundamental separation of powers necessary for a functional Rechtsstaat.156 One may choose, of course, to acknowledge and accept the risk of these functional deficiencies in order to achieve a legally irrational, but perhaps religiously legitimate goal. But by doing so, one might bring to the surface the gap between the rational, secular legal order and an irrational, religious legal order and thus threaten basic state functions. We saw how the introduction of an Islamic repugnancy clause has opened the door to what I choose to call a supra-constitutional level of law (the dogmatic ideal of the Islamic repugnancy clause). This level of law does not operate as a normal part of the constitution and is outside normal constitutional control. Instead, it works according to its own logic. Nonetheless, this supra-constitutional level is imposed on the legislature, severely limiting its means to make rational decisions to deal with a constantly changing reality. Furthermore, the way that this supra-constitutional legal order is enforced means that a small, unrepresentative group of people with their own vested interests is given the enormous power of being the gatekeepers.
156. Rechtstaat has no direct translation in English, but denotes a state which is governed by the rule of law.
Countering Global Terrorism and its Manifestations in Afghanistan: Advancing New Shariah Perspectives
Mohammad Hashim Kamali1 Table of Contents 1. Introduction 2. Religion, Violence and War 3. Hallmarks of Extremism 4. Islam and Peace 5. Hirabah (Banditry/Terrorism) 6. Hirabah in the Qur’an and Sunnah 7. A Fiqh Discourse on Hirabah 8. Punishment of Hirabah 9. Repentance in Hirabah 10. Terrorism Then and Now: A Survey of Contemporary Opinion and Research 11. Suicide and Suicide Bombing 12. Muslim Responses to Global Terrorism 13. Revisiting the Qur’an on Hirabah 14. Toward A Strategy of Counter-Violence for Afghanistan: Proposals and Recommendations
1. Dr. Mohammad Hashim Kamali is an Afghan Islamic scholar and former professor of law at the International Islamic University of Malaysia. He taught Islamic law and jurisprudence between 1985 and 2004. Kamali studied his BA at University of Kabul and completed his LLM. in comparative law from the London School of Economics and Political Science, and a PhD in Islamic and Middle Eastern law at the University of London, 1969–1976. He served as Dean of the International Institute of Islamic Thought & Civilisation (ISTAC) from 1985 to 2007. He is the CEO of the International Institute of Advanced Islamic Studies (IAIS) in Malaysia. 132 / Journal of Afghan Legal Studies
Abstract Mainstream media tend to associate terrorism and violence with Islam, a claim which needs to be ascertained in the light of evidence. We explain this and show that extremism and terrorism have no religion as such. Next we characterise extremist violence and terrorism and its perpetrators. Is it correct to say that Islam is a religion of peace? We investigate this too and look at the evidence as to what Islam actually stands for. The balance of this article is devoted to an enquiry into the Qur’anic provisions on hirabah (banditry and terrorism) and the ensuing fiqh interpretations on the definition, characteristic features and punishments of this crime, suicide bombing, and a round up of Muslim responses to global terrorism. Our attempt at a fresh interpretation of the Islamic law of hirabah is prompted by new developments in contemporary terrorism so much so that corresponding adjustments in the law of hirabah have become inevitable. The last segment of this presentation puts forward suggestions toward constructing a counter-violence strategy for Afghanistan. 1. Introduction Muslim jurists have been assiduous in their efforts to protect the community from those within its midst who seek to bring it harm through violence and terror. They did so through developing the Qur’anic dispensations on hirabah. The law of hirabah has also not remained static due partly to a degree of flexibility in the Qur’anic expositions of this crime which allowed space for fresh interpretations. Their creative endeavours may have been negatively affected, however, by the so-called ‘closure of the door of ijtihad’ around the fifth/eleventh century. This is partly why a contemporary observant of terrorism will note a certain gap in the fiqhi discourse of hirabah, which is of a medieval origin for the most part. The narrative we develop in the following pages is self-evident on the need for further reconstruction and renewal toward a more relevant understanding of hirabah. This is made possible by a re-reading of the fiqh discourse in light of the Qur’anic conception of hirabah as we present below. 2. Religion, Violence and War It should be made clear at the outset that the root causes of most present day conflicts have very little to do with religion even if they may appear to have religious implications. For instance, the Israeli-Arab conflict is about land, dispossession and the right of self-determination, even if some religious fanatics Countering Global Terrorism and its Manifestations in Afghanistan / 133 are exploiting the issue for their own ends. The conflict in Kashmir is also about the right of self-determination; it is not a Hindu-Muslim conflict. This is also true of the Mindanao conflict in the Philippines, which is not about religion but about land and historical rights, unemployment and poverty. The Rohingya conflict in Myanmar, and those of the Muslims of Thailand in its three southern provinces are also not about religion. They are about citizenship rights and disempowerment issues. The Taliban-incited violence is for regime change and ouster of foreign troops from Afghanistan.2 Historically, colonialist onslaught on Muslim communities and nations was a European phenomenon entirely motivated by conquest of land and resources. Then if we look at twentieth century, the most violent century in the whole of human history, the two world wars, the holocaust, the mass carnage that happened under Adolph Hitler, Joseph Stalin, Mao Tse Tung and Pol Pot were not caused by religion or religious fanaticism. None of the four names mentioned had any religious affiliation, and some had openly renounced religion. Instances of conflict over the understanding of religious principles have arisen in early Islamic history (mainly in the second century Hijrah), some of which also involved extremist interpretations of the scripture. The Qadariyyah (advocates of free will or qadar), for instance, subscribed to the view that man is the sole creator of his own conduct. The Jahmiyyah (followers of Jahm bin Safwan) subscribed to total predestination; the Murji’ah (suspenders of judgment and upholders permanently of hope or rija’) on the other hand suspended passing any judgment on sinners, whereas the Kharijites (lit. outsides) held the extremist view that committing a major sin amounts to renunciation of Islam.3 Twenty first century, the era often characterised by ‘clash of civilizations’— to use Huntington’s phrase – brought religion and violence a step closer to one another, even though civilisation is not identical with religion but has a wider scope that is inclusive of custom and culture, lifestyle and values. It would still be incorrect to say that Islam and Christianity, or Islam with any other religion for that matter, are in conflict. On the contrary, Islam shares a great deal with other 2. Cf., Chandra Muzaffar, Exploring Religion in Our Time, Pulau Pinang: Penerbit Universiti Sains Malaysia 2011, 20. 3. The Murji’ah were divided into two groups, one suspended passing any judgment on differences that arose among the Companions referring them to God’s judgment, and the second group which held that God forgives all sins except disbelief (kufr) and that faith is not obliterated by sin. See for details Majid Fakhry, “Philosophy and Theology,” in John Esposito (ed.), The Oxford History of Islam (Oxford: Oxford University Press, 1999), 277ff. See also Mohammad Hashim Kamali, The Middle Path of Moderation in Islam: The Qur’anic Principle of Wasatiyyah, New York: Oxford University Press, 2015, 40f. 134 / Journal of Afghan Legal Studies world religions such that it is difficult to say that Islam is in conflict with them. That said, issues pertaining to religious values and beliefs, such as the cartoons issue, exaggerated interpretations of jihad, and the scope of freedom of expression have come into the picture and have led to violence. The violence we have seen in the last two decades or so is also reactive for the most part to dictatorship and disempowerment from within, and to foreign invasion and humiliation, espoused often with collapse of government and rule of law. These are also not caused by religion. Following the Paris Charlie Hebdo attacks in 2015, the U.S Senator John McCain urged in a statement, carried in New York Times, in which he called for a more aggressive American military strategy across the greater Middle East, Syria and Afghanistan. Fareed Zakaria followed this with the comment that military intervention had actually been the cause of a great deal of violence and in particular suicide bombings. Zakaria went on to quote Robert Pape and James Feldman who analysed all the more than 2,100 documented cases of suicide bombings from 1980 to 2009 and concluded that the vast majority of the perpetrators were acting in response to American military intervention in the Middle East rather than out of a religious or ideological motivation. The reasons vary from a sense of adventure to radicalism, but battling a foreign (Western) intervention is often high on the list. Also quoted by Zakaria was Andrew Bacevich, who pointed out that “before Syria, Washington had already launched interventions in thirteen countries in the Islamic world since 1980. Will one more really do the trick?”4 3. Hallmarks of Extremism Extremism (tatarruf) is the conceptual opposite of moderation (tawassut, i’tidal) and almost as extensive. A person is considered extremist if he is prone to radical exaggeration, habitually choosing one of two opposites. An extremist is irreconcilably antagonistic and excessive to the point of anarchy.5 Fanatics have been defined as zealous who ruthlessly stand up for an idea or conviction, ready to sacrifice much, or even themselves, for it. Roger’s Thesaurus associates fanatics and fanaticism with concepts like mad, insane, dogmatic, zealous, emotional, and bigot. Fanaticism is described as a psychopathic form of sectarian behaviour. Passionate commitment to a ‘fixed idea’ pursued without compromise and regardless of cost to oneself and others. Clearly, fanaticism and extremism are
4. Fareed Zakaria, “US Intervention is not the Answer,” Kuala Lumpur, New Strait Times, January 29, 2015, 15. 5. Roger’s Thesaurus, Ch. 710 & 31. Countering Global Terrorism and its Manifestations in Afghanistan / 135 related. Every fanatic is bound to be extremist as well, while not every extremist is likely to pursue his excessive views with fanatic passion. Extremism violates the limits of moderation. These limits can often be identified by reference to authoritative sources and documents, laws and constitutions, religious scriptures, moral standards and the general mores and customs of society. But since world religions and philosophies, as well as the mores and customs of societies, and the values they uphold or deny, tend to differ widely, what may one consider to be extremist or moderate under one is also likely to vary accordingly under another code of values. Extremism is usually self-evident and easily identifiable for the most part, but it may require further scrutiny in technical and contextualised situations. Killing another person is an extremist behaviour, yet if it is done in the context of self- defence that repels an overwhelming and instantaneous attack on one’s life, it would not be considered extremist. This contextualised and relative aspect of extremism also becomes evident by reference to strong political currents and sets of circumstances with the results, for instance, that the freedom fighter of one becomes the extremist and terrorist of another and so forth. Extremism is usually definitive and deliberate, yet it can also be due to ignorance and error of judgment, especially in technical matters that require specialised know-how.6 Like moderation, extremism also applies to the entire spectrum of values, good and bad, positive and negative. One can be extremist in pursuit of one’s rights and liberties, as in the case of freedom of expression when used so as to offend others – almost all the provocative cartoons of the Prophet of Islam by some Danish and French publishers illustrate this. One may have the right to just retaliation, even revenge under due process, but it can be taken to excess for what may be a minor provocation, as in the case of Israeli retaliatory attacks against Palestinian rocket fire. Extremism in the interpretation of ideas can be illustrated by the IS group’s interpretation of the Islamic caliphate and so forth. Extremism has not commanded a credible majority in Muslim societies. Extremists are usually small groups of people that advocate narrow and radical
6. For instance, with reference to the Air Asia Indonesia crash that killed all of its 162 passengers and crews on 28 December 2014, the black box data showed that in the final four minutes before the aircraft crashed into the sea, it had started climbing very steeply at the rate of over 1,800 meters per minute, which is far in excess of the 300 to 600 meters for a passenger aircraft − only a fighter jet can climb at that speed. This was identified as the main cause of the crash. This may be said to be extremist behaviour in that situation, which is somewhat specialised and the relevant information is such that the layman would normally not know. It may also have been due to ignorance or an error of judgment on the part of the pilot. 136 / Journal of Afghan Legal Studies views and ideologies. They are not able to persuade and influence the majority through rational debate, which is why they usually take to the street and resort to violent methods to buttress their claims. The larger than real presence of extremism is felt due to views and claims clamorously expressed, and actions taken boldly beyond the ordinary, done in order to attract attention or merely to gain sympathy. Such daring, extremists and desperate tactics shock society, they are short-lived and ultimately self-defeating.7 • One of the first markers of extremism is fanatic advocacy of one view or opinion and ignoring others, even though the person knows of the existence of other views. This kind of extremist/fanatic is in a state of denial to all else. The extremist does not even stop at mere denial but goes on to accuse others of ignorance and transgression, especially those who do who not follow his or her views. Some Muslims draw frightening conclusions from their reading of a text or principle that lead to intolerance and aggression. This may be said of persons who draw extremist conclusions from the repeated Qur’anic principle addressing the Muslims to order what is good (al-ma’ruf) and to forbid what is rejected and bad (Aal-‘Imran, 3:104, 110; al-Tawbah, Yusuf, 9:71). This principle, also known as hisbah is taken to extreme when individual Muslims start acting as both prosecutor and judge of their own interpretation, proceeding to correct injustice and social wrongs not only in their own family or school but feel empowered to do this worldwide regardless of their capabilities and consequences. Matters can get even worse when individual Muslims begin to act as judges of the Muslimness of fellow believers, practicing takfir and charging others with infidelity and disbelief. All this in spite of the clear Qur’anic prohibition of denying the belief of someone who considers himself a believer or even one who greets you with peace (salam) (al-Nisa’, 4:94). As a victim of the circumstances then reigning in Egypt, Sayyid Qutb (executed 1966) in his firebrand Ma’alim fi’l-Tariq – Milestones ̶ fell prey to extremism when he proclaimed the wholesale exist of Egyptian society from Islam claiming it to have engrossed in Jahiliyyah (typically referring to pre- Islamic ignorance in Arabia). 7. Cf., Zainal Ujang, “High hopes on Farhan,” (Ujang, currently a fellow at the Oxford Centre for Islamic Studies, U.K – wrote this comment in anticipation of a public lecture Farhan Nizami the Director of that Centre was due to deliver in Kuala Lumpur), Kuala Lumpur: New Straits Times, May 26, 2014, 17. Countering Global Terrorism and its Manifestations in Afghanistan / 137
In a similar vein those who claim that the so-called Sword Verse (ayat al- sayf al-Tawbah, 9:5) had abrogated all other verses on justice and peace, patience and tolerance, restriction of warfare and fair treatment of one’s fellow humans (some 140 verses in total) proclaiming war with infidels as the norm of shariah clearly engaged in extremism. The correct position is the opposite: application of the verse (9:5) is circumscribed and limited by these much larger number of verses in the Holy Book.8 • Extremists also tend to be certain of the correctness of their cause so much so that they focus clearly and project unequivocal positions. They have a black and white view of their purpose that help create certainty in an uncertain world. That also explains why they possess an ability to attract attention disproportionate to their numbers. By contrast, the moderates tend to be reflective, see nuances and rarely exhibit certainty of that kind. Extremists tend to triumph not because of their inherent strength but more often because of the weakness and hesitancy of moderates. • The extremists turn a blind eye to the needs and wishes of others and show eagerness to impose harsh and taxing demands on them. They are prone to ignoring people’s weaknesses and refuse to acknowledge that some people may be weak, in poor health and unprepared to comply with their demands.9 • Extremists tend to be power-hungry and deny others their due. The problem may not always be a lack of formula for a reasonable solution to a contentious issue, but refusal to accede to an obvious solution. This is typical of one party’s preference for the winner-takes-all option, as in the case of Israel, that generates belligerence – the very reason also for Palestine to burn on a regular basis.10 Islamic history has known three main varieties of extremism: theological, political, and practical. Theological extremism often subscribed to particular beliefs that stood in conflict with the scripture and general consensus of Muslims. A reference is made in this connection to early theological movements such as the Qadariyyah, Jahmiyyah, Murji’ah, and Bitiniyyah that emerged in the first two centuries of Islam- as already mentioned.
8. See for details Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3rd revised ed., Cambridge, UK, 2003, ch. On Abrogation 2202-228 at 223. 9. Yusuf Al-Qaradawi, “Min al-Ghuluww wa’l-Inhila ila’l-Wasatiyyah wa’l-I’tidal,” in Mu’assasat Aal al-Bayt, Mustaqbal al-Islam fi’l qarn al-hijri al-khamis al-‘ashar, Amman: n.p., 1425/2005, 303-304. 10. Cf., New Straits Times Editorial page on ‘Malaysia’s strategy for peace,’ Kuala Lumpur, November 28, 2012, 14. 138 / Journal of Afghan Legal Studies
Political extremism is marked by confrontation and challenge of the authority of a lawful government, such as the Kharijites (outsiders) who emerged in Iraq and boycotted the authority of the fourth Caliph ‘Ali b. Abu Talib as well as allowing the killing of all Muslims except for their own followers, only because the caliph had exercised his own judgment in that matter of arbitration (tahkim) that was incited by the then Governor of Sham, Mu’awiyah.11 Lastly, practical extremism, which consists of extremist conduct, such as self- immolation, excessive fasting and all-night vigil, and acts that depart from sound human nature (fiÏrah), and valid precedent. One may add to these excessive dieting to keep slim, exceedingly disciplinarian practices with one’s children and the like, which are injurious and harmful.12 Most of these would appear to be extremist but may or may not be said to have been involved in terrorism, even though the lines of distinction between them cannot always be clearly demarcated. Terrorism also partakes in practical extremism, be it local, national or international, in peacetime or war, that consists mainly of acts of terror, use of explosives and suicide bombing that inflict destruction and kill innocent people. Such activities may even occur in the course of a legitimate war that may have been duly declared by the lawful leader. The basic position of such acts of terror is the same in shariah, whether its victims are Muslim or otherwise, and whether it is against a weak, or a more powerful party or state. Those who commit cowardly murder behind a mask of “Islam” and imagine they are taking revenge and waging jihad are in fact, in the eyes of the true Islam, murderers. It is despicable to hunt down defenceless people and shoot them in a vicious act of terror simply because they think wrongly, or insult or are hostile to Islam.13 Protection of life (hifz al-nafs), of all human life − is one of the higher goals and purposes (maqasid) of shariah. Human life must be safeguarded as a matter of priority. “One who saves the life of another,” says the Qur’an, “it would be as if he saves the life of the whole of humankind.” (al-Ma’idah, 5:35). The text also declares in the same verse: “And one who kills a human being without the latter being guilty of murder or corruption in the land, it would be as if he has killed 11. See for details, Kamali, The Middle Path of Moderation, 39. 12. Ibid., 40. 13. Cf., Harun Yahya, “Getting Islam’s peaceful ethos across amidst terror,” Kuala Lumpur, New Straits Times, January 16, 2015, 17. Countering Global Terrorism and its Manifestations in Afghanistan / 139 the whole of humankind.” Elsewhere the Qur’an enjoins: “Slay not the life which God has made sacrosanct unless it be in the cause of justice.” (al-Isra’, 17:33). Al-Bukhari and Muslim have recorded the following hadith from the Prophet: “One who unsheathes his sword against us is not one of us.”14 In another hadith in the same chapter and source, but which is inclusive of all weapons, it is provided: “One who raises arms against us ceases to be one of us;”15 In yet another hadith, it is provided: “All that belongs to a Muslim is forbidden to other Muslims; his blood, his property and his honour.”16 Terrorising innocent people that may or may not lead to loss of life and limb constitutes the capital crime of hirabah, which carries a four-fold punishment in the Qur’an – as we presently elaborate. 4. Islam and Peace One may start with posing a question: is Islam a religion of peace? The answer to this question is in the affirmative, for the following reasons: In the Muslim historical narrative, Islam is understood to have been a progressive, tolerant, and civilising force with binding rules constraining injustice and wanton violence. Islam’s self-identity as a “religion of peace” is based on the premise that Islam challenges root causes of human violence. Islamic scripture provides varied readings of warrior and pacifist perspectives, yet its numerous dispensations lend support to the construction of a comprehensive vision of peace. The Qur’an designates Muslims as a community of the middle path “ummatan wasatan,” which together with its parallel concept of ‘mutual recognition’ (ta’aruf) for friendship with other communities and nations visualise Muslims as the agents and facilitators of peace with significant ramifications for Muslim- non-Muslim relations. One also finds an elaborate articulation of methods for peaceful resolution of conflicts, such as peace through counselling (nasihah), peace through conciliation (sulh, islah), peace through arbitration (tahkim), truce to facilitate negotiation (al-hudnah), and peace through grant of amnesty and
14. This second hadith is narrated on the authority of Salamah ibn al-Akwa’ whereas the first is narrated on the authority of ‘Abd Allah ibn ‘Umar. Both are said to be reliable. 15. Muslim, Mukhtasar Sahih Muslim, ed. Muhammad Nasir al-Din al-Albani, Kitab al-Imarah, bab man hamala ‘alayna al-silaha, hadith 1235. 16. Muhyiddin al-Nawawi, Riyad al-Salihin, 2nd ed., by Muhammad Nasir al-Din al-Albani, Beirut: Dar al- Maktab al-Islami, 1418/1998, hadith 1527. 140 / Journal of Afghan Legal Studies forgiveness (al-‘afwa). Past history and contemporary evidence show that Islam has not been witness to any more violence than one finds in other civilisations, particularly that of the West, as manifested in colonialism, World Wars I & II, occupation and conflict in Iraq, Afghanistan, Libya, Syria and elsewhere. Islam advocates values such as equality, love of the Creator, subjugation of passion, a dignified resistance to provocation (hilm), and accountability (muhasabah) for all one’s actions. These values are supported by innumerable verses in the Qur’an. All the Five Pillars and articles of the faith, such as submission to God in prayer, giving charity, fasting, the pilgrimage of the hajj − are humanitarian and peaceful. Islam is also a strong advocate of justice and benevolence (‘adl, ihsan), wisdom (hikmah), and is inherently moral. It is emphatic on social justice, abolition of all forms of racism and discrimination. Islam proposes several principles that support nonviolent resistance to provocations, such as patience (sabr), persuasive engagement and dialogue (hiwar), consultation (shura), withdrawal from situations of injustice. It also recommends emigration and exit (hijrah) from war and oppression, readiness to seize all opportunity for peace-making, as well as designating special prayers to end conflict and incitement to sedition. Patience and perseverance are important instruments of self-control. The Prophet Muhammad has said that “power resides not in being able to strike another, but in being able to keep the self under control when anger arises.” Patience (sabr) is most praiseworthy when it comes from those who are able to take revenge but who choose to exercise restraint. In the Qur’an God refers to Himself as al-Salam, or Peace, so that one could say, as a Muslim, that God is Peace and our yearning for peace is a manifestation of our yearning for God. The highest goal of Islam is to lead the soul to the ‘Abode of Peace” by guiding the faithful to lead a virtuous life and to establish inner peace and harmony. God says in the Qur’an, “He it is who made the divine peace (al-tama’ninah) to descend in the hearts of believers” (al-Fath, 48:4), and also that “God guides him who seeks His good pleasure unto the paths of peace.” (al- Ma’idah, 5:18). The phrase “peace be unto you” is the Muslim greeting taught by the Prophet as the greeting of the people of Paradise. “In Paradise there is no idle chatter but only the invocation of peace.”(Q Maryam, 19:62) Whether one speaks of sakinah, or the Hebrew word shekinah, or for that matter pacem or Countering Global Terrorism and its Manifestations in Afghanistan / 141 shanti (Latin and Hindi respectively), the reality emphasised by Islam remains that the source of peace is God Who is Himself Peace, hence peace becomes one of the highest goals and purposes of Islam and an integral part also of Islamic theology.17 Islam’s vision of the human life on earth is underlined by harmony and peace with other creatures and inhabitants of this planet. Peace (salam) in Islam is not merely an absence of war; it is elimination of the grounds of violence and conflict, of waste, oppression and corruption (fasad). Peace, not war nor violence, is God’s true purpose of human life and vicegerency (khilafah) in the earth. While Islam stands for peace, it must be added, that it does not subscribe to pacifism. War is permitted in self-defence, defence of one’s homeland, and repelling of manifest aggression. Absolute non-violence cannot be envisaged by a religion that combats injustice. Limited use of force is therefore permitted under certain conditions and rules that contain and control violence. While Islam upholds the centrality of justice, a Muslim’s duty is to strive for peace and justice together and to do so through peaceful means unless it becomes absolutely necessary to defend one’s rights and one’s homeland through the use of force.18 The balance of this article is devoted to a detailed enquiry into the Qur’anic concept of hirabah. 5. Hirabah (Banditry/Terrorism) Literally meaning to fight or wage war, hirabah in Islamic law denotes highway robbery (qat’ al-tariq) and terrorism or indeed any act involving the use or threat of force that terrorise and intimidate people from passing through the streets on their way to places of business, homes, shops etc. It also covers instances of gross corruption such as poisoning of drinking water, food and air as well as criminal damage to the peace, security and economy of the state. Hirabah is a capital offence by general consensus of Muslim jurists of all the leading schools of law, both Sunni and Shia.19 Hirabah is the nearest equivalent in Islamic criminal law to contemporary terrorism, notwithstanding some differences between them, as 17. Cf., Seyyed Hossein Nasr, The Heart of Islam: Enduring Values for Humanity, New York: HarperCollins Publishers, 2004, 218-222. 18. Ibid., 272. 19. Muhammad ‘Ata al-Sid Sidahmad, Islamic Criminal Law, the Hudud, Kuala Lumpur: A.S. Nordin, 1995, 62; see also Mohammad Shabbir, Outlines of Criminal Law and Justice in Islam, Kuala Lumpur: International Law Book Services, c. 2003, 173. 142 / Journal of Afghan Legal Studies explained below. It is difficult, however, to find a comprehensive definition for terrorism (and hirabah), as many years of fruitless attempts in the United Nations proved that it cannot be defined to everyone’s satisfaction. The one factor that underlines all terrorism is causing fear, terror, and insecurity in society through the indiscriminate use of violence, which could take many forms, often for political ends. This characterisation of terrorism is also true of hirabah, and covers both state terrorism, and non-state violence against a particular group or government. Sherman Jackson compares hirabah with ‘domestic terrorism’ in the United States and finds similarities between them. According to a definition attributed to the FBI, terrorism is “the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political goals.”20 Jackson adds that a principal ingredient of this definition is clearly its focus on the inducement or spread of fear, which is also how Muslim jurists have described the hirabah. Another aspect in common between hirabah and ‘domestic terrorism’ is a certain lack of personal relationship between the parties in the sense that the victim and killer may not even know one another. Further details on the definition and salient features of hirabah are provided under our fiqhi discourse on hirabah in a separate section below. We now turn to a review of the scriptural evidence on hirabah. 6. Hirabah in the Qur’an and Sunnah It is due to the extreme gravity of hirabah that the Qur’an calls its perpetrators, those who spread terror and insecurity among people, as ones who wage war on God and His Messenger. Hirabah in the Qur’an is envisaged as a composite crime that can subsume banditry, high way robbery, terrorism, theft, and murder. It is a prescribed/hudud crime consisting usually, but not necessarily, of collective or group activity committed by more than one person, but also that everyone acts on behalf of the group; if the crime is committed by one of the bandits, all of them are liable for the consequences. The principal Qur’anic verse on hirabah is as follows: The only punishment of those who wage war on God and His Messenger and strive with might and main for mischief-making through the land (fasad fi’l-ard) is execution or crucifixion, or mutilation of their hands and feet on alternate sides, or banishment from the land. Such will be their disgrace 20. Sherman A Jackson, “Domestic Terrorism in the Islamic Legal Tradition,” The Muslim World 91, nos. 3 & 4 (2001) 293-310, at 295. Countering Global Terrorism and its Manifestations in Afghanistan / 143
in this world, and in the Hereafter theirs’ will be a heavy punishment. Save those who repent before you overpower them. In that case, know that God is Forgiving, Most Merciful. (al-Ma’idah, 5:33-34) Qur’an commentators have identified the incident of ‘Uraniyyin (from the tribe of ‘Urainah) as the occasion of revelation of this verse: a group of people came to Madinah but found its climate unsuitable and they became unwell. They came to the Prophet and informed him of their condition. The Prophet advised them to go where the camels of charity were, drink their milk and urine rest. They did so and recovered well. But then they declared themselves apostates, killed the shepherd and drove off with the camels. Upon hearing this, the Prophet ordered some people to catch up with them. They were chased, caught and brought to the Prophet who ordered that their hands and feet be mutilated and were then thrown on stony ground until they died.21 A fuller discussion of the Qur’anic verse of hirabah and its wider implications for global terrorism will be presently attempted. At this juncture, we review the scholastic positions of the various schools of Islamic law on the definition and other characteristic features of hirabah. 7. A Fiqh Discourse on Hirabah In their attempt to define hirabah, Muslim scholars draw a distinction between hirabah and rebellion (baghy) and then underline the characteristic features of hirabah. They also reflect on the punishment of hirabah and the role of repentance and its consequences for its perpetrators. The Juristic discourse on hirabah is focused, however, on highlighting the main features of this offence rather than advancing a comprehensive theoretical framework for it. The fiqh discourse as such be regarded as a commentary on the principal Qur’anic verse on hirabah as earlier reviewed, and application also of the four-fold Qur’anic punishment for it. Hirabah resembles mutiny/rebellion (baghy) but differs with it in that mutiny opposes a legitimate authority or government on the basis of a plausible interpretation (ta’wil), while the perpetrator of hirabah does so without any such pretence.22 Hirabah also differs from theft in that theft means taking another’s
21. Abu al-Husayn Muslim bin al-Hajjaj al-Nishaburi, Sahih Muslim, Beirut: Dar al-Kutub al-‘ilmiyyah: Kitab al- Qasamah wa al-Muharibin wa al-Qisas wa al-Diyat. Bab hukm al-muharibin wa’l-murtaddin, hadith 1671, 2006, 659. 22. Wahbah al-Zuhaili, Al-Fiqh al-Islami wa Adillatuh, Beirut: Dar al-Fikr, 1417/1996, 6:128. 144 / Journal of Afghan Legal Studies property surreptitiously, whereas in hirabah property is taken openly by force. We review some of the fiqh definitions on hirabah but then in a later section raise a question whether a more relevant conception of it can be extracted from the Qur’an itself. The Hanafi jurist, al-Kasani (d. 587/1191) defined hirabah, or qat’ al-tariq, as “attacks upon pedestrians for the purpose of taking their property by force in such a way that people are rendered unable to pass freely through the streets. The attacker/s may be a group or a single person that possess overwhelming power to obstruct the public passage, and may be using weapons or weapon- substitutes such as sticks and stones.”23 The Maliki school defined the agent of hirabah as “anyone who brandishes weapons in order obstruct free passage in the streets and renders it unsafe to travel by killing people, taking their money, and spreading corruption in the land. The agent of hirabah/muharib may be a Muslim or a non-Muslim, freeman or slave, and it may in city or countryside, by an individual or group – [all this] simply because the Qur’an has not specified the perpetrator in any such ways.”24 The Shafi’i school identifies the agents of hirabah in similar terms but stresses that the perpetrator must be a competent person (mukallaf), Muslim, or a non- Muslim citizen/dhimmi or apostate who is bound by the injunctions of Islam and has overwhelming power to subjugate others, take their money and property, and it takes place away from a main city.25 The Shia Imamiyyah identifies the agent of hirabah as “anyone who brandishes weapons in order to terrorise passengers during night or day, on land or sea, even if the perpetrator is not a known criminal.”26 The crime is proven by a valid confession even if it is not repeated, or by the testimony of two just witnesses – which may include some of the suspects giving testimony against the others. This is a prescribed crime and carries a four-fold punishment as the Qur’an has specified but the head of state/Imam is entitled to select which.27 23. ‘Alauddin al-Kasani, Bada’i’ al-Sana’I’ fi Tartib al-Shara’i’, Beirut: Dar al-Kutub al-‘Ilmiyyah, 1997/1418, Vol. 7, 7. 24. Sayyid al-Sabiq, Fiqh al-Sunnah, 21st printing, Dar al-Fath li’l-A’lam al-‘Arabi, 1999, 2/298; Ibn ‘Abd al- Barr (d.1070/463), al-Kafi fi Fiqh al-Madinah al-Maliki, Beirut: Dar al-Kitab al-‘Ilmiyyah, 1418/1997/, 582-83. 25. Muhammad al-Shabini al-Khatib, Mughni al-Muhtaj ila-Ma’rifat Ma’ani al-Minhaj, Cairo: Mustafa al-Babi al-Halabi, 1352/1933, 4/180. 26. Muhaqqiq Hilli, Mokhtasar-e Nafi’, tr. From Arabic into Persian by Muhammad Taqi Daneshpazhoh, Tehran: Bongah-e Tarjoma wa Nashr-e Kitab, 1343/1964, 365. 27. Ibid. Other details over the enforcement of punishment, including crucifixion, and repentance etc, do not differ significantly from the Sunni expositions of the same. Countering Global Terrorism and its Manifestations in Afghanistan / 145
The Zahiri school defines the muharib/terrorist as one/s who insolently frightens the street passengers and spreads corruption through acts of terror in city or countryside, individually or collectively, exhibiting overwhelming power with or without the use of weapons.28 This definition seems to be broad enough to encapsulate many of the points of the other definitions. Based on the foregoing, Muslim jurists have held the material elements of hirabah to be the show of weapons by assailants ready to terrorise people and block their normal movements on public passages, killing, looting and taking of people’s property forcefully especially in areas outside the main cities. Hence if one or two persons commit raids on a large caravan, plunder its property and run, they would not be committing hirabah, but if they so act against a small caravan manned by a few persons, they would be considered guilty of hirabah. There is some disagreement on whether hirabah can also be committed in urban areas. For Imam Malik, within the city or outside, by one person or a group of persons, be it male or female, Muslim or non-Muslim makes no difference. This is because the Qur’anic verse on hirabah is conveyed in general terms without any specification or exception – hence it remains general and inclusive. The Maliki school also include under hirabah attacks on the honour of people, their women and families, with the show of superior force. Thus if armed attacker/s enter someone’s private dwelling to dishonor him and his family, be it within or outside the city area, commits hirabah. The Hanafi school maintains that hirabah takes place away from the main cities, as within the city areas the public and the authorities are likely come to the aid of the victim. Imam Shafi’i has held that an attack in the city can constitute hirabah if the government/Sultan is weak and lacks effective power, and the attacker is also capable of striking fear on the part of the victim/s. The Hanbali understanding of hirabah resembles that of the Shafi’is in that it may be committed in cities or outside cities and the perpetrator/s may be armed with any kind of weapon, or that which may resemble a weapon, provided it can create fear and terrorise. The Shia also regard possession of weapons of any discerption as a requirement of hirabah, and the offence may take place on land or sea, day or night, by one or more persons, provided that the perpetrator/s possess the capacity to terrorise their victim/s. The majority (jumhur) view on this is that committing hirabah in cities and urban centres is an aggravating factor that renders the crime even more dangerous.29
28. Ibn Hazam al-Zahiri, al-Muhalla, Beirut: Dar al-Afaq, Vol. 11, 306. 29. Al-Mawsu’ah al-Fiqhiyyah (Kuwait), “Hirabah,” Vol. 17, 157; ibn Qudamah, al-Mughni, Vol. 8, 287; Muntasir 146 / Journal of Afghan Legal Studies
It is essential that the assailants are superior in strength, they carry arms such that their victim/s cannot overpower them nor can they escape. Hirabah is also committed openly (bi’l-mujaharah) and it differs in this respect with theft, which consists of taking another’s property surreptitiously. Hence if a group of people act surreptitiously and commit theft, they would fail to fulfil the requirement of mujaharah. Aggravating circumstances consist of taking the property of the victim and/or killing them. As is clearly stipulated in the Qur’anic verse of hirabah, repentance by the terrorists before capture and arrest exonerates them from the capital punishment but does not necessarily from criminal responsibility for other crimes committed during the attack, such as homicide, injury and armed robbery, which combine both the public and private rights (Haqq Allah, and Haqq al-Adami). Hirabah is proven by the normal means of evidence, including confession and testimony by two impartial witnesses, even if the confession is made only once and not repeated.30 The Hanafis are in the minority to stipulate that the bandits must be men and that women are not given the prescribed punishment if they perpetrate the crime, as they argue that the show of power and ability to vanquish is only suited to men. If women join hands with men in banditry, according to Imam Abu Hanifah and his disciple al-Shaybani, they are not subject to the prescribed punishment. Abu Yusuf, the Imam’s other disciple, has held, however, that if women directly commit killing and plunder, they are liable to the capital punishment together with men. The Maliki, Shafi’i, Hanbali and Shia schools do not regard male gender as a prerequisite of hirabah in the first place. Thus if women commit banditry in groups that terrorise people and obstruct their free movement, they are liable to the prescribed punishment in the same way as men.31 Whether obstructing free movement of people in the streets, attacking pedestrians and taking their money, as many fiqh scholars have highlighted in their discussions of hirabah, play the same role in contemporary terrorism gives rise to questions, as we elaborate below.32 Furthermore, Imams Malik (d. 179/795) and Abu Hanifah’s (d. 150/767) stipulation that hirabah is only committed in
Saeed Hamudah, al-Irhab: Dirasah Fiqhiyyah fi’l-Tashri’ al-Jina’i al-Islami, Alexandria(Egypt): Dar al-Jami’ah al- Jadidah li’l-Nashr, 2008, 74; Mohaqqiq Hilli, Mokhtasar-e Nafi’, 365. 30. Al-Qurtubi, Bidayat al-Mujtahid, II, 340-41; al-Mawsu’ah al-Fiqhiyyah (Kuwait), “Hirabah,” 17, 153 & 158; ’Awdah, al-Tashri’ al-Jina’i al-Islami, II, 657; Mohaqqiq hilli, Mokhtasar-e Nafi’, 365. 31. Al-Kasani, Bada’i’ al-Sana’i’, Vol. 7, 91; al-Mawsu’ah al-Fiqhiyyah (Kuwait), Vol. 17, 156-57. 32. Ibn Qudamah (d. 620/1223) defined hirabah as “the act of openly holding people up in the desert with weapons in order to take their money.” (al-Mughni, Beirut: Dar al-Kutub al-‘Ilmiyyah, n.d., vol. 10:315). Countering Global Terrorism and its Manifestations in Afghanistan / 147 unpopulated areas would also seem to be tangential to contemporary terrorism.33 For instance, when a misguided Muslim youth under heavy indoctrination of IS or Taliban blows himself in order to kill and destroy the largest number - he is most likely to choose densely-populated areas and crowds as their principal targets in city areas. He is also not likely to be after taking money but to “gain direct passage to Paradise.” Nor are their nefarious acts of terror confined to unpopulated places: quite the opposite, one might say. Even the fiqh provision that hirabah is typically committed openly and defiantly of the authorities, and where the culprits exhibit overwhelming power to subjugate their victims may no longer be as relevant to contemporary terrorism either. For the latter is often committed through hit- and- run tactics wherein the terrorists usually do not declare themselves openly – especially in the case of suicide bombing. Thus it becomes manifest that many of the fiqh underpinnings of hirabah we have reviewed call for fresh examination and reconstruction in ways that could make the laws of hirabah more relevant to contemporary terrorism. What remains most relevant of the fiqh specifications of hirabah and its contemporary manifestations is perhaps the spreading of fear (ikhafah, irhab), and the victim/s’ helplessness (‘adam al-ghawth) against it. The helplessness aspect is described so as to mean that no effective security measures can be taken to prevent it (ta’adhdhur al-ihtiraz). These are often seen as the constituent elements, indeed the sine qua non of hirabah, as can also be said of contemporary terrorism. Muhammad Rashid Rida (d. 1935) confirmed this when he wrote that unlike the other prescribed hudud crimes in which the victim may be able to defend himself, in hirabah he is helpless as he is overwhelmed by a superior force. Similarly in other common crimes, the criminal can be subjugated by the authorities but that this is also not certain in the case of hirabah as it often involves challenging the authority of the government itself.34 8. Punishment of Hirabah For the prescribed punishment to be carried out, the perpetrator of hirabah must be adult and competent. There is disagreement, however, when a child or an insane person participates in the crime with the rest of the group. The majority (jumhur) have held that the prescribed punishment applies to them all, for the doubt attaches to one member of the group, and that should not come in the way
33. Al-Mughni, Vol. 10:303. 34. Muhammad Rashid Rida, Tafsir al-Manar, Vol. 6, 94. 148 / Journal of Afghan Legal Studies of enforcing the prescribed punishment, adding that the case here may be similar to a situation where a group of persons commit adultery with one woman; all of them are punished. The Hanafi school differs and regards the participation of a child in hirabah as an element of doubt (shubha) that suspends the prescribed punishment on all of them, although they may be still be punished under ta’zir. Abu Hanifah’s disciple Abu Yusuf, has held, and rightly so, that only the competent persons among the group who carried the actual crime of hirabah are liable to the prescribed punishment, and the child is not.35 The four-fold punishment that the Qur’an has prescribed for hirabah envisage death, crucifixion, cross-amputation of hand and foot, and banishment. There is disagreement, however, over the choice of these punishments and their combinations. While the majority of Sunni schools and the Shia Imamiyyah authorise the ruler to select one or more of these punishments in proportion to the severity of the crime, Imam Malik has held that if the assailants have killed their victim, the imam/judge has no choice but to order the capital punishment. The only choice he would have is whether or not to combine crucifixion with the capital punishment of death. If property of whatever value has been taken, the offender/s must be punished with cross-amputation, and if there has been a hold- up and looting, the offender must be sentenced to mutilation and or banishment. The other Sunni schools, and one view of the Shia Imamiyyah attributed to Shaykh Tusi, maintain that the Qur’an has provided a sequence and correlation between the crime and its punishment which the authorities should observe: the offender/s is not killed if he has not committed homicide, and not mutilated nor banished unless property is taken. Finally, if the assailant has both plundered and killed, his punishment is both death and crucifixion. A group of Muslim jurists including the Shia Imamiyyah have held, on the other hand, that the Imam has the discretion absolutely to select and determine the appropriate punishment or combination thereof regardless of whether or not homicide, hold-up and/or robbery are committed. There is also disagreement on whether crucifixion should be before or after execution, on the analysis that crucifixion can be regarded a punishment, as per Imams Abu Hanifah, Malik and the Shia Imamiyyah, only when the criminal is still alive, not after he has died. Imams Shafi’i and Ibn Hanbal have held that the Qur’anic text mentions killing first, then crucifixion, and that should be the order. This is perhaps a preferable view on the assumption that crucifixion is for public display and not necessarily to make the execution more painful. It 35. Mawsu’ah Fiqhiyyah (Kuwait) “Hirabah,” Vol. 17, 156. Countering Global Terrorism and its Manifestations in Afghanistan / 149 is generally held, and this is also the Shi’i position, that crucifixion is for three days only. There is general consensus that if the offender/s has neither killed nor looted, he should be imprisoned for such a period as the court deems necessary. The Hanafis and some other jurists have, furthermore, equated banishment with imprisonment on the analysis that banishment to another place will place the safety of those other people at risk, and that the purpose of banishment is best served by imprisonment.36 If the bandits have taken property, the property in question must qualify the attributes of stolen goods, namely that it has market value, reaches the minimum quorum, and that it is also guarded property in which the owner has no share or ownership claim, although it may, unlike theft, have been taken openly even with the knowledge of its owner.37 A question has arisen as to whether the prescribed punishment of hirabah combines with liability for financial compensation and bodily injuries even after the bandits have been punished. Muslim jurists have differed in their responses. The basic principle that comes into the picture here, according to the Hanafis at least, is that prescribed punishment does not combine with liability for loss. But in their responses, most Sunni and Shia jurists have tended to separate the prescribed punishment of hirabah from these additional combinations. The majority across the board is of the view that if the bandits have plundered property, they are liable to return it, if it still exists, or compensate for it if it does not. Most jurists have held that only those who have actually taken the property are individually liable for compensation, as liability for compensation is not a part of the prescribed penalty per se and does not therefore affect one who is not directly involved. The Malikis have held, on the other hand, that each of the bandits acts on behalf of the group and they are all liable for compensation. As for bodily injuries, if the injured person has recovered, there is no retaliation (qisas), otherwise he or she may either retaliate, if that is possible, or grant forgiveness in exchange for financial compensation. However, if the injury has worsened and leads to death, then retaliation becomes due. The Zahiri school has held, on the other hand, that the crime of hirabah is committed when there is bodily injury, even if no killing or plunder is involved and the bandits are therefore liable to execution.38 The majority of Sunni schools and the Shia Imamiyyah maintain that killing by
36. Al-Qurtubi, Bidayah, II, 341; Awdah, al-Tashri’, II, 658-59. 37. ‘Awdah, al-Tashri’, Vol. 2, 645; Mohaqqiq Hilli, Mokhtasar-e Nafi’, 365. Hilli further mentions that normal burial ceremony should be accorded to the deceased person after three days of crucifixion. 38. Al-Kasani, Bada’I’, Vol. 7, 95; Mawsu’ah Fiqhiyyah, Vol. 17, 162; ‘Awdah, al-Tashri’ al-Jina’i, Vol.2, 658-59. 150 / Journal of Afghan Legal Studies the bandits need no proof of intention and that the act of killing itself makes them liable to the prescribed punishment. It makes no difference whether the homicide so committed is intentional, quasi-intentional, or erroneous. It is also immaterial as to what kind of weapons have the bandits used to commit the crime. The Shafi’i school maintains, however, that proof of intention to kill is required for imposition of the prescribed punishment, but that the terroristic features of the crime of hirabah need no proof of intention as that is known by the show of force and striking of fear among people.39 Fresh reflection on the conditions and component elements of hirabah that Muslim jurists have stipulated in their deliberations suggests that these are instructive, yet some changes are required if one were to legislate on terrorism today. The view that allows the ruling authorities to determine the attributes or component elements of the crime merits attention as it not only bears harmony with the Qur’anic dispensations on the subject, but can also accommodate the change of conditions in our time. As already mentioned, terrorists nowadays often use remote control devices connected to explosives that may or may not involve actual presence of the perpetrator/s in the crime scene. The terrorist/s may also use a minor person, as they often do, as suicide bombers. Certain other aspects of hirabah may also call for further reflection and review – as already discussed. The Qur’an determines the crime of hirabah by its principal consequences: terror, killing, injury and plunder, without specifying any details. It also lays down the essential elements of the crime, which is perhaps sufficient for the ruler and legislative authorities today to determine the component elements of hirabah/ terrorism in the light of prevailing conditions. 9. Repentance in Hirabah As for the attributes of repentance that suspends the capital punishment and its consequences, Muslim jurists have held different views. Repentance in this offence means expression of regret and remorse for committing the offence and determination not to commit it in the future. The Qur’an allows repentance only if it precedes actual subjugation of the offender by the authorities and not afterwards. It is suggested that even if the assailants surrender, they must still show that they have actually mended their ways, disarmed and abandoned what they were doing, and only then can the prescribed punishment be suspended. Fiqh scholars have also differed as to the consequence of repentance: does it suspend both God’s 39. Ibn Qudamah, al-Mughni, Vol. 10, 309; ‘Awdah, al-Tashri’ al-Jina’i, II, 657. Countering Global Terrorism and its Manifestations in Afghanistan / 151
Rights and the Right of Humans, and if so, which takes precedence. In response it is stated, in the Maliki opinion, that repentance before arrest only suspends the capital punishment of hirabah and nothing else. All other claims in both categories remain unaffected. This means that the authorities may impose alternative punishments, and the crime victim/s also remain entitled to claim their rights in whatever way they may have been affected, unless they grant forgiveness. The Shafi’i school maintains that the Right of Man takes priority: if homicide or bodily injury has been committed during a hold-up, it must be tried first according to the relevant rules. This view has the support of other schools too in that the assailant is not exonerated for homicide and bodily injury due to repentance or surrender. If, however, the victims’ relative/s grant forgiveness or accept blood-money, and the authorities also grant pardon, action may be suspended against the terrorists. An alternative view has it that repentance suspends both of the said categories of rights except for any property that may still exist, which must be returned. It would appear that the Imam and/or judicial authorities have residual jurisdiction in regard to determining the precise consequences of a genuine repentance and surrender.40 10. Terrorism Then and Now: A Survey of Contemporary Opinion and Research Murad Hofmann surveys salient instances of terrorism in recent centuries and concludes that terrorism has largely remained inconclusive and failed to achieve its desired purposes. Terrorism is not a new phenomenon, of course, as it has occurred in all periods of history by individuals and groups. Instances of targeted killing are also known in Muslim history as during the Middle ages when Ismaili “Assassins” based in al-Alamut assassinated Muslim VIPs like Nizam al- Mulk. The 19th century saw acts of terrorism practiced, for example, by Russian anarchists, and 20th century saw large scale Bolshevik State terror, or terrorism exercised by nationalist movements like the IRA, the Zionist Stern Gang, and Armenian Nationalists. They all considered terrorism as a cost-efficient and effective form of warfare for the poor, putting public pressure on governments to change their policies. In most cases, their terrorism was, however, counter- productive. “Virtually nowhere has terrorism produced the desired result. Rather in most cases, it has stiffened resistance and caused untold suffering to friends
40. Al-Qurtubi, Bidayat al-Mujtahid, II, 342-3; Peters, Crime and Punishment in Islamic Law, 59. See also ‘Awdah, al-Tashri’ al-Jina’i, II, 658-661. 152 / Journal of Afghan Legal Studies and foes alike.”41 In a book chapter entitled “The Revolt of Islam 1700 to 1993,” Nikkie Kiddie, an American Professor of Middle Eastern history, explains the rise of militancy among Muslims. She notes that with the curious exception of Wahhabism, militant jihad movement in the modern era began and grew mostly as a response to Western colonialism. The earliest ones in the eighteenth century in Sumatera and West Africa emerged in the face of “disruptive economic change influenced by the West.” In the nineteenth century, broader waves of jihad movements cropped up in Algeria, Sudan, the Caucasus, and Libya as “a direct response to French, British, Russian and Italian colonial conquest.”42 At a press interview bearing the title “There is nothing in Islam that is more violent than Christianity,” Karen Armstrong replied to questions put to her by Lisette Thooft about Islam and terrorism.43 Replying to a question as to the cause of Muslim terrorism, Armstrong mentioned “A more violent way” the West has taken toward Muslims. The West imposed their own concepts of modernity, democracy and secularism on the Muslim world through colonial subjugation. “There was no self-determination. In Egypt there were 17 general elections between 1922 and 1952 – all won by the Wafd Party, which was only allowed by the British to rule. Democracy was a bad joke.” Secularism was introduced by these army officers with great violence. The Muslim clergy had their stipends confiscated, they were shot down, and were tortured to death. The Shah shot a hundred unarmed demonstrators in a holy shrine because they didn’t want to wear western clothes. And we in the West have consistently supported rulers like Saddam Hussein who denied their people any freedom of expression. All this has helped to push Muslims into violence. “When people are attacked, they invariably become extreme.” But only a tiny proportion of them actually agree with terrorism: 93% answered ‘no’ to the question in the Gallup poll whether the 9/11 attacks were justified. And the reasons they gave were entirely religious. The seven percent who said ‘yes’ – the reasons they gave were entirely political. In response to another question whether the terrorists are traumatised, Armstrong
41. Murad Wilfred Hofmann, “Fanaticism, Extremism and Terrorism and Islam’s Position Towards these Phenomena,” conference paper presented at the International Conference in Amman on “True Islam and its role in Modern Society,” organised by the Aal al-Bayt Institute for Islamic Thought, 4-6 July 2005, 2. 42. Nikkie R. Kiddie, “The Revolt of Islam from 1700 to 1993,” in ed. Bryan S. Turner, Islam: Critical concepts in Sociology, Oxford: Routledge, 2003, vol. 2, 89. 43. https://www.nieuwwij.nl/english/karen-armstrong-nothing-islam-violent-christianity/ (Accessed on 18 March 2015) Countering Global Terrorism and its Manifestations in Afghanistan / 153 said that “some of them are, and some of them are plain wicked. Osama bin Laden was a plain criminal. But there is also great fear and despair among them. There have been surveys done by forensic psychiaters who interviewed people convicted of terrorism since 9/11. They interviewed hundreds of people in Guantanamo and other prisons. And one forensic psychiater, who is also an officer of the CIA, concluded that Islam had nothing to do with it. The problem was rather ignorance of Islam. Had they had a proper Muslim education they wouldn’t be doing this. Only 20% of them has had a regular Muslim upbringing. The rest are either new converts – like the gunmen who attacked the Canadian Parliament; or non-observant, which means they don’t go to the mosque – like the bombers in the Boston marathon. Similarly, the two young men, both 22, who before leaving Britain to join the jihad in Syria, ordered from Amazon copies of Islam for Dummies, and The Koran for Dummies. Furthermore, tedium is something that we have to take in our societies very seriously. Misery and a sense of no hope. Misery, oppression and injustice - great injustice and we are still unjust. Look at the Founding Fathers of the United States, who said that all men are created equal: they had no problem owning African slaves. “Liberty was only for Europeans. And it still is like that, because of the greed for oil. We give huge support to the Saudis, who give their people no human rights.” American political scientist Steven Fish in his book entitled Are Muslims Distinctive? finds no evidence in countries with a larger share of Muslims experience disproportionate acts of mass political violence. He notes, in fact, as Saleena Saleem reviews him, that when it comes to violent crimes such as murder, Muslim majority countries have consistently low rates compared with Christian majority countries. Such facts get lost when the focus is on the Muslim extremists who commit the majority of violent political and terrorist acts on a global scale today. As for the role of religion, it is further noted that violent upheavals in the Middle East are driven by regional political interests rather than religion.44 Regarding the young jihadists, Zakaria observed that most of young jihadists in Europe have no background in political activism (say, Palestine), fundamentalist Islam or social conservatism. Quoting the French scholar of Islam, Oliver Roy, in support, it is stated that radicalisation in France arises around the fantasy of heroism, violence and death, not of shahadah and utopia. Abdelhamid Abaaoud, the ringleader of the Paris attacks, regularly used drugs and drank alcohol, as
44. Saleena Saleem “It’s More politics than religion,” Kuala Lumpur: New Straits Times, March 24, 2016, 17. 154 / Journal of Afghan Legal Studies did many of his comrades-in-arms. Today the decision to join Daesh is usually sudden and impulsive. Daesh is the ultimate gang, celebrating violence for its own sake. These young men – and some women – are usually second-generation Europeans. They are often revolting against their more traditional, devout immigrant parents.45 These people are unsure of their identity, rooted in neither the old country or the new. They face discrimination and exclusion. And in this context they choose a life of rebellion, crime, and then the ultimate adventure, jihad. These circumstances also explain why Belgian Muslims make up a disproportionate share of Daesh volunteers. Fifteen percent of native-born Belgians live below the poverty line, compared with the staggering half of the Belgians with a Moroccan background. In addition, Belgium has a particularly poor record of assimilation, because it has its own crisis of identity, torn between two cultures, Flemish and Walloon. All of this tend to paint a picture of a new kind of terrorist, one who is less drawn into terrorism through religion but has chosen the path of terror as the ultimate act of rebellion, and radical Islam holds an appeal that is easily available through the Internet and social media. As for western law enforcement activities, it is further suggested that bugging mosques, patrolling Muslim community centres and the like might be focusing attention in the wrong direction. Those terrorists might instead be in the bars, drug alleys, unemployment lines and prisons getting radicalised before they get Islamised.46 Terrorism is evidently not a monolithic category and has developed in new directions. Looking at the regional and geographical manifestations of terrorism, Azhari Karim explains: Whereas al-Qaeda and the IS group are seen to be accountable for much of the terrorist attacks in Europe (Paris, Nice and Brussels) and the united states (san Bernadino and Orlando), the majority of incidents seem to have been by individuals who acted alone.47 However, in the crescent states of the Middle East stretching from Libya, Tunisia, Egypt, Sudan, Somalia and on to Afghanistan, Pakistan, Yemen, Iraq , Turkey, Syria and Saudi Arabia, groups such as al-Qaeda, Taliban, Houthis, and al-Nusrah have fought wars with the local authorities and supported in part by the IS as a means of settling old “scores” with corrupt government officials and states that are seen as overly dependent on the
45. Fareed Zakaria, “Radicals before they were religious,” Kuala Lumpur: New Straits Times, April 2, 2016, 17. 46. Zakaria, ibid. 47. Azhari Karim, “Dealing with different types of ‘terrorists’,” Kuala Lumpur: New Straits Times, July 19, 2016, 15. Countering Global Terrorism and its Manifestations in Afghanistan / 155
West for their survival. Elsewhere there are different clones of such radicalised and irredentist movements in the Ukraine (pro-Russians), China (Uighurs) and Nigeria (Boko Haram) and also in parts of South America in Columbia, Peru and Brazil. Their aims have centred on the need for change and transformation of the economy with development and social progress topping the agenda. Things are not the same in the Israeli occupied Palestine and in the countries of South and Southeast Asia. Some have resorted to violence to draw attention to their local “nationalists” problems. Others, mainly in Southern Thailand (Patani United Liberation Organisation) and the Philippines (Abu Sayyaf) struggles are mainly motivated by autonomy and self-rule. Only in the triangle of countries such as Malaysia, the Philippines and Indonesia, do we note IS or al-Qaeda-type groups whose sole purpose is to bring in a new “Islamic Order” or the “New Caliphate.” Groups, such as the Jemaah Islamiyyah, al-Mauunah and Abu Sayyaf have not only resorted to kidnapping and ransom-taking but also to inflicting gross violence in their acts and reprisals against local governments and populations.48 Radicalisation by external forces has been identified as a principal means of recruitment of the region’s youth and Islamic faithful. These could come from “returnees” from the battlefronts in Iraq and Syria or from various IS-based social media postings. Another new development and source may have been the 2016 United States presidential election campaign, especially that of the Republican nominee and now President Donald Trump that made immigration especially of Muslims from the Middle East as a campaign topic assertive of a policy to disallow Muslims completely from entering the US, or to set in place extensive screening methods by the then Democratic presidential nominee, Hillary Clinton. These are likely to provide the terrorist groups with additional armoury to intensify their nefarious methods to win over new impressionable Muslim youth and others to their side. One latest addition to an already confused scenario is the still continuing waves of mass migration of Muslims to Germany, UK, and other European destinations in 2015 and 2016. As large numbers of the young migrants from war-torn Syria, Iraq and Afghanistan entered Europe, instances of crime and terrorist attacks, such as the July 14, 2016 Nice truck attack in France that killed 86 people and some lesser incidents in Germany and Belgium alarmed the host countries of the worse possibilities. Peter Apps thus commented that “it became increasingly
48. Ibid. 156 / Journal of Afghan Legal Studies less relevant whether an attack – such as the gun attack in Munich which killed nine, or the stabbing of an orthodox Jew in France, or a machete attack on a bus in Brussels is directly related to a militant group like IS or not “provided a migrant or someone of migrant descent is involved, it all falls into the same divisive narrative.”49 In many ways, what happened on the beach at Nice is exactly what groups like IS want: to deepen divisions within society. Dealing with terrorists also pose legal challenges. Practices differ in different countries. In France, one cannot detain a terrorist suspect unless one is caught in the act or has strong evidence. In the US a suspect can be detained on the basis of evidence received from other countries. The Problem revolves around security and human rights issues. Admittedly, countries can devise their own approaches, and many countries have, in fact, proposed or passed new anti-terrorism laws according to their own needs. 11. Suicide and Suicide Bombing Contemporary suicide bombing that does not distinguish between political, military and civilian targets has no precedent in Islamic law and history. Suicide bombing has become a highly disturbing aspect of contemporary terrorism such that a decisive ruling and consensus on it would be necessary to curb it. Suicide (intihar) does occur in Islamic law, but not in the way twenty first century Muslims are experiencing. Suicide falls under the Qur’anic provision of ‘killing without just cause’ (illa bi’l-haqq – al-Isra’, 17:33) simply because a person does not have the right to take his own life. Under conventional fiqh, suicide is not subsumed by hirabah or terrorism – rather it is part of the general discussion of the right of life. That is the main context but here it is treated next to hirabah as it has clearly become an aspect of contemporary terrorism. Since life is a God-given gift, it may not be subjected to destruction and abuse even by oneself. This is why the shariah forbids suicide without any exception. It is a sin, for which the perpetrator is liable, in the event of an unsuccessful attempt, to a deterrent penalty of ta’zir. If the attempt succeeds, the person is still liable to an expiation (kaffarah) which may be taken from his property, according to the Shafi’is and some Hanbali jurists, whereas the Imams Abu Hanifah and Malik do not make expiation a requirement.50 The Qur’anic authority on this is: “Kill 49. Peter Apps, “Is Europe overreacting to terror?” Kuala Lumpur: New Straits Times, September 3, 2016, 15. 50. Mahmud Shaltut, al-Islam ÑAqidah wa Shariah, 328; ÑAwdah, al-TashriÑ al-Jina’i, I, 446; Zuhayli, Huquq Countering Global Terrorism and its Manifestations in Afghanistan / 157 yourselves not, for God is truly Merciful unto you.” (al-Nisa’, 4:29). Life is a trust (amanah) in the hands of its bearer, who is expected to safeguard and cherish it with responsibility and care. People who are driven to despair are advised to have faith in God’s mercy as in the following verse: Say: O my servants who have transgressed their souls! despair not from God’s [unbounded]mercy. For God forgives all sins. (Q al-Zumar, 39:53). The prohibition of suicide by the clear text also means that anyone who facilitates or collaborates in the act of suicide is also liable to a deterrent punishment.51 Qur’an commentators and jurists have drawn the following conclusions from this verse (4:29): • The obvious meaning is that suicide is forbidden. It is haram for a person to kill himself. This is the obvious meaning of the text. • It also means that ‘you may not kill one another.’ This is the interpretation of Ibn ‘Abbas, Sa’id ibn Jubair, ‘Ikrimah, Qatadah and others. • No one may do something/not take an assignment that may cause his death - even if it be in pursuit of a religious duty. No one should deprive himself of the essentials of life that may lead to his death. • One may not indulge in self-destructive crimes and consumption of lethal substances.52 According to a hadith report, a person who was engaged in a battle killed himself with a broad-headed arrow. When the Prophet was informed of it, he is reported to have said: “As for me, I will not pray over him.”53 In another hadith, the Prophet has condemned suicide as follows: The one who throws himself off a mountain cliff and kills himself will be doing the same to himself perpetually in Hell. The one who takes poison and kills himself shall be holding the same in his hand and permanently taking it in Hell, and the one who kills himself with a weapon will be piercing his body with it perpetually in Hell.54 A similar hadith proclaims that the “one who kills himself with something in this al-Insan, 144. 51. ‘Awdah, al-TashriÑ al-Jina’i, I, 447 52. Cf., Al-ÑIbadi, Min al-Adab Wa’l-Akhlaq, 164-5. 53.http://www.islamicsupremecouncil.org/understanding-islam/legal-rulings/21-jihad-classical-islamic- perspective.html?start=15 (Accessed on 21 May 2017). 54. al-Tabrizi, Mishkat al-Masabih, vol II, hadith no. 3453. 158 / Journal of Afghan Legal Studies life will also be tortured by it in the fire of Hell.”55 Al-Bukhari has also recorded a long hadith to the effect that the Prophet looked at a man, engaged in a battle against the pagans, and he was by all accounts one of the most capable of Muslim warriors. But the Prophet presciently said concerning him: He is from the people of the Hell. A man amongst the people said: “I will accompany him.” So he went along with him, and whenever he stopped, he stopped with him, and whenever he hastened, he hastened with him. The (brave) man then got wounded severely, and seeking to die at once, he planted his sword into the ground and put its point against his chest in between his breasts, and then threw himself on it and committed suicide.56 Fiqh manuals are silent on the issue of suicide bombing, as it has a short history and drew public attention only when Israel unleashed a new wave of aggression on street processions of the Palestinian youth (2000-2001). The upsurge ever since in suicide bombing by those claiming to be Islamic warriors has brought mixed responses from Muslim scholars. Most have not hesitated (see more below) to condemn this and also the September 11, 2001 attacks as being contrary to Islamic principles.57 It is simplistic to lump together the Palestinian suicide bombings with al- Qaeda and IS terrorist activities, as few would deny the genuine suffering of the Palestinian people nor the legitimacy of their demand for a homeland and state. It is also simplistic to equate suicide bombing with martyrdom as many have claimed. This is because suicide bombing challenges two fundamental principles of Islam: the prohibition against suicide and the deliberate killing of non-combatants. The Muslim warrior enters a battle, not with the intention of dying, but with the conviction that if he should die, it would be for reasons beyond his control. Martyrdom does not begin with a suicidal intention, let alone the linkage of that intention with the killing of non-combatants, women and children. Suicide bombers intentionally set out to kill themselves and their victims, thus violating the norms of Islamic law and ethics. Those who have raised the issue of ‘collateral damage’ in this context are mistaken,
55. Bukhari, Sahih al-Bukhari, Kitab al-adab, bab ma yunha Ñanhu min al-sibab, hadith no. 6105. 56. https://sunnah.com/bukhari/64/242 57. See for details on suicide bombing, Mohammad Hashim Kamali, The Right to Life, Security, Privacy and Ownership in Islam, Cambridge: Islamic Texts Society, 2008, 29-35. Countering Global Terrorism and its Manifestations in Afghanistan / 159 because non-combatants are chosen as the direct target of suicide bombing. They are neither collateral nor incidental. Even if the cause of fighting the Israeli aggression is a valid one, that still does not justify killing non-combatants. What drives the bombers – often impressionable teenagers – on their suicidal missions are promises of a martyr’s reward by the so-called religious scholars, who fuel the frustration and volatility of tender emotions with their misguided instructions. Suicide bombing is a wider phenomenon, not always related to religion. Robert Pape, a political scientist, who studied suicide terrorism from 1980 to 2001, points out, “religion is not the force behind suicide terrorism.” He says “the data shows that there is little connection between suicide terrorism and Islamic fundamentalism, or any religion for that matter,” adding that the group responsible for the highest percentage (40 per cent) of all suicide attacks has been the Tamil Tigers in Sri Lanka, who are adamantly opposed to religion. Rather he suggests, nearly all suicide terrorist campaigns are “coherent political or military campaigns” whose common objectives are strategic, either to compel military forces to withdraw from their homeland, or bring down a regime they are opposed to – as in the case of Taliban suicidal missions in Afghanistan. Suicide bombing in the name of Islam is thus for the most part a “socio-political phenomenon, not a theological one.”58 This is also indicated in the responses many leading Muslims have given to global terrorism as discussed below. 12. Muslim Responses to Global Terrorism The upsurge in suicide bombing by those claiming to be Islamic warriors has brought mixed responses from Muslim scholars. Most scholars of standing have not hesitated to condemn this and also the September 11, 2001 attacks as being contrary to Islamic principles. The Jeddah-based Islamic Fiqh Academy affiliated to the Organisation of Islamic Conference (OIC – now Cooperation) in its sixteenth session (5-10 January 2002) condemned all forms of terrorism as follows: Terrorism is an outrageous attack carried out either by individuals, groups, or states against the human beings. It includes all forms of intimidation, harm, threats, killing without a just cause, all forms of armed robbery, banditry, every act of violence or threat intended to fulfil a criminal scheme individually or collectively, terrify and horrify people buy hurting them or by 58. Robert A Pape, New York Times, 22 September 2003 as quoted in Imam Feisal Abdul Rauf, What is Right with Islam is What is Right With America, New York: Harper Collins Publishers, 2005, 146. 160 / Journal of Afghan Legal Studies
exposing their lives, liberty and security to danger. It can also take the form of inflicting damage on the environment, a public or private utility – all of which are resolutely forbidden in Islam.59 In November 2003, the Arab states condemned the suicide car bombing in Riyadh that killed 17 and wounded more than a hundred, mainly Arabs. The 22-member Arab League denounced the attack as ‘terrorist and criminal,’ while Saudi Arabia and its five neighbours in the Gulf Cooperation Council condemned it as ‘cowardly and terrorist.’ The then Arab League secretary-general, Amar Musa, also said such acts “only aim to destabilise…terrify and kill” innocent people.60 Muslim religious and political notables have expressed unqualified condemnation of the IS and Charlie Hebdo atrocities. Muslim international organisations and fatwa councils, including the Majlis Ulama Indonesia, the National Fatwa Council of Malaysia, and the Mufti of Saudi Arabia, denounced the brutality and violence of the IS group as violative of the core principles of Islam. Abusive interpretations of jihad notwithstanding, jihad is also an instrument of peaceful self-education and improvement. The pathways to peace in Islam are also enriched by its teachings on human fraternity, compassion, honouring one’s neighbour, avoidance of harm to others, and the rich tradition of Sufism. Islam also advocates peace through non-violence, universalism and a generally positive view of the human nature and potential. Mahmud Shaltut, the Shaykh of al-Azhar University from 1958 to 1963, lends support to the argument that the Qur’an only allows warfare to be waged in self- defence, and he quotes verses from the Qur’an, including al-Anfal (8:61) and Mumtahanah (60:8-9), which together with al-Baqarah (2:190) and al-Hajj (22:39-40) uphold that principle.61 Another Shaykh of al-Azhar, Muhammad Sayyid Tantawi, issued a fatwa in 2001 to condemn the hostage-taking in the Philippines: “Islam rejects all forms violence. These acts of violence have nothing to do with Islam.”62 He also
59. See for details, eds., Ghazi bin Muhammad, Ibrahim Kalin and Mohammad Hashim Kamali, War and Peace in Islam: The Uses and Abuses of Jihad, Cambridge: The Islamic Texts Society, 2013, Introduction by Kamali at xv. 60. www.utusan.com.my/utusan/content.asp?y=2003&dt=1111&pub=utusan_Express. 61. Shaykh Mahmud Shaltut, “Warfare in the Qur’an,” tr. Joel Howard, in ed. Ghazi et al., War and Peace in Islam, (note 18 above), 43. 62. Shaykh Muhammad Sayyid Tantawi as quoted by Anicee Van Engeland Nourai: The Challenge of fragmentation of International humanitarian law,” in ed. M. Cheriff Bassiouni, Jihad and Its Challenges, The Hague: Hague Academic Press, 2010, 147. Countering Global Terrorism and its Manifestations in Afghanistan / 161 condemned the terrorist act of September 11, 2001, in America.63 The Chief Mufti of Saudi Arabia, Abdulaziz bin Abdullah al-Shaykh, also declared in 2004: You must know Islam’s firm position against all these terrible crimes. The world must know that Islam is a religion of peace, justice and guidance... Islam forbids the highjacking of airplanes, ships and other means of transport, and it forbids all acts that undermine the security of the innocent.64 The Washington-based Fiqh Council of North America issued the following fatwa and press release on July 29, 2005: Islam strictly condemns religious extremism and the use of violence against innocent lives. There is no justification in Islam for extremism or terrorism. Targeting civilians’ life and property through suicide bombings or any other method of attack is haram – forbidden – and those who commit these barbaric acts are criminals, not ‘martyrs.’... we clearly and strongly state: 1) All acts of terrorism targeting civilians are haram. 2) It is haram for a Muslim to cooperate with any individual or group that is involved in any act of terrorism or violence. 3) It is the civic and religious duty of Muslims to cooperate with law enforcement authorities to protect the lives of all civilians.65 Judging by the scale of violence in war-torn Afghanistan, Iraq, Syria, Palestine, and elsewhere, Muslims are themselves the principal victims of violence: defenceless Muslim civilians, women and children for the most part. Unless the root causes of radical extremism are addressed, many have warned that extremism and violence are likely on the rise. Once a radical group falls by the wayside, discredited or made irrelevant, another, often more radical and violent emerges. This is what IS is to al-Qaeda by upping the stake in the radicalisation contest and becoming even more destructive and violent than its predecessor.66 Unless the legitimate claims of those who suffer from oppression and injustice are heard, angry and disillusioned men and women, , Sunni, Shia, Kurds and others feel that the path of violence is the only one left for them to take.67
63. As quoted in Nasr, The Heart of Islam, 263. 64. Quoted in Anicee Nourai, “The Challenge of fragmentation,” 148. 65.http://www.icna.org/u-s-muslim-religious-council-issues-fatwa-against-terrorism/ (Accessed on 4 December 2017) See also “US Muslim Scholars to Forbid Terrorism” http://www.washingtonpost.com/wp-dyn/content/ article/2005/07/27/AR2005072702082.html 66. Cf., Farish Noor, “Radicalism’s pool of support,” Kuala Lumpur: New Straits Times, August 25, 2014, 12. 67. Amnesty International, Escape from Hell: Torture and Sexual Slavery in Islamic State Captivity in Iraq, United Kingdom: Amnesty International Ltd., 2014. 162 / Journal of Afghan Legal Studies
Mark Winer wrote in an article “Fundamentalists versus Moderates” that the future of humanity may well depend on the ability of moderates within each religion to overcome their extremist co-religionists. It would appear, he added, that extremism spawns interfaith bigotry and sanctions violence, war and terrorism. A great deal therefore depends upon our understanding of the eternal conflict between extremism and moderation, and upon the strategies the religious moderates devise together to combat their common scourge.68 It is indicative of the wisdom of the early pioneers of Islam who called the Kharijites (Khawarij, lit. outsiders) by this name, and made it known from early on that this group has exited itself from the mainstream community of Muslims. They have the choice to change their behaviour and rejoin the community or else to stay as outsiders. The same can be said of ghulat (lit. exaggerators), the name so unmistakeably expressive of its purpose, that was given to a small group of Shia who exaggerated in their interpretations of the doctrine of Imamate so as to elevate the first Shi’i Imam, ‘Ali ibn Abu Talib, to a deity. One can hardly think that anyone could soil Islam’s name so badly as the likes of IS, Boko Haram and al-Shabab militants. If there be enough realisation of this among the extremists, when they are convinced that they are doing more harm than good to the cause of their religion, “as Islamic leaders all over the world are already pointing out, their numbers will eventually diminish.”69 13. Revisiting the Qur’an on Hirabah The Qur’anic phrase “waging war on God and His Messenger” put the Muslim jurists in a certain quandary as to its precise import and meaning. For it is a generic expression evidently not meant for its literal meaning, but since it is immediately followed by “making mischief in the land – fasad fi’l-ard,” the two phrases were read together in order to provide a clearer understanding of the verse. Yet this latter phrase too is less than specific, for ‘fasad fil-ard’ can also include a variety of criminal activities and transgressions. It is even suggested that the latter phrase is wider than the former in that spreading ‘corruption in the earth’ can include criminal activities that may not even qualify as hirabah or ‘waging war,’ as such. Hence the relationship between the two phrases is seen as one of the specific (khass) to the general (‘aam). Hirabah is thus seen as only
68. Mark L. Winer, “Fundamentalists vs. Moderates: the War within Judaism,” Arches Quarterly vol. 5 no. 9, London: The Cordoba Foundation, (Spring 2012), 117. 69. Scott Thompson, “Liberty’s 9/11,” Kuala Lumpur, New Straits Times, January 14, 2015, 17. Countering Global Terrorism and its Manifestations in Afghanistan / 163 one of the many manifestations of ‘fasad fi’l-ard.’ Al-Shawkani (d. 1250/1835) wrote that the manifest meaning of ‘fasad fi’l-ard’ is broad enough to subsume not only highway robbery but also propagation of false deities (shirk), destruction of people’s lives, looting their properties and attacking their dignity, as well as destruction of trees, waterways and livestock, aggressive dictatorship that humiliate people and so forth.70 Some commentators also included under hirabah recidivist thieves and robbers, notorious rapists and homosexuals whose evil and mischief-making cannot be stopped by other than execution. But it seems that most understood the verse under review to be referring to bandits and those who stage armed rebellion and threaten normal peace and order in society. Ibn Hazm al-Zahiri (d. 456/1064) observed that since many other crimes such as adultery and theft were specifically mentioned in the Qur’an and the text had also assigned quantified penalties for them, what was left unspecified was the crime of banditry (qat’ al-tariq), and the verse of hirabah was thus understood to have contemplated it. Yet to read that particular crime into the meaning of hirabah and ‘spreading of corruption in the earth’ was evidently by way of interpretation that seems to have found common acceptance. In sum, unlike the other prescribed/ hudud crimes which are mentioned specifically by name, hirabah/banditry is arrived at thorough juristic construction and consensus (ijma’).71 It is not only natural but necessary for Muslim scholars and jurists to continue this interpretative endeavour by subsuming the global menace of terrorism under the umbrella of the Qur’anic concept of ‘waging war against God and His Messenger’ and as one of the greatest instances, indeed, of spreading corruption in the earth humanity has ever known. This understanding of ‘hirabah’ is clear from reading the clear text without recourse to any methodology or formula of reasoning, such as analogy (qiyas) or even ijtihad. Muslim jurists have commonly understood ‘waging war on God and His Messenger’ as to mean waging war on the people, including of course, the Muslim community. This is clear enough. Juristic thought has reflected on a variety of related themes, as already reviewed, raising questions as to whether hirabah can be committed by an individual or is it a crime that only a group can commit; can it be committed within or only outside the city areas; whether or not it must involve the use of weapons; and whether or
70. Muhammad bin ‘Ali al-Shawkani, Fath al-Qadir, Damascus: Dar al-Kalim al-Tayyib, Vol. 2, 1993, 39. 71. See for details Hasan al-Khattaf, “Mafhum al-hirabah wa dawabituha: Dirasah bay al-nass al-Qur’ani wa’l-turath al-fiqhi,” in Islamiyyat al-Ma’rifah: Majallat al-Fikr al-Islami al-Mu’asir, Herndon, VA, Vol. 21 (1436/2015), 11 and 42. 164 / Journal of Afghan Legal Studies not it is politically motivated. Most of these questions, and the responses they have received are instructive, yet contemporary terrorism has acquired different dimensions, which tend to make some aspects of the fiqh specifications of hirabah somewhat redundant. Certain manifestations of contemporary terrorism, such as suicide bombing, were also not familiar to the earlier schools and scholars and tend to fall out of the scope of their writings. That said, one also finds that the fiqh literature on hirabah is internally diverse and much of it is not supported by general consensus (ijma’) and thus remains open to further development and ijtihad in light of the pressing needs, and common good (maslahah) of the people. Early commentators have also made the point that the verse of hirabah contemplated Muslim rebels and mutineers only since repentance is normally not accepted from the unbelievers until they embrace Islam. But the majority of jurists have disputed this conclusion and maintain that hirabah in the way the Qur’an has addressed is not confined to Muslims and may be committed by anyone, Muslim or non-Muslim, provided that the crime is committed in a territory that is ruled by a Muslim government.72 Furthermore, it merits a mention that ‘spreading of mischief/corruption in the earth’ is a major theme of the Qur’an that occurs in a large number of its verses. Included in fasad fi’l-ard are thus spreading of heresies (Q 2:11-12), destruction of the living environment (30:41), destruction of farmland, gardens and waterways (26:141f), persistent criminality (5:32), inciting enmity and hatred among people (5:64), practice and spreading of sorcery (10:79), humiliating people through Pharoanic absolutism (28:4), practice and incitement to sodomy and homosexuality (29:28), killing and brutalising innocent people (2:30), and persistent hypocrisy (2:204). Having discussed the Qur’anic passages on ‘fasad fi’l-ard’, al-Khattaf observes that the concept is broad enough to subsume such other criminal activities we experience in our time as drug trafficking, human trafficking, Mafia-like crime syndicates and loan sharks who kidnap people, destroy and brutalise them and their families, as well as those who stage armed rebellion and military coups that topple lawfully elected governments. To quote al-Khattaf: This is why hirabah acquires enormous significance in our lives today, especially after what we witnessed in the Arab region through the so-called Arab Spring; the inciters to violence and war that invaded peoples’ lives and properties, wreaked
72. Rida, Tafsir al-Manar, Vol. 6, 93. Countering Global Terrorism and its Manifestations in Afghanistan / 165 havoc on them and the lives of entire communities and their homelands…. The Qur’anic concept of ‘spreading mischief in the earth’ also include the agents of corruption who shake the constitutional order, play with peoples’ lives and collude with enemies to carry out their sinister designs.73 We concur and add that the strong textual grounding of hirabah and its wide- ranging implications and relevance can hardly be overestimated in view especially of the global reaches of terrorism and emergence of organised terrorist organisations and networks. People need to be protected and laws need to be revised to equip the enforcement agencies and governments to act decisively. The world has been witness to horrendous atrocities in so many places, including of course the crimes committed by warlords and drug barons, and those who terrorise innocent people, committing genocide and crimes against humanity in the name of caliphate or any other name. There is absolutely no room for atrocity and shedding of innocent blood in shariah by anyone, including IS/Daesh, al- Qaeda, Taliban, al-Shabab, Boko Haram and the like. Justice must be served, truth uncovered and told as far as possible, or amnesty granted in the hope of a peaceful end to hostilities – except for the criminals who have committed atrocities, and only then can one nurture a realistic prospect of a peaceful future for the affected individuals and communities. 14. Toward A Strategy of Counter-Violence for Afghanistan: Proposals and Recommendations • Terrorism in all its forms is absolutely prohibited, whether committed by individuals or states regardless of the religious affiliation of the perpetrator. It is a crime in Islam and can never be justified in its name. • Terrorists are not to be taken as representatives of Islam. Numerous Islamic forums and leaders have denounced terrorism and made clear that such actions are contrary to the nature and central teachings of Islam. • The ulama and mosque leaders (imams), should make rejection of terrorism and combat against it an integral part of their teachings at Friday congregational prayers, in teaching circles and other occasions. • Terrorism is a long-term challenge. It has become entrenched; its resources and funding methods and networks have also expanded. Countries most vulnerable to local and global terrorism, such as Afghanistan, should not
73. Al-Khattaf, “Mafhum al-Hirabah,” 12. 166 / Journal of Afghan Legal Studies
only be content with immediate and short-term responses, but also have intermediate and long-term strategies to address it. • It is generally recognised that the military approach to addressing global terrorism has failed, simply because it has not addressed the root causes of violence, and has fallen short also of generating better understanding. • The path to peace and peaceful negotiations must be persistently pursued. Notwithstanding disappointments and setbacks, the Afghan government should continue to explore all peaceful approaches toward resolution of conflicts without compromising on essential justice and the rule of law. • It is vital for all Afghans to unite and take a common stand to combat the scourge of violent extremism. Afghan political and religious leaders, civil society and the media should play leading roles in promoting the objectives of national unity. The Afghan government should work more closely with community partners, religious institutions, education centres and the media to create an anti-extremist current of opinion and environment. • Afghans should take control, as far as possible, of peace negotiations with the Taliban themselves and find solutions to issues through consultation and engagement with all the concerned parties, including youth and women. They should not expect foreign parties to resolve their problems. This does not, however, mean that genuine cooperation with outside parties should be discouraged. • A constitution that is cognisant of the essentials of Islam, enacted through consultative methods and promulgated by the lawfully designated leader qualifies as the command of the leaders (ahkam ul’il-amr) that inspires obedience. Our religious leaders should play a proactive role in the realisation of a law-abiding society and due enforcement of the constitution. • Economic development, job creation, social justice efforts and good governance hold long term solutions that nullify the strongest magnets of extremism in Afghanistan and the Muslim world. • In a climate of insecurity and violence, it is extremely challenging to create job and investment opportunities. Capital owners are bound to be reluctant to take investment initiatives. Yet opportunities do exist and given proactive and determined attitude and cooperation, profitable investment projects can be created and explored. One is prompted in saying this especially in view of so many successful Afghan entrepreneurs (even tycoons) who own large Countering Global Terrorism and its Manifestations in Afghanistan / 167
businesses in Dubai and elsewhere. They should not neglect Afghanistan. • The International community should equip the Afghan national army to improve its defence capabilities according to a progressive time-based plan. When the Afghan army becomes self-sufficient, the foreign forces should plan their exit from the country. The Afghan authorities should initiate this process through consultation with the U.S and Nato commanders to plan an exit strategy, and if need be, to convene a joint session of the two Houses of Parliament, even the constitutional Loya Jirga, to approve it. A consultative decision is preferable to prevent the likelihood of subsequent disputation and disagreement. • The Taliban should then have no basis to continue, as its main demand for foreign troops to exit Afghanistan would have been met. Their other demand for the enforcement of shariah has no credible basis. For shariah is being enforced in the courts of Afghanistan. Estimately about 90-95 per cent of the laws of Afghanistan are either derived from the shariah, and or modern laws that are on the whole shariah-compliant. • Those who offend in the name of freedom of expression and do more of the same at sensitive times that inflame religious sensibilities are certainly not helping the cause of peace or freedom. If anyone could benefit from persistent cartoonist provocations, it would most likely be the terrorists. • Provocation by state actors and institutions, interference in the affairs of other communities and states, and aggressive policies that exacerbate existing conflicts and threaten peace and security should be stopped. • When dealing with instances of violent extremism, states and security forces need to avoid the trap of reacting to violence with greater violence. For that would lead to a situation where the terrorists have won an even greater victory. The whole country would then be in a state of constant fear. The government need to be firm and decisive, of course, but must in the meantime be vigilant not to let the terrorists get what they want. • Afghanistan should continue to base its relationships with the international community on positive foundations and constructive cooperation for beneficial purposes, and in particular, with those who have helped Afghanistan in its combat against international terrorism. • Afghanistan should also work harder for improving its ties with the neighbouring countries, including Pakistan. This is admittedly a challenging 168 / Journal of Afghan Legal Studies
prospect given the countless instances of failed attempts. Afghanistan should have a clear policy and identify which particular areas offer better prospects of workable relations for mutual benefits with Pakistan. • It is essential for Afghanistan to wean itself from financial dependence on foreign donations. A time-bound plan for intermediate and long –term increase of the domestic sources of revenue should be a persistent work in progress. If Afghanistan can provide say 20-25% of its national budget now, this figure should be increased by a certain percentage every year until the country can have its own self-contained budgeting and finance its own army and government. • Terrorism is suffocating Afghanistan’s economic development prospects. To give an example, Afghanistan has extensive mineral resources which need security, investment funds and skill to exploit, and the government is unable to provide security even to some of the mines (lapis lazuli, and copper e.g) which were close to the exploitation stage, but reports indicate that the they have been forcibly overtaken by terrorists and drug barons, who now exploit them through crude methods to fund their nefarious criminal operations. Examining Ethnic Accommodation and Coalition-Building Under Alternative Forms of Government in Afghanistan
Mohammad Bashir Mobasher
Table of Contents 1. Introduction 2. Examining the Viability of a Parliamentary Constitution 3. Is a Semi-Presidential System a Better Alternative? 4. Alternative Presidential Systems: Collegial and Proportional Presidentialism 5. Reforming the System and Taming the President 6. Conclusion
Abstract In post-conflict states like Afghanistan facilitating ethnic accommodation through encouraging inclusive institutions and policies are the first concerns of constitutional designers. While some constitutional choices successfully address these concerns others wholly or partly fail. Afghan Constitution tells a story partly of success and partly of failure. Its success story highlights the formation of cross-ethnic electoral coalitions and the practices of relatively inclusive political distributions. Its failure underlines the less inclusive policies of the government and the inability of electoral coalitions to institutionalize. Many scholars and politicians link the failures to the presidential system and advocate for adopting a parliamentary or a semi-presidential constitution. Others highlight the advantages of the presidential system and argue against any constitutional change. This article engages the literature by examining both the current system and the alternatives. But it goes beyond the conventional discourse 170 / Journal of Afghan Legal Studies to examine the optimality of adapting the current presidential system as well. 1. Introduction Since the inception of constitution-making following the Bonn Conference, the viability of a presidential system for an ethnically divided Afghanistan has been subject to dispute.1 The two main criticisms against the presidential system are that (a) this system is not inclusive to all ethnic groups, and that (b) this system is not conducive to party development.2 The critics have been mainly ethnic Tajiks, Hazaras, Uzbeks and other minorities, who advocate for a parliamentary or a semi-presidential system.3 The proponents of the presidential system have been primarily ethnic Pashtuns, who have advocated for a strong president to overcome challenges coming from the warlords, and to unite the country.4 The struggle against the presidential system intensified with the convening of the Constitutional Loya Jirga,5 the Grand Council that adopted the Constitution.6 The Tajik-dominated Northern Alliances attempted to set up a parliamentary constitution; however, the resistance primarily came from Pashtun representatives,
1. Dr. Mohammad Bashir Mobasher is an assistant professor at the American University of Afghanistan, department of political science and public administration since August of 2018. He also worked as a legal advisor for the Afghanistan Rule of Law Stabilization project funded by USAID and Legal Education Support Program-Afghanistan (LESPA) supported by the University of Washington and the INL (US State Department). Dr. Mobasher obtained a B.A. (2007) from the School of Law and Political Science at Kabul University, and his LLM (2010) and PhD (2017) from the University of Washington School of Law. He founded and managed the Afghan Law Students’ Association. Conrad Schetter, Ethnicity and the political reconstruction in Afghanistan 3 (LSE Research Online, Conference Paper, No. 3, 2005) http://eprints.lse.ac.uk/28376/1/Schetter_LSERO_version.pdf. 2. Ali Maisam Nazari, Nizam Parliamani: Nizami Barai Hukumrani Khob, [Parliamentary System: A System of Good Governance] BBC Persian (Feb. 12, 2017) http://www.bbc.com/persian/blog-viewpoints-38950895; Mujiburahman Rahimi, Naqdi Bar Sahktar Nezam Dar Afghanistan [A Critique of the Structure of the Political System in Afghanistan] 152-9, 193-206 (2008); International Crisis Group, Policy Briefing 141: Afghanistan’s Parties In Transition 4 (June, 2013), https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF- 8#q=Afghanistan%E2%80%99s+Parties+in+Transition%2Fpdf; International Crisis Group, Asia Report N°88: From Presidential to Parliamentary Elections, 7 (Nov. 2004), http://reliefweb.int/report/afghanistan/afghanistan- presidential-parliamentary-elections [hereinafter, “ICG 88”]; Kenneth Katzman, Congressional Research Service, Crs Report: Afghanistan: Politics, Elections, And Government Performance, 1,7 (Jan. 12, 2015), https://www.fas. org/sgp/crs/row/RS21922.pdf. 3. Rahimi, supra note 2 at 155; Astri Suhrke, The Democratisation of a Dependent State: The Case of Afghanistan, 8 (Chr. Michelsen Institute, Working Paper 51, 2007), https://www.cmi.no/publications/2810-democratization-of- a-dependent-state. 4. Rahimi, supra note 2, at 155; Suhrke, supra note 3, at 8. 5. See Constitution, art. 111 (Constitutional Loya Jirga is the only constitutionally legitimate council that can amend the Constitution.) 6. Rahimi, supra note 2, at 159; Thomas Ruttig, Islamists, Leftists – and a Void in the Center: Afghanistan’s Political Parties and where they come from, (1902-2006), 1, 20 Konrad Stiftung Adenauer (2006) http://www.kas.de/wf/ doc/kas_9674-544-2-30.pdf. Examining Ethnic Accommodation and Coalition-Building... / 171 with Hamid Karzai as the leading figure.7 At the end, a presidential system was adopted with a concession that the Wolesi Jirga (WJ) should have the power to oversee the executive.8 This concession, however, has not satisfied the skeptics of presidential system. Since the adoption of the Constitution, several coalitions have declared their objectives to amend the Constitution and replace the presidential system with a parliamentary or a semi-parliamentary system. These coalitions included the National United Front of Afghanistan (2007),9 National Front of Afghanistan (2011),10 the National Coalition of Afghanistan (2013),11 and Electoral Alliances of Afghanistan (2013).12 Interestingly, the divide over whether to adopt a presidential constitution was not merely a domestic one. International allies of Afghanistan picked sides during the drafting of the Constitution, often recommending the political system that resembled their own.13 For example, experts and diplomates from the United States including its ambassador, Zalmai Khalilzad, advocated for a presidential constitution, whereas the European experts and diplomats pushed for a parliamentary or a semi-presidential system.14
7. Barnett R. Rubin, Crafting a Constitution for Afghanistan, 3/15 Journal of Democracy 5-19 (2004) at 11-12; Sonali Kohatkar & James Ingalls, Bleeding Afghanistan: Washington, Warlords, and the Propaganda of Silence 142 (2006); Katzman, supra note 2, at 7; Rainer Grote, Separation of powers in the Afghan New Constitution, 64 ZaoRV, 898, 904 (2004). 8. Peter Dimitroff, National Democratic Institute For International Affairs, Report: The September 2005 Parliamentary And Provincial Council Elections In Afghanistan, 3 (2006); Suhrke, supra note 3, at 8. 9. The International Council On Security And Development, Decision Point 2009: Afghanistan’s Presidential Election: Power To The People, Or The Powerful? 44 (Mar. 2009), http://www.nps.edu/programs/ccs/Elections/ ICOS_elections.pdf [hereinafter, ICOS]. 10. Grand Hewad, The New National Front: A Dark Horse Returns – with Three Riders, Afghanistan Analyst Network (Dec. 1, 2011) https://www.afghanistan-analysts.org/the-new-national-front-a-dark-horse-returns- with-three-riders/. 11. Migration Review Tribunal, Background Paper: Afghanistan: Political Parties And Insurgent Groups 2001- 2013 5 (Mar. 7, 2013), https://www.ecoi.net/file_upload/1226_1369733768_ppig2.pdf. 12. Jackson Keith, Institute For The Study Of War, Backgrounder: The Formation Of Electoral Alliances In Afghan Politics In 2014 5 (Oct. 2, 2013) http://www.understandingwar.org/sites/default/files/ Backgrounder_AFGElectoralAlliances_0.pdf. 13. Abdul Ali Mohammadi, Afghanistan Wa Dawlat Mudern [Afghanistan and A Modern State] 151 (1394) [2015]; The divide between U.S. experts and diplomats and those from the European Union was also confirmed by Professor Birol A. Yesilada, who was involved in constitution-drafting of Afghanistan (On file with Author). 14. Id.; Suhrke, supra note 3, at 8-9; Rahimi, supra note 2, 158; Barnett R. Rubin, supra note 7; see also William Maley, Executive, Legislative, and Electoral Options for Afghanistan, 4 (unpublished manuscript, 2003) http:// cic.nyu.edu/sites/default/files/e9execlegiselectoraloptionsmaley.pdf. (There is no ‘perfect’ executive form, but a pure presidential system should be avoided. The Executive Government should be based in a parliament, and accountable to it.); Chris Johnson, William Maley, Alexander Thier & Ali Wardak, UK Department for International Development, Report: Afghanistan’s political and constitutional development, 22-24 (2003), https://www.odi.org/ sites/odi.org.uk/files/odi-assets/publications-opinion-files/5888.pdf; Chris Johnson, Jolyon Leslie, Afghanistan: The Mirage of Peace, 171-2 (2004). 172 / Journal of Afghan Legal Studies
In its two short periods of democratization, Afghanistan has experienced all three political regimes: a parliamentary system, a presidential constitution, and a de facto semi-presidential system. In the first of these periods (1963- 1973), Afghanistan embedded a parliamentary system in its – still monarchic – Constitution of 1964.15 This system, as well as the Constitution, lasted only for a decade, followed by communist regimes, civil war and Taliban. By the fall of Taliban in 2001, Afghanistan began to experience a presidential system, which was also adopted in the Constitution of 2004. However, since the presidential election of 2014, due to the resulting political crisis, the two front-running candidates decided to form a National Unity Government, in the form of a de facto semi-presidential system. These brief experiences of different political systems can well be used to examine the viability of each alternative in Afghanistan. The issue with current legal and political discourse is that the politicians as well as scholars have only focused on whether to keep the current presidential system or adopt an alternative; the prospect for reforming the current system has barely attracted scholarly attentions. It is true that the Afghan presidential model has had some weaknesses; however, failures of this system do not necessarily indicate the need for adoption of an alternative. More often than not, reforming the presidential system may be more feasible than switching to a parliamentary or semi-presidential system.16 Therefore, in addition to examining alternative political systems, this article explores adapting the current presidential system, ranging from small reforms to radical changes in the system. 2. Examining the Viability of a Parliamentary Constitution As the proponents of the parliamentary system suggest, there are some merits to this system that current Afghan presidential system lacks. Generally, coalitions tend to be more binding in parliamentary systems than in the presidential systems. It is mainly because in parliamentary systems, the survival of a government is bound by the coalitions holding together.17 In presidential systems, a president does not
15. Qānoon-i Assāsi-ye Afghanistan [Constitution of Afghanistan], Jareeda-ye Rasmi [Official Gazette] No. 12, 1343 [1964], art. 65, 66, 67, 89, http://www.afghanpaper.com/info/ ghavanin/ghanonasasi1343.htm. 16. Scott Mainwaring & Matthew S. Shugart, 29/4 Juan Linz, Presidentialism, and Democracy: A Critical Appraisal, Com. Pol., 450, 469 (Jul. 1997). 17. Id, at 466; Scott Mainwaring & Matthew Soberg Shugart, Presidentialism And Democracy in Latin America, 396-397 (1997); Scott Mainwaring, Presidentialism, Multipartism, and Democracy: The Difficult Combination (1993). Examining Ethnic Accommodation and Coalition-Building... / 173 necessarily need his or her coalition to stay in office.18 Neither do presidential allies need to stick with the unpopular president after elections.19 Like in most other presidential systems with fragmented parties, Afghan presidents tend to begin with the support of absolute majority of the Assembly but lose their support dramatically later on.20 In a parliamentary system, losing the endorsement of a majority in parliament would lead to the oust of the prime minister from office. A parliamentary system in Afghanistan may require the support of more than one ethnic group mainly because in the parliamentary system the formation and survival of the executive is based on the approval of the majority in the assembly. As such, if ethnic groups are represented proportionally, one ethnic representatives cannot alone form a majority coalition in the WJ to form the government.21 Nonetheless, there are some major issues with adopting a parliamentary system that need to be addressed here. First, unless the constitution requires explicitly, a parliamentary system may not be conducive to a consociational form of government in Afghanistan. Certainly, a parliamentary system encourages coalitions of more than one ethnic group; however, a coalition of more than one ethnic group is not necessarily inclusive. The simple reason is that a parliamentary system has the tendency for post-electoral coalitions,22 especially those with electoral systems like SNTV (single non-transferrable vote).23 Since after the elections parties and elites have perfect information about winning seats, and so about the viability of different coalition sizes, they tend to form minimum winning coalitions.24 Indeed, many African countries—e.g., Nigeria, Congo, Sierra Leone, and Togo—experienced breakdown of their democracies because of ethnic-based coalitions winning the majority, leaving others in perpetual oppositions.25 Experiencing civil war due to ethnic-based coalitions,
18. Mainwaring & Shugart, supra note 16, at 466. 19. Id. 20. Mainwaring & Shugart, supra note 17, at 46. 21. Based on CIA Factbook, no ethnic group in Afghanistan has a majority of over fifty percent population. See, CENTRAL INTELLIGENCE AGENCY, WORLD FACTBOOK: AFGHANISTAN [hereinafter “CIA Factbook”], https://www.cia.gov/library/publications/the-world-factbook/geos/print/ country/countrypdf_af.pdf (last visited March 17, 2016). 22. Mainwaring & Shugart, supra note 16, at 466. 23. The post-electoral tendencies of parliamentary regimes can be counterbalanced by some electoral systems. See Danielle Resnick, Do Electoral Coalitions Facilitate Democratic Consolidation In Africa? 19/5 Party Politics 735, 740 (2011); Kaare Strgm, Ian Budge, Michael J . Laver, Constraints on Cabinet Formation in Parliamentary Democracies, 38/2 Am. J. Pol. Sci. 303-335, 315-316 (May 1994). 24. William H. Riker, The Theory of Political Coalitions 47 (1962). 25. Donald L. Horowitz, A Democratic South Africa? Constitutional Engineering in a Divided Society 205 (1991). 174 / Journal of Afghan Legal Studies
Nigeria decided to abandon its parliamentary system in favor of a presidential constitution.26 A change to a parliamentary regime may give rise to a similar risk in Afghanistan, where a minimal coalition of two ethnic parties to form the government may result in total marginalization of other ethnic groups. Given the current composition of the WJ, a parliamentary system would have led to a number of possible minimal winning coalitions based on ethnic affiliations. Table I. illustrates the possibility of minimal, oversized, and grand coalitions, considering the current composition of Wolesi Jirga.27 Possible Coalitions in the Parliament of 2010-2016 Coalition of Ethnic Coalition Size by Opti- % Coalition Size by Groups mality Pashtun, Uzbek 51.985 Minimum Tajik, Hazara, Uzbek 52.4 Minimum Pashtun, Hazara 62.42 Minimum Pashtun, Tajik 65.72 Minimum Pashtun, Hazara, Uzbek 71.83 Oversized Pashtun, Tajik, Uzbek 75.13 Oversized Pashtun, Tajik, Hazara 85.565 Oversized Pashtun, Tajik, Hazara, 94.975 Grand Uzbek
Under post-election situations, minimal winning coalitions are more desirable because the fewer the coalition partners, the fewer seats a formateur must share with partners.28 Furthermore, minimal coalitions are more coherent in terms of policy and organization since in principle the farmateurs tend to choose partners who are closest to them in policy preferences in order to implement policies and win the next election.29 Minimal winning coalitions (exclusionary coalitions) can also be a response to heated ethnic tensions, which naturally has emerged in every 26. Id. at 210. 27. Id. 28. G. Bingham Powell, JR., Contemporary Democracies: Participation, Stability, and Violence 134 (1982). 29. Id. Examining Ethnic Accommodation and Coalition-Building... / 175 election in Afghanistan. Astonishingly, the WJ in the current regime of Afghanistan has shown some tendencies towards excluding some ethnic groups from the executive. This tendency surfaced after the 2009 election, when the WJ had to confirm presidential appointees for cabinet positions. After the presidential election of 2009, Pashtun and Tajik parliamentarians persistently casted votes of no confidence for Hazara and Uzbek nominees for cabinet seats. Their vote of no confidence enraged Hazara and Uzbek representatives in the parliament.30 The representatives boycotted WJ sessions for months. Allies of President Karzai, both Mohammad Mohaqiq and Abdul Rashid Dostum, threatened that they would withdraw all their supports from the government if their ethnic nominees were not approved by the Assembly.31 If anything can be learned from this case, it is that minimal and exclusive coalitions would be very likely under a parliamentary system in Afghanistan, and it can lead to political chaos and even ethnic conflicts.32 Additionally, in circumstances where parliamentary parties are fragmented or when parties are too polarized, government formation is likely to take months and even years under a parliamentary system. For example, in Iraq, after the election of 2010 it took 8 months for the parliament to form a government.33 In the same year in Belgium, a more consolidated democracy, government formation took an astounding 18 months in the assembly.34 Indeed, the WJ of Afghanistan had a similar experience in 2010 when it had to elect the Speaker of the House. Repeated elections failed for months until the elites decided to set the election aside to compromise on the Speaker.35 Even then, it took several weeks to finally select an Uzbek elite to chair the House.36 This compromise has indicated that a parliamentary system might lead to months and even years of political deadlock at times of government formation particularly because it is very unlikely that larger groups would compromise on premiership of an Uzbek the way that they did for the Speaker of WJ.
30. Afghanistan Parliamentary Assistance Project, Legislative Newsletter (Jan. 18, 2010), http://www.cid.suny. edu/APAP_Newsletter/2010/APAP_Newsletter_January.18.10.pdf. 31. Id. 32. Riker, supra note 24, at 48, 53. 33. Sona N. Golder, Government Formation and Cabinets, 8 (Emerging Trends in the Social and Behavioral Sciences, Presentation Paper 2015). 34. Id. 35. Abdul Rauf Ibrahimi Ba Hais Rayees Wolesi Jirga Intekhab Shud [Abdul Rauf Ibrahimi, Elected As the Speaker of Wolesi Jirga], Deutsch XXL, Feb. 27, 2011, http://p.dw.com/p/R4ea. 36. Id. 176 / Journal of Afghan Legal Studies
Furthermore, there is no consensus over whether a parliamentary system leads to development of parties and coalitions. Giovanni Sartori has argued that it is the other way around: “[p]arliamentary democracy cannot perform…unless it is served by parliamentary fit parties, that is to say, parties that have been socialized into being relatively cohesive and/or disciplined bodies.”37 In other words, according to Sartori, party development must precede a working parliamentary system.38 Even Juan J. Linz, who advocates a parliamentary system, concurs with Donald Horowitz that parliamentary systems with fragmented, ethnic parties may fail.39 Indeed, Afghanistan’s experience with a parliamentary system during the Decade of Democracy seems to confirm this observation. Ideologically, parties were more formidable in Afghanistan’s Decade of Democracy than are the proto-parties of today.40 Unlike today’s parties, parties of the 1960s and 70s could more easily be classified as left or right, based on their ideological and political approaches to government and economics. Moreover, Afghanistan’s right-wing parties, comprising Islamist-traditionalists, were pro- king and pro-government, while leftist parties functioned as opposition groups inside and outside the WJ. Almost all political parties were less or more cross- ethnic and most of them emphasized on equal rights and equal opportunities to all citizens regardless of ethnicity.41 Although the government refused to pass a party law throughout the decade, based on Article 32 of the 1964 Constitution parties were allowed to engage in political activities; so the parties did engage in recruiting members, publishing articles and even holding demonstrations.42 Even so, only a handful of party members were able to win seats in the elections of 1965 and 1969. Candidates tended to disassociate from their parties during the elections as party-affiliates do today. The result of the fragmented, and party-
37. Id. 38. Giovanni Sartori, Comparative Constitutional Engineering 94 (1997) (“Indeed, disciplined parties are a necessary condition for the working of parliamentary systems.”) 39. Arend Lijphart, Parliamentary Versus Presidential Government 212 (1992) (“The Nigerian system represents a unique method of presidential multi-ethnic ones, but I doubt very much that one could justify it in more homogeneous societies, even in the federal states of Latin America.”) 40. See Faridullah Bezhan, The Emergence of Political Parties and Political Dynamics in Afghanistan, 1964–73, Iranian Studies 924 (2013) http://www.tandfonline.com/doi/abs/10.1080/00210862.2013.810074. 41. Id. 42. Constitution, art. 32 (“Afghan citizens have the right to form political parties, in accordance with the terms of the law, provided that: (1) The aims and activities of the party and the ideas on which the organization is based are not opposed to the values embodied in this Constitution. (2) The organization and financial resources of the party are open. A party formed in accordance with the provision of the law cannot be dissolved without due process of the law and the order of the Supreme Court.”) Examining Ethnic Accommodation and Coalition-Building... / 177 less assemblies was a decade of unstable governments.43 The governments would hastily rise and fall in the Decade of Democracy. Under the parliamentary system, Afghanistan experienced six government changes in less than a decade comparing to two relatively stable governments in the first ten years under the current presidential constitution.44 Table II. shows the duration of each government under a parliamentary system during Afghanistan’s Decade of Democracy (1964-1973)45 Prime Ministers Beginning End Duration by Days Dr. Mohammad 25-Oct-1965 29-Oct-1965 4 Yusef Mohammad Hashim 2-Nov-1965 12-Oct-1967 709 Maiwandwal Nor Mohd. Etemadi 15-Nov-1967 2-Dec-1969 747 (1st Round) Nor Mohd. Etemadi 2-Dec-1969 16-May-1971 562 )(2nd Round Dr. Abdul Zahir 26-Jul-1971 12-Dec-1973 389 Mohammad Musa 12-Dec-1972 17-Jul-1973 218 Shafiq Average by Days 438.1 Average by Years 1.6
As Table II shows, on average, parliamentary executives lasted for less than a year and half each in the Decade of Democracy. In fact, the first government could sustain itself for only four days.46 Although most governments resigned for different reasons and excuses, the historical records indicate that they resigned in anticipation of receiving votes of no-confidence from the Wolesi Jirga.47 Indeed
43. Thomas Barfield, Afghanistan: A History of Cultural and Political Studies 24 (2010). 44. See Sabahuddin Kushkaki, Daha Qanoon-e-Asasi: Ghaflat Afghanha Wa Fersat Talabi Rusha [The Decade of Constitutionalism: The Negligence of Afghans and the Opportunism of Russians], 32-110 1996 [1375]. 45. Id. 46. Id. 47. Marvin G. Weinbaum, Afghanistan: Nonparty Parliamentary Democracy, 7/1 J. Developing Areas 57-74 (Oct. 1972). 178 / Journal of Afghan Legal Studies most prime ministers did recognize the importance of having a parliamentary alliance to keep their governments stable, and they even formed parties such as Wahdat Mili (National Unity Party) and Afghanistan-i-Mutaraqi Party (Progressive Afghanistan Party); however, the unaccountable King dismantled their efforts repeatedly.48 To draw a conclusion, since today’s Afghan proto-parties are at least as fragmented as the parties in the Decade of Democracy, and since no cross-ethnic parliamentary coalitions have developed, it can safely be argued that the adoption of a parliamentary system may lead to unstable governments and political chaos. Therefore, a parliamentary system does not seem to be a better alternative to reckon with in Afghanistan. 3. Is a Semi-Presidential System a Better Alternative? In Afghanistan, the common perception is that non-Pashtuns have little chance to gain the highest executive office in the presidential system.49 It is assumed that if the post of prime minister is created, it will reduce the power of the president and allow other ethnic groups to share the power at the highest level of government in Afghanistan.50 It is not surprising that most Tajik, Hazara, and Uzbek elites support a semi-presidential system while most Pashtun elites resist changing the presidential system.51 But would a semi-presidential system allow non-Pashtuns to win the prime minister office? Under a semi-presidential system, it is likely that a non-Pashtun candidate would become the prime minister. However, since the premier is typically elected by the legislature under a semi-presidential system, it is also likely that the prime minister would be from the same ethnic group as the President.52 Therefore, there is no guarantee that the president and the prime minister would be elected from two different ethnic groups. Perhaps, the election of the Speaker of the Wolesi Jirga in the current regime can better illustrate how a prime-minister would be elected under a semi-presidential system. After first parliamentary election in 2005, Yunis Qanooni became the Speaker of the House by a difference of only five votes from Rasul Sayyaf.53 After two
48. Bezhan, supra note 40. 49. James Ingalls, supra note 7, 142. 50. Rubin, supra note 7, 11; Katzman, supra note 2, at 7. 51. James Ingalls, supra note 7, at 143. 52. Mainwaring & Shugart, supra note 17, at 16. 53. Ramin Anwari, Yunis Qanooni Rayes Majlis Numayendagan Afghanistan Shud [Yunis Qanooni Became Examining Ethnic Accommodation and Coalition-Building... / 179 rounds of elections, Qanooni, a Tajik elite, won 122 votes while Sayyaf, a Pashtun candidate, won 117 votes.54 Had Sayyaf won three of the five votes, Afghanistan would have a Pashtun President and a Pashtun Speaker of the House. After the 2010, parliamentary election, the Wolesi Jirga struggled over a month and half to elect a Speaker.55 Again Qanooni and Sayyaf were the leading candidates.56 Four rounds of elections were held but no candidate won the required votes.57 Finding that the they were unable to elect a Speaker, the MPs compromised by selecting a Speaker from the Uzbek community outside of the proper electoral procedure as provided by the Rules of Procedure.58 Had this been an election for prime-ministership, WJ members would have been less likely to compromise on a Prime Minister from an Uzbek minority.59 On the other hand, the Pashtun and Tajik candidates had equal opportunity to win the election. Therefore, including a post of Prime Minister in the political system does not ensure that a non-Pashtun candidate wins the second highest office in the government. An alternative to an elected prime-minister is an appointed one by the President. In fact, the first draft of the Afghan Constitution provided for a prime minister appointed by the President.60 In one proposal the prime minister had to be approved by the Wolesi Jirga and in another he or she had not.61 Given that a presidential candidate needs cross-ethnic votes, it is likely that viable presidential candidates appoint their prime ministers from different ethnic groups in exchange for their endorsement during elections. Indeed, this system is to some extent similar to the current National Unity Government (NUG) in Afghanistan. Based on an agreement, which eventually led to the establishment of NUG, a post of Chief Executive Officer (CEO) – which is not foreseen in the Constitution – was created.62 The front-runner of the second round became the president and the Speaker of the Wolesi Jirga], BBC Persian, Dec. 21, 2005, http://www.bbc.com/persian/afghanistan/ story/2005/12/051221_s-qanooni-lowerhouse.shtml 54. Id. 55. Deutsch XXL, supra note 35. 56. Id. 57. Id. 58. Id. 59. Uzbeks are a relatively smaller group than Pashtuns, Tajiks and Hazaras. See Central Intelligence Agency, World Factbook: Afghanistan, https://www.cia.gov/library/publications/theworldfactbook/geos/print/country/countrypdf_ af.pdf. 60. Mohammad Ashraf Rasuli, A Review of The Constitutions of Afghanistan [Moruri Bar Qawanin-e-Asasi Afghanistan] 183-4 (2009). 61. Id. 62. Agreement between the Two Campaign Teams Regarding the Structure of the National Unity Government, Sec. B, L.A. Times, Sep. 21, 2014, http://documents.latimes.com/agreement-between-two-campaign-teams- 180 / Journal of Afghan Legal Studies the runner up became CEO.63 Procedurally, the President appointed the CEO64 although based on the agreement, each office had the right to appoint half of the cabinet members.65 Whether a political system with an appointed prime minister (or CEO) is a sedarati (semi presidential system) is subject to dispute. In fact, according to Mainwaring, in a real semi-presidential system “the cabinet is responsible to parliament and not the president and cannot be resolved by president.”66 Regardless, such a political system has proven problematic for several reasons. The first and most significant of all is the problem of cohabitation. Cohabitation is narrowly described as the situation where the president and the prime minister are from two opposing parties;67 broadly, it is described as the situation where the president and the prime minister diverge on who is the legitimate source of constitutional authority.68 By either definition, cohabitation does exist in the NUG: The president and the CEO are from two opposing coalitions. After the establishment of the unity government, they have continuously made conflicting statements and challenged the constitutional authority of each other.69 Particularly, CEO Abdullah Abdullah has long accused President Ghani of marginalizing him and making appointment decisions without his counsel.70 Once Abdullah angrily denounced Ghani as unfit to govern and warned against his unilateral decisions.71 In response, Ghani repeatedly claimed that constitutionally he had the sole authority as the President.72 Their confrontation and counter-challenges have led to political stalemate and halt of policy implementation.73 For example, it took the president and CEO over seven months to agree on cabinet nominees.74 Yet, their cabinet was not regarding-structure-national-unity-government/. 63. Id. 64. Id. 65. Id. sec. C 66. Mainwaring supra note 17, at 16. 67. Robert Elgie & Iain McMenamin, Explaining the Onset of Cohabitation under Semi-Presidentialism, Political Studies, 1-20, 1 (2001). 68. Id. 69. Frud Bezhan, Crisis Looms as Clock Winds Down On Afghan ‘Unity Government’ Deal, Radio Free Europe, Sep. 4, 2016, https://www.rferl.org/a/afghanistan-crisis-looms-expiring-unity-government-deal/27966465.html. 70. Id. 71. Id. 72. Ikhtelafat Miyan Ghani Wa Abdullah Subat Afghanistan Ra Mutazalzil Karda Ast [The Conflict Between Ghani and Abdullah Is Destablizing Afghanistan], Sputnik, Apr. 11, 2017, https://sptnkne.ws/eyTD. 73. Bezhan, supra note 69. 74. Shanzda Wazir Jadid Kabina Afghanistan Sawgand Khordand [The New Sixteen Minister of Afghanistan Take the Oath of Allegiance], BBC Persian, Apr. 27, 2015 http://www.bbc.com/persian/afghanistan/2015/04/150421_k03_afghan_cabinet_memebers_sowrn. Examining Ethnic Accommodation and Coalition-Building... / 181 completed for almost two years until finally they confirmed an individual as the minister of defense, which was the most important appointment decision given the ongoing conflict with the Taliban.75 The problem of cohabitation is not peculiar to Afghanistan’s NUG. All political systems with dual executive offices tend to encounter cohabitation.76 In their article, Explaining the Onset of Cohabitation under Semi-presidentialism, Robert Elgie and Iain McMenamin describe cohabitation as “[o]ne of the most recognizable features of semi-presidentialism.”77 France, which has been the original model of semi-presidentialism, has also been known as a “cohabitation model.”78 Many recent studies have indicated that cohabitation is more likely to happen in younger democracies than in more advanced democracies; meanwhile cohabitation is more damaging for vulnerable, younger democracies than for more matured ones.79 The problem of cohabitation stems from the fact that both the president and the prime minister tend to interpret constitutional provisions the way that enhances their own power vis-à-vis the other. The idea of adopting a dual executive system in Afghanistan would encourage Pashtuns to insist on more powers for the president as much as it would encourage non-Pashtuns to insist on more authorities for the office of prime minister. An additional problem with the dual executive is the fact that it does not include all major groups. This will raise concern among Hazaras and Uzbeks, who would then demand some guaranteed highest offices for themselves. Indeed, advocating for this kind of power-sharing in his book, Afghanistan and A Modern State, Abdul Ali Mohammadi proposed that a political system should be designed where the Pashtuns get to elect the President and Tajiks the Speaker of the House; meanwhile, Hazaras should be able to elect the Chief Justice of the Supreme Court and Uzbeks the only Vice President of the President.80 Mohammadi’s proposal resembles the consociational model of governments in
75. Namzudan Wuzarat Dufa Wa Riyasat Amniat Mili Afghanistan Muarfi Shudand [The Nominees of the Ministry of Defense and National Security Council Were Introduced [to Wolesi Jirga]], BBC Persian, May 5, 2016, http:// www.bbc.com/persian/afghanistan/2016/05/160504_zs_ghani_introducing_defence_intelligence_heads. 76. Chun-Hao Chang, Cohabitation in Semi-Presidential Countries, 2/3 Social Sciences, 31-43 (2014). 77. Elgie, supra note 67. 78. Chang, supra note 76, at 32. 79. L. Kirschke, Semi-presidentialism and the Perils of Power-Sharing in Neopatrimonial States, 11/40 Comparative Political Studies, 1372–94 (2007); Robert Elgie, supra note 67 at 2. 80. Mohammadi, supra note 13, at 375. 182 / Journal of Afghan Legal Studies
Lebanon and Iraq. In Lebanon, a consociational system was arranged in 1943, under which the presidency was allocated to a Christian Maronite, the premiership to a Sunni, and the Speakership to a Shi‘ite.81 In 2005, different Iraqi communal groups reached an agreement, the Iraqi National Pact, reserving the presidency for the Kurds, the premiership for a Shi’ites, and the Speakership for Sunnis.82 There is some value to this power-sharing model. First, this system arranges the most consociational form of government that Afghans can ever have. All major ethnic groups are guaranteed a special high office in the state. Additionally, this system reduces the likelihood of ethnic conflict during elections to a significant degree since ethnic groups will not be competing for the same office. By the same token, ethno-political elites are likely to form stable coalitions based on policy rather than on winning elections. However, this model of power-sharing has some shortcomings as well. First, such an arrangement would not likely be appreciated by the public, given the dominance of centripetal tendencies in Afghanistan. Second, this constitutional arrangement effectively leads to the ranking of ethnic groups to first, second, and third, based on which ethnic group is provided what office. It is also an exclusive arrangement, where aspirants of other groups cannot compete for an office that is assigned to a specific group. Additionally, this system leads to polarization when an extremist individual from an ethnic group attains any of the offices. If one government institution is ethnicized, so will other government institutions.83 As a result, instead of bridging between communities, this ethnic-based arrangement may further polarize them. This model of power-sharing has failed in both Lebanon and Iraq. In Lebanon, it led to immobility in the state affairs where the state was unable to implement its policies.84 More importantly, the officials were unable to solve minor ethnic tensions given the rise and importance of chauvinism due to divisions among government offices.85 In Iraq, ethnic distribution of the highest offices did not lead to proportional representation of groups across government institutions.86
81. Imad Salamey, Failing Consociationalism In Lebanon And Integrative Options, 2/4 International Journal of Peace Studies, 83-105, 83 (2009). 82. Eduardo Abu Ltaif, The Limitations of the Consociational Arrangements in Iraq, 38 Ethnopolitics Papers, 6-7 (2015). 83. Donald L. Horowitz, Ethnic groups in conflict 302-305 (2nd ed. 2000) (If one ethnic group moves towards the extreme, other ethnic groups will follow.) 84. Malcolm Kerr, Political Decision Making in a Confessional Democracy, in Politics in Lebanon, 187-212 (Leonard Binder, ed., 1966). 85. Salamey, supra note 82, 85-6. 86. Ltaif, supra note 83, 7-9. Examining Ethnic Accommodation and Coalition-Building... / 183
The absence of equal distribution of power at the lower level was due to political extremism of office holders at the top. For example, by inciting fear among Shi’ites against the Iraqyia Party, dominated mostly by Sunnis, Nouri al-Maliki gained their support to become the Prime Minister.87 After becoming the Prime- Minister, Maliki retreated from his commitment to other groups and dropped their nominees from the cabinet list.88 This led to political crisis and eventually to destabilization of the state. Therefore, any explicit distribution of power based on ethnicity is an ethnicizing arrangement, which tends to favor ethnic extremists, deepen ethnic division, and sustain ethnic consciousness. In the long run, such an arrangement is likely to switch the political culture from political centripetalism to centrifugalism in Afghanistan. 4. Alternative Presidential Systems: Collegial and Slate-Proportional Presidentialism Linz criticizes presidential elections as zero-sum games, where the winner wins the office and losers have to step aside with empty hands.89 This effect of presidential elections becomes particularly problematic when candidates from a single group win the election every time.90 This leads to frustrations in other ethnic groups,91 which in turn hinders depoliticization of ethnic affiliations.92 With just three past presidential elections,93 frustrations have already grown among different ethnic groups in Afghanistan as Pashtun candidates have consistently won the office.94 These concerns have been reflected in the writings of Kenneth Katzman, who posited that the “president will always be an ethnic Pashtun.”95 Indeed, one of the main reasons the Northern Alliance96 proposed a parliamentary and a semi-presidential system instead of a presidential
87. Id. at 7. 88. Id. 89. Mainwaring, supra note 95, at 450. 90. See id. 91. James Ingalls, supra note 6, at 142. 92. For understanding the concept and process of politicization and depoliticization as well as particization and de- particization of ethnic groups refer to Heather Stoll, Changing Societies, Changing Party Systems 23, 37–45 (2013). 93. In fact, four presidential elections have been held since 2001. The first election was held in an Emergency Loya Jirga for choosing the head of a temporary government. This election has not been studied in article since it was not a direct popular election. 94. James Ingalls, supra note 6, at 142. 95. Katzman, supra note 3, at 7. 96. The Northern Alliance consisted mainly of Tajik, Hazara, and Uzbeks parties. 184 / Journal of Afghan Legal Studies constitution 97 is that other ethnic groups wanted to make the highest executive office accessible to their candidates.98 To ensure that major ethnic groups are entrusted with the government, constitutional designers in some presidential democracies have engineered unorthodox constitutional arrangements. For example, Switzerland’s Constitution introduced collegial presidentialism,99 which is a federal council of seven members where the presidency is rotated annually among its members.100 This collegial executive was created to reflect the socio-political heterogeneity of Switzerland at the highest level of government.101 A similar system was tried twice in Uruguay but did not work.102 Cyprus at one point (1960-1963) adopted a system of co-presidency, where the president and vice president were from different ethnic groups and they shared equal constitutional powers.103 An alternative presidential system is what I refer to as a slate-proportional presidency. A proportional presidency enables a slate of two candidates to share the same presidential term, although with their own administrations in a sequence. It is a slate presidency because each coalition introduces a slate of two presidential candidates and the voters vote for a slate first and for a candidate in that slate later; and, it is a proportional presidency since the span of each presidents’ administration must be proportional to the votes s/he receives. In order to have an optimal outcome, this system must have certain characteristics. First, under this system, one presidential term should be at least five years to allow each administration to have a life span of at least a year and half. Second, the life
97. See Migration Review Tribunal, Background Paper: Afghanistan: Political Parties and Insurgent Groups 2001- 2013, 5 (Mar. 7, 2013), https://www.ecoi.net/file_upload/1226_1369733768_ppig2.pdf; International Council on Security and Development, Decision Point 2009: Afghanistan’s Presidential Election: Power to the People, or the Powerful? (2009), http://www.nps.edu/programs/ccs/Elections/ICOS_elections.pdf; Gran Hewad, The New National Front: A Dark Horse Returns with Three Riders, Afghanistan Analyst Network 1 (Dec. 2011) https:// www.afghanistan-analysts.org/the-new-national-front-a-dark-horse-returns-with-three-riders/; Jackson Keith, Institute for the Study of War, Backgrounder: The Formation of Electoral Alliances in Afghan Politics in 2014, 5 (2013), http://www.understandingwar. org/. 98. Id; see also Hether K. Gerken, Keynote Address: What Election Law Has to Say About Constitutional Law, 44 Ind. L. Rev. 9 (2010) (“It is not difficult to imagine why… minorities would desire a chance to be in charge for reasons that have nothing to do with political outcomes or the distribution of tangible goods.”). 99. David Altman, Collegiate Executives and Direct Democracy in Switzerland and Uruguay: Similar Institutions, Opposite Political Goals, Distinct Results, 14 Swiss Pol. Sci. Rev. 483, 484 (2008). 100. See Bundesverfassung [BV] [Constitution] Apr. 18, 1999, SR 101, art. 174–176 (Switz.). 101. See Altman, supra note 179, 484; Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration, 31 (1977). 102. See id, Lijphart, at 212–13. 103. Shugart & Carey, infra 184, at 99–100. Examining Ethnic Accommodation and Coalition-Building... / 185 span of each president’s administration should be proportional to the votes each president receives. Fourth, if the vote share of the second candidate falls short of providing him or her a year and half length of administration, the first winner gets to be the president for a full presidential term. Fifth, the president with a higher percentage of vote runs the first administration and the one with lower percentage of votes runs the second. Assuming that Abdullah and Ghani were both introduced by a coalition in the same ticket, a slate-proportional presidency would have led to a single round of elections in 2014 in Afghanistan. Under a five-year presidential term, Abdullah Abdullah would have taken the office for almost three years, proportional to his forty-five percent votes. Subsequently, Ashraf Ghani would have been the president for a little over two years (see Table III). Electoral fraud and ethnic tension would have been less likely since there would not have been a second round and all stakeholders would have been sure about the presidency of their candidates. Table III. shows the duration of Abdullah and Ghani’s presidencies (in accordance with their votes) under an eight-year proportional presidency model. Proportional Presidential Under an Eight-Year Term Candidates Votes Years in Office Dr. Abdullah 45% years 2.9 Dr. Ghani 31.6% years 2.1
The slate-proportional presidency is different from the collegial presidentialism seen in countries like Switzerland and Uruguay.104 In Switzerland, there is a council of seven-members who rotationally lead the country as the president every year.105 Proportionality in collegial presidentialism indicates that the number of the presidents is proportional to the social cleavages and respective political parties.106 In slate-proportional presidency, however, proportionality
104. Matthew Soberg Shugart & John M. Carey, Presidents and Assemblies, Constitutional Design and Electoral Dynamics, 96 (1992). 105. Lijphart, supra note 181, at 76. 106. See Wolf Linder & Isabelle Steffen, Forum of Federation, Swiss Confederation 7 (2006), http://www. thomasfleiner.ch/files/categories/IntensivkursII/Switzerlandg3.pdf. 186 / Journal of Afghan Legal Studies determines the longevity of each administration by the share of votes that each president wins. The slate-proportional presidency is also different from co-presidency, which was implemented to some extent in Cyprus (1960-1963).107 Under a co- presidency, as proposed by Matthew Shugart and John Carey, the president and vice president are elected on the same ticket by voters.108 They form the same administration, although they represent different ethnic groups and clearly have equal powers.109 Slate-proportional presidency, however, suggests separate administrations on the basis of vote shares of two presidential candidates. In this way, a proportional presidency avoids the cohabitation110 that exists in co- presidency, as Shugart and Carey willingly admit.111 This system has a number of advantages. First, although candidates’ votes would determine the length of their presidencies, both presidents would be from the same coalition. Since both presidents are off the same coalition (slate) this will help congruity in administrations’ policies. It is mainly because they are more likely to follow the same political agenda and less likely to reshuffle the whole executive or cabinet when the second president takes office. Another major advantage of proportional presidency is the fact that it properly responds to the frustration of ethnic groups by allowing their candidates to possibly run an administration in different presidential terms. Knowing their candidates can win elections, voters have little incentive to stay in their ethnic boxes and elites have little justification to mobilize their ethnic groups.112 However, this advantage does not equally apply to all ethnic groups; for instance, Hazaras, Uzbeks, and other minorities still have little chance to win elections as presidents.113 As a solution, including two Vice Presidents in the slate would
107. Shugart & Carey, supra note 184, at 99–100. 108. However, in Cyprus, the president and vice president were elected separately and by different constituents. See id, at 99. 109. Id. at 99–100, 103–105. 110. Cohabitation refers to situation where a political confrontation occurs between the president and prime minister and/or parliament. See Jayadeva Uyangoda, The Dynamics of Coalition Politics and Democracy in Sri Lanka, in Coalition Politics and Democratic Institutionalization in Asia 211 (E. Sridharan eds., 2012); Terrence E. Cook, Nested Political Coalitions: Nations, Regime, Program, Cabinet 166 (2002). 111. Shugart & Carey, supra note 184, at 104. 112. T. Clark Durant & Michael Weintraub, An Institutional Solution for Ethnic Patronage Politics, 26 Journal of Theoretical Politics 59 (2014) (“insofar as a citizen expects to spend some time “in” and some time “out,” then it is easier to come to a time-consistent consensus to create a socially productive scope of office.”) 113. Sven Gunnar Simonsen, Ethnicising Afghanistan? Inclusion and Exclusion in Post-Bonn Institution Building, 25 Third World Quarterly 707, 714 (2006) (“In a deeply divided society it is difficult for someone from a small Examining Ethnic Accommodation and Coalition-Building... / 187 allow each presidential ticket to represent at least the four large ethnic groups. Allowing the two vice presidents to remain in the office for a full presidential term, regardless of president alternations, would lead to three positive outcomes. First, it would help with the continuity of policy implementation when the second winner becomes the president. Second, the supporters of vice presidents would likely cast merit-based votes when their vice president candidates are members of the slate rather than nominees of individual candidates. Third, the ethnic groups represented by the Vice Presidents would be satisfied with the fact that although their representatives in the executive do not have as much power as the presidents, their terms in office would exceed those of the presidents. A somewhat similar arrangement to slate-proportional presidency was experienced by Mauritius. In this country, one executive term was divided equally between two prime ministers, although through an agreement between the coalition partners rather than through some constitutional provisions.114 Thanks to this agreement, for the first time in Mauritius, an elite from a minority group—a non-Hindu—was able to become the prime minister.115 Colombia is another country that followed a similar approach. In 1958, in order to put an end to civil war, the two dominant parties of Colombia agreed on a consociational form of government.116 Under this consociational arrangement, they rotated the presidency every four years and split seats in the Congress, as well as other government agencies, evenly for over sixteen years. 117 Nonetheless, one major difference between these arrangements and the slate-proportional presidency is that the latter is a constitutional design and not a temporary arrangement between rival parties. In effect, the latter is likely to generate incentives for long-lasting coalitions. 5. Reforming the System and Taming the President Contrary to the conventional perceptions, Afghan governments have reflected less or more ethnic distribution in Afghanistan under the current presidential group to be elected president.”) 114. Denis Kadima & Roukaya Kasenally, The Formation, Collapse and Revival of Political Party Coalitions in Mauritius: Ethnic Logic and Calculation at Play, in The Politics of Party Coalitions in Africa 82 (Denis Kadima ed., 2006). 115. Id. 116. Arend Lijphart, Thinking About Democracy: Power Sharing And Majority Rule In Theory And Practice 29–30 (2008). 117. Id.; Scott Mainwaring, Presidentialism, Multiparty Systems, and Democracy: The Difficult Equation 7 (Kellogg Institute, Working Paper No. 144, 1990). 188 / Journal of Afghan Legal Studies system (see Table IV). It has been mainly due to the presidents’ returning of favor to their electoral allies through portfolio allocation. In fact, political distribution has been the main bargaining chip for pre-electoral coalitions under the current presidential constitution.118 In addition to portfolio allocation on the cabinet level, presidents have used secondary posts such as governorship of provinces, ambassadorial positions, and positions in other ministerial and non-ministerial agencies to satisfy their coalitions at the lower level, especially the elites from smaller groups.119 Inclusive governments have also been because the presidents have needed the approval of the WJ for cabinet formation. Table IV: shows ethnic representations in different cabinet formations as well as after cabinet reshuffling.120 Cabinet Reshuf- Portfolio Allocations fles Pashtun Tajik Hazara Uzbek Other The 2004 Gov- 8 30% 10 19% 5 19% 2 7% 2 7% ernment Cabinet Re� - 9 36% 9 12% 3 12% 3 12% 1 4% )shuffle (2005
118. Id. at 144-145. 119. Timor Sharan, Dynamic Qudrat Shabaka Hai Seyasi Dar Intekhabat Ryasat Jamhuri 2009 [The Dynamics of Political Networks in the Presidential Election of 2009], in Democracy Afghani: Fursat Ha Wa Chalish Ha [Afghan Democracy: Challenges and Opportunities] (Mohammad Nabi Ahmadi & Majid Ismaelzada, eds., 1393) 146-7 [2014]. 120. U.S. Welcomes Afghan President Karzai’s Cabinet Appointments, Global Security (Dec. 27, 2004) http:// www.globalsecurity.org/military/library/news/2004/12/mil-041227-usia04.htm; Karzai To Replace Foreign Minister, Dawn (Mar. 23, 2006) http://www.dawn.com/news/184473/karzai-to-replace-foreign-minister; Chris Hawke, Karzai’s Cabinet Picks Get Green Light, Associate Press (Aug. 8, 2006) http://archive.boston.com/news/ world/articles/2006/08/08/karzais_cabinet_picks_get_green_light/?camp=pm; Cabinet List 2005-2009, Afghan Bio, http://www.afghan-bios.info/index.php?option=com_afghanbios&id=364&task=view&total=2455 &start=455&Itemid=2; Martine van Bijlert, The Cabinet Vote: Fourteen In, Eleven To Go, Afghanistan Analyst Network (Jan. 16, 2010) https://www.afghanistan-analysts.org/the-cabinet-vote-fourteen-in-eleven- to-go/; Cabinet List No.4 20100628, Afghan Bio, http://www.afghan-bios.info/index.php?option=com_ afghanbios&id=367&task= view&total=2467&start=468&Itemid=2; Cabinet List No.1 20100102, Afghan Bio, http://www.afghan-bios.info/ index.php?option=com_afghanbios&id=364&task=view&total=3405&start=657&Itemid=2; Cabinet List No.2 20100109, Afghan Bio, http://www.afghan-bios.info/index.php?option=com_afghanbios&id=365& task=view&total=3405&start=658&Itemid=2; Cabinet List No.3 2010, Afghan Bio, http://www.afghan-bios. info/index.php?option=com_afghanbios&id=366&task=view&total=3405&start=659&Itemid=2; Kate Clark, The Cabinet and the Parliament: Afghanistan’s Government In Trouble Before It Is Formed, Afghanistan Analyst Network, https://www.afghanistan-analysts.org/the-cabinet-and-the-parliament-afghanistans-government-in- trouble-before-it-is-formed/; Who is who In Afghanistan: Afghanistan Biography, http://www.afghan-bios.info/ database.html. Examining Ethnic Accommodation and Coalition-Building... / 189
Cabinet Re� - shuffle (2008- 10 40% 7 12% 3 12% 4 16% 1 4% )09 The 2009 Gov- 9 35% 9 15% 4 15% 4 15% 0 0% ernment Cabinet Re� - 9 35% 9 12% 3 12% 4 15% 1 4% )shuffle (2010 Cabinet Re� - 9 35% 9 12% 3 12% 4 15% 1 4% )shuffle (2012 Cabinet Re� - 10 38% 8 12% 3 12% 4 15% 1 4% )shuffle (2013 The 2014 Gov- 10 38% 8 19% 5 19% 2 8% 1 4% ernment However, inclusive cabinets have not led to consolidation of cross-ethnic coalitions. Neither, have the presidents valued the support of their allies for policy development or even approval of their policies in the legislature. In fact, the reason that the presidents have been committed to inclusive executive but not inclusive policies, is that presidents have been depended on legislature’s approval for the former but not necessarily for the latter. Afghan presidents have broad legislative powers. Studies have indicated that the presidents with fewer legislative powers are more prone to parliamentary coalition-making and inclusive government than the presidents with more legislative powers.121 Managing this issue would require amending the Constitution and reducing or abolishing some legislative powers of the President. For instance, Afghan presidents have item veto power, which is not common in presidential democracies. A study by Shugart and
121. Mariana Llanos, Explaining Coalition Performance in Presidential Systems: The Importance of (a Parliamentary-style) Coalition Management, 12-13 (European Consortium of Political Research, Presentation Paper, 2006) (“In particular, the organisation of the legislative work (centralised or decentralised), the president’s legislative powers, especially his or her powers over the budget (to what extent they allow the president to decide discretionary on the implementation of local projects), and the president’s capacity to distribute posts in the federal government are usually used to explain different coalition types and the performance of coalitions in delivering congressional party discipline.”); Cecilia Martínez-Gallardo, Out of the Cabinet : What Drives Defections From the Government in Presidential Systems? 45 Comparative Political Studies, 64 (2011); Eduardo Alemán & George Tsebelis, Political Parties and Government Coalitions in the Americas, 1/3 Journal Of Politics In Latin America, 3-28, 11-12 (2011) (“Shugart and Carey’s (1992) seminal work differentiated presidential systems according to executive authority, and argued that high legislative powers gave presidents opportunities to sidestep congress, opening the door to regime instability.”) 190 / Journal of Afghan Legal Studies
Mainwaring indicates that among 23 Latin American countries, 15 constitutions do not provide the president with item vetoes. Item veto provides the president with leverage over the assembly, enabling the president to keep his or her favored items in the law while removing the unfavorable items without needing to compromise with the assembly.122 Following the majority of presidential constitutions, a reform in the Afghan Constitution would require abolishing the item veto power of the President. Additionally, requiring a quorum of two-thirds of the WJ to override a presidential veto is a high threshold for WJ to fulfill.123 Afghanistan is one of the very few presidential democracies where the constitution requires a supermajority of the WJ to repeal a presidential veto. The threshold for veto overriding is a simple majority in Venezuela, absolute majority in Nicaragua, absolute majority of joined houses in Brazil and Colombia, and absolute majority of present members in Uruguay.124 Perhaps not coincidentally, with the exception of Brazil, all these countries have stable coalitions or party systems. In Indonesia and Sri Lanka, the presidents have no veto power or their veto power can be reversed by only a simple majority of their legislatures. Additionally, Afghan presidents have strong legislative decree authority. Using this authority, Afghan presidents have been able to bypass the WJ to make laws on their own. To reduce this power, the Afghan Constitution should reduce the veto override threshold to a simple majority to limit the legislative power of the president. A further constitutional reform should reduce the items, on which the President would have legislative decree authority. 6. Conclusion This study examined alternative forms of government in Afghanistan to explain what political regime can best accommodate power-sharing, social integration, and institutionalization of cross-ethnic coalitions. In its short history of democratization in two waves, Afghanistan has experienced all three political regimes: a parliamentary system (1963-1973), a presidential constitution (2004-2014), and a de facto semi-presidential system (2014-present). These
122. John M. Carey, The Impact of Constitutional Choices on the Performance of Presidential Regimes, J. of Soc. Sci. & Phil. 116 (1999); Gabriel L. Negretto, Government Capacities and Policy Making by Decree in Latin America The Cases of Brazil and Argentina, 37 Comp. Pol. Stud. 531, 540 (2004). 123. Constitution, art. 94. 124. John M Carey, Presidential versus Parliamentary Government, in Handbook of New Institutional Economics 91, 107 (Claude Menard & Mary M. Shirley, eds., 2008). Examining Ethnic Accommodation and Coalition-Building... / 191 experiences of Afghanistan were used to examine the role of alternative political systems in ethnic accommodation. It concluded that parliamentary and semi- presidential systems may remedy some of the flaws of current presidential system but they instigate other problems. For example, a parliamentary system is likely lead to unstable and less inclusive governments; and, a semi-presidential system may lead to cohabitation and political deadlock to say the least. Therefore, the present author proposes reforming the current presidential system through a constitutional amendment rather than replacing the system with an alternative. Particularly, he recommends reducing the legislative power of the president.
Non-Violation Of Islamic Law Under The Afghan Constitution Mohammad Rasekh1
Abstract The Afghan Constitution of 2004 has imposed two sets of limits on rule making in the country. On the one hand, the rules made ought to meet the Islamic limits and, on the other hand, they have to satisfy the human rights and democracy limits as stated in international law. Firstly, as for the Islamic limits, it will be shown that “non-violation”, rather than compliance, is meant. Secondly, the content and scope of the Islamic limits are dealt with. Thirdly, it is argued that no official religion is designated, though two Muslim jurisprudential schools are introduced for relevant cases. Fourthly, two pertinent authorities are introduced and discussed. That is, the Supreme Court and the Independent Commission for the supervision of implementation of the Constitution are established in order to undertake the duties of monitoring, respectively, “compliance” with and “implementation” of constitutional provisions, while a third issue of “interpretation” of the provisions has been remained ambiguous and, hence, creating controversies. Fifthly, it shall be shown that certain requirements of the second set of limits, in particular that of the rule of law, is the main pillar of the whole constitutional system. Thus, it cannot be readily undermined. Sixthly, the resulting conundrum of satisfying
1. Professor of Law and Philosophy, the Faculty of Law, Shahid-Beheshti University (formerly the National Univer- sity of Iran), Tehran ([email protected]). Dr. Mohammad Rasekh is currently a professor of law and philosophy at the Faculty of Law, Shahid-Beheshti University and a senior research fellow of various European academic institutes. He studied traditional and modern humanities and Islamic sciences in Iran and the Europe. His expertise and also research interests relate to philosophy of law, axiology, epistemology, theory of justice, Islamic law and religion, Shi’i law and theology, theory of rights, bioethics, and comparative public law. 194 / Journal of Afghan Legal Studies both sets of limits will be introduced. Finally, an attempt will be made to find a way out of the conundrum. Keywords: Afghan Constitution of 2004, Constitutional Background, Non- Violation of Islamic Law, Human Rights and Democracy 1.Introduction Ordinary legislation refers to the type of law making, by representatives of the people, which is performed within the boundaries set out by the higher law, i.e. the Constitution of a country. Afghanistan is no exception to this. The Afghan Constitution of 2004 has set out, in various Articles, those limits within which the ordinary laws, by the National Assembly, are supposed to be legislated. Two main sets of limits are discernible in the provisions of the Constitutions (2004). The first set may be referred to as the “Islamic limits”, to which Articles 2 and 33 of the Constitution explicitly refer, and the second as the “human rights and democracy limits”, explicitly indicated by Article 7 of the Constitution and its Second Chapter, in particular Articles 58 and 59. The afore- mentioned limits lay very well bare the combinational nature of the Afghan Constitution. Indeed, the writers of the Constitutions have done their best to gather the traditional, in this case the Muslim heritage, and the modern provisions under the same roof.2 This chapter attempts to elucidate the Islamic limit, i.e. the non-violation provisions of the Constitution, which is imposed on the process of ordinary legislating. This limit is dealt with in both its own right and in relation to another constitutional limit on legislation. On this basis, we shall, first, refer to all the Articles of the Constitution (2004) that in one way or another define Islamic boundaries of the constitutional system, and will single out the most important provision relating to the ordinary law making amongst them, namely Article 3. Secondly, the historical background and connotation of Article 3 will be explained. The previous Constitution of the Country (1964) also included an Article (No. 64) according to which no ordinary law could be repugnant to the basic principles of the sacred religion of Islam. The meaning and implications of Article 3 of the existing Constitution will be explored in contrast to that of Article 64 of the previous. Thirdly, one of the significant institutional aspects
2. See, for instance, S. Alex Constantin et al. (eds), Selected Proceedings of The Annual Canadian Law Student Conference, Windsor, (Windsor Review of Legal and Social Issues in Association with The Windsor Faculty of Law 2010) 32. Non-Violation Of Islamic Law Under The Afghan Constitution / 195 of the Constitutional provisions in this regard, i.e. the monitoring authority over the applications of Article 3, will be examined. Fourthly, we shall turn to the relationship between the two afore-mentioned sets of constitutional limits on the ordinary legislation, and endeavour to lay bare their conceptual interplay. The main question will be whether or not they are congruous. Finally, in conclusion, an analysis of the mentioned relationship will be put forth in order to make a balance between the two main constitutional limits on legislation. 2. Related Articles There are fourteen Articles amongst the provisions of the Constitution (2004) that set out, directly or indirectly, the Islamic non-violation requirements to be met by the whole legal-political system. It is worth noting at the outset that the provisions which will be discussed below indicate that the requirement of being Islamic and the ensuing limits required by it are all democratically put in force. The reason lies in the fact that, on 4th January 2004, the majority of the Afghan eligible voters, via their representatives in Louyi Jarga,3 enacted them. That is, the provisions derive their validity from the popular will. Article 1 explicitly states, inter alia, that Afghanistan is an Islamic republic, immediately after which, in Article 2, the sacred religion of Islam is declared as the religion of the Islamic republic state of Afghanistan. Article 3 requires that, in Afghanistan, no law may contravene the beliefs and rulings of the sacred religion of Islam. Article 35, while recognising the right of the people to form political parties, imposes certain limits on this right. The first condition, stated in the first Item of this Article, requires that political parties’ manifesto and charter do not contravene rulings of the sacred religion of Islam, or texts and values enshrined in the Constitution. Article 45, in another field, requires the state to devise and implement a unified educational curriculum on the basis of rulings of the sacred religion of Islam, national culture, as well as academic principles, and develop religious subjects curriculum for schools on the basis of existing Islamic sects in Afghanistan. Article 54 commits the state to take measures to eliminate family traditions contrary to rulings of the sacred religion of Islam. According to Article 62 (1), the President should be, inter alia, a Muslim, who, based on Article 63, ought to take an oath, before assuming the office, by which s/he has a duty,
3. The national assembly of the country comprising heads of all ethnics. 196 / Journal of Afghan Legal Studies among other things, to obey and protect the sacred religion of Islam, and respect and supervise the implementation of the Constitution as well as other laws. The Ministers of the government also, by Article 74, take an oath, according to which they have to, inter alia, protect the sacred religion of Islam, respect the Constitution and other laws of Afghanistan, and safeguard the rights of citizens. Further, the Oath that the members of the Supreme Court ought to similarly take indicates almost the same: “to attain righteousness and justice in accordance with rulings of the sacred religion of Islam, texts of this Constitution as well as other laws of Afghanistan” (Article 119). Article 121 deals with the monitoring of the compliance of all laws and regulations with the Constitution (including Article 3) and their interpretations. We will explore this Article in detail in section four of this chapter. Also, Article 130 refers to those judicial cases for which no rule can be found within the legal system of the country. Although, in this Article, rulings of the Hanafī School of jurisprudence are mentioned as the source of trial of these cases, two important qualifications are added to the recourse to this source. That is, courts ought to settle those cases within the constitutional limits and in a way that attains justice in the best manner. Further, Article 131 for the first time allows courts to try cases related to personal status, and also cases for which no rule can be found within the legal system, belonging to the followers of Shī`ī School of jurisprudence in accordance with the Shī`ī rulings.4 Section 2 of the Personal Status Law (2009)5 of the country embodies the provisions embedded in this Article. Finally, according to Article 149, provisions relating to the principles of adherence to the rulings of the sacred religion of Islam as well as the Islamic republic system shall not be amended. Having mentioned all the constitutional provisions relating to the Islamic aspect of the legal and political system of the country, it should be noted that Articles 3 of the Constitution (2004) defines the core substantive element of this aspect, particularly with regard to ordinary legislation. Other provisions enshrined in other Articles of the Constitution are either embodiments or applications of this core substance in a particular field, or they point to a formal (institutional/ procedural) aspect of the Islamic dimension of the Constitution. Accordingly, in the next section, we will focus on Article 3, which directly relates to the subject
4. Amin Tarzi , “Islam and Constitutionalism in Afghanistan” [2012] 5 (2) Journal of Persianate Studies 239. 5. See the Official Gazette, No. 988, Dated 27th July 2009. Non-Violation Of Islamic Law Under The Afghan Constitution / 197 matter of this chapter. 3. Background and Implications of Article 3 Article 3 of the Constitution of 2004 does not specify an unprecedented or brand new restriction on the content of the ordinary laws of the land. This kind of restriction was already provided for by Article 64 of the Constitution of 1964.6 Article 64 stated, amongst other things, that “[t]here shall be no law repugnant to the basic principles of the sacred religion of Islam and the other values enshrined in this Constitution.”7 Now, it is necessary, first, to read the text of Article 3 of the Constitution of 2004 in contrast with that of Article 64 of the previous Constitution. We will then examine the meaning and implications of Article 3 independently in more details. The wording of Article 3 is as follows: “[i]n Afghanistan, no law may contravene the beliefs and rulings of the sacred religion of Islam”. The main difference between Article 64 (1964) and Article 3 (2004) relates to the qualification added to the sacred religion in each of the Articles. More precisely, the difference, due to different qualifications, relates to that part of the sacred religion which should not be violated by ordinary law making. Article 64 required the laws not to contravene the “basic principles” of the sacred religion, whereas Article 3 compels them not to violate the “beliefs and rulings”8 of the religion. First, it should be noted that these two qualifications did not existed in the draft which the Constitutional Drafting Commission had prepared and was reconsidered by the Constitutional Review Commission. It was the Louyi Jarga that, in its compromise with the Islamist faction, added them.9 Secondly, the “basic principles” evidently refer to the roots of the religion (i.e. asāsāt, usūl al-dīn or usūl al-i`tiqādāt10) and by this Article
6. Constitution of the Kingdom of Afghanistan 1964, the Official Gazette, No. 12, Dated 3rd October 1964. 7. It is worth mentioning that, even prior to this, Article 65 of the Constitution of 1931 had provided that “Provisions passed by the National Assembly should not contravene the canons of the true religion of Islam or the policy of the country.” Constitution of Afghanistan (Fundamental Principles of the Government of Afghanistan), 1310 A.P. (1931), Published Date: 13th December 1932. For further studies in this regard, see Mohammad Hashim Kamali, Law in Afghanistan: A Study of the Constitutions, Matrimonial Law and the Judiciary (E. J. Brill 1985). (معتقدات و احکام) mu`taqadāt wa ahkām .8 9. See, for instance, Tarzi, “Islam and Constitutionalism in Afghanistan”, p 239; and Ramin S. Moschtaghi, “Consti- tutionalism in an Islamic Republic: The Principles of the Afghan Constitution and the Conflicts between Them”, in Rainer Grote & Tilmann J. Röder (eds), Constitutionalism in Islamic Countries: between Upheaval and Continuity (OUP 2012) 684-85. 10. Usūl al-dīn includes the fundamental beliefs of Islam: e.g. belief in the one and only God, belief in the prophet- 198 / Journal of Afghan Legal Studies
64 determined a small limited set of rules which the legislature should take care not to infringe upon. In contrast, the concept of “beliefs and rulings” points to both the roots and branches (branches stand in contrast with roots (asāsāt or usūl), hence, they are called furū` al-dīn or ahkām11) of the religion and, accordingly, lays down a larger number of rules to be observed, or to be more precise, not to be violated. With this explication, we have evidently equated “beliefs” (in Article 3) with “roots (asāsāt or usūl al-dīn)”. There is a good reason for this. Either “beliefs” should be read as a repetition of or synonym for “rulings” (next to it), which is absurd, or it is bound to imply an independent meaning other than “rulings” (i.e. branches of the religion). The only alternative meaning would be “basic principles” (i.e. roots of the religion or usūl al-dīn) of the religion.12 On this basis, ordinary legislation under the Constitution of 1964 had left a broader room for manoeuvre in terms of non-violation of the sacred religion. Under the previous Constitution, the ordinary law could comply with the religious principles while diverging from the rulings inferred from those principles up to the time of enactment of a new law. The content of this law could have not been thought of by any Muslim jurist before. The proposed content could have been a result of new interpretation and independent reasoning (ijtihād) of the religious sources. Thus, under the previous Constitution, ijtihād had in principle a more serious place in the ordinary law making process and could prevent a formalistic or mechanical application of the religious principles.13 Indeed, it seems that hood of Muhammad (pbuh) and belief in the Resurrection (the Day of Judgment) 11. Furū` al-dīn means all normative rules that have been, and still being, inferred from the Islamic sources over the last thirteen hundred years or so. Although, at the beginning, sharī`a and fiqh were used to indicate understanding of the whole religion (i.e. dīn), they were later used as indicating the set of normative rules, that is, those rules that guide Muslim conducts. Nowadays, when the term ahkām or shari`a or fiqh is used, they are meant to indicate the Islamic set of normative rules. Only recently, some scholars have begun to distinguish between sharī`a and fiqh (see, for instance, Mohammad Hashim Kamali, Sharia Law (One World Publications 2008) Ch.s 2-3. By sharī`a, it seems, they mean the “Islamic sources” (al-adilla or manābi`: i.e. at least the Qur’ān and the Sunna), hence, they take these sources as sacred and unchangeable, whereas different understanding of those sources (as defined as fiqh) are con- sidered as humane, contextual and changeable. Khaled Abou El Fadl, Reasoning with God: Reclaiming Shari’ah in the Modern Age (Rowman & Littlefield 2014) xxxii; Khaled Abou El Fadl, “Islam and the State: A Short History” in Khaled M. Abou El Fadl, Said Arjomand, Nathan Brown et al. (eds), Democracy and Islam in the New Constitution of Afghanistan, (RAND 2003) 13-14. 12. See, for example, Anver M. Emon, “To Most Likely Know the Law: Objectivity, Authority, and Interpretation in Islamic Law” (2009) 4 (4) Hebraic Political Studies 415, 440, (especially as at pp 425-427). 13. Khaled M. Abou El Fadl, , Said Arjomand, Nathan Brown et al. (eds), Democracy and Islam in the New Con- stitution of Afghanistan, (RAND 2003) 4. Non-Violation Of Islamic Law Under The Afghan Constitution / 199 the Louyi Jarga members at that time intended to expand modern ideas and material within the legal system, a propensity that was in place in 1923 as well.14 However, in contrast, the existing Constitution of 2004 has in principle taken this opportunity away; to wit, the laws which are being drafted under this Constitution may not fly in the face of the already inferred rules and rulings of the religion (i.e. ahkām or furū` al-dīn).15 That is why a number of scholars have put forth the idea of flexible interpretation of (or ijtihād in) the religious provisions so as to narrow the gap between two groups of constitutional provisions (i.e. those of the Islamic and the modern).16 Apart from the substantive evolution of the non-violation constitutional clause since 1964, we may now focus independently on the meaning of Article 3. The first point to make is that this Article explicitly requires the laws “not to violate” the Islamic rulings. In other words, it does not necessitate them to “comply with” these rulings.17 The language of the Article is negative, rather than positive. Therefore, the “not to violate” qualification denotes a negative requirement, whereas “to comply with” qualification denotes a positive requirement. This no doubt makes a huge difference in the process of law making. On the basis of the negative requirement, the law makers are under a duty only to make sure that none of the existing rulings are infringed by their enactments, even though their new law cannot be directly traced backed to or be approved by any of the existing rulings. In other words, the law makers are not under a duty to show certain Islamic rulings in support of their legislation. The burden of proof, of violation of an Islamic ruling, is on the shoulder of those who claim that a piece of legislation has violated a specific ruling.18 Therefore, it may be said that there is an approval
14. See Tarzi, “Islam and Constitutionalism in Afghanistan”, p 222. 15. Alexander Their, “The Making of a Constitution in Afghanistan” (2006) 51 New York Law School Law Review 578. 16. See Andrew Finkelman, “The Constitution and Its Interpretation: An Islamic Law Perspective on Afghani- stan Constitutional Development Process, 2002-2004” (2005) Al Nakhlah (The Fletcher School’s online journal on Southwest Asia and Islamic Civilization) < http://fletcher.tufts.edu/~/ media/Fletcher/Microsites/al%20 Nakhlah/ archives/pdfs/finkelman %202. pdf> accessed on 21 June 2018. 17. The constitutions of countries like Egypt and Pakistan have taken the “compliance” approach. See, for instance, Clark B. Lombardi, “Designing Islamic Constitutions: Past trends and options for a democratic future” [2013] 11(3) International Journal of Constitutional Law. The Iranian Constitution of 1979 (as amended in 1989) is not clear on this point, though its provisions may be interpreted as indicating a non-violation approach, see, Mohsen Kadivar, “Shar`e Shawraye Nigahban Dar Barabare Qanune Majlis” (“Shar` of the Council of Guardians against the Law of the Parliament”) (2003) 30 Aftab Magazine
19. “Islam is the sacred religion of Afghanistan. Religious rites performed by the state shall be according to the provisions of the Hanafī mazhab. Those nationals who do not follow the religion of Islam are free to practice their religion within the limits determined by laws for public decency order.” 20. The deletion could be attributed to the National Assembly inclination to strike a balance between various fac- tions and parts of the society, see Tarzi, “Islam and Constitutionalism in Afghanistan”, p 220; and Barnett R. Rubin, “Crafting a Constitution for Afghanistan” in Said Amir Arjomand (ed), Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan (Hart Publishing 2008) 57,156. 21. The Constitution of Afghanistan, 1310 A.P. (1931), Published Date: 13th December 1932. See Ramin S. Moschtaghi, “Constitutionalism in an Islamic Republic: The Principles of the Afghan Constitution and the Conflicts between Them”, p 692. Non-Violation Of Islamic Law Under The Afghan Constitution / 201 it may be claimed that, looking from a legislative perspective, enough care should be taken so as not to violate rulings of any of the Islamic jurisprudential Schools. This could be called the broad interpretation of Article 3. Prima facie, the latter interpretation might seem too heavy a duty for law makers to bear. Nevertheless, it can bring about a more inclusive law making policy. That is, in order for the legislature to adhere to requirements of Article 3, in the sense mentioned above, they would ultimately be lead to adopt an extra-sectarian perspective on law. On the other hand, this enables law makers to recourse to wider resources of various jurisprudential Schools in the process of drafting and passing all of laws.22 Therefore, even if a law may have violated a ruling of one School, it may be the case that it has not violated the ruling of another School on the similar subject. For instance, the marriage of a virgin girl who has reached an age of enough maturity and wisdom without the consent of her father, grandfather, or guardian is not allowed under the preponderant interpretation of Jafarī School, whereas it is allowed under the Hanafī School.23 If the legislation is of the latter kind, which is the case at the moment in the Afghan Civil Code, it has not violated Islamic rulings. Thirdly, how should we read the word “beliefs” in Article 3? As just mentioned, at the beginning of this section, in order for “beliefs” to make a sense distinct from that of “rulings” (the full phrase reads: “Islamic beliefs and rulings”), there is no way but to interpret it as “basic principles” of the religion. Furthermore, given the normative (legal) nature of the document, these principles also ought to be of a normative kind. That is, when it comes to establishing a legal/political system, and if we wish to direct this system in a particular direction, we need to translate metaphysical and abstract dogmas into normative principles and rules so that they may be observed by this system.24 Finally, it is necessary to make an arrangement so as to make sure that the “non- violation requirement” of Article 3 is observed by various offices of the rule making apparatus of the constitutional system. That is, as a part of the constitutionality test of the legislation, laws should be reviewed by an authority to this effect.25 The
22. Mohammad Hashim Kamali, Sharia Law, esp. as at p 300. 23. Hossein Mehrpour, Mabāhisī Az Huqūqi Zan (Certain Issues on Women’s Rights) (Itilā`āt Publishing 2000) 51, 92. 24. See, Mohammad Rasekh, “Are Islamism and Republicanism Compatible?” in Nadjma Yassari (ed), The Shari’a in the Constitution of Afghanistan, Iran and Egypt - Implications for Private Law (Mohr Siebeck 2005). 25. When we say “law” we mean the enactment of the parliament. Therefore, the constitutionality review of a draft 202 / Journal of Afghan Legal Studies main question is about authority that holds such monitoring power. The presence of such authority, with a clear set of powers, would undoubtedly leave a profound impact on the way the officials and citizens understand and apply the Islamic limit on legislation. 4. The Monitoring Authority It should be drawn into attention that provisions of a constitution are prone to be left either unimplemented or implemented while this implementation may not be in full conformity with the provisions. Therefore, constitutions usually devise certain arrangements and procedures with the aim of remedying such shortcomings. In this regard, various provisions are enshrined in the Afghan Constitution of 2004 with the purpose of making sure that both the implementation of the constitutional principles and rules and monitoring of this implementation (i.e. conformity of the implementation with the constitution) are met.26 On this footing, Article 157 provides that “[t]he Independent Commission for the supervision of implementation of the Constitution shall be established in accordance with the provisions of the law. Members of this Commission shall be appointed by the President with the endorsement of the House of People.” Evidently, this arrangement is built into the constitutional system so that the very implementation of constitutional provisions is not disregarded. On the other hand, the Commission’s authority is prima facie a general one, which encompasses the supervision over implementation of all constitutional provisions, including the legislative part. Moreover, according to Article 157, everything else regarding the Commission is left to the ordinary law.27 However, two important points should be noted here. First, the authority of the Commission is of a supervisory nature, hence, any other power, of executive or judicial nature, may not be derived from this Article 157. This is due to legislation, in the proper meaning of the terms, falls outside of this discussion, though it is certainly an obligation of the drafting institutions and persons to make sure that a draft legislation complies with all provisions of the Con- stitution, including Article 3 (see, for instance, Articles 16 and 30 of the Regulation on Procedure of Preparing and Processing Legislative Documents (2012). This would reduce the risk of violation of a constitutional provision of the whole legislative process. 26. Tom Ginsburg, “Comparative Constitutional Review” (2012) US Institute of Peace Report
28. Mohammad Rasekh, Nizārat Wa Ta`ādul Dar Nizāmi Huqūqi Asāsī (Checks and Balances Under the Constitu- tional System) (5th ed, Derak Publication 2018) 15-17. 29. Mohammadreza Vijeh, “Ta’ammulī Bar Mafhūmi Salāhīyat” (“A Thought on the Concept of Discretion”) in Mohammad Jalali (ed), Andīshihāyi Huqūqi Idārī (Administrative Law Thought) (Majd 2010) 312. 30. Moschtaghi, “Constitutionalism in an Islamic Republic: The Principles of the Afghan Constitution and the Conflicts between Them”, p 707. 204 / Journal of Afghan Legal Studies in Article 121. This is a case of qualification of the general by particular. The particular authority of supervision enshrined in Article 121 does qualify and override the general authority laid out in Article 157. Here, there remains another issue that has created strong controversy within the Afghan constitutional system. The issue relates to the authority of interpreting the Constitution which in turn may impact the interpretation and enforcement of the constitutional clause on the non-violation of the sacred religion. Over the first decade of the life of the Constitution, a few constitutional cases arose, which in their turn brought the issue of interpretation of the Constitution to the fore.31 Eventually, it amounted to the enactment, by the House of People, of the “Law on the Independent Commission for the Supervision of Implementation of the Constitution” in 2008. The President vetoed the law, arguing that parts of its provisions violated Article 121 of the Constitution. It was argued that the Independent Commission for the supervision of implementation of the Constitution, according to Article 157, is only to supervise the implementation of the Constitution. This is a duty totally different from interpreting the Constitution. They have to be kept separate.32 In return, the House used its constitutional power (enshrined in Article 94) and overruled the presidential veto by passing the Law with a two third vote for a second time. Section 8 of this Law stipulates: “For the purpose of a better supervision of the application of the provisions of the Constitution, the Commission shall have the following duties and authorities: … (2) Supervision of the observance and application of the provisions of the Constitution by the President, the Government, the National Assembly, the Judiciary, and the state and non-state institutions.”33 In 2009, however, the Supreme Court issued a Judicial Order by which parts of the Law were declared in violation of the Constitution and hence unenforceable.34 In general, two kinds of arguments have been put forth for and against the authority
31. The most famous of which has been the Spanta Case. See, Mohammad Hashim Kamali, Afghanistan Constitu- tion Ten Years On: What Are the Issues? (AREU 2014) 10, 14. 32. Mohammad Qasim Hashimzai, “The Separation of Powers and the Problem of Constitutional Interpretation in Afghanistan” in Rainer Grote & Tilmann J. Röder (eds), Constitutionalism in Islamic Countries: between Upheaval and Continuity (OUP 2012) 677. 33. Law on the Independent Commission for Supervision of the Application of the Constitution 2008. See Hashimzai, “The Separation of Powers and the Problem of Constitutional Interpretation in Afghanistan”, p 678. 34. For the text of both the Law of 2008 and the Order of the Supreme Court on this Law, see The Official Gazette, No. 986, Kabul: The Ministry of Justice, p 47 onwards. Non-Violation Of Islamic Law Under The Afghan Constitution / 205 of the Supreme Court to interpret the Constitution. The proponents argue on the basis of the intention of the writers of the Constitution who had drafted a chapter on a constitutional court which had been explicitly granted, among other things, the authority to interpret the constitution.35 On the last days of constitutional deliberation, the chapter was deleted, by virtue of which Article 121 was hastily drafted and inserted into the Constitution. This Article does include a power of interpretation which, given the background and intention of the writers, should embrace the interpretation of the Constitution. The opponents, however, argue on a grammatical basis (in Dari language) that the phrase “and their interpretation” in Article 121 refers only to the four items mentioned before it (i.e. laws, legislative decrees, international treaties as well as international covenants) and, hence, the issue of the interpretation of the Constitution remains out of the domain of the Court’s powers.36 It seems that the controversy over the mentioned interpretation power is still unresolved. Its resolution may partially depend on the kind of theory of constitutional interpretation (textualist or otherwise)37 one chooses, but it also depends on dynamics of the power structure inside the country. All in all, one may claim that the Supreme Court, consisting of permanently employed high ranking judges, is more reliable, compared with the Commission whose very existence depends on the approval of the majority of (most probably non-lawyer) non-permanent members of parliament, to interpret the most important legal document of the land, especially when it comes to the other constitutional limit on law making (namely, the human rights and democracy boundary).38 The last point lays bare another significant element in understanding the Islamic limit on law making. Understanding and implementation of this limit would be extremely fluent if there were only one such limit in the Constitution. Things, however, are complicated when another equally important limit is set out therein.
35. Scott Worden & Sylvana Q. Sinha, “Constitutional Interpretation and the Continuing Crisis in Afghanistan” [2011] 113 PEACEBRIEF 1- 4. 36. See Kamali, Afghanistan Constitution Ten Years On: What Are the Issues?, pp 12-14. 37. See, for instance, Robert Post, “Theories of Constitutional Interpretation” [1990] 30 Representations (Special Issue: Law and the Order of Culture), 13,41 38. Sarwar Danish favours a judicial system for review and interpretation: Sarwar Danish, Darāmadī bar Vaz` wa Taswībi Qānuni Asāsi-i Jadīdi Afghanistan (An Introduction to the Ordaining and Passing the New Constitution of Afghanistan) (Siraj 2003) 112-113; Hashimzai, “The Separation of Powers and the Problem of Constitutional Interpretation in Afghanistan”, pp 675-78. 206 / Journal of Afghan Legal Studies
5. Relationship among Various Constitutional Limits As just mentioned, the constitutional requirement not to violate the Islamic principles and rulings is not in fact the only limit imposed on the ordinary law making process. There is another set of rules that gives rise to another limit in this regard. This set consists of those provisions of the Constitution that relate to the establishment and observation of the rule of law, democracy, human rights, and international law standards. For the sake of brevity, we have called them the human rights and democracy limit. The very existence of the Constitution, as the most fundamental binding rule- system, is the best witness for the necessity and the establishment of the state on the basis and within the limits of law (i.e. the rule of law). The rule of law principle has also explicitly and emphatically emerged at many points in the Constitution. Not only does Article 56 obligate all citizens of Afghanistan to observe provisions of the constitution, obey the laws, and their ignorance of the law is not considered as an excuse, Article 27 also embodies three vital requirements of the rule of law in the modern time. They all lie in the most sensitive realm of crime and punishment. According to this provision no commission or omission of an act shall be counted as a crime and, consequently punishable, unless it is in advance designated as a crime. Also, the kind and amount of punishment and procedures of prosecution and trial all have to be determined in advance. Due process of law is explicitly mentioned and emphasized with regard to the latter two. Correspondingly, the rule of law, as the backbone and the most important pillar of the constitutional system, is so fundamental that nothing can overrule it. Even any substance that is accepted as a standard of rule making cannot logically go so far as to undermine the pillar and play a self-defeating role in the system. Democracy is another fundamental element of the Constitution which has emerged in various provisions of the Constitution. For instance, Article 4 declares that the national sovereignty belongs to the nation which shall be exercised either directly by them or indirectly through their representatives. The nation is also defined as all individuals who possess the citizenship of Afghanistan. Article 5 also emphasizes that it is a duty of the state to implement the provisions of the Constitution in order to, inter alia, protect the national sovereignty (which is already defined in Article 4), and Article 6 defines realisation of democracy as one of the obligations of the Afghan state. It obligates the state “to create a prosperous and progressive society based on social justice, preservation of Non-Violation Of Islamic Law Under The Afghan Constitution / 207 human dignity, protection of human rights, realization of democracy, attainment of national unity as well as equality between all peoples and tribes and balance development of all areas of the country”. Democracy here is depicted intertwined with other elements of a constitutional system. Human rights occupy even a more significant and prominent place in the Constitution. From Article 6 (protection of human rights) to Article 7 (observance of the Universal Declaration of Human Rights) to an entire chapter on rights of the people (Chapter 2, including 28 Articles) to Article 74 (the President’s oath so as, among other things, to protect rights of citizens) to Article 149 (amendment of fundamental rights of citizens provided only that they are improved) all reveal the high status of human rights in the Constitution. Finally, Article 7, by committing the state to observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights, marks still another important boundary for the legal system, in particular the law making apparatus. These provisions do mark a really significant milestone in the history of Afghan constitutionalism, despite the fact that in many Muslim countries there seems to exist a vague and insufficiently elaborated fear of the idea and institution of rights.39 It should be noted here that the above mentioned provisions of the Constitution in fact represent some of the main pillars of modern constitutionalism. The constituting power of the people and their active participation in determining their collective destination, the rule of law, fundamental human rights, separation of powers, the checks and balances system and the like are all amongst the requirements of a modern constitutional system which in turn is an embodiment of the modern justice.40 The question now is about the compatibility of the Islamic limit of the Constitution with its human rights and democracy boundary. No doubt, the Constitution requires the observation of both of the limits, which certainly implies that the writers of the document had presupposed their compatibility.
39. On the Muslim response to human rights, see, for instance, Ann Elizabeth Mayer, “The Respective Roles of Human Rights and Islam: an Unresolved Conundrum for Middle Eastern Constitutions” in Saïd Amir Arjomand, Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran and Afghanistan (Hart Publishing 2008) 7. 40. David T. Butleritchie, “The Confines of Modern Constitutionalism” [2004] 3 (1) Pierce Law Review 1, 32; and Mohammad Rasekh, “Sharia and Law in the Age of Constitutionalism” [2016] 2 (2) Journal of Global Justice and Public Policy 259, 276. 208 / Journal of Afghan Legal Studies
Over the short life of the Constitution, there have been serious cases of incompatibility of the two limits. Here, reference may be made to the actual conflict between the right to freedom of religion, on one side, and the ruling on irtidād (the punishable grave crime of apostasy, which includes converting from Islam to another religion), on the other. The Abdul Rahman (Apostasy) Case (2006) was an instance of this kind of conflict.41 While apostasy (irtidād) is not criminalised under the criminal law, many traditionalist scholars insist on considering it as a crime and imposing a capital punishment for its commission. On the other hand, major human rights documents, to which Afghanistan is a party, e.g. International Covenant on Civil and Political Rights (1966), explicitly embrace a right to freedom of religion.42 Therefore, it is not logically possible to resort to the idea of legal gap on apostasy and fill it with the traditional rules and rulings. Evidently, the legislature has not consciously passed a law on the issue and, hence, there is no legal gap in the first place. That is to say, recourse may not be made to Article 3 on issues such as apostasy.43 Accordingly, it is observed that there are dilemmas arising from the substance and structure of the Constitution which are in a dire need to theoretical and practical solution. We may put the matter in a slightly way by pointing to the conundrum which seemingly derives from the very text and language of the Constitution. On one hand, it is required of all of the laws not to contravene principles and rulings of the sacred religion. To be more precise, every law has to stay within the boundaries of Islam. Language of Article 3, for instance, is clear and certain enough to this effect. On the other hand, all of the laws, including those laws that are not in violation of the said principles and rulings of the sacred religion, ought to remain inside the boundaries of human rights and democracy. Language of Article 7, for instance, is also clear and certain enough to this effect. Even at those points that rules are allowed to be brought in from Hanafī or Shī`ī jurisprudential Schools (based on Articles 130 and 131) these rules ought to be, respectively, within the limits of the Constitution and the law. As a result, a conundrum seems to appear on the horizon: laws are to be subject to rules of the sacred religion, on the one side; rules of the sacred religion are to be subject to laws, on the other.
41. See, in this regard, Mandana Knust Rassekh Afshar, “The Case of an Afghan Apostate – The Right to a Fair Trial Between Islamic Law and Human Rights in the Afghan Constitution” [2006] Max Planck UNYB 10. 42. See Tarzi, “Islam and Constitutionalism in Afghanistan”, p 712. 43. See, for instance, John Eddy, “Rule of Law in Afghanistan: The Intrusion of Reality” [2009] 17 (2) Journal of International Cooperation Studies 12-14. Non-Violation Of Islamic Law Under The Afghan Constitution / 209
In other words, in order for the legislature to enact a law (including enacting requirements of international documents and human rights) they have to observe the Islamic limit, while at the same time in order for them to integrate the Islamic substance into the legal system they should do so in accordance with the law and the constitutional provisions (including requirements of international documents and human rights). The picture depicted above represents a circle, though not necessarily a vicious one. That is, observing any of the two main constitutional limits is dependent upon the other one. They are mutually dependent in an apparently circular way. This circle may indeed be a virtuous one. In order to avoid a vicious circle, at least a balance should be struck between the two sets of the mentioned limits. We will deal with this point in the next, i.e. the final and concluding, section. 6. How to Make a Balance? As already mentioned, implementing the provisions of Articles 3 to 7 of the Constitution, as examples of various limitations that the Constitution imposes on law making, gives rise to an apparently circular conundrum. As a recap, we began this chapter by analysing the limit of non-violation of principles and rulings of the sacred religion of Islam on law making. An attempt was made to explicate the meaning and implications of this limit when it stands alone. Also, the authority in charge of monitoring the observance of the said limit was dealt with, as this has an important role to play over the implementation and interpretation of the limit. It should be added that the mentioned authority has of course the power to monitor the observance of all constitutional limits. However, it has been shown that the limit arising from the non-violation provision of the Constitution is not the only one laid out by the Constitution with regard to law making. Another major constitutional limit, namely the set of human rights and democracy requirements, has been referred to as well. Given the second limit, the meaning and implications of the first one (that is, the Islamic limit) becomes complicated, since the two limits are supposed to sit together; otherwise the integrity of the Constitution would be compromised. In consequence, the law making authorities as well as the related monitoring authority are faced with the daunting task of keeping together the constitutional limits on law making, rather than falling for one of them. As argued above, none of the limits may be given priority to the other one. They need to stand side by side in a horizontal way. It is not possible to bring about a hierarchy between them. 210 / Journal of Afghan Legal Studies
This is what we referred to it as a conundrum, a seemingly circular situation, though it should be noted that the conundrum is not new to Muslims. It has been one of the major problems with which they have been grappling over the last one hundred and fifty years or so, as a part of the problem of constitutionalism following their encounter with modernity.44 The first point that should be emphasized is that we have to avoid taking any extreme stance on the problem.45 Supporting just one side of the afore-said circle would make it a vicious one, in consequence of which the establishment of a genuine constitutional system shall be endangered. In other words, taking side with just one of the two elements of the circle, i.e. those of the Islamic and the democratic/human rights limits, would bring about an antagonist atmosphere in which one of the elements will be readily alienated from the legal system. That is, one of the set of limits has to be sacrificed for the sake of the other.46 Secondly, to consider each side of the conundrum (i.e. the sacred religion, and human rights and democracy) as a “source” may help us break out of the circle or turn it into a virtuous one. In this case, law functions as a vehicle for the values and principles embedded in the two mentioned sides/sources. By this, we mean neither of the set of the limits should be considered as a positive law which is ready to be implemented in a direct and immediate way. They are to be taken as various sources of the law, be it statutory or precedent-based. Accordingly, the sources have to be “understood” and, hence, from which laws and regulations of the country “inferred” via due (legislative and judicial) constitutional procedures. Thirdly, we propose to establish an ongoing “interaction” between the two sources, as this seems the most justifiable and viable project to pursue by the
44. In this regard, see, for instance, Mohammad Rasekh, “Mudirnīti Wa Huqūq-i Dīnī” (“Modernity and Religious Law”) [2008] 64 (3) Nāmih Mufīd; Mohammad Rasekh & Fatemeh Bakhshizadeh, “Pīshzamīniyi Mafhūmi Qānūn dar Inqilūb-i Mashrūtiyi Iran: Az Mālikuriqābī tā Tanzīmāt” (“The Background of the Concept of Law in the Ira- nian Constitutional Revolution: From Absolutist to Regulatory Law”) [2014] 83, The Law Journal of the Ministry of Justice; Mohammad Rasekh, & Fatemeh Bakhshizadeh, “Mafhūmi Qānūn dar `Asri Mashrūtih: Niwīsandigāni Mutaqaddim” (“The Concept of Law in the Age of Constitutionalism: Early Writers”) [2015] 68 Legal Studies Quarterly; and Mohammad Rasekh , “Sharia and Law in the Age of Constitutionalism” [2016] 2 (2) Journal of Global Justice and Public Policy 259, 276. 45. See, for instance, Tarzi, “Islam and Constitutionalism in Afghanistan”, p 710. 46. The author of the following paper has expressed concerns over such a situation in favour of the Islamic limit: Said Mahmoudi, “The Sharî’a in the New Afghan Constitution: Contradiction or Compliment” [2004] ZaoRV 64; Khaled M. Abou El Fadl, , Said Arjomand, Nathan Brownet al. (eds), Democracy and Islam in the New Constitution of Afghanistan, p 4. Non-Violation Of Islamic Law Under The Afghan Constitution / 211 process of law making at various levels. The degree of success of such interaction of course depends in turn on the public and political culture, on the one hand, and institutional capabilities of the country, on the other. This may be called the requirement of a “consistent” interpretation of the Constitution in the light of its major sources. Fortunately, this kind of approach to the sources and principles of constitution is one of the experienced effective approaches in other countries, e.g. Germany.47 Fourthly, the afore-mentioned “interaction” would allow the sources to learn from each other.48 The interaction no doubt lays bare the weak and strong aspects of claims made under the two sets of constitutional limits. This is a continuous process which in its turn acts as a constitutional “evolution”. Nevertheless, the context in which such learning and evolution take place finds a vital importance. The context (i.e. the social, political, cultural and economic situation) reveals the traditional wealth and needs, with which the two sources may interact and show their capabilities. Fifthly, by this, the law makers find the opportunity to use the law as a vehicle for the formation of a synthesis out of the two sources. They would have rich material of the two heritages at their disposal and would undoubtedly come up with timely and effective solutions for urgent problems and needs. Last but not least, the synthesis may be reached if only the law makers, within the legislative, judicial or administrative apparatus, manage to find a “balance point” of the two contributing sources of law. A continuously revised “reflective equilibrium” needs to be made between the “requirements” of the Islamic limit and the human rights and democracy limit so that a working and sustainable law may be passed and enforced. This is not certainly attainable by insisting on an exclusive view on either tradition (the Islamic limit) or modernity (the human rights and democracy limit). Law is bound to be inclusive of both.
47. See, for instance, Tarzi, “Islam and Constitutionalism in Afghanistan”, pp 710-713. 48. In this regard, see, for instance, Ann Elizabeth Mayer, “The Respective Roles of Human Rights and Islam: an Unresolved Conundrum for Middle Eastern Constitutions” in Said Amir Arjomand (ed), Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan (Hart Publishing 2008) 77, 97.
Complementarity and Conflict: State, Islamic, and Customary Justice in Afghanistan
Tilmann J. Röder Table of Contents 1. Law before the Court: Conflicts between Religious and State Norms 1.1. Shari’a and the Traditional Role of the Judge in Afghanistan 1.2. Constitution, Statute, and International Law: Legal Imports without Recipient 1.3. The Constitution as a Conflicts Regime forShari’a and State Law 2. The Prosecution of Convert Abdul Rahman 2.1. Shari’a-oriented Positions 2.2. Human Rights and Constitutional Counterarguments 2.3. Lessons from the Case of Abdul Rahman 3. Law in the Village: Traditional Forms of Dispute Resolution 3.1. Non-State Dispute Resolution Mechanisms 3.2. Ethnic Peculiarities 3.3. Collisions and Conflicts Regimes between State Justice and Tribal Institutions 3.4. The Stoning of Alleged Adulteress Bibi Amina 4. Law in Secrecy: The Parallel World of Taliban Courts 5. Conclusions
Abstract1 In Afghanistan, legal pluralism is not mere theory: it is an omnipresent reality.
1. Dr. Tilmann J. Röder is coordinator at RSF-Hub, a small think tank based at Free University of Berlin, and policy adviser to the German Foreign Office. Since 2006 he has been implementing rule of law projects in conflict or transition countries, such as Afghanistan, Pakistan, Iraq, Libya, Ukraine, and Colombia. He co-founded and managed the Max Planck Foundation for International Peace and the Rule of Law (2013-2017) and an Afghan NGO specializing in the rule of law sector. Tilmann writes on constitutional and international law, legal pluralism, and legal history. His recent publications include Constitutionalism, Human Rights, and Islam after the Arab Spring (OUP 2016, with R Grote).This article is based on an earlier publication of the author: Kollisionen zwischen Sharīi‘a, Gesetz und Stammestradition in Afghanistan, in: Matthias Kötter and Gunnar Folke Schuppert (eds.), Normative Pluralität Ordnen, Baden-Baden 2009, 257-301. 214 / Journal of Afghan Legal Studies
The major normative sources – state statutory law, Islamic shari’a, and unwritten customary law such as the pashtunwali – have developed in fundamentally different historical and cultural contexts. Even today, various authorities continue to develop them, and competing institutions apply them. In the best scenario they complement each other, but many cases reveal fundamental divergence. Two basic tensions mark the landscape. First, there is a precarious relationship between state-made law – in particular, the Constitution, statutes, and international law – and shari’a, which flows from religious sources. Both state law and shari’a constitute the normative basis of the state jurisprudence. Whereas the Constitution asserts that religious law is subsidiary to state law, in practice the opposite is usually true. Second, in Afghanistan, the state’s extremely weak and very unpopular justice system must contend with far more effective non-state institutions, especially tribal councils that resolve disputes at the local level. In recent years, the state justice system and tribal councils have faced competition from an unlikely source. The Taliban’s shadow rule over parts of the country has allowed the formation of a network of mobile Taliban courts, whose verdicts are based on a fundamentalist interpretation of shari’a. Due to this enormous diversity, one cannot rightly speak of a regulatory system or even a legal order. The complex reality is better described as a “patchwork” of norms. This article assesses the coexistence and interaction of the various norm complexes from the standpoint of legal theory. The emphasis will especially be on mechanisms, institutions, or informal practices used in the case of a conflict of norms. Several concrete cases drawn from criminal law allow an evaluation of the – presumably minimal – effectiveness of these regimes in the resolution of legal conflicts. Therefore, the following analysis is intended to provide more than a simple description of the current legal situation. 1. Law before the Court: Conflicts between Religious and State Norms It has taken centuries for norms based on Islamic shari’a to spread to all regions of Afghanistan. It was only in 1896 that Emir Abdur Rahman was able to Islamize the last parts of the country by force.2 Nevertheless, Islamic rules are rooted deeply in Afghan society. Only against this background can Afghanistan’s legal pluralism be understood.
2. The population of what was then Kafiristan (“land of unbelievers”) had animistic, polytheistic, and shamanistic beliefs. Since Islamization, it has been known as Nuristan, “land of light.” Max Klimberg, Nuristan, Encyclopædia Iranica, 2004 (online ed.), http://www.iranica.com. Complementarity and Conflict / 215
1.1. Shari’a and the Traditional Role of the Judge in Afghanistan German scholar Dr. Annemarie Schimmel describes shari’a as the “totality of Allah’s rules related to human action.”3 This broad definition is more accurate than the widespread translation as “Islamic law” because shari’a encompasses much more than just the rules corresponding to the western concept of law. It also includes moral, ritual, and ethical rules for the behaviour of Muslims and their relationship to non-Muslims. Because of their structure and function, some parts of shari’a – particularly the norms concerning family, inheritance, commercial, and criminal matters – can of course be labelled law without giving rise to misleading associations. 1.1.1. Interpretations of Shari’a in Afghanistan The sources of shari’a were systematized for Sunni Islam by Muhammad ibn Idris ash-Shafi‘i in 9th century C.E. Baghdad, long before the Islamic conquest of the territory of today’s Afghanistan. His doctrine of the “principles of jurisprudence” (usul al-fiqh) gives a comprehensive list of the sources of shari’a: the Qur‘an, the sunna – which comprises the reports (ahadith; sing. hadith) of the Prophet Mohammad’s sayings and deeds –, the consensus of legal scholars (ijma‘), and reasoning by analogy (qiyas).4 Shia shari’a scholars similarly relied on the Qur‘an and the sunna. However, not only is the life of the Prophet Mohammad an obligatory model, but so too are the words and deeds of his daughter Fatima and the twelve imams who followed him. Ijma‘ is also recognized as a source of law, however, qiyas is not, although deduction by reason (‘aql) is recognized. Both denominations of Islam are relevant for the Afghan legal culture, as about 80-85% of the population are Sunni and 15-20% Shia Muslims. The Hanafi interpretation of the shari’a deserves special mention because this Sunni legal school has prevailed in Afghanistan since the 8th century C.E. It is referred to in the present Constitution as a subsidiary source for judicial adjudication. The Hanafi teachings are considered rather moderate, allowing Afghanistan to gain the reputation of a religiously tolerant state until the 1970s. Radical and fundamentalist views emerged in Afghan Islam in wake of the jihad against the Soviet occupation (1979-1989). The radical teachings were
3. Annemarie Schimmel, Die Religion des Islam, 1990, 54 (author’s translation). 4. Different schools of shari’a supplement these sources of law with istihsan (a deviation from the rule favouring precedence), istislah (a judgment that decisions are made based on public interest without reference to the Qur‘an or to sunna), and ‘urf (customary law). Ludger Kühnhardt, Die Universalität der Menschenrechte, 2nd ed. 1991, 143. 216 / Journal of Afghan Legal Studies introduced primarily by foreigners supporting the jihad. They were also taken up by many young Afghans growing up in refugee camps who later formed the Taliban movement and overran Afghanistan between 1994 and 1996. The Taliban’s religious and social ideas closely resemble Wahhabism, a movement that emerged in 18th century Saudi Arabia. From the outset, Wahhabites were characterized by militant intolerance of all non-Wahhabites, and they sought to return Islam to its roots in the Prophet Mohammad’s times. Others consider the Taliban to have been most strongly influenced by the fundamentalist teachings of the Islamic Deobandi school.5 In addition, the Pashtun-dominated Taliban increasingly, though probably unintentionally, began integrating elements of Pashtun customary law (pashtunwali) into their interpretation of shari’a.6 The inclusion of customary law (‘urf) as a subsidiary source of law is generally recognized for shari’a, insofar as it does not contradict recognized Islamic rules. However, these recent developments in Afghan legal history have yet to be examined more carefully.7 1.1.2. Scholars and Judges Already in the early days of Islam, the question arose as to who was authorized to interpret the rules of shari’a. A separate class of scholars (‘ulama) evolved to interpret the Qur‘an, thus leading to the construction of Islamic jurisprudence (fiqh), which, in turn, was dealt with by legal scholars (fuqaha). During the systematization of the material, they formed legal schools that remain of influence until today.8 The original Islamic communities did not have judges but mediators. Only in the Umayyad Caliphate did a class of judges (qudat; sing. qadi) develop who were relatively free in their decision-making and who incorporated local customary law into the Qur‘anic sources. Under the Abbasids, who replaced the Umayyads around 750 C.E., formal courts and a system of appeals courts were established.
5. The institution called Dar ul-‘Ulum (“house of knowledge”) is located in the Indian city of Deoband. It is considered the most important Islamic theological center after the Al-Azhar University in Cairo. Ahmed Rashid, Taliban: Militant Islam, Oil and Fundamentalism in Central Asia, 2000, 132, 139. 6. For example, Taliban courts condemn murderers to death under their reading of shari’a but permit the victim’s family to execute the condemned according to the Pashtun manner of dealing with blood feuds. Thomas Barfield, Afghan Customary Law and Its Relationship to Formal Judicial Institutions, 2003, 35. 7. Christine Noelle-Karimi, Die paschtunische Stammesversammlung im Spiegel der Geschichte, in: Rechtspluralismus in der Islamischen Welt. 2005, 177. 8. The four main Sunni schools of shari’a, which recognize each other mutually, are the Hanafi, Maliki, Shafi‘i, and Hanbali schools. The Ja’fari schools of shari’a are dominant in Shia currents of Islam. Complementarity and Conflict / 217
These judges were, in theory, independent of the government and were to make decisions based only on Islamic law.9 Even today, Afghan councils of shari’a scholars (shura-e ‘ulama) claim the right to interpret the shari’a.10 These religious councils convene at various levels throughout the country and the ‘ulama expect state institutions to align themselves with their opinions. They justify this authority with the traditional relationship between scholars and rulers – or at least their understanding of the relationship. The traditional view was that earthly rulers were to enforce rules in line with the interpretations of the ‘ulama, while scholars, in turn, pursued knowledge independent of the ruling authorities. In March 2006, the head of the national Shura-e ‘ulama, Fazl Hadi Shinwari, quoted the following hadith in justification of this position: “The least worthy among scholars is he who makes visits to princes, and the worthiest of princes is he who seeks out scholars.”11 Of particular note is the fact that Shinwari at that point spoke in his capacity as the president of the Afghan Supreme Court, as well – he was carrying out the functions of the highest religious and highest legal offices simultaneously.12 1.2. Constitution, Statute, and International Law: Legal Imports without Recipient The Islamic Emirate of Afghanistan which was set up by the Taliban in 1996 has been the only social order in recent times that claimed to be based solely on shari’a.13 The law applied in the current Islamic Republic of Afghanistan consists of a combination of shari’a norms and laws that are mostly based on translations
9. Paul Dannhauer, Untersuchungen zur frühen Geschichte des Qadi-Amtes, 1975. 10. This claim stems not only from their self-image as authorized to implement the universal validity of shari’a, but also their historical role. Until the late 19th century, they upheld a religious justice system. Their gradual decline began under the reign of Amir Abdul Rahman (1880-1901) with the introduction of state law making and courts. Ramin Moschtaghi, Organization and Jurisdiction of the Newly Established Afghan Courts – The Compliance of the Formal System of Justice with the Bonn Agreement, Max Planck UNYB 19 (2006), 535 et seq. 11. At the concluding meeting of a seminar organized in Kabul, Afghanistan by the Max Planck Institute for Comparative Public Law and International Law on Feb. 2, 2006 (author’s translation). 12. Shinwari, who had the benefit of neither a higher religious nor a legal education, received these positions as a concession by Karzai to the warlords and the Wahhabi-inspired fundamentalist Abdul Rasul Sayyaf, who counts Shinwari among his adherents. In 2006, the wolesi jirga refused to consent to another term as president of the Supreme Court for Shinwari. Carlotta Gall, Afghan Lawmakers Review Court Nominees, The New York Times, May 17, 2006. 13. This claim was misguided to the extent that many statutes continued to be applied as a practical matter and new statutes were adopted. This was true especially in regulatory areas not covered by shari’a, such as police law, public service law, and media restrictions. Later, when Taliban leader Mullah Omar had consolidated his power, he ruled increasingly by decree. In contrast to Iran and Saudi Arabia, however, the Taliban for the most part declined to establish administrative structures, in the sense of a modern state system. 218 / Journal of Afghan Legal Studies of Ottoman, Egyptian, Soviet, European and other models which have found their way into the region since the early 1900s.14 Importantly, legal norms of western origin were not brought to Afghanistan by a colonial regime. In contrast to many other countries in the Islamic world, Afghan rulers voluntarily introduced them as instruments of modernization. It should be noted, though, that other forms of coercion do exist, such as political pressure and dependency on foreign aid. The 2004 Constitution of the Islamic Republic of Afghanistan formed the basis for a presidential democracy. The constitution-making assembly was the Loya Jirga, which is only convened in cases concerning the national interest. Since its creation, the Constitution has not enjoyed the development of a culture that actually reaches into society – much less asserted itself as a functioning part of Afghan life. Political conflicts among the legislative, executive, and judicial branches usually remain unresolved due to a lack of dispute resolution mechanisms such as a constitutional court.15 Below the level of the constitutional institutions, the Constitution is largely unknown, which in itself is enough to undermine its applicability. No less difficult is the situation with law making. The Afghan National Assembly consists of the Wolesi Jirga (“council of the people”) and the Meshrano Jirga (“council of elders”). Besides being able to pass laws, the National Assembly is also empowered to decide the continued validity of older provisions. Therefore, statutes from various historical periods have survived the passing of the Constitution, and so far only a few of them have been replaced with new laws. For instance, provisions governing judges’ official conduct stem from the brief democratic period (Criminal Code of 1976), the communist era (Code of Civil Procedure of 1990), the Taliban period (Public Servants Act of the Afghan Islamic Government of 1999), and the current constitutional era (Law on the
14. Reforms began under Abdul Rahman Khan, who at the end of the 19th century tended toward, above all, the Ottoman Tanzimat reforms. Amanullah Khan also looked to Turkey as a model when he introduced the first Constitution in 1924. Amanullah, however, was not able to realize his vision of a fundamentally modernized Afghan society. Along with Turkish influence, Egyptian law – and, through it, French ideas, as well – helped shape Afghan development. Over decades in the mid-20th century, Afghan jurists were in contact with especially Egyptian and French colleagues. During the socialist period, the Afghan government tended toward the Soviet model in restructuring the law. Moschtaghi, supra note 10, 537 et seq. 15. The conflict over the Wolesi Jirga’s vote of no confidence in Foreign Minister Ragin Dadfar Spanta provides a current example. President Karzai has refused to remove Spanta from office and called on the Supreme Court, which supported the president’s position despite having no authority to do so. This decision set off a persisting crisis of confidence between parliament and the Supreme Court. Ramin Moschtaghi, Aktuelle Probleme beim Rechtsstaatsaufbau in Afghanistan – Das Gutachten des Obersten Gerichtshofes zum Misstrauensantrag des Unterhauses gegen den Außenminister, Heidelberg J. Int’l L. 68/2 (2008), 509-540. Complementarity and Conflict / 219
Organization of the Courts of 2005). Many of the provisions in these laws are inconsistent with each other, creating tremendous difficulty for Afghan lawyers because regulations governing conflicts of laws are still few and far between. In article 161(6), the Afghan Constitution does provide that pre-constitutional law in conflict with the Constitution loses its validity. But the article is, at best, applied intuitively, as practitioners of law are usually unaware of it.16 Moreover, the transfer of the western concept of law making failed to include the European canon of legal interpretation – i.e. rules such as lex posterior derogat legi priori and lex specialis derogat legi generali. Recent statutes drafted by foreign advisers further diversify the patchwork. For example, Italian lawyers in 2004 created a transitional criminal procedure that was significantly more abstract than its predecessor from the 1970s, and thereby overwhelmed Afghan practitioners, who, in unclear cases, continue to resort to the old, detailed provisions. The statutes governing illicit drugs and military justice, both from 2006, are no less problematic. They primarily serve to implement international strategies for combating opium trafficking and terrorism, and they are of conspicuously American origin. Very few lawyers are able to navigate these labyrinthine laws.17 Under international law, Afghanistan continues to be bound by its international legal obligations, as article 7 of the Constitution expressly recognizes.18 Here, the same holds true as with the Constitution and statutory law: Afghan lawyers are almost completely unaware of international obligations that are directly relevant to practice – such as the International Covenant on Civil and Political Rights (ICCPR), ratified by the communist government in 1983. In short, law is being imported, but not implemented and is therefore not reaching its recipients. 1.3. The Constitution as a Conflicts Regime for Shari’a and State Law The relationship between shari’a and state-made law – especially the Constitution, statutes, and international law – is addressed in the Constitution on two levels. First, there is the issue of which sources of law are to be considered in law
16. Many judges and prosecutors who have taken part on the Fair Trial Seminar organized by the Max Planck Institute for Comparative Public Law and International Law told the author and other project organizers that they use their own sense of fundamental rights and democracy to determine whether a norm conforms with the new Constitution or not. 17. These observations are based on conversations the author had with lecturers and professors, especially Prof. Dr. Hafizullah Danish of the University of Kabul, in courses on criminal law courses and legal procedure at the Max Planck Institute for Comparative Public Law and International Law. 18. Afghan constitutional law takes a dualistic approach to international law: treaties must be implemented into domestic law by an act of the legislator. Here, too, conflicts could be avoided by interpreting national law in conformity with international law. 220 / Journal of Afghan Legal Studies making, and how inconsistencies are to be resolved. Second, the Constitution dictates which norms may, or must, provide the basis of decision-making in the state justice system. 1.3.1. Conflicts of Sources of Law in Law-making Article 3 of the Afghan Constitution states, “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.”19 Some observers in 2004 considered this a de facto reintroduction of shari’a. In reality, the situation is not so simple. It is still unclear exactly what the “provisions of the holy religion of Islam” include. The language is markedly different to other constitutions, which explicitly elevate shari’a to a source of law20 – so this cannot be intended, although Islamic factions in parliament do advocate this position. The wording leaves much room for interpretation, which has already led to heated disputes in parliament. Article 3 of the Constitution is juxtaposed with article 7, which is addressed to the state, and thus to the legislator: “The state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights.” Advocates of reform use this norm to attempt to block the passage of shari’a norms that are inconsistent with human rights. One example is the Juvenile Criminal Code that the National Assembly passed at the beginning of 2008. Majorities in both chambers of parliament were of the view that the age of criminal responsibility was eighteen for men and seventeen for women. They relied explicitly on their interpretations of shari’a and article 3 of the Constitution. Opponents countered that under human rights treaties seventeen-year-olds could not be criminally responsible and declared the bill unconstitutional under article 7.21 In the absence of rules on conflicts of law, the substantive conflict remained unresolved. Ultimately, President Karzai made the decision by refusing to sign the bill into law.22
19. Quotations from the Constitution of the Islamic Republic of Afghanistan are taken from the English translation available at http://www.supremecourt.gov.af/PDFiles/constitution2004_english.pdf. 20. Examples include Iran, Mauritania, Saudi Arabia and Egypt. 21. Based on a conversation the author had with Prof. Shahla Farid of the University of Kabul, Oct. 20, 2008. 22. In 2009, a draft Shia Family Law that was passed by the National Assembly led to a similar controversy. President Karzai signed it after provisions grossly violating human rights were removed; among others, the age of marriage for female minors was changed from nine years old to sixteen years and an article allowing temporary marriages as well as an article prohibiting women from to leave the house without a male relative escort if they were to go to work, school or for medical treatment were removed. However, other provisions violating Afghanistan’s obligations under the Convention on the Elimination of all Forms of Discrimination of Women and other international instruments remained in the document and became law. Lauryn Oates, A Closer Look: The Policy and law-Making Process Complementarity and Conflict / 221
1.3.2. Conflicts of Law in the Justice System Article 130 of the Afghan Constitution is addressed to judges and, by extension, the justice system of the state: “In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence and within the limits set by this Constitution, rule in a way that attains justice in the best manner.”23 Here, a conflicts regime seems evident, and at first glance it apparently places shari’a in a position subsidiary to the Constitution and basic law making. However, legal practice reveals the difficulties of the situation. Criminal cases like the following example particularly expose the precarious interrelations between shari’a, the Constitution, statutory law, and human rights. 2. The Prosecution of Convert Abdul Rahman Afghan citizen Abdul Rahman converted to Christianity in 1990 while working for a Catholic aid organization in Pakistan. Three years later, he moved to Germany and Belgium, though he returned to Afghanistan after the end of Taliban rule, in 2002. By that time, his wife, with whom he has two children, had already divorced him because of his conversion. In Afghanistan again, Abdul Rahman sought custody of his daughters, clashing harshly with his family. In February 2006, he was arrested after his father reported him for violent behaviour. While in detention, Abdul Rahman admitted his Christianity, and the state charged him with apostasy and sought the death penalty. It relied explicitly on the Hanafi jurisprudence. During the proceedings, an Afghan justice official suggested that Abdul Rahman could be declared mentally disturbed and therefore released.24 Although the prosecution insisted on a judgment, Ansarullah Mawlazezadah, the presiding judge, sought another resolution: “We will ask him if he has changed his mind. If so we will forgive him, for Islam is a tolerant religion.”25 This followed the Hanafi jurisprudential approach, according to which an ‘ulama council is to speak with the apostate, make clear to him the error of his ways, and bring him back to the true faith. It is unclear whether such a discussion took place. Abdul Rahman, Behind the Shiite Personal Status Law, AREU 2009. 23. Article 131 of the Constitution permits the application of the Shia, instead of the Sunni-Hanafi, interpretation of shari’a in cases involving Shiites. 24. Wakil Omari, quoted in: Konvertit gestört?, die tageszeitung (taz), March 23, 2006. 25. Die Welt, March 23, 2006 (author’s translation). 222 / Journal of Afghan Legal Studies however, repeatedly and publicly made clear that he was not prepared to profess belief in Islam, even under threat of a death sentence. On March 26, Judge Mawlazezadah sent the case back to the office of the prosecution due to “some technical as well as legal flaws and shortcomings.”26 He had instructed the prosecution to undertake a more thorough analysis of whether Abdul Rahman was competent to stand trial. Judge Mawlazezadah noted that the proceedings would have to be dismissed if he were declared legally incompetent. The judge further stated said Abdul Rahman’s family reported that their son had been in psychiatric treatment in Pakistan. In testimony before the court, Abdul Rahman himself admitted that he had a mental-health problem and heard voices, although he maintained that he was nonetheless competent to stand trial. The prosecutor, Abdul Wasi, also believed Abdul Rahman to be competent. The prosecution was planning to have Abdul Rahman analysed thoroughly to determine his competence,27 but on March 27 the Attorney General of Afghanistan ordered his provisional release due to undue delay in the proceedings. Directly thereafter, the Italian government with the support of the United Nations brought him to Italy where he was granted asylum.28 2.1. Shari’a-oriented Positions No passage of the Qur‘an explicitly calls for the killing of apostates.29 Abandonment of Islam (irtidad or ridda) appears in various suras only as a grave sin that will be punished in the hereafter. For example, sura 2:217 states, “Those among you who revert from their religion, and die as disbelievers, have nullified their works in this life and the Hereafter. These are the dwellers of Hell, wherein they abide forever.”30 Nevertheless, according to the traditional interpretations of all schools of shari’a, apostasy is to be punished with death.31 All schools of shari’a do, however, agree that apostasy is not punishable when it occurs in a state of mental illness or under coercion.32 26. Sayed Salahuddin, Afghan judge says Christian convert case has flaws, Reuters Canada, March 26, 2006. 27. Kommt Todeskandidat frei?, Die Zeit, March 26, 2006. 28. In 2003, Italy took over the role of “lead nation” for the reconstruction of the Afghan justice system. See http:// www.rolafghanistan.esteri.it. 29. Shaikh Abdur Rahman, Punishment of Apostasy in Islam, 1972, 10 et seq. 30. Quoted at http://www.submission.org/suras/sura2.html#217. Other relevant suras include 3:72, 3:90-91, 4:137, 5:54, and 16:106. It is worth noting here that the Qur‘an has full validity only in its Arabic original. 31. Werner Ende/Udo Steinbach (ed.): Der Islam in der Gegenwart, 1989, 190. 32. Ministry for Religious Matters and Sacred Foundations of Kuwait (ed.), Al-mausu‘a al-fiqhiyya, vol. 22 (2003), 181-182; Clifford E. Bosworth et al. (eds.), Murtadd, in: Encyclopedia of Islam (online edition), 2006, last visited April 16, 2006. Complementarity and Conflict / 223
In the course of the modernization of Islam, certain scholars have disputed the traditional view on the loss of faith. Respected scholars such as Grand Ayatollah Hossein-Ali Montazeri and Dr. Khaled Abou El Fadl, point to the fact that the Qur‘an itself speaks of apostasy exclusively in terms of an individual’s relationship with God and therefore applicable passages in the Qur‘an are not enough to legitimate the killing of apostates in this life.33 In addition, the death penalty was not carried out to the Prophet’s time, and thus conflicts with the model behaviour of the Prophet.34 Other shari’a scholars – among them, Muhammad Abduh, Rashid Rida, Mahmud Shaltut and Yusuf al-Qaradawi – differentiate between individual apostasy and an apostate who works actively against the community or who seeks to convert others. Only the latter type of apostate, they argue, should be punished with death, whereas the former should not be penalized.35 However, this position is quite exceptional in the Islamic world. In pre-Taliban Afghanistan, the last known execution for apostasy took place in the 1920s.36 In the case of the apostate Abdul Rahman, not only judges, but also shari’a scholars almost unanimously demanded the death penalty. This shift in legal opinion suggests that Islam in Afghanistan changed during the decades of jihad and Islamist rule. Calls for execution included statements of Supreme Court President Fazl Hadi Shinwari and other members of the Supreme Court.37 Abdul Raouf, member of the national Shura-e ‘ulama threatened, “We will not allow God to be humiliated. … We will call on the people to pull him into pieces.”38 Another prominent shari’a scholar, Maulavi Habibullah, told hundreds of clerics and students in Kabul that international obligations did not apply in the case of Abdul Rahman: “The Prophet says, when somebody changes religion, he must
33. Ayat-allah Montazeri: Har taghyir mazhabi irtidad nist (“not every conversion is apostasy”), Interview with Mahdi Jami, BBC Persian, Feb. 2, 2005, http://www.bbc.co.uk/persian/iran/ story/2005/02/050202_mj-montzari-renegade.shtml; Khaled Abou El Fadl, The Death Penalty, Mercy and Islam: A Call for Retrospection, in: Erik C. Owens et al. (eds.), Religion and the Death Penalty: A Call for Reckoning (2004) 73-105; see also Clifford E. Bosworth et al. (eds.), The Encyclopaedia of Islam, vol. 7, 1993, 635. 34. Wael Hallaq, Apostasy, in: Encyclopaedia of qur‘an, vol. 1, 2001. 35. Patrick Bannerman, Islam in Perspective, 1988, 140; Albert Hourani, Arabic thought in the Liberal Age 1798- 1939, 1983, 237; Gudrun Krämer, Gottes Staat als Republik, 1999, 151-157. Yusuf al-Qaradawi, Fatwa on Intellectual Apostasy, http://www.islamonline.net/servlet/Satellite?cid=1119503545098&pagename=IslamOnli ne-English-Ask_Scholar%2FFatwaE%2FFatwaE. 36. Yohanan Friedmann, Prophecy Continuous: Aspects of Ahmadi Religious Thought and Its Medieval Background, 2003, 27 et seq. 37. Supreme Court judge Khoaja Ahmad Sedeqi is quoted as saying, “The Quran is very clear and the words of our prophet are very clear. There can only be one outcome: death.” Barbara Slavin, Karzai under pressure to free Christian, USA Today, March 26, 2006. 38. Quoted in Syed Saleem Shahzad, Losing faith in Afghanistan, Asia Times, March 25, 2006. 224 / Journal of Afghan Legal Studies be killed.“39 Other religious figures, such as the Shia scholar Asif Mohseni, took more balanced positions, pointing to the dilemma that the state’s Constitution guarantees protection of human rights on the one hand, and Islamic norms on the other.40 The presiding judge also promised that he would decide the case in accordance with his constitutional obligations.41 Afghan legal scholars have heatedly debated the legitimacy of the death penalty ever since this case.42 A majority of criminal law scholars seem to believe that capital punishment is legitimate and reasonable. As a starting point, they rely on article 130(2) of the Constitution, which states, “If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.” There is a gap in the law: neither the Constitution nor any law regulates the punishment for apostasy. Article 1 of the Criminal Code of 1976 expressly limits its scope of applicability to offenses defined as ta’zir. Apostasy, though, belongs to the hudud – the category penalized most severely under Islamic criminal law – because it involves violation of boundaries set by God. For hudud, article 1 of the Criminal Code provides, “Those committing crimes of hudud, qisas, and diyat shall be punished in accordance with the provisions of the Hanafi religious jurisprudence.”43 When determining whether the elements of apostasy have been met, Afghan legal scholars draw from shari’a scholars, who research and teach separately from jurists in their own university departments or at Islamic seminaries (madaris; sing. madrasa). They, too, consider implementation of the death penalty generally consistent with article 130(2) of the Constitution: there is no constitutional violation because article 1 of the Criminal Code provides the legal basis of a law that, in the sense of article 3 of the Constitution, does not contravene the provisions of the holy religion of Islam. In a talk with the present author, Dr. Hafizullah Danish of the University of
39. Quoted in Abdul Waheed Wafa, Preachers in Kabul Urge Execution of Convert to Christianity, The New York Times, March 25, 2006. 40. Id. 41. Ansarullah Maulawizada, quoted in Barbara Slavin, supra note 39. 42. Conversation between the author and Prof. Dr. Hafizullah Danish, Kabul, July 18, 2008. The arguments do not represent the views of Prof. Dr. Hafizullah Danish. 43. Shari’a contemplates four penal categories, systematized in the substantive criminal law. Hudud are the acts punished most harshly (e.g., apostasy, fornication, highway robbery). Qisas are punishments based on the principle of retaliation. Qisas are harsher than diyat, material compensation for loss or damages. Ta’zir include all other offenses whose punishment lies in the judge’s discretion. Complementarity and Conflict / 225
Kabul pointed out the circular reasoning in this argumentation – a point his fellow law professors seemed not to notice.44 At this point, the question arises as to whether one who converts acts in full possession of his or her mental capacities. This was discussed intensively in the case of Abdul Rahman. Some commentators saw the very fact that he converted to Christianity as an indication of mental illness.45 This issue ultimately provided the only opportunity to release Abdul Rahman. 2.2. Human Rights and Constitutional Counterarguments Some Afghan jurists reject the above approach. If the state fulfils its obligation to protect human rights, they argue, the rule on conflicts of laws in article 130 of the Afghan Constitution leads to the opposite conclusion. During the Abdul Rahman proceedings, a representative of the Afghanistan Independent Human Rights Commission (AIHRC) noted that article 18 of the Universal Declaration of Human Rights also includes the freedom to choose and change one’s religion.46 Additionally, article 18(2) of the ICCPR, ratified by Afghanistan, forbids subjecting anyone to coercion that impairs the freedom to have or adopt his or her religion or belief of choice. The Afghan state is obliged to protect this freedom – even if the Constitution explicitly grants the freedom of religion only to non- Muslims.47 Another argument against penalizing apostasy is the fact that the Afghan Constitution contains the principle of legality – specifically the principle of nullum crimen, nulla poena sine praevia lege poenali (“no crime, no punishment without a previous penal law”). Article 27(1)-(2) of the Constitution states, “No deed shall be considered a crime unless ruled by a law promulgated prior to commitment of the offense. No one shall be pursued, arrested, or detained without due process of law.”48 There are, however, strong arguments that the term “law” (qanun) here
44. Conversation between the author and Prof. Dr. Hafizullah Danish, Kabul, July 18, 2008. 45. Pamela Constable, For Afghans, Allies, a Clash of Values, The Washington Post, March 23, 2006; Sultan A. Munadi/Christine Hauser, Afghan Official Calls for Release of Christian Convert, The New York Times, March 27, 2006. 46. Quoted in Barbara Slavin, supra note 39. 47. Article 2 of the Constitution states, “The sacred religion of Islam is the religion of the Islamic Republic of Afghanistan. Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals.” 48. This provision is simultaneously an expression of the fundamental shari’a principle of qubh-e ‘iqab bila baian (roughly, no punishment with prior explanation, in the sense of a warning), which is based on sura 17:15: Ma kunna mu‘azzabina hatta nab‘asa rasula (“We never punish without first sending a messenger”). The common understanding interprets the “messenger” as notification of the threatened sanction. 226 / Journal of Afghan Legal Studies refers to parliamentary statutes. Qanun derives from Ancient Greek κανών (“rule,” or “standard”), and since the early stages of Islamic rule it has referred to provisions that specifically do not stem from Islamic sources because they govern subject matter such as administrative structures.49 Classically, the term qanun is used in opposition to ahkam-e islami (“Islamic commandments“). The shari’a- based position, however, holds that shari’a, as “Islamic commandment,” may not be qanun, but is so similar to qanun that it falls within the purview of article 27(1) of the Constitution.50 Yet a strict interpretation of article 27(1), based on the rule of law, demands more than mere similarity between ahkam-e islami and qanun. The legislature would need to codify the rules of ahkam-e islami as formal qanun. Because Islamic criminal norms have not yet been laid down in statutory form in Afghanistan – which is the solution chosen by Iran, for instance – no recourse to Hanafi jurisprudence in criminal law is possible. Imposition of a hudud punishment for apostasy would violate article 27(1) of the Constitution and, by extension, article 130.51 2.3. Lessons from the Case of Abdul Rahman While the Afghan legislator must reconcile the pressures of both shari’a and international law as sources of law without a conflicts regime, the Afghan Constitution offers the justice system, in theory at least, a clear set of rules. The Constitution and parliamentary laws take precedence, and shari’a – here, limited to Hanafi doctrine and, in exceptional cases, Shia doctrine – serves only to fill gaps in the law. In criminal law, the application of such doctrine is completely ruled out because of the principle of nullum crimen or, in some cases, because of violations of human rights. In practice, however, the situation is different. Both judges and prosecutors draw on shari’a far more than the Constitution permits. There are various reasons for this, including the fact that different educational backgrounds lead to corresponding legal career paths. The majority of Afghan judges and prosecutors have had a shari’a education at a university or a religious school.52 Thus, they
49. Herbert Berg, Islamic Law, in: Berkshire Encyclopedia of World History 3 (2005), History Reference Center (online edition), last visited December 16, 2012. 50. The argumentation of Afghan jurists was described to the author by Mohammad Sadr Touhid-khaneh of the Max Planck Institute for Comparative Public Law and International Law. 51. Mandana Knust, The Case of an Afghan Apostate – the Right to a Fair Trial Between Islamic Law and Human Rights in the Afghan Constitution, Max Planck UNYB 10 2006, 600 et seq. 52. A 2006 survey found that 44% of judges had completed educations at shari’a departments, 16.1% at religious schools, 11.6% at law schools, 7.7% at other departments, and 20.5% at mere secondary schools. Livingston Complementarity and Conflict / 227 have not studied the state’s legal system and are more comfortable dealing with the norms they know. Secondly, Afghan legal studies have fallen to a low level in decades of war, chaos, and Taliban rule.53 As a result, both legal scholars and practitioners have great difficulty dealing with complicated normative hierarchies, and are largely unfamiliar with basic legal doctrine or methodology. Thirdly, Afghanistan does not have a constitutional culture in which judges, prosecutors, and other practitioners could work toward protection of constitutional norms. The generally strong and conservative religiosity brings with it a tacit rejection of the Constitution as the highest normative source. At times, this is even openly stated: “Constitutions come and go, but shari’a remains.”54 This also implies a rejection of international law, particularly those norms which, in a conservative reading, seem irreconcilable with shari’a. Scholars, practitioners, and observers are discussing ways out of this conflict; however, their proposals mostly violate the fundamentals of international law and internationally recognized constitutional principles. For instance, some argue that article 3 of the Afghan Constitution qualifies the provisions of international law to the extent they conflict with shari’a. However, a constitutional norm cannot invalidate international legal obligations, as this would ignore the just-mentioned principle forbidding unilateral withdrawal from the ICCPR, the CEDAW (Convention on the Elimination of Discrimination against Women), and other treaties.55 This discourse reveals the actual and very understandable reason, why many Afghan jurists give precedence to shari’a when faced with conflicts between religious and secular norms. Their religious belief that shari’a is divinely ordained seems to leave them no other choice. In the case of conflict, they follow their faith and accept the violations of the Constitution and their oaths of office.56 They accept the Constitution because it stands in general conformity with shari’a – but only to the extent of its conformity with shari’a in their view.
Armytage, Justice in Afghanistan: Rebuilding Judicial Competence After the Generation of War, Heidelberg J. Int’l L. 67 (2007), 190. 53. An LL.M. program worth its name has not yet been established in Afghanistan. 54. A judge expressed such sentiments to the author in April 2007 in Herat. 55. This does not mean that norms of international law should be considered superior to norms of constitutional law – that is, national laws that violate international law are not invalid – but the state in question nonetheless violates its international legal obligations. 56. For example, Judge Khan Mohammad Salimi of the appellate court in Herat expressed such an opinion at a Fair Trial Seminar of the Max Planck Institute for Comparative Public Law and International Law in April 2007. Under article 59 of the Law on the Organization and Jurisdiction of Courts of 2005, Afghan judges take an oath to respect and uphold the provisions of shari’a, the Constitution, and other laws of the land – enumerated in this order. 228 / Journal of Afghan Legal Studies
3. Law in the Village: Traditional Forms of Dispute Resolution The second strand of conflict in the “normative patchwork” of Afghanistan runs between the state justice system and non-state institutions of dispute resolution, especially the tribal councils. A look at the history reveals how problematic the relationship has been. The central Afghan government has attempted to rule the people by laws, administrative systems, and judicial institutions since the end of the 19th century, but has been only moderately successful, even causing a bloody civil war in 1929 and 1978. Current efforts, therefore, represent not only a reconstruction of a legal order, but also an attempt to complete the interrupted reforms. Their success depends, among other things, on whether state and traditional forms of dispute resolution can be successfully integrated and whether rules on conflicts of norms can be successfully introduced.57 However, UNDP- sponsored efforts to introduce legislation intended to create linkages between state and non-state justice systems failed in 2011. In 2014, a group of Afghan jurists, elders, ulama and civil society activists developed an innovative model of interaction between the two spheres on the basis of the “Basic principles on the use of restorative justice programs in criminal matters” of the United Nations (ECOSOC Resolution 2002/12), which could resolve the problem in the future. 3.1. Non-State Dispute Resolution Mechanisms The Afghan government and its formal judicial institutions have had limited influence since the state’s structure was established.58 This is especially true in rural and less accessible regions where the majority of the Afghan population lives. The Afghan state has increasingly been able to press further into remote regions through construction of streets and communication systems, as well as through expansion of military and police forces and its administration; nevertheless, the levels of societal autonomy and self-organization have remained remarkably high. This is in part due to the fact that no colonial regime ruled and transformed Afghanistan. Furthermore, exercising control over these sparse mountainous territories, deserts, and steppes has offered little economic or political benefit to the state.59 Even today, the social order and dispute resolution mechanisms still rely primarily 57. Ali Wardak et al., Afghanistan Human Development Report 2007: Bridging Modernity and Tradition – The Rule of Law and the Search for Justice, Kabul: Center for Policy and Human Development, 2007, 91 et seq. 58. Ahmad Shah Durrani’s rise to the position of emir in 1747 is considered to mark the emergence of Afghanistan as a state entity. Martin Ewans, Afghanistan – A Short History of its People and Politics, 2002, 29 et seq. 59. Barfield, supra note 6, 3 Complementarity and Conflict / 229 on non-state structures and norms. Intra-familial problems – such as disputes over terms of marriage, divorce, inheritance, or domestic violence – are resolved within the private sphere of the Afghan extended family whenever possible. Such disputes are not made public so as to preserve the family’s honour and to avoid burdening outsiders with the family’s problems. When family disputes do spill into the public sphere, or when multiple families are involved, local and tribal institutions stand ready to settle the conflict. The most important dispute resolvers are the tribal councils.60 Over centuries and in separate, more or less autonomous communities, these institutions have developed norms to govern communal life. The legitimacy of these norms, which are passed down orally, rests on consensus within the communities. As late as in the late 19th century did a formal justice system emerge in the course of expanding statehood. This meant that judges began ruling on cases in the name of the emir. Formal judicial influence, however, did not extend beyond the big cities into rural areas until the 20th century. Even when the expansion of the justice system was at its peak in the 1960s and 1970s, tribal councils remained more important, at least at the village level, than the state courts in district and provincial capitals. Long years of jihad and civil war led to the collapse of the state justice system in the 1990s, allowing tribal institutions to increase their influence again.61 The structure and rules of dispute resolution of these informal mechanisms are inherently dynamic. Structural and regulatory changes reflect changes in the society and have thus accelerated significantly in the last thirty years. 3.2. Ethnic Peculiarities Afghanistan is an ethnically and culturally diverse country, in which no single group is dominant over all others. The largest, traditionally most powerful group, the Pashtuns, makes up about 40% of the population but they are, similar to all other groups, fragmented into city populations, tribal communities settled in rural areas, and nomadic groups. Around 30% of Afghans are Tajiks, spread across the country in varying forms of settlements and communities. Smaller groups of Hazaras (10%), Uzbeks (8%), Aimaks (4%), and Turkmens (3%) are 60. Additionally, district administrators, clerics (‘ulama), chiefs of police, and others resolve disputes. The Asia Foundation (ed.), Afghanistan in 2012: A Survey of the Afghan People (2012), 143. 61. There were also new structures typical of wartime, such as the shuras of the Mujahedin leader and the shari’a- shuras of individual military commanders. After the war, their importance diminished. Thomas Barfield et al., The Clash of Two Goods: State and Non-State Dispute Resolution in Afghanistan, 2006, 2 et seq. 230 / Journal of Afghan Legal Studies more homogenous.62 Traditions and rules of dispute resolution vary by ethnicity and region. Some evince a high degree of coherence, particularly the Pashtun decision-making culture. 3.2.1. The Pashtun Jirgas and Pashtunwali The state judicial institutions are particularly weak in the southern and south- eastern parts of the country, which is where the original Pashtun settlements are situated.63 The Pashtuns generally use tribal councils, called jirgas,64 to resolve disputes. These jirgas comprise men of a high social standing, i.e., elders, heads of families, and religious dignitaries. With the parties’ consent, outsiders with useful expertise may be asked to participate. However, jirgas do not make decisions. The responsibility to resolve the dispute lies exclusively with the parties, although in serious cases a jirga does have the right to compel an agreement from parties who are not willing to compromise. Should a party refuse to accept a jirga’s unanimous recommendation, both sides can be made to exchange a valuable forfeiture. .65 The basis of dispute resolution in the Pashtun jirga is tribal law, called pashtunwali. It can also be seen as an honour codex , because honour (ghairat) is among the highest values, along with individual autonomy and equality. Pashtunwali includes seemingly archaic traditions, such as retributive vengeance (badal), because of its ancient, pre-Islamic origins. A harmed party can take vengeance through retributive acts, but also materially through seizure of money or goods, or through marriage. Hospitality (melmastia) also ranks among the highest values. It is closely related to the nanawat (literally, “admission,” with a dual sense of forgiveness and asylum). Immediately upon speaking the word, nanawat must be granted, even to one’s worst enemy. Vengeance is therefore executed only in confrontational cases involving basic subsistence or survival. A person who does not grant nanawat when asked for forgiveness is considered ignoble and brings shame (sharm) and disgrace on himself.
62. Estimated ethnic demographics are based on various, sometimes highly divergent sources, particularly the CIA World Fact Book, available at https://www.cia.gov/library/publications/the-world-factbook/geos/af.html#People, and Louis Dupree, Ethnography of Afghanistan, in: Encyclopaedia Iranica, vol. 1, 1989, 495-501. 63. The state’s sphere of control here is de facto limited to the larger provincial capitals. 64. The Turkish term jirga originally meant “circle” and refers to the congregation of a small or large group for consultation. The Academy of Sciences of Afghanistan (ed.), Pashto Descriptive Dictionary, 1978, 1272. 65. Alef-shah Zadran, Socioeconomic and Legal-political Processes in a Pashtun Village, Southeastern Afghanistan, 1977, 217 et seq. Zadran’s based his study on research in the province of Paktia in the 1970s. Complementarity and Conflict / 231
Practices such as nanawat are often ritualized. For instance, in the case of asking for forgiveness, the jirga can direct relatives of the guilty party to send delegates to the victim’s house. Often the delegation includes elders and women who, accompanied by a mullah, present the injured family with a sheep or other gifts. The sheep is often slaughtered at the house’s threshold. Forgiveness is asked for in the house, and it may not be withheld. 3.2.2. The Shuras and the ‘urf The rural Pashtuns traditions are unique among ethnic groups in Afghanistan. However, outside of the larger cities, the Tajiks, Hazaras, Uzbeks, Turkmen, and other ethnicities also use councils, usually called shura66 or majlis67 to resolve their disputes. In contrast to the Pashtun jirga, these are traditionally temporary institutions, which are convened ad hoc for specific disputes. Depending on the facts and subject matter of the case, they can include family members of the parties, elders known as “white beards” (Persian rish-safid; Uzbek/Kyrgyz aqsaqal), mullahs, and other members of the local community. In sensitive private matters, however, the group can be limited to members of the families involved.68 The Tajiks have no coherent body of customary law or any honour codices, and they reject independent normative orders, such as pashtunwali, as un-Islamic.69 Instead, they rely on the local understanding of shari’a – which of course varies in the absence of recognized, official teachings – and on local tradition as a subsidiary basis for decision-making. This practice is, in principle, in line with most interpretations of shari’a, which permit the subsidiary application of local, non-Islamic customary law known as ‘urf. A hybrid of council and court is widespread among the Hazaras. The so- called marakas do not have a predetermined composition, but do make binding decisions. The basis for decision-making is the local interpretation of shari’a according to a Shia-Ja’fari understanding.70 66. The term shura originally meant “consultation,” “the seeking of advice,” and stems from pre-Islamic times. In the Qur‘an, it is considered praiseworthy (suras 3:159 and 42:38). For further information on the councils in Afghanistan, see Lynn Carter/Kerry Connor, A Preliminary Investigation of Contemporary Afghan Councils, 1989. 67. Majlis stems from the Arabic linguistic root j-l-s for “to sit (together)” and in the Islamic world refers to various convened groups like parliaments (Turkey, Indonesia, etc.) and religious ceremonies (e.g., to honour the Shia martyr Husayn ibn Ali), but also to rooms in which one receives guests (e.g., on the eastern Arabian peninsula). 68. The collapse of state structures during the years of war, however, led to an institutionalization of the shuras, which regularly met in more definite compositions and regulated local matters. Barfeld, supra note 6, 31. 69. Statement of the director of the huquq divisions of the province of Badakhshan, Alhaj Ashur Mohammad, in conversation with the author on Sept. 28, 2007. 70. The International Legal Foundation (ed.), The Customary Laws of Afghanistan, September 2004, available at 232 / Journal of Afghan Legal Studies
The jirgas, shuras, and marakas represent the best-known and most widespread traditional forms of dispute resolution. The limited literature on Afghanistan’s ethno-legal systems describes the further structures and norms of, among others, Central-Asian Arabs in Kunduz,71 the Kyrgyz of the Wakhan Corridor,72 and the Nuristanis in the eastern part of the country.73 3.3. Collisions and Conflicts Regimes between State Justice and Tribal Institutions 3.3.1. Unequal Competitors: A Comparison Fundamental differences distinguish the dispute resolution mechanisms of the state’s justice system from the jirgas, shuras and marakas. These differences complicate attempts to combine state and non-state mechanisms. The differences begin with the norms underlying dispute resolution. The state justice system is based on the Constitution, statutory law, and ratified international law, i.e., written norms of national origin and shari’a, which claims universal validity. Furthermore, the goal of the state justice system is to treat all Afghan citizens equally before the law and to afford them legal certainty through predictability of decisions. In contrast, the dispute-resolution rules of the shuras and jirgas are decidedly limited to the local community or to the extended family or tribe. Generally, there is not a distinguishable system of rules but a set of unwritten moral and ethical principles and values. These provide orientation for consultations but leave much room for flexible resolutions. Moreover, the distinction between criminal and civil law, which stems from the European legal traditional, plays no role for the shuras and jirgas. In regard to the procedural and institutional structures, the tribal councils and the state courts are worlds apart. Council members come from the community in which the dispute in question arose and their consultations aim toward consensus among all those involved. In contrast, the state’s justice system makes decisions in which one party is victorious over the other, or in which a criminal is condemned www.theilf.org. For an older study, see Robert Canfield, Hazara Integration into the Afghan Nation, Occasional Paper of the Asian Society, 1970. 71. Thomas Barfield, The Central Asian Arabs of Afghanistan: Pastoral Nomadism in Transition, 1984; Thomas Barfield, Weak Links on a Rusty Chain: Structural Weaknesses in Afghanistan’s Provincial Government, in: Revolutions and Rebellions in Afghanistan, 1984, 170-183. 72. Nazif Shahrani, The Kirghiz and Wakhi of Afghanistan, 1979. 73. Schuyler Jones, Men of Influence in Nuristan, 1984; Ahmad Yusuf, Emergence of the Ulema as Political Leaders of the Waigal Valley, 1994. Complementarity and Conflict / 233 but the injury to the victim is not considered. In order to achieve an unbiased trial, state justice specifically appoints non-members of the local community as judges, as community ties could affect their impartiality. In criminal law, a judicial decision complicates the restoration of peace within a given community. Criminals are often stigmatized as “bad” and, thus, “other,” and they may be excluded from the community by prison sentences. Unlike formal courts, councils seek ways to reintegrate criminals into the community. The Pashtun principle of nanawat – that the victim must forgive the wrongdoer, if asked – exemplifies this desire to reintegrate. Shari’a punishments, such as the payment of blood money (diyat), are oriented similarly. Such integrating mechanisms are often considered far more effective in combating and preventing criminality than socially controlling the individual through exclusion and re-education.74 On the other hand, the verdicts of the shuras, jirgas, and marakas, especially in the area of criminal law, violate norms that the state guarantees its citizens. For instance, under pashtunwali, jirgas can resolve violent conflicts by recommending the marriage of a woman from the offender’s family into the victim’s family. Such practices cannot be reconciled with the Constitution, statutory law, or human rights. They have, however, reportedly become less common in recent years and are purportedly virtually absent in ethnic groups other than Pashtuns.75 Furthermore, taking in consideration that the Constitution guarantees men and women equal rights, the fact that councils almost always exclude women from the decision-making process appears problematic. Ultimately, the local and tribal institutions’ impartiality should not be overestimated. In regions ruled by warlords or insurgent groups, these rulers exercise influence also over the institutions of dispute resolution. However, the state justice system has its faults, too. Major weaknesses include the notorious lack of sufficiently educated judges and other justice personnel, as well as high susceptibility to external influence.76 The ratio of about 18,000 citizens for every judge77 in a post-war society full of severe, violent conflict
74. John Braithwaite, Crime, Shame and Reintegration, 1989. 75. Chris Johnson/William Maley/J. Alexander Thier/Ali Wardak, Afghanistan’s Political and Constitutional Development, 2003. 76. Jane Stromseth/David Wippman/Rosa Brooks, Can Might Make Rights: Building the Rule of Law after Military Interventions, 2006, 233. 77. In his study, Livingston Armytage put the total number of judges at 1412. Since then, around 400 further judges have taken office; thus, there are approximately 1800 judges for a population of circa 32 million. In 1972, the ratio was almost exactly the same, with 679 judges for circa 12 million residents. Armytage, supra note 54, 186; Mohammad Hashim Kamali, Law in Afghanistan, 1985, 207, 230 et seq. 234 / Journal of Afghan Legal Studies already suggests that the greater portion of disputes must be settled outside of state institutions. Studies confirm this assumption, with estimates of informal dispute resolution at approximately 80%.78 Significant distrust of state justice institutions within the population contributes to this high quota, as judges and prosecutors are often considered incompetent and corrupt.79 This is not surprising, given the poor state of legal education and the underpayment of justice-system personnel. In a systematic, country-wide survey in 2012 only 50% of participants said they trusted the justice system, which had thus fared far worse than the army, which 93% trusted, the police at 82%, and religious leaders at 74%, and non- governmental organizations at 53%. Only political parties and local militias ranked lower than judges and prosecutors.80 Accordingly, it is not surprising survey participants said that when dealing with a crime, they consider turning not only to the police (44%), but also to tribal leaders (22%) or the local shura or jirga (32%).81 Some of the reasons for this trust have already been discussed, but it is also partly founded in the fact that in Afghan culture the elderly have an especially high social standing and are considered wise and just. The parties of the dispute usually know and trust the arbiters because of their knowledge of local traditions and circumstances. Furthermore, the shuras, jirgas, and marakas resolve disputes without delay or costs for the parties. Also, lack of basic legal knowledge and widespread illiteracy discourage many Afghans from seeking out state justice. Judicial procedures are based on written norms and must be advanced by way of a written plea. Therefore, for many Afghans state justice represents a loss of control over the proceedings and an unpredictability of outcome, as well as additional costs for letter drafters or attorneys.82 3.3.2. The Huquq System as Conflicts Regime The divide between state and non-state mechanisms appears large at first glance; however, it is bridged to some degree by a widespread system of Ministry of Justice offices, called daftar-e huquq, or huquq offices, after the Islamic term for individual rights (huquq; sing. haq). Huquq offices are available to answer
78. Ali Wardak et al., supra note 77, 8. 79. In 2012, 34% of those surveyed indicated that they had to pay bribes at least occasionally when dealing with judicial institutions. The situation was similarly troubling with healthcare (36%) and the police (31%). Other institutions frequented by citizens have also proven susceptible to corruption. The Asia Foundation, supra note 62, 151. 80. The Asia Foundation, supra note 62, 84. 81. Id., 43. 82. For similar findings with respect to pre-war times, see Barfield, supra note 6, 27 et seq. Complementarity and Conflict / 235 citizens’ legal questions in almost all districts of the country.83 Personnel at the offices, at least according to the official statements, have Islamic or legal schooling. The focus of advice is on civil law. For the most part, these officials have four tasks to fulfil: referring conflicts to the shuras or jirgas, or to state institutions, independent mediation, case administration, and education of the public about dispute-resolution mechanisms.84 They play especially important roles in conflicts over land ownership and in protecting the rights of women and children. Huquq offices already performed these functions before the current war.85 There is no reliable data on case frequency and office effectiveness, but an upward tendency in citizen trust and a concomitant increase in number of cases are apparent.86 In practice, huquq offices use questionnaires when taking on new cases. Initially, they decide whether the matter is one of criminal or civil law, and, if they suspect a crime has been committed, they must refer the case to the police or the office of the prosecutor. In civil law matters, they investigate the underlying facts and collect as much evidence as they can. If the conflict requires further attention, the huquq office refers the matter to an appropriate shura or jirga. If the shura or jirga reaches a resolution, it notifies the huquq office in writing, and the case file is closed. If the shura or jirga fails to obtain a settlement, it reports to the huquq staff, who then mediate further on the basis of state law, unlike the shura or jirga. If this second round of negotiations is unsuccessful, the matter is referred to the court of jurisdiction. In interviews, high court judges,87 prosecutors,88 and heads of huquq offices89 in the north-eastern Afghan provinces expressed satisfaction with the
83. Gaps exist especially in particularly unstable Pashtun provinces such as Kandahar and Helmand where civil servants can perform their functions only under life-threatening circumstances, but gaps also exist in other remote areas, as well. Rebecca Hekman, The Hukuk Department in Afghanistan’s Justice System, unpublished paper, 2007, 9. 84. The Ministry of Justice of the Islamic Republic of Afghanistan, Rights (Huqooq) http://www.moj.gov.af/rights. html. 85. The huquq structure was set up in 1921, although it presumably served initially only as a secretariat within the Ministry of Justice. The employees acted as case coordinators and mediators only after the mid-1970s. In the communist period, the structure was overhauled as an instrument of modernization, and later it became an instrument of Taliban rule. See the contemporary account of Abdul Qadir Adalatkhah, former deputy director of the huquq division of the Ministry of Justice, in: Hekman, supra note 86, 6 et seq. 86. Id., 12. 87. In September 2007, the author held conversations with chief judges of the provinces of Kunduz (Maulawi Murad Ali Murad), Takhar (Mohammad Mostam), and Badakhshan (Qari Abdul Shukur). 88. In September 2007, the author held conversations with chief prosecutors of the provinces of Kunduz (Hamidullah Abed), Takhar (Shir Ali Sheenwary), and Badakhshan (Najeebullah). 89. In September 2007, the author held conversations with directors of the huquq divisions of the provinces of Kunduz (Abdul Qodus Khan) and Badakhshan (Alhaj Ashur Mohammad). 236 / Journal of Afghan Legal Studies interlinked state and informal mechanisms for dispute resolution. The huquq offices’ function as mediators is provided in the Afghan legislation, but a legal basis for referring conflicts to shuras or jirgas does not exist. Huquq offices operate in a precarious position: although non-state dispute resolution is technically illegal,90 they know that the personnel and physical resources of the state’s justice system are, by far, insufficient to come even close to handling the high number of cases. Despite some current progress in reinforcing the justice system, experts estimate that it will be decades before the state’s legal institutions are able to carry out their mandates effectively across all regions.91 Among the responses that have been discussed in recent years is the establishment of reconciliation courts (mahakim-e islahiya) based on the 1920s model.92 However, some voices in Afghanistan’s government and civil society oppose this suggestion and reject as unconstitutional any formal integration of the shuras, jirgas, and marakas into the state justice system. A different model of communication and interaction between the two spheres, combined with express limitations of the matters councils of elders may resolve, seems advisable. 3.4. The Stoning of Alleged Adulteress Bibi Amina Cases in which state justice conflicts with shuras, jirgas, or marakas are generally hardly documented and thus cannot be easily reconstructed. The following case is based on newspaper reports93 and interviews this article’s author conducted with officials from state institutions in Badakhshan province.94 It involves the shura’s handling of actions considered to be punishable. The following discussion is not the only version of the case, but the evidence suggests that this account, or
90. This is how Prof. Hamida Barmaki, professor of civil law at the University of Kabul, described the situation in conversation with the author on Nov. 6, 2008. 91. Conversation between the author and Dr. Ali Wardak, Center for Policy and Human Development, Kabul, on July 17, 2007. 92. Courts of reconciliation were established in all provinces according to article 55 of the first Afghan Constitution of 1923. The arbitrators were named from among the ranks of “respected persons known for their trustworthiness” under article 211 of the Organization Act of 1923. No formal education was required. In matters of civil law and commercial law, they negotiated amicable settlements, and only in cases where such agreement could not be reached would a case proceed to a court of first instance. Reconciliation courts were absolved in the mid-1930s in favour of shari’a courts. Kamali, supra note 79, 212 et seq. 93. Mónica Bernabé, Cita con el mula lapidador, El Mundo-Cronica, Nov. 11, 2007, 1-3. 94. Conversation with Wahiduddin Arghun, head of the provincial office of the Afghanistan Independent Human Rights Commission in Badakhshan, on July 22, 2008; conversation with Nadjibullah, chief prosecutor in Badakhshan and investigating prosecutor in the case of Bibi Amina, on July 23, 2008; conversation with Rashid, vice chief judge of the appellate court of the province of Badakhshan, on July 23, 2008; conversation with Alhadj Ashur Mohammad, director of the provincial office of the Ministry of Justice’s huquq office in Badakhshan, on July 24, 2008. Complementarity and Conflict / 237 something very similar, is what actually took place. In April 2005, residents of the village Panjdaran in Spingul Valley near Faizabad, the capital of Badakhshan province, saw 29-year-old Bibi Amina alone with her alleged lover, Mohammad Karim. Further details of the situation are not known. Bibi Amina had been married to another man for years – a marriage arranged by their parents. Shortly before the incident, the husband had returned from Iran, where he had lived for five years. Bibi Amina had already tried to divorce him, arguing that he could not economically provide for her. This is grounds for divorce under article 191 of the Afghan Civil Code, which allows a woman to apply for divorce (tafriq) if her husband refuses to support her and apparently has no estate or assets.95 Bibi Amina thus had good prospects of being granted a divorce. With Mullah Mohammad Yousuf presiding, the local shura deliberated on the case for two days and decided that Bibi Amina must be executed for adultery.96 Her companion was sentenced to 100 lashes with a whip.97 It is doubtful whether the strict Islamic rules of evidence were observed.98 All village residents, including Bibi Amina’s mother, reportedly supported the decision. On April 21, 2005 a group of men buried Amina up to her neck in the ground. Reportedly, seventy people took part in the stoning, among them her father and husband.99 News of the killing of Bibi Amina quickly spread beyond the valley. The police headquarters in Faizabad sent a large squad to the scene of the incident, provisionally arrested eighteen suspects, and finally transferred Bibi Amina’s husband, her father, and three cousins, who jointly accepted responsibility for the
95. The husband’s temporary financial viability, however, does not suffice; under article 192 of the Civil Code, the court can grant him a three-month period, after which divorce is granted only if he is still unable to provide support. A divorce might also have been granted under article 194 of the Civil Code for extended absence of the husband without reason. Kabeh Rastin-Tehrani, Das afghanische Familienrecht und Grundzüge anderer islamischer Familienrechtsordnungen (working title), chapter E.IV.c (forthcoming 2009). 96. This punishment of married adulterers derives from the sunna. 97. This punishment for unmarried adulterers can be found in the Qur‘an, sura 24:2. 98. In conversation with the author on July 23, 2008, Nadjibullah, chief prosecutor in Badakhshan and investigating prosecutor in the case of Bibi Amina, expressed doubt on this point. Shari’a indeed envisions the punishment for adultery, but it can only be executed if four males witnessed the act. If a husband accuses his wife of fornication, no further witnesses are necessary. He must repeat the accusation four times and on the fifth repetition call the curse of God down onto himself if he is lying (li‘an). The accused wife can reject the accusation in the same way. Khoury/ Hagemann/Heine, Islam-Lexikon A-Z, entry: Strafrecht. 99. Here, accounts of the incidents conflict. The account detailed here comes primarily from Bernabé. In contrast, representatives of state institutions reported an honour killing by relatives, suicide, or a fainting spell as the cause of death. None, however, could satisfactorily explain why village residents punished Bibi Amina’s lover with 100 lashes – the punishment for an unmarried adulterer – or why 18 suspects were arrested shortly after her death. Bernabé’s version is also more credible because it was investigated directly after the incidents. 238 / Journal of Afghan Legal Studies incident, to the prosecutor’s office. They were sentenced to three years in prison for manslaughter by the provincial court.100 In northern Afghanistan, the case – which constituted a rare exception – led to heated controversy. For the present analysis it is interesting because rural interpretations of shari’a, applied by a group of villagers, and the state’s claim to a monopoly on criminal sanctions collided with full force. Under Afghan law, the husband could, at most, have reported the alleged adultery to the police or to prosecutors. According to the constitution and the laws of the country the shura was not authorized to deal with the case at all. It could have been reported to the police or to prosecutors. Employees of the local huquq office would certainly have referred the case to the state authorities, too. However, the shura or the influential Mullah Mohammad Yousuf apparently meant to circumvent the state justice system – which was easily accessible, given the proximity to the provincial capital Faizabad. Presumably, the punishment was to be agreed upon and immediately and locally executed to prevent the honour implications from spreading beyond the valley. A regular court would probably have based a case against Bibi Amina and her lover, who were apparently accused of extramarital sexual relations (zina), on Articles 426 et seq. of the Criminal Code, which permitted a maximum penalty of life imprisonment. It would have had been obliged to uphold the Constitution’s fair trial guarantees, particularly the right to legal counsel, although awareness of these rules and the capability to comply with them were still limited at the time of the case.101 However – to be realistic – a court might also have based the case on shari’a and tried to punish the alleged acts as hudud102, ignoring the nullum crimen principle and other constitutional barriers as in the proceedings against Abdul Rahman. The prosecution of the perpetrators in the state justice system is remarkable because the rules of Afghan law were followed without conflicts between the police, prosecution, and judiciary. They were convicted in accordance with articles 394 et seq. of the Afghan Criminal Code. The court, however, declined to recognize murder – which was, in theory, a possibility.103 Instead, it found them 100. IRIN report, May 3, 2005, http://www.irinnews.org/report.aspx?reportid=28576. 101. Fabrice Defferrard, L’Afghanistan et le procès pénal equitable, Recueil Dalloz (2006), 1997-2001. 102. Opinion of Nadjibullah, chief prosecutor in Badakhshan and investigating prosecutor in the case of Bibi Amina, expressed in conversation with the author on July 23, 2008. 103. Brutality, as a legal element of murder under article 395(3) of the Afghan Criminal Code, could possibly be fulfilled by a stoning. Because this punishment is widely considered divinely ordained in certain circumstances, Complementarity and Conflict / 239 guilty of manslaughter and issued a lenient sentence. Article 396 contemplates “long imprisonment” for manslaughter; three years is certainly not considered a long sentence in Afghanistan. However, it does not appear that the court granted leniency because the homicide aimed at protect the family’s “honour”; it can only be granted for acts in the heat of the moment, for which the possible sentence is limited to two years. The case leaves a bitter aftertaste not only because of the human tragedy, but also because Mullah Mohammad Yousuf was not prosecuted. In accounts of the case, he appears to have been the driving force behind the stoning.104 Nonetheless, the marked reaction of state justice, along with the prosecution of individual perpetrators, can be read as a restoration of the power structure in the area of criminal law. The normative disruption and its sanction serve to stabilize the order. It can be assumed that the case was understood in the valleys of Badakhshan as a warning, as well. Yet the problem for those communities living far from provincial capitals remains unresolved: in winter, they are cut off from the outside world for up to eight months and during this time have to resolve their conflicts among themselves. 4. Law in Secrecy: The Parallel World of Taliban Courts The last piece in the Afghan “normative patchwork” of the country’s legal pluralism can only be described cursorily because information on the Taliban courts is still scarce.105 Due to its relevance in some parts of the country, however, this phenomenon must be mentioned. Since about 2005 the Taliban have established judicial structures parallel to the Afghan state in territories that they control at least to some degree.106 One important way to exercise power is through courts that make decisions based on their own interpretations of shari’a. These are called “mobile” courts as the Taliban judges usually appear and depart on motorcycles. Only in some districts they maintain permanent facilities as courthouses and prisons.107 The Taliban
Afghan jurists do not – at least, not often – define it as “brutal” for criminal law purposes. 104. This is the case in both Bernabé’s article and oral reports. 105. Antonio Giustozzi, Claudio Franco, Adam Baczko, Shadow Justice: How the Taliban Run their Judiciary, Kabul, Integrity Watch Afghanistan, 2012; Antonio Giustozzi, Claudio Franco, Adam Baczko, The Politics of Justice: The Taliban’s Shadow Judiciary, Kabul, Afghan Analysts Network, 2014. 106. On the beginnings of Taliban justice structures, see Theo Farrell and Antonio Giustozzi, The Taliban at War: Inside the Helmand Insurgency, 2004-2012, International Affairs, 84 (4), 2013. 107. E.g. in Kandahar province (until 2010). Adam Baczko, Juger en situation de guerre civile. Les cours de justice Taleban en Afghanistan (2001-2013), Politix 2013/4 (No. 104), 25-46 240 / Journal of Afghan Legal Studies also employ local mullahs who officially fulfil other functions and secretly act as judges. Candidates need the approval of the Judicial Council of the Taliban, which is based in Quetta with a branch in Peshawar, and for this purpose must pass an exam in Islamic law. In order to mitigate the risk of corruption the judges are deployed to provinces other than those where they stem from, and rotate to different locations every few months. Provincial commissions of the Taliban supervise the judges and collect their decisions. Even appeals courts exist in areas of strong Taliban presence, such as in Helmand’s Nawzad district which is located close to the border of Pakistan and thus allows swift retraction across the border into if necessary.108 The courts deal mostly with criminal and private law matters but also with disputes between citizen and the Taliban.109 Criminal sentences are carried out immediately. There are known cases of Taliban convictions of members of the Afghan armed forces, adulterers,110 and alleged prostitutes.111 However, the majority of cases belong to areas of private law. For several reasons the demand of their services is high: they are accessible, fast and inexpensive, decisions are considered legitimate as they are based on Islamic law and can be enforced even against the losing party of a dispute, if only for fear of their fighters. Even citizens who politically oppose the Taliban turn to their judges to have their cases resolved.112 Dr. Abdul Malik Kamawi, then General Director of the Afghan Supreme Court, told the present author as early as in 2007 that adverse parties turned to the state’s justice system to appeal Taliban judgments. These cases were accepted and decided based on state law in order to re-establish peace the authority of the state.113 This connection between the two normative orders is, at first, surprising because
108. Adam Baczko, Juger en situation de guerre civile. Les cours de justice Taleban en Afghanistan (2001-2013), Politix 2013/4 (N° 104), 38. 109. Muhammad Munir, The Layha for the Mujahidin: An Analysis of the Code of Conduct for the Taliban Fighters Under Islamic Law (in Dari), Yearbook of Afghan Legal Studies (YALS) 1 (1394) 429 es seq. 110. For similar cases in the province of Ghazni, see id., 14. 111. Freelance Associated Press reporter Rahmatullah Naikzad secretly filmed the sentencing and execution of two women for alleged prostitution in the province of Ghazni. After the video footage appeared on the Internet, the Afghan domestic intelligence agency, the National Directorate of Security, arrested him on suspicion of supporting the Taliban. An Associated Press spokesperson confirmed these reports. Nahal Toosi, Taliban Justice, AP Archive, Aug. 6, 2008; Ahmad Shuja, Photographer detained after filming Taliban execution of two women in Afghanistan, Fox News, July 18, 2008. 112. Adam Baczko, Juger en situation de guerre civile. Les cours de justice Taleban en Afghanistan (2001-2013), Politix 2013/4 (N° 104), 40 et seq. 113. Author’s conversation with Dr. Abdul Malik Kamawi in Kabul on July 12, 2007. Complementarity and Conflict / 241 the respective normative authorities are simultaneously battling for territorial rule in Afghanistan. Tactics in this war include the obliteration of the opposing jurisprudence. Since 2001, the Taliban have assassinated dozens of state justice officials.114 At the same time, their own judges are have many times been targeted not only by the Afghan security forces but also by U.S. special forces and drones.115 From the Afghan state’s perspective, Taliban judges – whose decisions are unilaterally corrected by state judges – are no more empowered to make decisions than shuras, jirgas, and marakas. Their convictions and sentences are considered murder, assault, and other crimes under the Afghan Criminal Code. The Afghan justice system also cannot abide by Taliban civil law decisions – as opposed to dispute resolution of the shuras, jirgas, and marakas. Whereas the tribal institutions – despite the questionable nature of numerous specific decisions – serve to maintain the domestic social order using traditional means, the Taliban courts intend precisely to displace state justice and impose their own normative sense of justice on society. Law represents only one of many weapons in the struggle for ideological and political hegemony. Under such circumstances, a conflicts regime – which would go along with mutual recognition – is inconceivable. 5. Conclusions Attempts to retrace the lines of conflict between Afghanistan’s normative orders produce as complicated a picture as expected. The Constitution regulates the relationship between state-made law and Islamic shari’a, at least in their basic application. Putting this into practice, though, has seen little success so far. The legislature has shown itself to be deeply uncertain and divided about which sources of law it should, or must, use as orientation. In this sense, the Loya Jirga found a compromise that could function well as a regime for resolving conflicts of law. One can envision a legal order shaped by Islam that simultaneously protects human rights, if article 3 of the Constitution is taken on its own terms. It does not, as is often asserted, demand that all laws be consistent with shari’a but only seeks to avoid contradictions between law and faith or the provisions of Islam. For instance, the Afghan legislative branch may in no case declare seventeen- year-olds criminally responsible under the law or permit marriage of minors simply because a widespread legal doctrine condoned it a millennium ago. Even 114. See, e.g., Abdul Waheed Wafa, Bodies of 4 Kidnapped Afghan Judges Are Found, The New York Times, Aug. 2, 2007. 115. Adam Baczko, Juger en situation de guerre civile. Les cours de justice Taleban en Afghanistan (2001-2013), Politix 2013/4 (N° 104), 40. 242 / Journal of Afghan Legal Studies in difficult cases such as those of physical crimes derived from the Qur‘an itself, compromises can be found, for example, by suspending sentences that do not comply with human rights standards. The prerequisite for such a solutions is the still-absent political will to negotiate. After more than a century of discussion about the modernization of Islamic law, and, by extension, Islamic society, the gates to ‘ijtihad, or a reinterpretation of Islamic sources, are still rusted and just barely ajar.116 Meanwhile, Afghan justice seeks to make proper decisions within the conflicts regime set up by article 130 of the Constitution. The Afghan justice system, however, cannot escape the tension between the Constitution’s assertion of the rule of law and the call of conscience to affirm and fulfil shari’a. Changes will require much time, during which Afghan legal scholars in particular must absorb ideas from other moderate Muslim countries and adapt them to their own context.117 Western observers and followers of this process should thus be careful not to harbour unrealistic expectations or make overly hasty demands.118 The institutional relationship between state mechanisms and local or tribal mechanisms for dispute resolution is no less precarious. There are neither formal rules for conflicts of law nor any political decision as to who is authorized to resolve disputes. Where state justice is absent, the traditional shuras, jirgas, and marakas fulfil its function. However, the legitimacy of these tribal councils is doubtful in light of their purely male compositions and their disregard of the rights of especially women and minors. The state tolerates them in civil law matters. In parts of the country, the huquq offices successfully fulfil the role of mediator between the two normative orders and their institutions, so the huquq office system seems ripe for formalization and expansion. In the long term, however, it is imperative that the state justice system be built up to offer viable, comprehensive alternatives to the tribal institutions and to make the protection of the rights of all citizens possible. The reports discussed above permit only very limited insight into the legal
116. ‘Ijtihad is the independent interpretation of the Qur‘an and sunna. Since approximately the 10th century, Sunni Islam has rejected these methods as inappropriate and error-prone. Only interpretations of the sources by recognized schools of law were considered legitimate. Wael Hallag, Wurde das Tor des Idschtihad geschlossen?, in: Int’l J. Middle East Studies 16/1 (1984), 3 et seq. 117. The fundamental issues are similar in, for example, Egypt. See Kilian Bälz, Shari’a and Qanun in Egyptian Law: A Systems Theory Approach to Legal Theory, Yearbook for Islamic and Middle Eastern Law 2 (1995), 37 et seq. 118. This is not meant to discourage calls to protect human rights. Foreign political pressure contributed to the serious efforts to find ways of avoiding the death sentence in the case of Abdul Rahman. Complementarity and Conflict / 243 pluralism in Afghanistan. The multi-ethnicity of the country permits one to gain only a sense of the myriad traditional orders. The current post-war circumstances complicate the “normative patchwork” significantly: Foreign combat forces are required to operate on the basis of international law and, for instance, treat their prisoners according to specific norms. Many foreign aid organizations orient themselves more toward the law of their home countries than toward Afghan laws when, for example, hiring Afghan employees. Financial institutions like the World Bank are restricted by internal rules and development strategies when disbursing funds, and these rules and restrictions are passed on to recipients such as the Afghan government. At the same time, international organizations such as the United Nations Assistance Mission in Afghanistan are developing new normative systems to coordinate reconstruction. The patchwork is becoming more and more diverse. Around the globe, human rights constitute an important homogenizing force in heterogeneous legal contexts. In Afghanistan, however, a balance between the competing values of cultural diversity on the one hand and the protection of human rights on the other has never been found. Here, human rights based solutions are hard to reach due to the uncompromising normative views of the majority of religious dignitaries and tribal elders. Paradoxically, the conclusion that can be drawn from this enormous diversity and complexity is not that Afghan society is completely normatively unstable. In day-to-day life, the lack of legal certainty is mitigated by a certain shared sense of morality. For many Afghans, the disregard for the common understanding of fairness and justice suffered in daily experiences with corruption and the arbitrary misuse of power is more worrisome than the lack of harmonious, unequivocal legal rules.
Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan
Warda Yasin1 Table of Contents
1. Introduction 2. Criminal Liability of Corporations Under Common Law, Especially for Manslaughter 3. Reform in the United Kingdom for Corporate Liability for Manslaughter 4. The Traditional Islamic Law of Homicide and Manslaughter 5. The Implementation of the Islamic Law Through the Penal Codes 5.1. Pakistan Penal Code 1860 5.2. The Afghan Penal Code 1976 5.3. The New Afghan Penal Code 2017 6. Corporate Manslaughter Law for Afghanistan and Pakistan 7. Conclusion
Abstract Corporate manslaughter has become a well-known concept in the developed world, especially in the UK. Unfortunately, the legal systems of Afghanistan and Pakistan, though they have many laws dealing with corporations, their employees and workplace safety, still does not provide an adequate remedy to the victims of incidents where government agencies and corporations are the direct or indirect cause of the fatal incidents. However, corporate manslaughter is a criminal offence and the existing Islamic law can provide a solution for Afghanistan and 1. Dr. Warda Yasin is Assistant Professor at the International Islamic University Islamabad. She obtained her PhD with a thesis on torts and business law from the University of Manchester (2011-2017). At the same university she did her LLM in international business law (2008-2009) after obtaining her LLB at the University of the Punjab (2004-2007). 246 / Journal of Afghan Legal Studies
Pakistan that cannot be matched by UK law. Both states do not need to introduce a new law for this purpose. The Pakistan Penal Code provides for the payment of diyat and other types of compensation where life and limb are destroyed. The Penal code of Afghanistan states that the Hanafi religious jurisprudence will apply in the cases relating to Diyat (blood money). Therefore, there is no real need of amendment in the existing laws of Afghanistan and Pakistan. The amount of diyat is also fixed by the Pakistani Law, and for Afghan Law it can be assessed according to the Hanafi school. 1. Introduction The corporation as a business form has come to dominate modern life. Not only has it come to be the dominant organization, it has acquired different shapes and structures, the foremost of which is the multinational corporation (MNC), also referred to as the transnational corporation (TNC) or the multinational enterprise (MNE).2 These giant organizations have the ability to move resources from one corner of the planet to another with relative ease and to set up plants, factories as well as other structures in different countries through a complex web of parent and subsidiary companies. Developing countries like Pakistan and Afghanistan have their own domestic corporations that are gradually growing, but both countries are increasingly dependent on multinational corporations that bring in foreign direct investment (FDI) and contribute to the development of these countries. Corporations, whether domestic or multinational, are present in Pakistan and Afghanistan in some form or the other. Some of these enterprises are operating multiple plants and carrying out other business activities, thus bringing great benefits to these countries, nevertheless they have the potential of generating disasters giving rise to the loss of life and limb. As these corporations employ hundreds and thousands of workers, there is every possibility that torts can be committed, especially those that threaten life.3 This threat to life and the potential to cause disasters is not confined to Pakistan and Afghanistan. In recent times,
2. Multinational Corporations (MNCs) are corporations that are incorporated in one country but operate in one or more other countries. Peter T. Muchlinski, Multinational Enterprises and The Law (2nd ed, OUP 2007) 5-8. Other terms found in literature include “transnational corporations” (TNCs), “transnational enterprises” (TNEs) and “multinational enterprises” (MNEs). 3. In Pakistan, the law of torts left by the British has become shriveled acquiring a shrunken posture leaving the poor and the downtrodden without remedies enjoyed by the rest of the world. The law of torts in Pakistan needs to be resurrected from its grave and given a modern form if the rights of the less privileged citizens are to be protected and secured, especially against such powerful organizations as the MNCs. The situation in Afghanistan is surely the same or maybe more vulnerable. Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 247 disasters like the Bhopal tragedy (Union Carbide Case)4 and in Nigeria (Kiobel case),5 where the victims had to seek remedies through those provided by Alien Torts Act, have shown that other damages, even the loss of life, are not adequately and swiftly compensated. The potential for causing disasters is also not confined to developing countries alone. The United Kingdom, for example, faced with disasters caused by corporations in the recent past and the loss of life that resulted from these tragedies had to make the Corporate Manslaughter and Corporate Homicide Act in 2007.6 The impact of this law will emerge gradually, but one thing is clear that it can be applied in a sophisticated legal system like that of the United Kingdom probably requiring expensive litigation. As the Bhopal and Kiobel cases, mentioned above, have shown that victims of such disasters or their families do not have the resources or the time to pursue remedies that are often available in foreign countries and at colossal expense, Pakistan and Afghanistan must develop an indigenous remedy that is more direct and less expensive for the claimants. Fortunately, such a remedy is available in Islamic criminal law as applied by the Hanafi school. Both countries have applied this law in their penal codes. Nothing more is needed to apply this law to corporations, except the political will to declare that the Islamic law of crimes
4. The world’s worst industrial tragedy began when poisonous gas silently leaked in the dead of night in northern India and a “highly toxic chemical called methyl isocyanate spewed out of a chemical plant owned by Union Carbide India Limited, a subsidiary of the giant American corporation Union Carbide.” This happened during the night between December 2-3, 1984. The chemical and fumes moved with the wind toward thousands of destitute squatters who lived in adjoining huts in the city of Bhopal. The chemicals killed several thousand people, injured hundreds of thousands more, and devastated local crops and cattle. See, Abhi Raghunathan, “The Grand Trunk Road from Salomon to Mehta: Economic Development and Enterprise Liability in India,” (2012) 100 The Georgetown Law Journal 572-573. 5. Kiobel concerned the liability of particular multinational corporations for aiding and abetting the Nigerian Abacha regime, which perpetrated crimes against the Ogoni community in the heart of the Niger Delta. The key question facing the court was whether the Alien Tort Claims Act (otherwise known as the Alien Tort Statute, ATS), could ground a claim of Nigerian nationals in the US. The facts of the case are as compelling as the judgment. For details see, Meetali Jain and Bonita Meyersfeld, “Lessons from Kiobel v Royal Dutch Petroleum Company: developing homegrown lawyering strategies around corporate accountability,” (2014) 30 SAJHR 431. 6. On 18th November 1987, a fire of catastrophic proportions occurred in the King’s Cross underground station, killing 31 people. In July 1988, the Piper Alpha oil platform disaster in the North Sea resulted in 167 deaths. On 12th December 1988, the Clapham rail crash caused 35 deaths and nearly 500 people were injured when three rush-hour trains collided after a signal breakdown. On 6th March 1987, the Herald of Free Enterprise, a roll-on roll-off car ferry departed from Zeebrugge for Dover and shortly afterwards foundered with substantial loss of life. A judicial inquiry severely criticized P & O European Ferries (formerly Townsend Car Ferries Ltd). The jury gave verdict of unlawful killings in 187 cases that resulted in prosecution against the company and seven individuals. But the trial judge directed the jury to acquit the company and the five most senior individual defendants. In all these cases prosecution of manslaughter against corporations failed. The decision of the P & O European Ferries case was highly criticized and provoked the public. See, The UK Law Commission’s Report on Legislating the Criminal Code Involuntary Manslaughter, (LAW COM No 237) 4-5. 248 / Journal of Afghan Legal Studies pertaining to manslaughter and the loss of limbs will henceforth be applicable to corporations. This paper will discuss the manner in which this law can and should be applied. It will also be shown why this law will prove to be more efficient than any other law that deals with the problem anywhere in the world today. In order to deal with the topic in a reasonably comprehensive manner at least three areas must be addressed. The first is that of criminal liability of corporations in the context of homicide and manslaughter. The discussion under this will focus on the criminal liability of corporations under common law and more recent developments that led to the promulgation of the Corporate Manslaughter and Corporate Homicide Act, 2007. It will also highlight why the corporate manslaughter law is necessary. The second area is that of the traditional law of homicide and the payment of blood money. The elaboration of this law will not only explain the Islamic law on the subject, but will also elaborate the difference between manslaughter in common law and Islamic law. The third section will deal with the way the traditional Islamic law has been implemented through the penal codes of Afghanistan and Pakistan. This discussion will also show how the traditional Islamic law interacts with the ta’ziri system or the discretionary provisions laid down by the state. After discussing these three areas, proposals will be made as to how the law of corporate manslaughter can be implemented highlighting the types of acts covered and the organizations and entities that can be held liable. 2. Criminal Liability of Corporations Under Common Law, Especially for Manslaughter A company is a legal person in the eyes of the law. Thus, it possesses a legal personality almost like a natural person, a human being. Most rules related to a corporation revolve around this attribute of being a legal person. In some jurisdictions corporations are treated more like citizens. In the US, for example, some of the rights available to human beings under various amendments to the Constitution are available to corporations as well. Nevertheless, the doctrine of separate legal personality of companies faces problems when it comes into contact with those parts of the general law where the mental state of the person is to be assessed for the purpose of imposing liability. In such cases the board and the officers are considered the brains, or the alter ego, of the company. It is their state of mind that is treated as the state of mind of state of mind of the company.7 7. See, e.g., Lennard’s Carrying Company Ltd v Asiatic Petroleum Co. Ltd. [1915] AC 705. Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 249
It is here that the fictional entity theory fails to offer a sufficient explanation of the nature of corporate personality. For the sake of imposing liability, the company has to be regarded in law as the people in it, thus lending support to the real entity theory of incorporation.8 In criminal law then, corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs. Until 1944, companies had no general common law liability for crimes, although the principle of vicarious liability had been used to make companies liable for certain “strict liability” offences, where mens rea was not a required element of the offence. The situation changed with DPP v. Kent and Sussex Contractors Ltd.9 Gradually, criminal liability has been imposed in certain forms. It was decided in this case that the state of mind of the officers of the company could be imputed to it for the purpose of establishing “intent” to deceive. Consequently, companies can now have direct criminal liability imposed on them. The technique used is that of “identifying” senior individuals whose state of mind can be regarded as that of the company for the purposes of establishing mens rea. The test for this approach arose in the case of corporate liability for manslaughter. This issue highlighted some of the limitations of this approach. It was established in R v P & O European Ferries (Dover) Ltd10 that a company could be indicted for manslaughter, however, it was necessary to be able to identify one individual who had the necessary degree of mens rea for manslaughter, and so the prosecution against the company failed. The Law Commission, later, made recommendations for the introduction of a new offence of corporate killing where the conduct of the company falls below what could reasonably be expected. In such cases, death will be regarded as having been caused by the conduct of the company if it is caused by a failure in the way the company’s activities are managed and organised.11 The Law Commission’s proposals were broadly implemented by the Corporate
8. Denning LJ said in Bolton Engineering v Graham: “A company may in many ways be likened to a human body. It has a brain and a nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants or agents who are nothing more than the hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such.” [1957] 1 QB 159. 9. [1944] KB 146. 10. (1990) 93 Cr App R 72. See also what has been said about corporate manslaughter above. 11. Law Com. Report No. 237 Legislating the Criminal Code: Involuntary Manslaughter (1996). The area was subject to further consultation; see Home Office Consultation Paper (23 May 2000) Reforming the Law on Involuntary Manslaughter: The Government’s Proposals and a draft bill was published in the White Paper, Corporate Manslaughter: The Government’s Draft Bill for Reform (Cm 6498, 2005). 250 / Journal of Afghan Legal Studies
Manslaughter and Corporate Homicide Act 2007, which came into force on 6 April 2008. The Act creates a dedicated offence of corporate manslaughter and a company convicted of the offence will face an unlimited fine. Manslaughter under English law, for some time, has been divided into two main types: voluntary manslaughter and involuntary manslaughter.12 Voluntary manslaughter flows from murder when three defences are pleaded. The three defences are: diminished responsibility; loss of control; and suicide pact.13 In these defences, the defendant does not deny killing the victim, nor does he deny malice aforethought, but asks to be excused from full liability. If successful, the defendant must be convicted of voluntary manslaughter.14 This type of manslaughter is not relevant for corporations, therefore, we will not pursue it further.15 “Involuntary manslaughter describes any form of unlawful killing where there is no proof of malice aforethought.”16 There are three forms of involuntary manslaughter: constructive manslaughter or unlawful act manslaughter; gross negligence manslaughter; and reckless manslaughter.17 The UK Law Commission focuses on the first two alone, calling the first as unlawful act manslaughter.18 The UK Law Commission’s paper we are referring to states that the law of involuntary manslaughter as it has developed has problems. This is probably due to the fact that it is entirely a matter of common law, and it has to be pieced together from decided cases. “Even more than most parts of the criminal law which suffer from that handicap, involuntary manslaughter has always been notorious for its uncertainty, and its lack of any clear conceptual vocabulary.”19 The report says
12. UK Law Commission, Criminal Law: Involuntary Manslaughter: Consultation Paper No. 135 (London, Her Majesty’s Stationery Office 1994) 1. 13. Jacqueline Martin and Tony Storey, Unlocking Criminal Law (4th edn, Routledge 2013) 306. 14. ibid. 15. UK Law Commission, Criminal Law: Involuntary Manslaughter, 2. This is what has been done by this Law Commission report. “The Paper is not concerned with those parts of the law of manslaughter (sometimes collectively called the law of voluntary manslaughter) which depend on the presence of the necessary mens rea for murder, and are therefore most easily regarded as partial defences to a charge of murder. The law of killing whilst under diminished responsibility, the law of killing whilst under provocation and killing by a survivor of a suicide pact are therefore not discussed in the Paper.” Ibid. 199. 16. Martin and Storey (n 12) 306. 17. ibid. 18. UK Law Commission, Criminal Law: Involuntary Manslaughter, 2. It does, however, acknowledge the term constructive manslaughter. “The alternative name for this form of manslaughter, ‘constructive manslaughter,’ draws attention to the fact that this species of manslaughter is based upon constructive liability. The law ‘constructs’ culpability for manslaughter out of some lesser crime committed by the defendant which has accidentally caused death. Because of this feature of the offence, the accused’s mental state is not assessed with reference to the death which he has accidentally caused, but only in relation to his unlawful act.” ibid., 10. 19. ibid., 8. That part of it which is now described as ‘unlawful act manslaughter’ has been from time to time “the Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 251 that the conceptual position “has been made, if anything, worse by the efforts of courts in the last thirty years, to keep the law within something like decent bounds. These efforts have had to be undertaken on an ad hoc basis, without the support of a proper framework of policy and analysis.”20 This is the position of unlawful act manslaughter, which is tainted by the doctrine of constructive liability which underpins this part of the law.21 The law of “gross negligence manslaughter,” the report says is in “an even worse state.”22 Finally, the Report adds that this “unpromising background makes it inevitable that it is difficult to state the law with any certainty, let alone succinctness. It is also virtually impossible to identify any governing principles or policy which inform it.”23 It is for this reason that it has been recommended many times that the offence of involuntary manslaughter be abolished altogether.24 At one time it was thought that the commission of a tort was sufficient to ground a conviction of involuntary manslaughter if death resulted. For example, in Fenton,25 where the defendant was convicted of manslaughter on the basis that he had committed the unlawful act of trespass to property.26 This approach quickly changed and the law now requires that the defendant commit a criminal offence. In Franklin,27 the court stated that “The mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case.”28 If there is no criminal offence, then there is no possibility of a manslaughter conviction regardless of how “dangerous” the defendant’s acts may have been.29 3. Reform in the United Kingdom for Corporate Liability for Manslaughter In the last few decades of the twentieth century there were a number of high profile disasters in which people died as a result of poor practice by a corporation. Our object of complaint, not to say bewilderment, for over a century.” ibid. 20. ibid. 21. ibid. 22. ibid. 23. ibid. 24. These recommendations are spread all over this report. 25. (1830) 1 Lew CC 179. 26. Martin and Storey (n 12) 330. “In 1830, for example, the defendant had thrown some stones down a mine. They broke some scaffolding which caused a wagon to overturn, killing the deceased. Tindal CJ directed the jury that the defendant’s act in throwing the stones was a trespass, and as such was sufficient for manslaughter.” UK Law Commission, Criminal Law: Involuntary Manslaughter 11. 27. (1883) 15 Cox CC 163. 28. As quoted in Martin and Storey (n 12) 330. 29. ibid. 252 / Journal of Afghan Legal Studies purpose here is not to trace this history here, as a number of sources are available from which this history can be gleaned.30 Briefly, these among others were: the Herald of Free Enterprise disaster in 1987, in which 192 people died; the King’s Cross fire in 1987, in which 31 people were killed; the Clapham rail crash in 1988 when 35 people died and nearly 500 others were injured; and the Southall rail crash in 1997 when seven people were killed and 150 injured.31 The Law Commission’s consultation paper has the following to say: At the same time we should not ignore what appears to be a widespread feeling among the public that in cases where death has been caused by the acts or omissions of comparatively junior employees of a large organisation, such as the crew of a ferry boat owned by a leading public company, it would be wrong if the criminal law placed all the blame on those junior employees and did not also fix responsibility in appropriate cases on their employers who are operating, and profiting from, the service being provided to the public. If the law is able to address these concerns, consideration also needs to be given to the question whether it is the law of manslaughter, as opposed to, for example, a regulatory offence, which is the appropriate response in such cases.32 Thus, initially it was thought that a corporation could not be liable for manslaughter, but the matter was resolved in P & O European Ferries (Dover) Ltd (1991) when, following the Herald of Free Enterprise disaster, P & O were charged with manslaughter. The problems highlighted here led to a general review of the law on manslaughter by the Law Commission.33 After considerable deliberation and another report that we have relied upon here, Law Commission, Reforming the Law on Involuntary Manslaughter, in 2007, the Corporate Manslaughter and Corporate Homicide Act was passed by Parliament. The section dealing with the offence of corporate manslaughter reads as follows:34 (1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised — (a) causes a person’s death, and
30.. See, e.g., UK Law Commission, Criminal Law: Involuntary Manslaughter, 89 passim and Jacqueline Martin and Tony Storey (n 12) 195 passim. 31. Martin and Storey (n 12) 195. 32. UK Law Commission, Criminal Law: Involuntary Manslaughter 89 (footnotes omitted). 33. Law Commission, Legislating the Criminal Code: Involuntary Manslaughter (Law Com No 237) (1996). 34. Corporate Manslaughter and Corporate Homicide Act 2007 (2007 CHAPTER 19), section 1. Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 253
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. The section reads this way as the offence is based on the Law Commission’s new proposal about an offence of manslaughter based on gross negligence rather than on unlawful act manslaughter. Section 2 of the Act widens the scope of the offence to include other organisations. These are: (a) a corporation; (b) a department or other body listed in Schedule 1; (c) a police force; (d) a partnership, or a trade union or employers’ association, that is an employer.35 Corporations may be held liable for manslaughter now, and there is legislation on the issue as well.36 We may, therefore, describe briefly the way Islamic law considers this offence. 4. The Traditional Islamic Law of Homicide and Manslaughter Afghanistan and Pakistan are both Muslim majority countries, and the majority in both countries are Sunnis following the school of Imam Abu Hanifah. The penal laws of both countries have adopted provisions from the law of this school. Accordingly, what is discussed in the present section applies to both. The major jurists for this school are Imam al-Sarkhsi (d. 483 AH), al-Kasani (d. 587 AH), and of course the author of al-Hidayah, al-Marghinani (d. 593). What we say below will mostly be from the works of these jurists, so that the basis of the discussion is reliable and authentic. To begin with we may say that the distinction between torts and crimes is somewhat blurred in Islamic law. Many of the acts classified as offences under the law of bodily injuries can be designated as torts, especially those in which compensatory damages is the only remedy. Today, the real distinction would be based on whether the proceedings that follow the act are criminal or civil. The word jarimah is usually considered similar to the word offence, while crimes of a more serious nature are referred to as jinayaat (singular jinayah). Some of the jinayaat today would be classified as torts. Petty offences are denoted by the use of the word ma’siyah, which literally means sin. The emphasis in the words hadd and ta’zir, on the other hand, is more on the penalty provided rather than on the inherent nature of the act.37 On the whole, the characteristics of offences pertaining to life and bodily injuries are akin to torts. This may be the reason why such offences are classified as 35. ibid. section 2. 36. See, the UK Corporate Manslaughter and Corporate Homicide Act 2007. 37. Imran Ahsan Khan Nyazee, Islamic Jurisprudence, (3rd edn, Federal Law House 2016) 429-430. 254 / Journal of Afghan Legal Studies jinayaat by the Hanafi jurists. The term jinayah is applied by Hanafi jurists to mean homicide and bodily injuries as well as to torts. Al-Sarakhsi says: Know that the term jinayah (delict) is used for an act that is forbidden the law irrespective of its being directed at property or life, but in the jargon of the fuqaha the term jinayah is applied to an act directed against life and limbs. They designated the act against property by the term ghasb, when the general usage is different from it.38 This shows that some of the torts would be designated as jinayat, while torts against property would fall under ghasb. It is to be noted, however, that the term ghasb includes certain acts that are pure crimes, for example, abduction and even rape after abduction.39 We may mention, however, that the Pakistan Penal Code treats all bodily injuries and offences as crimes, and so does the new Afghan Penal Code. Before we mention some of the details of the provisions of traditional Islamic law, it is important to mention that that the broad manner in which the penal codes of both countries deal with the relationship between the fixed provisions and the discretionary provisions is that first an offender is tried under the Islamic provisions of qisas (retaliation). The procedural and evidentiary standards set for this law are very high. It often happens that the conditions laid down for qisas are not met. In such a case, the reduced standard of proof fixed for discretionary or ta’ziri penalties takes over. The difference between the two types of provisions is that qisas is treated as a combination of the right of the individual and the right of Allah, where the right of the individual is predominant, while the ta’ziri penalty is the right of the state. Blood-money or diyat is treated and has to be paid whatever the law applied. We may now turn to a brief description of the traditional law. According to Kasani, homicide is of four types in Islamic law: murder (qatl ‘amd); culpable homicide (qatl shibh i ‘amd); qatl khata’̣ (homicide by mistake); and qatl that is within the meaning of khata’.̣ 40 A fifth type discussed separately is called qatl bis-sabab, which is indirect homicide as discussed below. Out of these we are primarily concerned with the two types of khata’ and qatl bis-sabab.
38. Abu Bakar ibn Muhammad ibn Ahmad ibn abi Sahl Shams al-A’immah Al-Sarakhsi, Al-Mabsut (Karachi:Idarat al Quran wa-al-‘Ulum al-Islamiyah, n.d.) vol.27, 84. 39. Nyazee (n 36). 40. Abu Bakr Kasani, Bada’i‘al-Sana’i‘ fi Tartib al-Shara’i‘ (Urdu), 7 vols. (Lahore: Diyal Singh Trust Library, 1997) 434. See also the relevant sections in the Urdu translation of Aḥkam al-Qur’ān by Abu Bakr al-Jaṣṣaṣ, published by the Shariah Academy, International Islamic University, Islamabad. Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 255
Whoever causes qatl-i-khata’ and qatl that is within the meaning of khata’̣ is liable to pay diyat. The Holy Quran says about accidental or unintentional murder that: Never should a believer kill a believer; but (if it so happens) by mistake, (compensation is due); If one (so) kills a believer, it is ordained that he should free a believing slave, and pay diyat to the deceased’s family, unless they remit it freely. If the deceased belonged to a people at war with you and he was a believer, the freeing of a believing slave (is enough). If he belonged to a people with whom ye have a treaty of mutual alliance, diyat should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to Allah; for Allah hath all knowledge and all wisdom.41 The offender, as a rule pertaining to the hereafter, is required to free a Muslim slave or fast two months as expiation. As a legal rule pertaining to this world, he is required to pay blood money. Blood money is to be paid by the aqilah in all cases of khata’ and the offender is also prohibited from inheriting property from the victim if he or she is an heir.42 Unintentional indirect killing (qatl bis-sabab) leads to liability for blood money, however, the offender is not liable to kaffarah (expiation) nor is he debarred from inheritance.43 As with all homicides, the victim’s heirs have the discretion to pardon the offender. We may now compare the position in UK law, earlier and in the Homicide Act, with the provisions of Islamic law. Qatl `amd is murder, that is, intentional homicide with malice aforethought. This category is excluded by the UK law for purposes of corporate manslaughter. The next category is qatl shibh al-`amd, which is involuntary manslaughter of the UK law, the reason is that there is malice aforethought and an unlawful act in it, and the corporation cannot have such malice. When an act is committed with malice, it is the employee committing the act who is liable, while some senior official may be guilty of abetment. The confusions in this law in the UK, that is, common law have been described above. The Homicide Act was compelled to alter this law due to the confusions of malice aforethought, unlawful act manslaughter as well as negligence. The Homicide Act, therefore, identified two things as has already been described above. These are (1) causation, that is, the defendant has caused the death of the victim and (2) there has been a breach of duty of care. In Islamic law, we cannot include qatl
41. Al Quran, (4:92) 42. Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, (5th edn, Federal Law House 2012) 394. 43. Ibid 395. 256 / Journal of Afghan Legal Studies shibh al-`amd as it includes malice aforethought or mens rea to harm the victim. All that is required for our purposes here is the diyat or blood money that has to be paid to the victim. This is possible through the two types of khata’ mentioned above as well as qatl bis-sabab. After this explanation, it will be easy to examine the provisions of the Pakistan Penal Code as well as the Afghan Penal Code, both old (1976) and new (2017). 5. The Implementation of the Islamic Law Through the Penal Codes It is beneficial to examine the provisions of the Pakistan Penal Code to see how the traditional Islamic law of homicide and injuries has been implemented. The reason for examining these provisions is that they are a faithful implementation of the Qur’anic provisions as seen through the eyes of the Hanafi school. In other words this would be the application in the Afghan Penal Code as well if they were implemented in detail. 5.1. Pakistan Penal Code 1860 We may now see how the Pakistan Penal Code (PPC) implements it. The following sections are relevant.44 318. Qatl-i-khata’.—Whoever without any intention to cause death of, or cause harm to, a person causes the death of such a person, either by mistake of act or by mistake of fact, is said to commit qatl-i-khata’. Illustrations (a) A aims at a deer but misses the target and kills Z who is standing by. A is guilty of qatl-i-khata’ (b) A shoots at an object to be a boar but it turns out to be a human being. A is guilty of qatl-i-khata’. 319. Punishment for qatl-i-khata’.—Whoever commits qatl-i-khata’ shall be liable to diyat: Provided that, where qatl-i-khata’ is committed by any rash or negligent act, other than rash or negligent driving, the offender may, in addition to diyat, also be punished with imprisonment of either description for a term which may extend to five years as ta‘zīr. 320. Punishment for qatl-i-khata’ by rash or negligent driving.—Whoever commits qatl-i-khata’ by rash or negligent driving shall, having regard to 44. See sections 318 to 323 of the Pakistan Penal Code 1860. Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 257
the facts and circumstances of the case, in addition to diyat, be punished with imprisonment which may extend to ten years. 321. Qatl-bis-sabab.—Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab. Illustrations A unlawfully digs a pit in the thoroughfare, but without any intention to cause death of, or harm to, any person. B while passing from there falls in it and is killed. A has committed qatl-bis-sabab. 322. Punishment for qatl-bis-sabab.—Whoever commits qatl-bis-sabab shall be liable to diyat. 323. Value of diyat.—(1) The court shall, subject to the injunctions of Islam as laid down in the Holy Qur’ān and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver. (2) For the purpose of sub-section (1), the Federal Government shall, by notification in the official gazette, declare the value of silver, on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year. There may be slight differences in the way the above law has been implemented in Pakistan through the Penal Code and as it is found in the traditional Islamic law. For our purposes, the main point is that in whatever way death is caused the consequence is the payment of blood money or diyat. The only thing to be established is the causal link between the act, direct or indirect, and the consequential death. In short, someone has to pay the compensation when death is not due to natural causes or when death cannot be justified. The complications associated with the nature of the law governing involuntary manslaughter in UK are avoided here. We may now turn to the Afghan Penal Code. We will briefly discuss the provisions of the old Afghan Penal Code, 1976 here as this law is still applicable till the time the new penal code replaces it next year. 45
45. The Afghan President Ashraf Ghani has endorsed the Afghanistan’s new Penal Code 2017 in Decree No. 256. The code will soon be published in the Official Gazette and comes into force nine months after the date of publication. 258 / Journal of Afghan Legal Studies
5.2. The Afghan Penal Code 1976 Article 1 [Scope of Application] The law regulates the “ta’ziri” crime and penalties. Those committing crimes of “hudud”, “qisas” and “diyat” shall be punished in accordance with the provisions of Islamic religious law (the Hanafi religious jurisprudence). The other relevant provisions are under Chapter 2– Responsibility of Legal Persons46 Article 96 [Liability and Method of Punishment for Legal Persons that Commit Criminal Acts] 1– Legal persons, with the exception of State institutions, departments, and enterprises, shall be held responsible for the crimes that their representatives, chiefs, and deputies commit in the performance of duty in the same and on account of legal persons. 2– The court cannot sentence the legal person, except for cash punishment, to confiscation and security measures anticipated in this Law. 3– In cases where the law has anticipated the principal punishment for the crime committed something other than cash punishment, these punishments shall be substituted with cash punishment. 4– Conviction of legal person as above does not prevent application of the anticipated punishments of this Law in the case of the real person who has committed the crime. Article 400 1– A person who kills another by mistake as a result of negligence, remissness, carelessness, or non-observance of rules and regulations, or a person who unintentionally becomes the cause for another person’s killing, shall be imprisoned for a period of up to 3 years and shall be fined an amount not exceeding 36,000 Afghanis, or one of the punishments stated, unless the provisions of the law have specified differently. 2– If the mistake is a grave violation or the principles related to his occupation or profession or if the mistake is done while under the influence of narcotics or intoxicants or if during an accident the person refuses to assist, even though he has the potential, the person against whom the crime is committed, the offender shall be sentenced to medium imprisonment of not less than 2 years, 46. Other provisions relating to “legal persons” under the old Afghan Penal Code are Article 135, 136, and 140. Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 259
and shall be fined an amount not exceeding 50,000 Afghanis. 3– If as a result of commitment of the crimes specified under the above paragraphs more than one person are killed, the offender shall be sentenced to medium imprisonment of not less than 3 years, and if one of the cases specified under paragraph 2 of this article is also accompanied, the offender shall be imprisoned for a period of not less than 7 years. 5.3. The New Afghan Penal Code 2017 Article 2 of the Act states the scope of implementation: 1. This law regulates ta’ziri crimes and punishments. 2. Perpetrators of hudud, qisas and diyat shall be regulated in accordance with provisions of Hanafi jurisprudence. In other words, the provisions laid down or spelled out in the Pakistan Penal Code may be taken to be the provisions of the Afghan Penal Codes as well according to article 1 and 2 of the old and new penal code respectively. Let us briefly discuss the classification of crimes in Islamic law here. Muslim jurists classified crimes on basis of the right violated. These were the rights of Allah, the rights of the individual, and the rights of Allah mixed with the rights of the individual. The classification on the basis of rights is linked directly with procedure. The kind of right violated determines the procedure to be followed in courts. If the right of Allah is violated, the procedure followed is that for hudud and qisas. When the right of the state is violated, the procedure followed is that of siyasah. When the right of the individual is violated, the procedure followed is that prescribed for ta’zir.47 Jurists like al-Sarakhsi placed hudud penalties in the category of the pure right of Allah except hadd of qadhf, which is mixed right of Allah and right of individual, but right of Allah is predominant in that case. Murder liable to qisas is a mixed right of Allah and the right of individual in which right of individual is predominant. Most Hanafi jurists have classified ta’zir and diyat as belonging to the area of the right of the individual.48 According to article 2 of Afghan Penal Code ta’ziri punishments will be dealt under this law and matters of hudud and qisas under Hanafi law.
47. Imran Ahsan Khan Nyazee, General Principles of Criminal Law: Islamic and Western, (5th edn, Federal Law House) 57-58. 48. ibid. 260 / Journal of Afghan Legal Studies
The new Afghan Penal Code 2017 has also added provisions relating to manslaughter (qatl-i-khata’) in Part Eleven Chapter three. We have already described qatl-i-khata’ in the context of Hanafi jurisprudence in the sections above. Article 554 states that: Manslaughter – Article 554 A person who kills another as a result of negligence, carelessness, recklessness or lack of obeying the law, regulations, or orders, or unintentionally causes the homicide, has committed manslaughter and shall be punished according to provisions of this chapter. Punishment of the Manslaughter – Article 555 Perpetrator of manslaughter shall be punished to medium imprisonment up to three years or cash fine from 60,000 to 180,000 AFN. It is to be noted that the provisions of Article 400 in the old code and Articles 554 and 555 are almost identical except with respect to the cash fine to be paid. It is not clear why this cash fine is to be paid when diyat is already being paid by the offender on the basis of the same proof or causation. Aggravating circumstances of Manslaughter – Article 556 Commission of manslaughter is considered aggravating in any of the following conditions and the perpetrator shall be sentenced to maximum of the committed crime: 1. In conditions that the homicide is committed due to a grave violation of the principles related to his occupation or profession; 2. In conditions that the perpetrator during the accident refuses to assist the victim, even though he has the potential; 3. In conditions that as a result of homicide more than one person is killed; The above provisions are ta’ziri provisions of the Afghan Penal Codes. This means that these punishments will be awarded over and above the provisions made by Islamic traditional law. This means punishment provided by the Imam or the state in addition to the Islamic penalty of diyat. For our purposes we are not concerned with ta’zir offences as a corporation cannot be awarded imprisonment. Further, this offence will require proof of negligence and other matters leading to prolonged procedures and proofs. We are only interested in the payment of diyat to the heirs of the victim, and this requires causation alone and nothing more. For the same reason we are not interested in the Islamic offence of qatl shibh al- Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 261 amd, as that will require proof of mens rea for beating the victim in different ways. Our main interest is in the financial compensation through diyat that requires merely proof of causation. The problem with article 555, however, is that while the punishment of imprisonment is understandable, the cash fine of 60,000 to 1,80,000 AFN is not understandable. The reason is that the offender is already paying diyat to the heirs of the victim to the extent of the value of 30,000 grams of silver. It is suggested that the lawmakers in Afghanistan may review this provision. To explain this further, at the expense of repetition, that Article 1 of the Afghan Penal Code, 1976 and Article 2 of the Afghan Penal Code, 2017 have already stated that acts falling under diyat will be governed by Hanafi law. Therefore, it is only the state will that is required to implement these provisions according to the Islamic law. Apparently, the drafters of this code have not realized that the offender is already paying thirty thousand grams of silver or 100 camels of diyat to the victim. Imposing a fine in addition to the diyat sounds a bit harsh or extreme. There appears to be no plausible reason that the above provisions of the Afghan Penal Code should not be applicable to corporations too as the code acknowledges the term legal person in various provisions.49 It is also important to mention here that the Company Law of Afghanistan50 does not deal with the criminal liability of the corporations or its punishment. The law makers should take the vulnerable situation of the country in to account and make necessary amendments in this law as well. 6. Corporate Manslaughter Law for Afghanistan and Pakistan A corporation or a company is a legal person. The meaning of personality with respect to a company was affirmed in the well-known case of Salomon v. Salomon & Co Ltd.51 A corporation, being a legal person, is criminally liable even though it has no physical existence.52 This capacity of the corporation to be liable for statutory offences is set out in the UK Interpretation Act 1978. Defining the term “person” it says that in every Act, unless the contrary intention appears, “person” includes a body of persons, corporate or unincorporate. The rule,
49. Articles 83, 84, 280, 350, 373, 499, 514, 524, 543, 835, & 900. 50. Corporations and Limited Liability Companies Law of Afghanistan. 51. (1897) AC 22. 52. UK Law Commission, Criminal Law: Involuntary Manslaughter, 90. 262 / Journal of Afghan Legal Studies however, has existed for over a hundred years as it is also found in the previous Interpretation Act of 1889.53 It is interesting to note that the interpretation also includes unincorporated bodies such as a partnership. Further, as well as being liable for statutory offences the law also recognises that a corporation can be criminally liable for common law offences.54 The same rule applies in Pakistan. Section 11 of the Pakistan Penal Code defines the term “person” as follows: “The word ‘person’ includes any Company or Association, or body of persons whether incorporated or not.”55 The term “legal person” has also been recognized in the old and the new Afghan Penal Code under various provisions. The latter statute specifies punishments for various offences committed by these legal entities.56 It is pertinent to point out that there is a disagreement in Islamic literature about the legality of a fictitious person other than a natural person. The more plausible argument is that it was not allowed.57 This does not prevent the application of the existing criminal law to corporations, otherwise the officers and managers of the corporations will become directly liable. The rule about corporations is being followed as a reality that exists and cannot be avoided till such time that an alternate rule is available. The same is the position with respect to fiat currency and the rules of riba (interest), zakat (poor-due), kaffarah (expiation) and other matters. The liability of the corporation is applied through three principles and is subject to two exceptions, which may be mentioned and described very briefly here. The principles by which a corporation may be liable are: the principle of identification; vicarious liability; breach of statutory duty.58 The principle of identification states that where an offence requires mens rea it is necessary to show that the corporation had the required mens rea. The corporation has no body and no mind, therefore, this causes problems in making corporations liable. To overcome this, the courts have sought to identify a person (or persons) within the company structure whose mind is the “directing mind and will”59 of the corporation. The rule was established through a series of cases,60 It may be
53. Martin and Storey (n 12) 187. 54. ibid. 55. Section 11 of the Pakistan Penal Code 1860. 56. Articles 83, 84, 280, 350, 373, 499, 514, 524, 543, 835, & 900. 57. For a detailed analysis and ruling on the issue see Imran Ahsan Khan Nyazee, Corporations in Islam (2nd edn, Federal Law House 2007). 58. Martin and Storey (n 12) 187. 59. In the Privy Council Lord Hoffmann pointed out that the phrase “directing mind and will” had first been used by Viscount Haldane in Lennard’s Carrying Co. Ltd. See next note. 60. Lennard’s Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd., (1915) AC 705; DPP v. Kent and Sussex Contractors Ltd., (1944) KB 146; ICR Haulage Ltd., (1944) KB 551; and Moore v. I. Bresler Ltd., (1944) 2 All ER 515. Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan / 263 mentioned here that in the sections of both Penal Codes we have listed above, mens rea is not required as the offences are those of strict liability. A simple rule would be to make the Managing Director (CEO), Directors and the Secretary of the corporation answerable, that is, all those who are deemed officers of the corporation; they may be arrested until the diyat is paid. In other cases, the same rule as that in English law may be followed. The second principle is that of vicarious liability, and the corporation can be made liable for the acts of omissions of its employees, that is, other than officers of the company. In the same way, the principle of breach of statutory duty are well known.61 The two general exceptions to corporate liability for criminal offences operate like parameters within which the corporation will be held liable. First, a corporation cannot be convicted of an offence where the only punishment available is physical, such as imprisonment or community service.62 Thus, corporations cannot be convicted for murder. In cases of imprisonment fines may be substituted.63 The second exception says that corporations cannot be liable as a principal for crimes such as bigamy, rape, incest or perjury, which by their physical nature can only be committed by a real person, but they can be held liable.64 The law in Afghanistan and Pakistan does not need such extensive deliberations for implementation. The corporation falls within the meaning of “person” found in the Pakistan Penal Code and the Afghan Penal Code has also recognized the legal persons to which its articles of manslaughter apply. The offences falling under qatl-i-khata’ and qatl-bis-sabab in Pakistan Penal Code and a similar provision in the traditional Hanafi law of khata’ are indirectly acknowledged by the Afghan Penal Code by acknowledging Hanafi law. The articles dealing with the law of manslaughter in Afghan Penal Code do not apply to this issue as we are concerned with the payment of diyat. Nevertheless, even these ta’ziri provisions do not need mens rea as they are strict liability offences. There is also no need to show breach of some duty or gross negligence. All that is needed is to prove a causal link between death and the act of the corporation through any of its employees. The defendants will be all the officers of the corporation, that is, CEO, directors and company secretary. In short, there is no real need of amendment in the law, but the state may make a suitable addition to show that henceforth corporations will
61. The Companies Ordinance 1984 may be examined for a list of such offences. 62. Martin and Storey (n 12) 187. 63. Article 96 of The Afghan Penal Code 1976 has followed the same principle. 64. ibid. 264 / Journal of Afghan Legal Studies be liable under these sections. There are other sections that may be used for other injuries. The value of the blood money for one person is 30,630 grams of silver, which at todays rate is not more than US $18000, which is the rough equivalent of two million Pakistan rupees and almost 1.2 million AFN. Under the Hanafi law the amount of blood money is also the same that is thirty thousand grams of silver or 100 camels. The same rule can be applied to MNCs. In any one case, if the value of the cumulative blood money that may have to be paid may exceeds the assets of the subsidiary, then the excess may be recovered from the parent of this subsidiary. This deals with the remedy for loss of life and limb caused by any corporation. The immunity give to the government departments will have to be removed even where they are acting in good faith. The proposal here thus includes the police force or other government bodies or even partnerships, also all government companies are included as they are corporations and cannot be exempted under Islamic law. In fact, the corporations as well as government departments and companies may be treated as the aqilah for their employees. This concept is well known and we may not pursue it further here. 7. Conclusion In conclusion, it may be proposed that in Pakistan and Afghanistan, the concept of corporate manslaughter should be applied in accordance with the provisions of Islamic law. This law provides a simple and efficient way of compensating the heirs of the victims without indulging in the determinations of negligence and other sophistications. All that is required is the showing of causation and linking the death to an act of the corporation through one of its employees. As the diyat or blood money is fixed, there is also no need for the calculation of damages through the analysis of various variables and contributory factors. All that is needed is to declare that the penal provisions of the codes in both countries will henceforth be applicable to corporations as well, at least, as far as homicide and loss of limbs are concerned. Finally, it is to be noted that Islamic law can be used in modern times in beneficial ways.