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Governance and Representation in the Afghan Urban Transition

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Governance and Representation in the Afghan Urban Transition Afghanistan’s Constitution Ten Years On: What Are the Issues? Mohammad Hashim Kamali August 2014 Afghanistan Research and Evaluation Unit Issues Paper Afghanistan’s Constitution Ten Years On: What Are the Issues? Mohammad Hashim Kamali August 2014 Funding for this research was provided by the United States Institute of Peace and the Embassy of Finland. 2014 Afghanistan Research and Evaluation Unit Cover photo: (From top to bottom): A view of the 2004 constitutional Loya Jirga Sessions; people’s representatives gesture during 2004 constitutional Loya Jirga; people’s representatives listening to a speech during 2004 constitutional Loya Jirga; Loya Jirga members during the 2004 Constitutional Loya Jirga, Kabul (by National Archives of Afghanistan). AREU wishes to thank the National Archives of Afghanistan for generously granting access to its photo collection from the 2004 Constitutional Loya Jirga. Layout: Ahmad Sear Alamyar AREU Publication Code: 1416E © 2014 Afghanistan Research and Evaluation Unit. The opinions expressed in this publication are those of the author and do not necessarily reflect those of AREU. Some rights are reserved. This publication may be reproduced, stored in a retrieval system or transmitted only for non- commercial purposes and with written credit to AREU and the author. Where this publication is reproduced, stored or transmitted electronically, a link to AREU’s website (www.areu.org.af) should be provided. Any use of this publication falling outside of these permissions requires prior written permission of the publisher, the Afghanistan Research and Evaluation Unit. Permission can be sought by emailing [email protected] or by calling +93 (0) 799 608 548. ii AREU Afghanistan Research and Evaluation Unit 2014 About the Author Mohammad Hashim Kamali is a world-renowned scholar of Islamic law and jurisprudence and currently CEO of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. He was a member and sometime Chairman of the Constitution Review Commission of Afghanistan (2003), a UN Advisor on constitutional reform in the Maldives (2004 and 2007), the constitutions of Iraq (2004-2005) and Somalia (2010). Professor Kamali has addressed numerous national and international conferences, has published over 25 books and 160 academic articles and his works have been translated in many languages. He is listed in a number of leading Who’s Who in the world. About the Afghanistan Research and Evaluation Unit The Afghanistan Research and Evaluation Unit (AREU) is an independent research institute based in Kabul. AREU’s mission is to inform and influence policy and practice by conducting high-quality, policy-relevant research and actively disseminating the results, and by promoting a culture of research and learning. To achieve its mission AREU engages with policymakers, civil society, researchers and students to promote their use of AREU’s research and its library, to strengthen their research capacity, and to create opportunities for analysis, reflection and debate. AREU was established in 2002 by the assistance community in Afghanistan and has a Board of Directors comprised of representatives of donor organizations, the United Nations and other multilateral agencies, and non-governmental organizations. AREU currently receives core funds from the Embassy of Finland, the Swedish International Development Cooperation Agency (SIDA) and the Swiss Agency for Development and Cooperation (SDC). Specific projects in 2014 are currently being funded by the European Commission (EC), the Swiss Agency for Development and Cooperation (SDC), the Overseas Development Institute (ODI), the United Nations Development Programme (UNDP), the World Bank, the University of Central Asia (UCA), United States Institute of Peace (USIP), the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH and the Embassy of Finland. Afghanistan’s Constitution Ten Years On: What Are the Issues? iii 2014 Afghanistan Research and Evaluation Unit Acknowledgements This work could not have been completed without the active involvement and support of Afghanistan’s Research and Evaluation Unit (AREU). I would like to thank AREU’s Director, Mr. Nader Nadery, with whom I met in Kabul when he invited me to lead a roundtable discussion on the constitution in December 2013. We discussed the prospects of undertaking this research in the two meetings we had in Kabul. I want to thank him for his unfailing courtesy and support, and for having put me in contact with his efficient colleague and Project Co-ordinator, Aruni Jayakody. Aruni has been most helpful in the sourcing and collection of important data that facilitated expeditious progress of this work. I would also like to thank warmly my former colleagues at the Constitution Review Commission of Afghanistan, Mr. Sarwar Danesh (later Minister of Justice), and Advisor Minister Ashraf Rasooli, for their counsel, interviews and written works that have enriched this research in more ways than can be said in a few words. I have also benefited from the views and writings of my long time friend and colleague, Dr Mohammad Qasim Hashimzai, former Deputy Minister of Justice, with whom I also sat together at a workshop on the constitution some time ago in Kabul. It is with sadness to remember the late President Burhanuddin Rabbani, and former Minister of Justice, Habibullah Ghalib, for their kindness and grant of interviews over issues of concern to constitutional interpretation. May God bless their souls and grant them peace. Last, I would like to acknowledge with thanks the help I received with data collection and keying- in from my colleagues at IAIS Malaysia, Siti Mar’iyah Chu Abdullah, and publication assistant Hailmaatun Syakirah binti Omar, who joined Mar’iyah with the completion of bibliography and final checkings. I have spared no effort on accuracy in the treatment of date, but I alone take responsibility for any remaining weakness that may have escaped my attention. Mohammad Hashim Kamali July 2014 iv AREU Afghanistan Research and Evaluation Unit 2014 Table of Contents Exicutive Summary ............................................................................................1 1. A Glance at Constitution Making in Afghanistan ...................................................2 2. Constitutional Interpretation and Review ..........................................................4 3. The Spanta Episode and its Aftermath ............................................................ 10 4. The No-Confidence Vote: A Comparative Analysis ............................................... 15 5. Constitutional References to Islam ................................................................ 17 6. Rule of Law: Problems and Prospects ............................................................ 20 7. Human Rights: Challenges and Opportunities ................................................... 23 8. Women’s Rights: Ideals and Realities ............................................................. 28 9. Constitutionalism, Democracy and Islam: Harmony or Discord? .............................. 32 10.- Commentator Assessment and Opinion ........................................................... 34 Conclusion and Recommendations ........................................................................ 36 Bibliography .................................................................................................. 39 Photographs Loya Jirga members during the 2004 Constitutional Loya Jirga, Kabul ...............................3 Afghanistan’s Constitution Ten Years On: What Are the Issues? v 2014 Afghanistan Research and Evaluation Unit Acronyms AREU Afghanistan Research and Evaluation Unit CRC Constitution Review Commission FSC Federal Shariat Court ICSIC Independent Commission for Supervision of Implementation of the Constitution MJ Meshrano Jirga (Upper House) SC Supreme Court UNAMA United Nations Assistance Mission for Afghanistan UNDP United Nations Development Programme USIP United States Institute of Peace WJ Wolesi Jirga (Lower House) vi AREU Afghanistan Research and Evaluation Unit 2014 Glossary ‘Adl ( also ‘adalat) justice Ahkam-e ghiyabi Judgments in absentia Amanat trust Anjuman association Badd tribal feud; practice of offering a female into marriage as compensation to settle a dispute Batil null and void Bay’ah pledge of allegiance Butlan nullification, making null and void ChÉlesh challenge Dadgah court of justice Dastaward outcome, gain Dawlat state, also wealth Farz obligatory Farz-e kifa’i collective obligation Fatwa (pl. fatawa) opinion, verdict Faysala resolution, settlement Fiqh Islamic law Gomrokat Customs offices Hadd (pl. hudud) prescribed penalty ×ijr interdiction – as of Íijr-e madyËn (interdiction of the debtor) Hizb (pl. ahzab) party, faction Hizb-e siyasi political party Hukum (pl. Ahkam) ruling, command Ijtihad independent reasoning or interpretation Ijma’ general consensus ‘IIm knowledge ImtinÉÑ refusal IstÊzÉÍ censure; inquisition Jarida-e Rasmi official gazette Layeha code of instructions, regulations Loya Jirga grand council, constitutional assembly Mahkama court of justice Mahram close relative Markaz centre Markaz-e farhangi cultural centre Maslahat benefit, public interest Mazhab (pl. Mazahib) school of theology and law Meshrano jirga council of elders, upper house of parliament Moraqibat invigilation, monitoring Mufta biha agreed upon fatwa Mu’taqadat beliefs Muttahidulma’Él administrative circular, uniform instructions Muttahulma’Él-e qaza’i judicial circular
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