Making the 2004 Constitution of Afghanistan: A History and Analysis Through the Lens of Coordination and Deferral Theory Shamshad Pasarlay A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Washington 2016 Reading Committee: Clark Lombardi, Chair Joseph Janes Jonathan Eddy Hugh Spitzer Rachel Cichowski Program Authorized to Offer Degree: School of Law © Copyright 2016 Shamshad Pasarlay University of Washington ABSTRACT Making the 2004 Constitution of Afghanistan: A History and Analysis Through the Lens of Coordination and Deferral Theory Shamshad Pasarlay Chair of the Supervisory Committee: Professor Clark Lombardi School of Law My objective in this dissertation is to provide a theoretically informed history of Afghanistan’s many constitutions. While Afghanistan’s constitutional history has attracted considerable scholarly attention, it remains under-examined from a theoretical perspective. Building on insights from coordination theory and constitutional deferral theory, this dissertation attempts to tell a complete, nuanced, and theoretically informed constitutional history of Afghanistan as well as a history of the drafting and reception of the 2004 Constitution of Afghanistan. Through this analysis, it normatively judges Afghan constitutions by examining whether they coordinated the various disparate factions of this deeply divided country. This dissertation finds that the most successful Afghan constitutions deliberately left major issues unresolved when powerful stakeholders who could credibly threaten rebellion were unable to reach agreement. These constitutions created systems of government that, in the short-term, offered enough to all constitutional stakeholders to win their acceptance and the people’s acquiescence. In light of these findings, it argues that some of Afghanistan’s most successful and longest-lived constitutions have done no more than enable coordination, primarily because (1) the constitution-making processes brought major stakeholders around the negotiation table; (2) the text of constitutions deferred on foundationally divisive issues in a way that secured elite bargaining and stakeholder inclusion after the constitutional order was in place; and (3) the government did not exercise its power to interpret and implement vague constitutional questions in a way that offended major stakeholders who had the ability to threaten the constitutional order. This dissertation hypothesizes that in divided societies like Afghanistan, constitutional deferral (both explicit and implicit constitutional deferral) might help a constitution coordinate divisive factions effectively. Constitutional deferral does not attempt to answer all controversial foundational questions in a divided society. Instead, it leaves room for evolution and empowers the ordinary political institutions—the legislature and the judiciary—to resolve them in the future. Deferral prevents a zero sum game in constitutional negotiations. It provides hope to the losers, that they may eventually influence those institutions to answer the deferred questions in a way that secures their interests—a behavior that leads to constitutional coordination. Contents Acknowledgments V Note on Transliterations, Translation and Islamic Terminology VIII Introduction 1 I. Literature Review 9 II. Overview of Chapters 30 III. The Academic Contribution of this Dissertation 38 Part I: A History of Afghan Constitutions 1923-2001 Chapter One: From “Yaghistan” to “Afghanistan”: Early Attempts to Coordinate the Peoples of Afghanistan 42 I. Abdul Rahman and the Emergence of a Modern “Nation-State” in Afghanistan 52 II. From “Unwritten” Constitutional Principles to “Written” Constitutions: Attempts at Coordination Through a New Technology 58 III. Amir Amanullah Khan and the First Written Constitution of Afghanistan 63 IV. Nadir Shah and the Second Constitution: Coordination Through Incremental Constitutionalism 74 V. The Rise of Social and Political Movements 1950’s – 1960’s: Complicating Coordination 82 I Chapter Two: New Challenges in Coordination, 1964-2001: The Rise of Powerful, Mutually Incompatible Ideological Movements 96 I. The Failure of the 1964 Constitution as a Coordination Device 98 II. The Communist Movement 102 III. The Islamist Movement 105 IV. The Republican Coup: Sham Coordination 112 V. Civil Wars of 1980-2001: Short-lived Regimes and Coordination Failures 120 VI. The Taliban Movement: Ruling by an Iron Fist, No Attempts at Coordination 141 Part II: The Drafting and Reception of the 2004 Constitution Chapter Three: The Bonn Process: The Veterans of Failed Constitution-Making Exercises Reassemble 151 I. Filling the Post-Taliban Power Vacuum: Laying Down the Process to Coordinate Afghanistan 152 II. The Bonn Participants-Elites: Who Were They? Where Did They Come From? 155 III. The Bonn Negotiations and the Formation of an Interim Government: Deep Division Among Groups 159 Chapter Four: Drafting a Coordination Device: The Making of the 2004 Constitution 172 II I. The Appointment of the Constitutional Drafting Commission (CDC) 174 II. The Constitutional Review Commission (CRC): Broader Ethnic and Political Representation 196 III. Review over Review: The Government Reviews the CRC Draft 230 IV. A Final Attempt to Resolve the Unresolved Constitutional Questions: The Convention of the Constitutional Loya Jirga (CLJ) 235 V. The Promulgation of the Constitution 255 Chapter Five: The Reception of the 2004 Constitution (2004-2016): How has the 2004 Constitution Fared? 261 I. The Elite and the Public’s Initial Embrace of the Constitution: Did Constitutional Deferral Help Afghans Acquiesce in the Constitution 263 II. How Constitutional Deferral Shaped Political Discourse from 2004 to 2016 266 III. The Executive’s Abuse of Constitutional Ambiguity and Deferral 272 IV. Afghanistan’s Contested Presidential Elections and the Risk to Constitutional Coordination 293 V. The Outsiders to the Constitutional Bargain: The Taliban’s Refusal to Acquiesce 299 III Part III: Lessons from Afghanistan’s Constitutional History: Can it Work in Other Divided Societies? Chapter Six: Lessons for Other Divided Countries from the Experience of Afghanistan 303 I. Future Amendments to the 2004 Constitution: Considerations and Looking Ahead 305 II. Can Afghanistan’s Example be Useful for Other Divided Societies? 314 III. What Went Wrong in Libya and Yemen 324 Conclusion 330 Bibliography 334 Appendices Appendix A A-1 Appendix B B-1 IV Acknowledgments Anyone who has completed a long, multi-year project will have many to thank. It would have been impossible to juggle the many demands over the last five years if I had not received assistance from myriad sources. It is one of the greatest pleasures of writing a dissertation that one is allotted space in which to thank many of those who have assisted me. First and foremost, I must thank Allah (God) for all the blessings bestowed on me all these years and enabled me to complete my dissertation. I must also express special appreciation for my PhD dissertation advisor, friend, and intellectual father, Professor Clark Lombardi. Professor Lombardi has been a tremendous mentor to me, and I would like to thank him for encouraging my research and for bearing with me over many long (yet edifying) meetings over the past five years. His advice, moral support and assistance have been invaluable assets to my research as well as my career, guiding me toward intellectual maturity and encouraging me throughout the final stages of this dissertation. It is to Professor Lombardi that I owe my intellectual maturity. Without his guidance and support, neither this project nor my graduate education as a whole would have seen fruition. I must also thank my parents who have been so supportive in every possible way. They have always been the source of my strength over all these years. Their support has been unconditional. They have cherished with me every great moment and supported me whenever I needed it. I also owe my deepest gratitude to the members of my dissertation committee, who guided me through all the stages of this research and showed a sincere interest in my V work: Professor Jonathan Eddy, Professor Rachel Cichowski, Professor Hugh Spitzer and Professor Joseph Janes. Their academic support and input and personal support have been greatly appreciated, and I thank them all for the time and effort they gave to this dissertation. I further owe a sincere thanks and gratitude to my former Dean at Kabul University School of Sharīʿa, the late Professor Dean Mohammad Gran, for his support and encouragement. I also want to thank Professor Jonathan Eddy and Alice Stokke, Co- Directors of the Legal Education Support Program-Afghanistan (LESPA), who supported this dissertation and my entire PhD education through grants and personal support, both in the United States and in Afghanistan. I also owe a special thanks to Professor Elizabeth Baldwin for her dogged assistance with and helpful comments on each chapter of this dissertation; I really appreciate all of her efforts. I want to thank Alice Stokke for helpful comments on each chapter of this dissertation. I also want to thank Professor Greta Austin, Rebecca Alhadeff and Akbar Rahel for their comments and proofreading of each chapter of this dissertation. Further, I would like to thank Professor Ghulam Mustafa Nukhba who made most of my research interviews possible. I likewise thank the University of Washington School of Law for the facilities and support