%20-%20https://sketch.com%20--%3e%3ctitle%3e3ECBBF50-FD08-412A-943D-2CFC5E025A16%3c/title%3e%3cdesc%3eCreated%20with%20sketchtool.%3c/desc%3e%3cg%20id='Stylesheet'%20stroke='none'%20stroke-width='1'%20fill='none'%20fill-rule='evenodd'%3e%3cg%20transform='translate(-926.000000,%20-668.000000)'%20id='BUTTONS'%3e%3cg%20transform='translate(100.000000,%20597.000000)'%3e%3cg%20id='BTN-/-RIGHTS'%20transform='translate(816.000000,%2065.000000)'%3e%3cg%20id='ICON-/-Rights'%20transform='translate(10.000000,%206.000000)'%3e%3cpath%20d='M13.5752841,0%20L1.34943182,0%20C0.59375,0%200,0.586666667%200,1.33333333%20L0,22.6666667%20C0,23.4133333%200.620738636,24%201.34943182,24%20L17.6505682,24%20C18.40625,24%2019,23.3866667%2019,22.6666667%20L19,5.36%20L13.5752841,0%20Z%20M13.5752841,1.89333333%20L17.0838068,5.36%20L13.5752841,5.36%20L13.5752841,1.89333333%20Z%20M1.34943182,22.6666667%20L1.34943182,1.33333333%20L12.1988636,1.33333333%20L12.1988636,5.36%20C12.1988636,6.10666667%2012.7926136,6.69333333%2013.5482955,6.69333333%20L17.6235795,6.69333333%20L17.6505682,22.6666667%20L1.34943182,22.6666667%20Z'%20id='Shape'%20fill='%23595959'%20fill-rule='nonzero'%3e%3c/path%3e%3ccircle%20id='Oval'%20stroke='%23595959'%20stroke-width='1.5'%20fill='%23595959'%20cx='9.5'%20cy='13.5355339'%20r='5.5'%3e%3c/circle%3e%3cpolyline%20id='Path-2'%20stroke='%23FFFFFF'%20stroke-width='1.5'%20transform='translate(9.500000,%2013.035534)%20rotate(45.000000)%20translate(-9.500000,%20-13.035534)%20'%20points='8%2016.0355339%2011%2016.0355339%2011%2010.0355339'%3e%3c/polyline%3e%3c/g%3e%3c/g%3e%3c/g%3e%3c/g%3e%3c/g%3e%3c/svg%3e)
I. CONSTITUTIONALIZING ISLAM IN AFGHANISTAN
Afghanistan is a country in which common allegiance to religion (Islam) masks enormously deep divisions about the basic issues of religious belief, social morality, and social organization. Throughout Afghanistan’s history, Islam has been the most powerful cultural, social, and political force. In pre-modern periods, a range of different forms of Islam spread throughout the areas that fall within the historical borders of today’s Afghanistan, resembling this geography’s ethnically diverse demography through similarly different patterns of religious practice.Footnote 1 In Afghanistan’s modern history, these different (and often competing) forms of Islam served as the most influential ‘sociopolitical resources, providing idioms and organizations for both state and anti-state mobilization’.Footnote 2 As a result, the most powerful actors in the center have long accepted, in theory, Islam as a basic principle of governance, while disagreeing deeply about what Islam means and what constraints it should put on state behavior. Afghanistan’s central governments have historically been weak, and because the populace was heavily armed, central governments have not had a monopoly on force. No central government has thus been able, for any significant period of time, to eliminate rival actors or convince other actors to accept their preferred interpretation of Islam indefinitely.
Societies that are marked by such deep religious divisions have particular constitutional needs. In these ‘religiously divided societies’, loyalty and commitment to a specific religion or to a particular version of religion, as opposed to allegiance to a common overarching national (or religious) identity, commonly command individuals’ preferences.Footnote 3 Those who study the politics and techniques of constitution-making generally agree that it is typically more difficult to make a democratic constitution in a religiously divided society.Footnote 4 These theorists argue that in religiously divided countries, there is no preexisting consensus on shared religious values and it is often impossible, and dangerous, to try to resolve foundationally divisive religious questions during the constitution-writing period as it might exacerbate conflict over the proper role of religion and religious laws. In these societies, written constitutions survived and promoted peaceful coexistence among hostile religious communities only because they agreed to postpone explosive religious questions to future resolution through the ordinary political process.Footnote 5 Afghanistan’s constitutional history provides evidence to support this conclusion.
Afghanistan’s most successful constitutions have always recognized Islam and established a method of realizing it, while leaving open the possibility that the government could change its approach to realizing it in the future. Unsuccessful Afghan constitutions, by contrast, have allowed actors at the center to try to realize and interpret Islam in a rigid way, leaving no room for ongoing negotiations with actors who would prefer to realize Islam differently. A successful constitution is one that: (1)survives over time; (2) creates legitimacy for the state; (3) mitigates political conflicts through formal constitutional channels rather than violence; (4) limits the ‘agency costs of government’; and (5) facilitates the production of public goods.Footnote 6 Some scholars have added other metrics to measure the success of a constitution, including the extent to which the constitution protects human and civil rights, manages to create democratic institutions, or preserves stability.Footnote 7 Afghanistan’s most successful constitutions have tended to score well on these benchmarks of constitutional success. Moreover, they tend to score considerably well on two further essential benchmarks of constitutional success in a religiously divided society: (1) they have managed to prevent religious conflict on divisive religious issues; and (2) they have promoted a peaceful coexistence among Afghanistan’s divided religious groups.Footnote 8
More specifically, successful Afghan constitutions adopted incremental constitutional strategies on two massively divisive religious questions: first, these constitutions deliberately defined in ambiguous terms the version of ‘Islam’ that the state would promote, and the limits Islam should put on state behavior. Second, successful Afghan constitutions were ambiguous about the institutions that would interpret and realize Islam in practice and the method of Islamic legal interpretation they should use. By employing such incremental strategies, successful Afghan constitutions avoided answering explosive religious questions that have divided Afghanistan’s religious communities for many centuries – a strategy that played a key role in the success and survival of these constitutions. Afghanistan’s experience operating under the Constitution of the Islamic Republic of Afghanistan 2004 (2004 Constitution) provides us with some more insight. It suggests that after a constitution is promulgated, governments should not attempt to settle explosive religious questions in a rigid way – one that imposes the desires of the ruling elites. Doing so will endanger peaceful coexistence among distrustful, hostile, and mutually antagonistic religious communities. As long as divisions on religious issues persist and passions have not cooled, maintaining a deferred constitutional order might help prevent conflict over religiously divisive issues.
In Part I, this article briefly sketches the literature on constitution-making in religiously divided societies, describing the incrementalist approach. Part II explores the different versions (interpretations) of Islam that have dominated and prevailed in Afghanistan – versions of Islam that have mostly resonated with the country’s ethnically diverse demography through similarly different forms of religious practice. Part III explores the role of Islam in Afghanistan’s constitutional history. Part IV focuses specifically on the history of Afghanistan drafting and operating under the 2004 Constitution. This history will be presented in a way that sheds light on the questions raised by the theoretical literature about constitution-making in religiously divided societies. It will add that governmental practice after a constitution is promulgated plays an equally important role in preventing conflict over religiously divisive questions. Resolving explosive religious questions in the absence of a minimum consensus might force communities, whose religious interests are not promoted, to revolt. Finally, the article discusses how in overwhelmingly, but diversely, Muslim societies, it is important to create constitutional regimes that recognize Islam but leave room for rival interpretations of Islam. Afghanistan’s experience suggests that incremental constitutional strategies are useful tools in this respect.
II. INCREMENTAL CONSTITUTION-MAKING IN RELIGIOUSLY DIVIDED SOCIETIES
A society is religiously divided when it satisfies two key conditions. First, the society has a variety of different religious communities, or a single religious community whose followers realize the religion differently (and often in competing ways). Second, differences in religious identification or interpretation in the society form the basis of political mobilization and translate into political fragmentation.Footnote 9 In religiously divided societies, divisions and disagreements over religious questions might involve members of a single common religion (intra-religious divisions), or it might include members ofdifferent religious communities (inter-religious divisions).Footnote 10 In the former case, disagreements on religious issues often take the form of severe conflicts regarding the nature of the state (whether it should be religious or secular) between communities who follow the same religion but understand that religion differently. For instance, in Muslim majority nations, such religious disagreements take place between Muslims ‘who define themselves as secular-liberal [and those] who define themselves as religious-conservative’.Footnote 11 In the latter case, the main divisions over religious questions take place between the followers of different religious communities such as disagreements between Muslims and Christians, and Sunni and Shia in Lebanon and Afghanistan.Footnote 12 In short, in religiously divided societies, both intra-religious and inter-religious divisions are politically salient factors that form the basis of political mobilization.
Asli Bâli and Hanna Lerner note that religiously divided societies are different than other types of divided societies. They note that in religiously divided societies, the conflict does not simply concern group rights or distribution of resources. Instead, disagreement among religious communities ‘focuses on the fundamental norms and values that should guide state policies in the area of religion for the entire population’.Footnote 13 Such disagreements are, in other words, defined as ‘non-divisible,’ or disagreements that are often characterized by the divided communities’ disinclination to compromise and, in some cases, to negotiate.Footnote 14 These non-negotiable conflicts are the most fundamental feature of religiously divided societies.Footnote 15 For these reasons, religiously divided societies face particular challenges when it comes to drafting and operating under a formal written constitution.
Constitution writing in religiously divided societies is thus a high-stakes game.Footnote 16 Inthese types of divided societies, there is no preexisting agreement regarding the nature of the state and its relationship with religion. Theorists of constitution-making in (religiously) divided societies thus argue that it may not be productive to pressure groups with very different religious identifications to agree in advance upon foundational religious questions.Footnote 17 Doing so will raise the stakes of constitution-making in ways that may aggravate religious conflict, and it may prevent religiously divided communities from making workable arrangements by which less foundational questions can be resolved to people’s mutual satisfaction.Footnote 18 Where intense polarization exists between competing visions of the nature of the state (secular or religious) and the role that religious law should play in state legislation, the process of constitution-making is fraught with the great danger of religious violence. This risk was recently experienced in some post-conflict and in-conflict religiously divided societies like Afghanistan, Iraq, Libya, and Yemen, where the debate over the constitution and the nature of the state revealed and, in some cases, exacerbated deep conflicts among the framers with regard to foundational religious norms and values that should underpin the state.Footnote 19
For these reasons, scholars have argued that drafting and ratifying formal democratic constitutions require different approaches in religiously divided societies. Religiously divided societies such as Israel, India, Jordan, Egypt, Indonesia, and Tunisia succeeded in drafting democratic constitutions because they adopted an ‘incrementalist’ approach to constitution-making.Footnote 20 These religiously divided societies have been able to draft and ratify formal democratic constitutions largely because the drafters postponed making controversial choices about the nature of the state and its relations with religion.Footnote 21 In other words, they avoided any attempt to write into the constitution any language that purported to resolve explosive religious questions; instead, they left future political institutions the freedom to resolve those questions at a time in the future – in less fraught circumstances where differences have narrowed, or where the tradition of non-violent political discourse is better established (or both).
The experience of religiously divided societies suggests that constitutional framers have effectively deployed different types of incrementalist constitutional strategies to avoid answering explosive religious questions at the time of the drafting of a constitution. These strategies chiefly include the avoidance of clear-cut decisions, the use of ambivalent and vague legal language, and the inclusion of conflicting provisions within the constitution.Footnote 22 These incrementalist strategies enable constitution drafters in a religiously divided society to distract attention from the most divisive religious issues until after passions have cooled, and institutions and habits of democratic political discourse have taken root. These strategies allow religiously divided societies to achieve a soft consensus and keep the debate on controversial religious issues ongoing, and resolve them through constructive dialogue after the drafting stage. Therefore, successful constitution-making processes in religiously divided societies do not pressure communities with very different religious identifications to agree in advance upon foundational religious questions, but rather enable them to resolve difficult religious questions over time through ordinary political institutions.
Afghanistan’s constitutional history suggests that the challenges of constitution-making in situations of deep religious division are greater in countries that are not yet democratic or fully democratic as compared to those like India or Israel with better established democratic traditions. If people of religiously divided, historically non-democratic societies, like Afghanistan, focus on divisive religious questions, it will only highlight their differences. They are likely to propose such different definitions of the official religion and such different (and self-serving) political institutions that the constitution becomes doomed because the threat of violence always hangs over religious disputes. The framers of successful Afghan constitutions used the strategies and techniques of incrementalism to write a constitution that prevented conflict on the role of religion and promoted a peaceful coexistence among Afghanistan’s powerful and divided religious communities. Successful Afghan constitutions resolved just a small number of religious issues. However, they also identified a large number of vitally important religious questions that would have to be resolved in the future through institutions only partly defined by the constitution. The main purpose was to write a formal written constitution, albeit one that was incomplete and would have to be negotiated over time. This technique gave powerful religious communities an incentive to operate under the system and affect the policies of the state with respect to religion through the political mechanisms set up in the constitution than through armed rebellion, arguably leading to an ongoing constructive dialogue over the nature of the state and its relations with religion.
III. RELIGION (ISLAM) IN AFGHANISTAN
Afghanistan is a remarkably diverse country. Among the various major Afghan ethnic/linguistic groups are the Pashtuns and Tajiks (the two largest) followed by Hazaras, Uzbeks, and a host of smaller, but regionally significant minorities, such as Baluch and Turkmen.Footnote 23 In addition to its ethnic divisions, Afghanistan is deeply divided along religious lines. The vast majority of Afghans follow the religion of Islam, but they are not homogenous. At the same time, in some mountain valleys of the Northeast, one could find regions populated by pagan tribes.Footnote 24
The majority of Afghans are Sunni Muslims who ally themselves with the teachings of the Hanafi school of shariah (Islamic law).Footnote 25 There is, however, a large number of Shias from the Twelve Shia Sects, also called Ja‘fārī Shias.Footnote 26 Furthermore, there are some communities who follow a rival sect of Shi’ism – Ismaili Shi’ism.Footnote 27 Members of different sects of Islam look to rival religious texts and authorities for guidance. Even within a single ethnic group, one can find communities embracing different sects (Sunni or Shia). Among the adherents of a particular sect, one can find dramatically different approaches to the faith. While the majority of Afghanistan’s Muslims describe themselves as Hanafi Sunni Muslims, even this masks considerable diversity. Even among Pashtuns, the largest ethnic group, debates among communities embracing rival strains of Hanafi Sunni Islam (traditional Hanafi, Deobandi Hanafi, Sufi or modernist) can be extraordinarily divisive and potentially violent.Footnote 28 Islamic doctrine teaches that different scholars might reach different conclusions on many different questions of religious law; it is to be expected that even within a single sect, different scholars might teach a different approach to Islam. Within any given sect, individuals have considerable freedom to select for themselves the scholar whom they would follow. Therefore, different Hanafi Sunni clans might look to different Hanafi scholars for guidance.
Moreover, within a single school of Hanafi Sunni Islam, there are scholars who might be defined as traditionalists and those who define themselves as modernists (roshān fikrān) – scholars who follow different methods to interpret the shariah.Footnote 29 Traditional jurists have acknowledged two methods of interpreting the shariah and deriving fiqh: (1) ijtīhād (independent reasoning); and (2) taqlīd (precedent).Footnote 30 In doing ijtīhād, a scholar searches for knowledge about the shariah in its four main sources: the Qur’an, the hadith literature, juristic logic (qiyās), and juristic consensus (ijmāʿ).Footnote 31 To extract a rule of fiqh, a scholar would first refer to the Qur’an. Due to a small number of explicit Qur’anic instructions, scholars often have to refer to the hadith literature. When confronted with a question that was not regulated by a reliable scriptural command, a traditional scholar would have to derive a rule by expanding logically from formerly recognized scriptural instructions.Footnote 32 Admissible methods of extrapolation formed a fourth option for interpreting the shariah (God’s commands).
Modernist Islamic intellectuals disagreed with the classical tradition. They maintained that Muslims are obliged to respect classical interpretations of Islamic law only to the extent that these classical interpretations follow inevitably from instructions that are certain with respect to both their reliability and their meaning.Footnote 33 ‘In areas of [Islamic] law where there is no scriptural text that is certain with respect to both its authenticity and meaning, many of these modernists feel that they can (and should) use methods of legal interpretation that rely heavily on non-scriptural sources of law such as utility or custom’.Footnote 34 As modern Islamic theorists have developed new ideas about ‘textual criticism, epistemology, and hermeneutics’, they have explored new approaches to legal reasoning to recognize the Islamic rules and goals against which the law of the state should be tested.Footnote 35 Inevitably, modernists and traditionalists have developed different substantive understandings of Islamic law and of the nature of the state (and its institutions) that should be established to apply it.
Similarly, Afghanistan’s Shia communities are also diverse. Although most are traditionalist religious scholars, they do not follow a single Shia school of political thought. Some followed and continue to follow the famous Iraqi Shia scholar, Ayatullah Abul-Qasim al-Kho’i (an old Iraqi rival of Ayatullah Khomeini who advocated for a quietest role for the Shia ‘ulamā’ on political matters).Footnote 36 The politically assertive and active members of the Shia community follow the political and ideological views of the Iranian Shia ideologue Ayatullah Khomeini, who advocated for an activist role for the Shia ‘ulamā’ based on the doctrine of vilāyat-i faqīh (guardianship of the senior jurists).Footnote 37 These divisions have sometimes led to armed struggles between the two communities in majority Shia areas in central Afghanistan.Footnote 38
As a result, in Afghanistan the conflict over the political and legal role of religion has both intra-religious and inter-religious character. On the intra-religious front, the disagreements on the nature of the state and its relationship with Islam have taken place not only between religious liberals and religious conservatives, but also between Islamic modernists and Islamic traditionalists. On the inter-religious front, the main split about the status of Islam and Islamic law has appeared between majority Sunni and minority Shia communities. These divisions have always manifested themselves during the drafting of constitutions in Afghanistan, leading on certain occasions to the collapse of a constitutional process. Each of these religiously diverse communities tended to use the constitutional process as a venue to maximize their interests, creating serious challenges when it came to writing constitutions.
IV. AFGHANISTAN’S CONSTITUTIONAL HISTORY
As noted, a religiously diverse society is not always considered a religiously divided society. A society is religiously divided when membership in a religious community forms the basis of political fragmentation. It is possible that members of diverse religious communities might all be members of the same national community, but the key characteristic of religiously divided societies is that members of one religious community will always look out for each other before they look out for members of other religious communities.Footnote 39 The diverse communities living within the borders of today’s Afghanistan do not clearly consider themselves as members of a single all-inclusive religious community or polity.
Because of this diversity in the religious identification of these communities, many Afghan rulers have chosen not to draft a constitution that would attribute a common religious identity and impose upon these diverse communities the state’s version of religious law. Instead, rulers prior to Amir Abdurrahman Khan (r 1880–1901) had left these communities the freedom to be governed by the version of Hanafi Islamic law that they found acceptable.Footnote 40 However, when Amir Abdurrahman Khan came to power, he chose to govern the diverse communities under his rule differently. He was the first Afghan ruler who thought about drafting a written constitution for Afghanistan’s religiously divided populace. However, he chose to do this in an incremental fashion – ultimately deciding not to promulgate a formal written constitution – developing, instead, an unwritten constitutional vision of the modern state of Afghanistan.Footnote 41 He believed that it would be insulting and counterproductive from the outset to publish a national constitution suggesting that all of Afghanistan’s religiously divided people had agreed to a state of affairs when in reality, they disagreed about the religious values that the state should promote.
Instead, Abdurrahman Khan tried by force to attribute a common religious identity to the people living in the areas under his rule.Footnote 42 He argued that Hanafi Sunni law had long compelled the people to obey any ruler who had the ability and will to apply Islamic law.Footnote 43 Abdurrahman Khan developed – on his own – an idiosyncratic, ‘official’ version of Sunni Islamic law that differed from the version that the majority of the Sunni population subscribed to.Footnote 44 He codified his Hanafi Sunni law and his preferred rules of adjudication and promulgated them as the uniform law of the land, displacing all competing versions of Hanafi law that some powerful Pashtun communities followed.Footnote 45
Inevitably, some religious communities opposed Abdurrahman’s constitutional vision of Afghanistan as an ideologically Hanafi Sunni state – a state that realized Hanafi Islamic law in a way that promoted the ruler’s interests.Footnote 46 Among these communities were those who followed a traditionalist version of Hanafi Sunni Islam and those who were Shias, Christians, or animists. Abdurrahman Khan did not come to terms with those who openly defied his official version of Hanafi Sunni law. Having built, quite literally, mountains of skulls to demonstrate the costs of resisting his rule and version of Hanafi Islamic law,Footnote 47 he then moved cautiously to impose his own version of Islamic law upon the powerful Pashtun tribes (his powerful allies) that had understood Islam differently. By the time of his death in 1901, Abdurrahman Khan had achieved an unparalleled degree of central control over the lands that fell within the historical borders of Afghanistan and its divided populace. For these reasons, he is understood as the father of the modern nation-state of Afghanistan and the first incremental constitutionalist who ruled Afghanistan. Seen from a different angle, however, Abdurrahman Khan ‘had transformed an agglomeration of diverse, proud, self-governing [religious] communities into a single [religiously] divided society’.Footnote 48
Abdurrahman’s son, Amir Habibullah Khan (r 1901–1919), also refused to draft a written constitution for the religiously divided society he had inherited from his father. He feared that a formal written constitution would insult the divided people of Afghanistan by attributing to them a common religious identity and imposing upon them a body of statutes informed by the state’s ‘idiosyncratic understanding of [Sunni] Hanafi doctrine’.Footnote 49 However, Habibullah’s son, Amanallah Khan (r 1919–1929), abandoned his grandfather and father’s caution when it came to drafting a formal written constitution for the religiously divided society of Afghanistan. He promulgated Afghanistan’s first written constitution in 1923.Footnote 50 This constitution did not last long.
A. Afghanistan’s Written Constitutions
Up to 1923, most Afghan rulers refused to draft a written constitution for the religiously divided society of Afghanistan. Their major concern was that by promulgating a formal written constitution that attributed to the religiously divided communities living in Afghanistan a shared religious identity and a set of shared religious values, ‘the constitution might remind [the divided religious populace] that they did not, in fact, identify themselves in the way that the state supposed’ and did not subscribe to the state’s version of Islam.Footnote 51 Such a constitution by itself would force the leaders of proud, hostile, well-armed, and powerful religious communities, who realized Islam differently, to revolt.
Notwithstanding this concern, in 1923, Amanallah Khan promulgated Afghanistan’s first written constitution. The 1923 Constitution attributed to the divided people of Afghanistan a shared set of religious values – values inspired by the state’s modernist, but ill-defined, Islamic political thought not the traditionalist aspirations that the leaders of the most powerful communities had endorsed for a long time.Footnote 52 The 1923 Constitution explicitly refused to declare the traditional Hanafi school as the official maddhab of the state. Similarly, the constitution directed the legislature to consider the ‘orders of the shariah’,Footnote 53 not necessarily the Hanafi school of shariah while making laws. In addition, Amanallah Khan appointed a modernist religious body, the Hai’at-i Tamīz (High Religious Council), to make sure that state legislation complied with the orders of the shariah.Footnote 54 The members of the Hai’at-i Tamīz were exclusively trained in modernist religious institutions who used modernist methods to interpret Islamic shariah. They did not have traditional Hanafi Sunni religious education.Footnote 55 As a result, the Hai’at-i Tamīz interpreted Islam and Islamic law in way that offended the traditionalist ulamā as they sanctioned some of the King’s policies that the traditionalists found unacceptable, such as the unveiling of women andthe recognition of equal rights for all subjects irrespective of their ethnicity and religion.Footnote 56
As such, on both substantive Islamic law and the institution that should interpret Islam, the 1923 Constitution made unequivocally clear choices. It did not leave open the possibility of ongoing negotiations with groups who interpreted and realized Islam differently. This ultimately put the 1923 Constitution at odds with the powerful ‘puritanical Deobandi trained’ ulamā who championed a more traditionalist interpretation of Islam.Footnote 57 The leaders of these traditional Deobandi ulamā were not amused by the modernist religious values that the constitution attributed to them.Footnote 58 They demanded that the constitution be amended to reflect the religious identity and values that they had previously understood as the basis of the Afghan state.Footnote 59 They successfully forced the amendment of the constitution. Notably, they amended the provision that declared ‘Islam’ the official religion of the state – language that permitted the government to depart from traditional Hanafi interpretations of Islam and adopt liberal modern understandings of Islam.Footnote 60 Instead, the state would officially have to accept ‘Hanafi Islam’ as its official religion and commit itself to acting in accordance with that religion.
On the question of the body designed to interpret Islam and Islamic law, the traditional Hanafi religious leaders replaced the modernist Hai’at-i Tamīz. In its place, they subjected all government legislations to the approval of a newly appointed committee of seven religious scholars trained in traditional Hanafi methods of Islamic legal reasoning and interpretation.Footnote 61 The task of this new religious committee was to review all laws for conformity with Hanafi shariah – using a far more traditionalist method of Islamic legal interpretation.Footnote 62 Even with these changes, the constitution did not last long. The government continued to realize the ambiguous provisions of the constitution in a way that offended the powerful traditionalists. The traditionalists were infuriated seeing the government continuing to legislate in a manner that challenged their understanding of Hanafi Islamic law. The traditionalists eventually drove Amanallah from power in 1929.
Nadir Shah (r 1929–1933) drafted Afghanistan’s second written constitution in 1931.Footnote 63 The 1931 Constitution is a considerably cautious document and seems to embrace the techniques of incremental constitution-making on both the official version of Islam that the state would promote and the institution that would interpret shariah law. Given the circumstances under which it was created, the 1931 Constitution made Hanafi Islam the official religion of the state. Nevertheless, the constitution did not provide too much detail about the religious identity or commitments of the people. Article 1 thus declared Hanafi Islam as the official religion of the state. However, the constitution did not require the King to legislate only in accordance with the Hanafi Sunni Islam. Article 72 stated that the King and the legislature should consider ‘the provisions of the sacred religion of Islam’ while making legislation. The constitution thus allowed the King to make statutes that would displace Hanafi law – so long as these statutes did not violate the values shared by all Muslim communities in the country. In other words, as King, he would be a Hanafi Muslim, but he did not have to legislate in accordance with Hanafi shariah only; rather, he could legislate in accordance with the ‘provisions of the sacred religion of Islam’, which could arguably include other schools. In short, the 1931 Constitution required that the contents of Hanafi law and the relative roles of Hanafi law and state legislation should be negotiated through the ordinary political process.
Similarly, the 1931 Constitution did not designate a constitutional body that would interpret and realize ‘the provisions of the sacred religion of Islam’ and make sure that state legislation has not violated the shariah.Footnote 64 In practice, however, the Jamiyyāt-i Ulamā (Council of Ulamā) had the responsibility to interpret Hanafi law and review the compatibility of state law with the provisions of the sacred religion of Islam.Footnote 65 Debates over the proper role of Islam and Islamic law and their relationship with the state continued to be channeled through the ordinary political process in the Council of Ulamā instead of violence and rebellions – rebellions that had brought down the 1923 constitutional order.
Therefore, the 1931 Constitution seemed to leave controversial religious questions open and designated enough avenues for religious leaders to participate. For more than three decades, the representatives of Afghanistan’s divided religious communities were willing to peaceably participate in politics according to the rules set forth in the constitution. Over those years, the government incrementally built educational and political institutions and pursued policies that it could not have imposed at the outset. By the 1950s, the state had begun incrementally to establish institutions of secondary and tertiary Islamic education – ones that taught versions of Hanafi Islam that were influenced by ‘liberal modernism’.Footnote 66 In short, the incremental 1931 Constitution promoted a peaceful coexistence among Afghanistan’s divided and hostile religious communities for more than three decades simply because it did not attempt to resolve explosive religious questions during the drafting stage.
B. The Rise of New Religious Movements: 1950–1980
The 1931 Constitution survived for more than three decades. During this time, the role of the state in society had incrementally changed and the state machinery greatly expanded, leading to the control of the state over previously independent Constitution social fields.Footnote 67 A key aspect of this new development was the ‘buildup of the ideological state apparatus, the most important of which was the educational system’.Footnote 68 In fact, the state established and controlled new secular educational institutions, replacing the old madrassa system which taught a version of medieval Islamic law. Most importantly, the expansion of the domains of the state created new and far more assertive urban groups who ultimately asserted their claims to share political power through constitutional reforms.Footnote 69 The discourse on the future nature of the Afghan state and society was now dominated by various sections of the new urban elite. Among these new urban groups was a group of modernist Islamists associated with Islamic intellectuals such as Maulana Maududi and Sayyid Qutb.Footnote 70 Traditionalists at the countryside continued to see themselves as divided from other Afghans on the basis of religion. In short, during the 1950s, Afghanistan had become more divided along religious lines.
To grapple with the rise of these new movements, King Zahir Shah decided to adopt a new constitution in 1964.Footnote 71 Following the pattern established by the 1931 Constitution, the drafters of the Constitution of Afghanistan 1964 (1964 Constitution) tried to broaden its appeal, at least in the short term, by using the tools of incremental constitutionalism. Notably, the 1964 Constitution included provisions that it thought would be sufficient to satisfy, if not delight, the religiously divided communities and prevent conflict.Footnote 72 For instance, the constitution paradoxically stated in the preamble that principles of liberal democracy and Islam would guide the state. However, it left it to the ordinary legal and political institutions to determine how these principles could be reconciled in practice. Similarly, the constitution ambiguously stated that no law should contradict the ‘basics of Islam’ without specifying which version of Islam was controlling, or who would decide this important question.Footnote 73 All factions within the Constitutional Loya Jirga, the popular body that adopted the constitution, appeared to have found this formulation acceptable perhaps because it was open to multiple interpretations and thus left to another time and another institution the question of what types of ideological principles the government would have to respect.
The adoption of the 1964 Constitution, however, shaped Afghans’ political behavior in unanticipated ways, ones that would eventually lead to the fall of the monarchy and the abrogation of the constitution. The 1964 Constitution had embraced a set of liberal and secular values that were in tension with the religious law of more traditional religious communities.Footnote 74 They were also reviled by the ideological modernist Islamists. The political institutions created by the 1964 Constitution were incapable of mediating disputes between the liberal elites who surrounded the King and the multitude of communities who disagreed with the state’s version of Islam.Footnote 75 As a result, political disputes between rival ideological groups led to growing political dysfunction. In 1973, a political coup, staged by Sardar Mohammad Daoud Khan, cousin of King Zahir Shah, led to the abolition of the monarchy, the abrogation of the 1964 Constitution, and the establishment of a short-lived authoritarian nationalist regime.Footnote 76
From that point forward, Afghanistan suffered over twenty years of civil war. A succession of ideologically motivated governments succeeded in taking power in Kabul. Each of these short-lived governments tried to unambiguously impose upon the religiously divided communities a constitution that promoted its author’s distinctive and idiosyncratic version of Islam. None left any hope for the people who opposed the ideological orientation of the state that they would be able to influence government and steer Afghanistan, over the long term, in a direction that they found attractive.
After ousting Daoud in 1978, doctrinaire Marxists struggled to develop a constitution that could satisfy Afghanistan’s powerful religious movements, ultimately drafting several different constitutions – each of which was violently resisted by significant numbers of Afghans. Afghanistan’s Marxist constitutions expressly promoted the state’s version of Islam, not allowing room for rival understandings of Islam championed mainly by the regime’s powerful armed Islamist opposition.Footnote 77 These constitutions further created institutions tasked with the interpretation of Islam that allowed actors in the center to realize Islam in a rigid way. Not surprisingly, all failed to attract the support of the religiously divided people, and they failed miserably.
Marxists were succeeded by a series of Islamist governments, including one headed by a coalition of Sunni and Shia mujahidin (holy warriors) parties – parties that fought the communist regime and its Soviet backers – and another headed by the Taliban movement. Different modernist Islamists proposed different versions of supposedly ‘Islamic’ constitutions. Sunni mujahidin parties prepared a draft constitution with a highly centralized model of Islamic governance. Shia mujahidin parties, by contrast, put forward a constitution establishing a de-centralized, federalist model of Islamic governance. The Taliban proposed a centralized Hanafi Islam-governed ‘Islamic Emirate’. All of these constitutions failed to take hold. All tried to impose their author’s version of Islam, not leaving room for ongoing negotiations with actors who would prefer to realize and interpret Islam in a different manner.
C. Afghanistan’s Islamist Draft Constitutions 1990–2001
By the 1990s, Afghanistan had entered an era of complete chaos. Various armed, religiously diverse, and ideologically incompatible Islamist groups took control of different areas. Each drafted a constitution that unequivocally tried to resolve foundationally divisive religious questions in a rigid way during the drafting stage. First, in 1993, seven major Sunni modernist Islamist groups drafted a Sunni Hanafi law-influenced constitution.Footnote 78 This draft constitution attempted to impose on the society a version of Islam as understood by the leaders of the most powerful and armed Sunni militia who had been trained in Al-Azhar University in Egypt. In Egypt, Afghanistan’s Islamists came in close contact with the Muslim Brotherhood and were influenced by the Brotherhood’s religious ideologies.Footnote 79 Inspired by the modernist Islamist ideology of the Muslim Brotherhood, the Afghan Islamists tried to establish in Afghanistan a pious Sunni state that would promote modernist, rather than traditionalist, forms of Islamic law – albeit one that was considerably conservative.
Afghanistan’s Sunni Islamist draft constitution completely abandoned the cautious approach developed under the 1931 Constitution and retained by the 1964 Constitution. Instead, it tried to impute to the religiously divided Afghan communities a shared religion and a shared set of religious values (modernist Hanafi Islam).Footnote 80 The 1993 Sunni draft constitution thus declared modernist Islam the religion of the state, and the Hanafi school as its official maddhab. In addition, the draft explicitly made the basics of Hanafi Islam as the ‘only’ source of legislation.Footnote 81 It further required that the president of the state and the prime minister should both be the followers of the Hanafi school. Moreover, an Executive Council composed of the leaders of the most powerful Islamist groups had the responsibility to interpret and realize Islamic law.Footnote 82 This Council also had the duty to supervise and ensure that Islamic rituals were observed in accordance with the Hanafi school. The Council finally had the task to make sure that the state legislated in line with the Hanafi Sunni Islam – a version of Islam as understood by the leaders of the most powerful Islamist parties. In this way, the rigid Hanafi Sunni draft constitution did not leave room for any other versions of Islam.
Inevitably, these provisions in the Sunni draft constitution offended the Shia and the traditionalist Hanafi communities. The draft constitution was very specific on both substantive Islamic law and the institutions that would interpret and realize Islam in practice. The rival and well-armed religious communities, the Shias and the traditionalists, whose interpretation of Islamic law differed from the modernists, were left hopeless. As a result, they refused to accept the draft constitution. The Sunni draft constitution was thus never ratified.
A rival constitution, drafted by the leaders of the Shia parties, also failed to be ratified. The Shia draft constitution also declared Islam as the religion of the state and recognized two official madhhabs, the Ja’fārī and Hanafi schools. Article 8 of the draft constitution stated that laws and regulations of the state should contradict neither Hanafi nor Ja’fārī fiqh. Many of the leading Sunni mujahidin parties were dominated by modernists who were influenced by the thinking of the Muslim Brotherhood and who believed that legal interpretation could be carried out by Muslims with no training in medieval Islamic methods of legal reasoning. They had an awkward alliance with groups who believed that scholars trained in medieval Islamic sciences had a monopoly on legitimate interpretation.Footnote 83 The Shia draft constitution was designed to appeal to this second group. Clearly envisioning a state that was constrained to respect and promote traditionalist rather than modernist forms of Islamic reasoning, it not only paid lip service to madhhab-based forms of Islamic law, but it also vested considerable power in the hands of Sunni and Shia scholars with traditional Islamic training.
As a result, the Shia draft constitution created institutions to realize Islam that were dominated by traditionally trained clerics. For instance, the Council of Jurists (Majlis-i Fuqahā) resembled the Guardian Council that had been established in Iran after the Iranian revolution.Footnote 84 This Council of Jurists was arguably the most powerful institution under the Shia draft constitution – one entrusted to maintain the legitimacy of the system, protect Islamic values and principles, and maintain the observance of Islamic justice.Footnote 85 Thus, the draft represented a completely different model of Islamic political legitimacy – one that had never been formed in Afghanistan, and set at odds with ideologies of the modernist-dominated Sunni parties. The powers and authorities given to the Council of Jurists seemed to be loosely based on the doctrine of the ‘Guardianship of the Jurist’ (velāyāt-i faqih) that Ayatollah Khomeni had created, and which had served as the justification for the establishment of a clerical government after the fall of the Shah of Iran.Footnote 86 Unlike the Iranian doctrine, which called for a government led by traditionally trained Shia jurists, the doctrine in the Shia draft constitution envisioned the establishment of a government that vested considerable power in a Council that included Shia and Sunni scholars. The powerful Sunni Islamist parties thus rejected the Shia draft, and the draft was never ratified.
The Taliban appeared on the Afghan scene in 1993 and drafted a constitution in 1998. As noted, the leaders of most Sunni mujahidin parties had been influenced by modernist religious movements in Egypt, movements that taught a form of Sunni Islam that rejected the medieval tradition and its different madhhabs. By contrast, the religious students who formed the Taliban had studied under teachers who were associated with the so-called Deobandi religious movement.Footnote 87 This movement, associated with a famous Indian madrassa devoted to a reformed version of medieval Hanafi law, was characterized by its ‘fundamentalist interpretation of [Hanafi] Islam’, its opposition to ijtīhād, modernist departures from medieval interpretations of God’s law, its injunctions against any role for women in society, and its ‘opposition to feudal and tribal structures’.Footnote 88
The Taliban were disinclined to come to terms with those who interpreted Islam differently. The draft constitution they prepared recognized Hanafi Islam as the religion of the state. The draft also declared a Deobandi inspired version of Hanafi law as the only source of legislation.Footnote 89 A Constitutional Council established by the Supreme Leader of the Taliban, Mullah Mohammad Omer, by decree and staffed by Deobandi trained ulamā was tasked to make sure that state legislation is not inconsistent with Hanafi Sunni law. These provisions in the Taliban constitution promoted only the Taliban’s version of Deobandi inspired Hanafi law. Like Afghanistan’s Islamist draft constitutions, the Taliban constitution too left no room for other forms of Hanafi Sunni Islam.
V. BACK TO INCREMENTALISM: AFGHANISTAN’S 2004 CONSTITUTION
The attacks on the World Trade Center and the Pentagon on September 11, 2001 marked the start of a new political era for Afghanistan. The subsequent US-led military campaign in the country led to the collapse of the Taliban regime in late 2001, leaving Afghanistan without a functioning government.Footnote 90 Soon thereafter, in Bonn, Germany, the US and its allies assembled the representatives of Afghanistan’s most powerful divided communities to negotiate a post-Taliban political compact.Footnote 91 The task, however, was not easy. It required negotiating compromises (particularly on state-religion relations) within a short time frame among groups that had fought each other over the previous decade.
The Bonn Agreement, signed between the representatives of Afghanistan’s divided and mutually distrustful communities, arranged a timetable for a two-year transitional period.Footnote 92 More specifically, the Agreement set an interim government followed by a transitional administration that would supervise the drafting of a new constitution.Footnote 93 On 5 October 2002, Hamid Karzai, the president of the transitional state of Afghanistan, appointed by decree a nine-member commission to prepare the first draft of the constitution.Footnote 94 This nine-member Constitutional Drafting Commission (CDC) contained representatives from the most powerful political and military factions in Afghanistan, except for the Taliban. Its members represented groups with different and rival ideological, religious, political, ethnic, and regional commitments.Footnote 95 Thereafter, Karzai appointed a larger Constitutional Review Commission (CRC), which revised the CDC draft and submitted it to a Constitutional Loya Jirga (CLJ) – a constituent assembly that would have the authority to debate, revise if necessary, and ultimately adopt Afghanistan’s first constitution of the twenty-first century in 2004.Footnote 96
A. The Embrace of Incrementalism in the 2004 Constitution
Given the way the CDC was formed, agreement on controversial religious issues appeared hard to come by. In fact, the CDC was forced to embrace incremental constitutional techniques and avoid entrenching a particular vision of the nature of the state and its relationship with Islam. Notably, the CDC from the outset identified that the role of Islam and Islamic law was an important question of constitutional design that would have to be resolved in the constitution. The CDC had to decide whether the state should recognize Islam as an official religion, if so, how specifically should the state identify the particular version of Islam that would serve as the official religion and, finally, should principles embedded in the official religion constrain the legislative, executive or judicial discretion of the state.Footnote 97 In addition, the CDC had to consider which institution to empower to interpret Islamic law and to make sure that state law did not violate the basics of Islam.
Struggling to form a minimum consensus on these foundationally divisive religious questions, the CDC decided to defer resolving these questions, leaving them to future resolution through the ordinary political process. This enabled the CDC to prepare a first draft of the constitution – albeit one with significant ambiguities on the role of Islam and its relations with the state. In reviewing the CDC draft, the CRC also found that it would be counterproductive to debate and resolve questions about the nature of the state and the status of religious law at the constitution drafting stage. Instead, the CRC felt that it was obliged to accept incrementalist strategies.Footnote 98 The CRC members regularly chose to defer – explicitly or implicitly – on controversial questions, both about the religious values that the state would try to realize, and in the structure of the political and judicial institutions that would be trusted to realize those values through the ordinary political process in the future.Footnote 99 In a perfect scenario, the framers of the constitution might have elaborated more fully the religious values of the state and the decision-making processes by which the state would realize those religious values. However, in a situation where multiple people had militias with the power to effectively threaten any constitutional bargain, and where those people refused to agree up front with respect to what religious values they would allow the state to pursue and how, ‘they accepted that deal would have to be negotiated incrementally over time’.Footnote 100
In many important articles of the constitution that supposedly defined the role of Islam and Islamic law, the drafters implicitly used the techniques of incremental constitution-making to avoid answering questions that had divided Afghans for decades. As noted, throughout its history, the Afghan state had established an official religion. However, at different times the state had defined the official religion differently. Some constitutions made ‘Islam’ the official religion of the state; others mentioned ‘Hanafi Islam’ as the official religion; and still a few constitutions (the Islamist constitutions) introduced a new version of Hanafi Sunni Islam – the modernist form of Hanafi Islam. The champions of these different definitions of Islam were present at the constitution-making bodies, making agreement on this foundationally divisive question extremely difficult.
The CDC had initially proposed that the constitution should declare ‘Islam’ as the official religion of the state, ‘Hanafi’ Islam as its official madhhab, and that the state cannot legislate in contradiction with the ‘basics of Islam’ as interpreted by the Hanafi school.Footnote 101 While some members of the CRC approved these provisions, others noted that such language would be unacceptable to Afghanistan’s Shia communities, which had powerful militias supported by Iran and could thus destabilize any regime enacted under a constitution that obliged the state to prefer Hanafi Islam to other forms and compelled the state to act in accordance with Hanafi understandings of Islamic law.Footnote 102 Although Hanafi Islamic law is sometimes interpreted to be consistent with liberal values, many Hanafi scholars in Afghanistan are reactionary – including scholars associated with the Taliban. Liberals, too, even those who are themselves Hanafi, favoured constitutional language that permitted, but did not require, the Afghan government to act in accordance with Hanafi interpretations of Islamic law (as opposed to other interpretations).Footnote 103 As finally written, Article 3 of the 2004 Constitution merely states that ‘no law should contradict the beliefs and tenets of the sacred religion of Islam’, without clarifying whose interpretation of Islam is controlling. In essence, the constitution leaves it to a later dialogue, conversation, and debate to determine the practical implications of Article 3.
In addition, another important question that the drafters of the 2004 Constitution chose deliberately not to decide in the constitution related to the version of Islam that was defined as the state’s official religion. Article 2 of the 2004 Constitution makes Islam the religion of the state, but it consciously avoids making further generalizations about what version of Islam would be official. Islam in general appeared to be acceptable to most of the religious groups in the constitutional negotiations because it was open to multiple interpretations. Afghanistan’s previous constitutions, except the 1931 Constitution, failed to promote peaceful coexistence among powerful and divided religious groups because they went too far in defining the version of Islam that had an official status – a version that Afghanistan’s most powerful religious communities found unacceptable.
The drafters also felt compelled to defer resolution of the explosive question of what institution could be trusted to interpret the provisions requiring the state to enact and enforce only laws that are consistent with Islamic values. Initially, the drafters agreed to create an independent constitutional court that would perform constitutional review and, arguably, interpret the vague religious constitutional provisions.Footnote 104 President Karzai and his cabinet protested that a constitutional court would become like Iran’s Guardian Council and would use constitutional provisions dealing with Islam to undermine the political system.Footnote 105 The CRC thus removed the constitutional court from the draft; they vested the right to interpret the constitution and exercise judicial review in the Supreme Court.
At the CLJ, the debate over who should interpret the constitution took a peculiar turn. CLJ members associated with Islamist (former mujahidin) factions wanted to maintain the provision that gave the Supreme Court the power to exercise judicial review. Liberals, by contrast, wanted to vest the right to interpret the constitution and exercise judicial review in an institution other than the Supreme Court. The Afghan Supreme Court has traditionally been dominated by clerics, often traditionalists, who get their degrees from the country’s shariah faculties.Footnote 106 Liberals feared that vesting the power to exercise judicial review in the Supreme Court might undermine liberal rights that the constitution attempted to guarantee. Instead, they argued that the final authority to interpret the constitution must be granted to a constitutional court or some other new institution that could be staffed with liberal graduates of law schools.Footnote 107 The question of Islamic review became divisive enough that the CLJ decided not to answer it. It agreed to approve a constitution that granted the power of judicial review to the Supreme Court. The framers of the constitution also included in the constitution a commission for overseeing the implementation of the constitution and intentionally left the duties of the commission undefined. It remained deliberately ambiguous whether the commission was authorized to issue binding substantive interpretations of the constitution, meaning that the Supreme Court would be obliged to rule in accordance with the commission’s reading of the constitution.Footnote 108
In short, on numerous issues involving the nature of the state, the values that the state should try to promote, and even the design of government institutions, disagreement was so great that agreement was simply impossible. Given the depth of disagreement and the ability of dissatisfied parties to challenge the constitutional order, it was simply impossible to produce a constitution that could answer all of these questions and survive. The only hope was to create a constitutional system that would be able to govern without answering those explosive religious questions, or one that could answer these questions, through legislation or judicial decision as needed going forward. With these ambiguous and, at places, contradictory provisions, the 2004 Constitution has managed to prevent conflict on religious issues and promote peaceful coexistence among Afghanistan’s divided religious groups, successfully governing the religiously divided society of Afghanistan–surviving for a decade and a half thus far.
B. The Ambiguous Government Practice on Religious Questions
Afghanistan’s experience drafting and operating under the 2004 Constitution to date suggests that incremental constitution-making is the most realistic approach in religiously divided societies. The embrace of incrementalist constitutional techniques in the 2004 Constitution has thus far prevented conflict over the role of religion and religious laws. Afghanistan’s divided religious communities appear to have found the ambiguous (and at certain places contradictory) constitutional formulations acceptable because they are open to multiple interpretations and thus leave to another time and another institution the question of what types of ideological principles the government would have to respect. Constitutional incrementalism has in fact steered an ongoing negotiation over the limits of constraints Islam should put on state behavior.
However, the debate on the nature of the state and its relations with religion is taking an interesting turn. A new, far more liberal and assertive generation of elites is in the making; although they currently lack a political voice or military support within Afghanistan, they are growing in prestige, wealth, and influence among foreign powers who are frustrated with Afghanistan’s old religious elites. These elites include Afghanistan’s growing middle classes, many of whom have been educated in Afghanistan’s growing university system, some of whom have a more global perspective and awareness, have travelled outside Afghanistan and its neighboring countries, have been educated in the West, and are demanding a new voice in Afghan society. This new growing class of elites has a different understanding of Islam, realizing Islam in far more liberal terms. They often openly clash with the old traditionalists and the Islamists in universities, on social media, and on news channels. In short, over the past decade, Afghanistan has become even more divided along religious lines.
As a result, the Afghan government has wisely decided to maintain and preserve the deferred constitutional order on religious questions, thus far choosing not to resolve the ambiguous religious clauses. In fact, since the adoption of the constitution in 2004, the government has not attempted to adopt a practice resolving the constitution’s ambiguous ideological questions in a way that would offend a powerful religious community. On several occasions, governmental practice has deliberately sent competing and ambivalent signals over the implementation and interpretation of the constitution’s vague religious clauses, refusing thus far to concretize a particular practice – a practice that would impose the state’s interpretation and understanding of Islam and impute to the religiously divided Afghan communities a common religious identity and a common set of religious values.
However, the Afghan Supreme Court, which has the power under the 2004 Constitution to exercise judicial review and interpret the constitution, including its vague religious clauses, has a different strategy and plays a considerably different role in this respect. In most democratic orders, courts often function as the guardian of constitutional rights and freedoms and strike down laws on that basis. In Afghanistan, however, the Supreme Court functions as the protector of Islam and Islamic law. This is not surprising because the Afghan Supreme Court has traditionally been dominated by scholars, often conservative ones, with degrees from the country’s shariah faculties which teach a form of traditional Islamic law. The Supreme Court is, and for the foreseeable future will continue to be, dominated by such scholars. As a result, the Supreme Court often interprets Islam and Islamic law in a rigid way that trumps fundamental rights and freedoms. The executive branch, however, refuses to let the Supreme Court resolve the vague religious provisions in a way that offends the country’s far more assertive liberal elites whose interpretation of Islam differs from the Court’s conservative approach. The deferred constitutional order thus seems hard to alter, and the debate goes on.
For instance, one of the first cases that challenged the constitution’s ambivalent formulation on the position of Islamic law and its relationship with liberal rights concerned the case of an Afghan apostate, Abdul Rahman. Abdul Rahman was an Afghan born into a Muslim family and raised in that faith. In 1990, while working for a Christian non-governmental aid organization caring for Afghan refugees in Peshawar, Pakistan, Abdul Rahman converted to Christianity.Footnote 109 In 1993, he moved to Germany and resided there. After the fall of the Taliban regime in 2001, Abdul Rahman returned to Afghanistan.Footnote 110 His wife divorced him because of his conversion to Christianity.Footnote 111 In the subsequent custody dispute over Abdul Rahman’s two daughters, his wife argued that because Abdul Rahman has converted to Christianity, he was not competent to take custody of their Muslim daughters. His wife’s family eventually denounced him to the police; the police charged Abdul Rahman for the crime of apostasy.Footnote 112
The constitution and laws of Afghanistan do not criminalize apostasy. Islamic shariah does, however, designate apostasy as a punishable offense.Footnote 113 Abdul Rahman was indicted under Article 130 of the 2004 Constitution. The provision states that courts should consider the application of Hanafi fiqh (jurisprudence) in cases for which there are no provisions in the constitution and laws of the state; while applying Hanafi fiqh, courts should deliver decisions in a way that serves ‘justice in the best possible manner’.Footnote 114 In accordance with the Hanafi fiqh, many clerics demanded the death penalty for Abdul Rahman. At the same time, civil society and rights organizations demanded that Abdul Rahman should be released citing Afghanistan’s duties to protect human rights (including the right to freedom of religion) of the people under the constitution and international human rights treaties.
When questioned in the court, Abdul Rahman identified himself as a Christian and refused to repent.Footnote 115 Consequently, the court sentenced him to death for apostasy under Hanafi fiqh. However, high-ranking state officials and dignitaries called for Abdul Rahman’s release, reminding Afghanistan of its duty under the constitution to respect Abdul Rahman’s right to freedom of religion.Footnote 116 Finally, under pressure from Afghan civil society and the international community, the indictment was rejected on procedural grounds.Footnote 117 Although the court did not clearly elaborate on what exactly were these procedural grounds, it did state that there was lack of information and ‘investigative gaps’ regarding the charges against Abdul Rahman in the prosecutor’s indictment.Footnote 118 Clerics all over the country held protests against the court’s decision to release Abdul Rahman. Abdul Rahman then fled the country.
Similarly, in 2007, the government once again found itself in the same position. In October 2007, police in Balkh province arrested Sayed Parwiz Kambakhsh, a 24-year old Afghan journalism student.Footnote 119 The police accused Kambakhsh of distributing to his classmates an article that criticized Islamic law’s treatment of women and included insulting words to Prophet Mohammad and the Qur’an.Footnote 120 The police charged Kambakhsh with the crime of blasphemy. Like apostasy, there is no positive law in Afghanistan that criminalizes blasphemy. Like Abdul Rahman, Kambakhsh, too, was prosecuted under Article 130 of the 2004 Constitution.
The Shura-ye Ulamā (Council of Ulamā) in Balkh province issued a Fatwa (religious opinion) stating that Kambakhsh has committed a serious crime under Islamic law and demanded the death penalty for him. The Balkh primary court did end up imposing a death sentence under Hanafi fiqh.Footnote 121 On appeal, Kambakhsh requested that the venue should be changed from Balkh to Kabul. The Kabul Court of Appeals reduced the sentence to twenty years imprisonment under the same provisions of the Hanafi fiqh.Footnote 122 On final appeal, the Supreme Court upheld the 20-year imprisonment for Kambakhsh. Many influential clerics, including former mujahidin leaders, appreciated the Supreme Court’s decision.
However, many Afghans and members of civil society condemned the decision and held protests in Kabul in support of Kambakshsh, citing his constitutionally guaranteed right to freedom of speech, freedom of the press, and freedom of religion.Footnote 123 Although the government, specifically President Karzai, was supportive of Kambakshsh’s release, he feared backlash from the religious conservatives and the clerics. Karzai was reported to have asked Supreme Court Chief Justice, Abdul Salam Azimi, to find a solution for releasing Kambakhsh.Footnote 124 However, the Court feared that it would attract criticisms from the country’s religious conservatives. Finally, like Abdul Rahman’s case, under pressure from civil society and the international community, President Karzai ordered Kambakhsh’s release.Footnote 125 In 2009, Karzai reportedly secretly pardoned Kambakhsh.Footnote 126 Karzai faced severe criticisms from religious fundamentalists and clerics who demanded to keep Kambakhsh in prison as an example to others,Footnote 127 but Kambakhsh fled the country after he was released from prison.
Cases like these demonstrate that Afghans are still divided over critical ideological questions. To date, there has never been a predictable decision on these questions. In the examples cited, the government seemed disinclined to answer questions on the role Islam plays in the state. The government appears to think that it is too soon to resolve the question of the relationship between state and religion. Adopting a particular practice at this point might arguably endanger the delicate balance that the constitution’s framer managed to achieve at the drafting stage. The government fears that, because the people are still divided, resolving these constitutional ambiguities might beget unrest and jeopardize the peaceful coexistence among Afghanistan’s divided religious communities. As such, the government often relies on procedural grounds, such as unreasonable delays in filing the cases, investigative gaps, and irregularities in the activities of the police, to find a way to prevent persecution.
In short, Afghanistan’s experience living under the 2004 Constitution shows that the success or failure of an incremental approach to constitution-making in religiously divided societies does not only depend on the constitution makers’ choice to avoid entrenching a particular vision of the state-religion relationship. It also depends on the government’s willingness to maintain the deferred constitutional order in the absence of agreement by avoiding concretizing a particular version of religion through constitutional interpretation or judicial review of legislation.
VI. CONCLUSION
Many theorists of constitution-making state that the moment of constitution drafting and ratification is an extraordinary period. This founding moment of the polity is in fact understood to be a period in which people will likely make decisions that will affect their nation for the conceivable future. It is at this moment that a society is likely to get the best possible answers on its foundationally important issues. However, in some countries where there is no pre-existing consensus over the nature of the state and the religious identity of its people, the constitutional moment is the worst possible time for people to try and settle foundational questions of the nature of the state and its relationship with religion. In countries marked by such religious divisions, the process of constitution-making is tied with great risk of political crisis. In these religiously divided societies, it is counterproductive to pressure groups with very different religious identities to agree in advance upon foundational religious questions. If representatives of religiously divided communities focus on resolving foundationally divisive issues at the drafting stage, they will only find out how deeply divided they are on religious issues. Each religious community might likely try to use the constitutional process to maximize their own interests, making agreement on foundational religious questions hard to come by.
As such, constitutional theorists argue that the timelines and procedure of writing a democratic constitution should be different in religiously divided societies. Successful constitution-making processes in religiously divided societies do not attempt to resolve foundationally divisive religious questions with one shot during the founding moment. They would rather achieve a partial agreement on foundational issues and focus, instead, on creating effective arrangements by which issues of shared interest can be resolved to the divided people’s mutual satisfaction. In other words, successful constitutions in religiously divided societies look like unfinished contracts where parties to the contract agree that the final agreement will have to be negotiated incrementally over time.
Afghanistan’s constitutional history – specifically, its experience drafting and operating under the 2004 Constitution – provides us with more insights. It suggests that government practice in post-promulgation era plays an equally important role in ensuring that foundationally divisive questions are not realized in a way that offends powerful religious communities. As long as passions have not cooled, resolving foundationally divisive religious issues through the ordinary political process in a rigid way might risk religious violence. It was precisely because Amanallah Khan attempted to realize the 1923 Constitution’s ambiguous religious provisions in a rigid way that the powerful traditionalist ulamā revolted – driving Amanallah from power. By contrast, it is because governmental practice under the 2004 Constitution has not yet attempted to realize the constitution’s ambiguous religious clauses in a way that imposes the state’s version of Islam on the divided populace that Afghanistan’s divided religious communities continue to operate under it, leading to the survival of the constitution for more than fourteen years thus far.
Afghanistan’s constitutional history suggests that in overwhelmingly, but diversely, Muslim societies, it is important to create constitutional regimes that recognize Islam but leave room for rival interpretations of Islam. It is hard to conclude what kind of a constitution would work best in a religiously divided, historically undemocratic, and heavily armed society like Afghanistan’s. However, Afghanistan’s history suggests that a constitution will likely fail if it goes too far above the religious affinity of the divided populace and allows actors at the center to realize religion in a rigid way. In short, incremental constitution-making strategies ensure that religiously divided societies like Afghanistan’s create a constitutional regime that recognizes the disagreements over religious issues and enables them to resolve those issues not at the founding moment but at some less fraught time in the future. These strategies help prevent conflict on the role of religion and promote peaceful coexistence among the communities in a divided, religious society.
