Afghanistan’s Unwritten Constitution under the Taliban

—Shamshad Pasarlay, Visiting Lecturer, The University of Chicago Law School

[Editor’s Note: This is one of our ICONnect columns. For more information on our 2022 columnists, see here.]

After taking control of Afghanistan last summer, the Taliban wasted no time in tearing down the legal and political order that had developed under the country’s 2004 Constitution. However, Afghanistan’s de facto new rulers are yet to craft an alternative for the constitutional order that they have, for all practical reasons, dethroned. The legal and constitutional founding of the Taliban authority thus remain remarkably obscure.

In fact, the Taliban have only added to the uncertainty surrounding their constitutional vision and obfuscated the matter by making inconsistent declarations about the constitutional order that they wish to install in Afghanistan. In September 2021, for instance, the Taliban indicated they would implement the 1964 Constitution of Afghanistan as an interim charter. Nonetheless, the 2004 Constitution is still available on the website of the Ministry of Justice as Afghanistan’s “enforced constitution,” and Taliban leaders have pledged to respect its rules (for more on this point, see here).  

To make matters even more confusing, the Taliban have in many places suggested that they reject the values and rules that are enshrined in both the 1964 and the 2004 constitutions. Taliban official conduct is also obviously and unapologetically inconsistent with the democratic and liberal values enshrined in both the 1964 and the 2004 basic laws. In public statements the Taliban have made no secret of their hatred and animus towards the 2004 Constitution, decrying the document as a foreign imposition.

The question, then, is what, if anything, forms the constitutional framework of the current Taliban government? I wish to explore this question in some detail here.

I suggest that the Taliban govern the country according to an unwritten constitution. The Taliban’s “real” constitution, the one that actually guides government practice is not codified in a single master text. It can be found, sometimes explicitly and sometimes implicitly, in a series of documents issued over time, starting in the period when the Taliban first ruled Afghanistan in the mid-1990s. This unwritten constitution, which is explicitly autocratic, can also be gleaned from a series of laws, including a 1998 dastur (charter), that the Taliban adopted during their first spell in power – a document not currently enforced in its entirety – as well as from several governance practices that remain uncodified and describe the Taliban head of state’s extensive discretionary power. The current de facto government of the Taliban appears to be structured based on this unwritten constitution and operates according to its terms, rather than under the rules of the 1964 or 2004 constitution.

For one thing, the Taliban have re-established the unitary, highly centralized, autocratic “Islamic Emirate” (as defined in 1998 charter) and have revived a number of laws they adopted in the mid-1990s. Some of these bills describe how the executive branch should be structured and what powers it should wield while others define what the “law” should be in the Taliban “Islamic Emirate.” Examples of these resurrected laws abound. One of these restored laws is the bill of the council of ministers (published in Official Gazette No. 797: 1996). This law defines the structure of the Taliban’s executive branch which includes a prime minister, deputy prime ministers and several other ministries. The Taliban’s current interim executive branch is organized under this exact structure. Another powerful institution, the terribly-feared ministry for promoting “vice” and forbidding “evil,” which the Taliban instantly restored last summer, also exercises its mandate under the “Law of the General Principles of the Organization and Jurisdiction of the Ministries of the Islamic Emirate” (published in Official Gazette No. 797: 1996), which vests in this ministry extensive power to enforce public morals.

In the Taliban’s unwritten constitutional order, Hanafi fiqh (Islamic law as defined over centuries by the scholars associated with the Hanafi school of law) is the supreme law of the land to which all extant and future state law must comply. This marks, one must stress, a significant departure from the Afghan constitutional tradition. Past Afghan constitutions adopted provisions requiring that state law must not be repugnant to the “basics of Islam.” None required that state law must be consistent with the rulings of the Hanafi fiqh (a vast and diverse body of juristic opinion). In fact, many Afghan constitutions, including the 2004 document, made Hanafi fiqh residual, relevant only when state law provided no guidance for a case under the consideration of courts. The normative supremacy of Hanafi fiqh is abundantly clear in Taliban’s past and present constitutional discourse. A 1997 bill on legislative procedure directed all law-making bodies to draw on the Hanafi fiqh when drafting laws and to ensure that state laws did not contradict the tenets of the said school. Similarly, a decree issued by the Taliban Amir (supreme leader/head of state) required state institutions to set aside those laws that they deemed were not drafted in strict adherence to the Hanafi tradition. Expert institutions staffed exclusively with Hanafi jurists (such as the Council of Ulama/jurists within the Taliban Supreme Court) were empowered to perform an abstract review of all state laws to certify that none contradicted the rulings of the Hanafi fiqh.

The current, de facto Taliban government has already revived the supremacy of Hanafi fiqh and has tasked a new committee – one staffed exclusively with Hanafi jurists – to scrutinize all existing laws drafted during the lifespan of the late Islamic Republic (2001–2021) to ensure their consistency not only with the norms of the shariʿa (God’s commands) but also with the injunctions of the Hanafi fiqh. This committee is empowered to remove from the statutes all rules that they find repugnant to Islamic dictates or to the tenets of the Hanafi fiqh. Until this vetting process is complete, Hanafi law will remain the law of the land.

The prerogatives and authorities of the Taliban’s head of state, the Amir, and how he should be elected are largely regulated through uncodified constitutional rules. Under these rules, the Taliban Amir should be elected, advisably, by ahl-i hal wa ʿaqd (council of the learned/wise individuals). The Taliban Amir sits at the apex of legislative, judicial and political authority and exercises absolute power. Disobeying the Amir is not warranted, and the state is responsible to prosecute those who disregard his orders and decrees. There are no meaningful, enforceable constraints on the powers of the Amir, and he, alone, has the right to appoint the prime minister, deputy prime ministers, ministers as well as justices of the Supreme Court. The Amir wields the exclusive authority to remove these state officials. He has the power, as well, to legislate by decree and is apparently the final judge of state law’s compliance with the shariʿa and the Hanafi fiqh.

These are some norms of the Taliban’s unwritten constitution. It should be stressed that this unwritten constitution does not yet include any rules that impose restraints on the power of the head of state, the Amir. In theory, over time, some norms of constraint might come to be recognized and be enshrined in statutes that would become part of the unwritten Taliban constitution. At this point, however, the unwritten constitution seems to be explicitly authoritarian and grants to the Amir absolute power because without it the Amir will be unable to implement God’s commands in the society – a mission that the Taliban believe is divinely ordained.

 At the dawn of their first rule in the 1990s, the Taliban did not immediately write a constitution, claiming, instead, that the shariʿa provided sufficient guidance to govern an “Islamic Emirate.” This time, however, Afghanistan’s new rulers have not rejected the idea of drafting a formal written constitution. They may indeed draft a constitution in the near future. When they do write one, it is highly likely they may codify and entrench this unwritten constitution sketched here.

Suggested citation: Shamshad Pasarlay, Afghanistan’s Unwritten Constitution under the Taliban, Int’l J. Const. L. Blog, May 17, 2022, at: http://www.iconnectblog.com/2022/05/afghanistans-unwritten-constitution-under-the-taliban/