The Curious Case of the Taliban’s Judicial Empowerment

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

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

Constitutional theorists have long debated a puzzling question: why do political officeholders choose to impose limits on their power and authorize apex courts to enforce those limits? Some of the most distinguished scholars have argued that political elites empower apex courts out of self-interest. They point out that political decision-makers vest increasing authority in top courts to use them against their opponents. Such judicial empowerment is most likely when incumbent officeholders foresee uncertainties at the ballot box in a competitive framework of electoral politics.^[1] To put it differently, incumbent politicians, whose electoral prospects seem uncertain, turn to courts and empower them to safeguard or entrench “their political hegemony by insulating policy making in general, and their policy preferences in particular, from the vicissitudes of democratic politics.”^[2] Other prominent theorists suggest that in revolutionary contexts, apex courts take central stage and begin to “preserve core revolutionary principles once the […] generation” instituting the revolution disappears from the political landscape.^[3] In this “generational” model, apex courts emerge as the loyal guardians of the revolutionary ideals of the founders and compel political officeholders to accept court’s authority as the final judges of constitutional compliance. The transfer of authority from majoritarian institutions to apex courts is not limited to democratic orders. In fact, for a variety of different reasons authoritarian regimes, too, tolerate judicial independence and award courts sufficient room and influence in political affairs.^[4] The debate over why political elites choose to limit their power by empowering courts continues to revibrate in academic circles.

The supremacy of the top court in the Taliban’s autocratic Islamic Emirate in Afghanistan presents a curious case, which may be of interest to scholars who study courts. Here, I wish to briefly explain why the Taliban Supreme Court has assumed a central role in law and politics at such an early stage in the Taliban’s return to power, and why the Taliban’s autocratic rulers have so far tolerated the Court’s independence and influence.

Upon returning to power in August 2021, the Taliban wasted little time in re-establishing the Islamic Emirate that they had initially formed in the 1990s. The Taliban’s Islamic Emirate, though poorly theorized, is remarkably autocratic. It is helmed by a supremely powerful Amir al-Mominin (commander of the faithful) who sits as the head of the state and the government. The Amir exercises absolute power and “there are no meaningful, enforceable constraints” on his authority. Obedience to the orders of the Amir is mandatory, and the state’s apparatus would be deployed to punish those who disobey the Amir’s commands.^[5] Power flows from the highly centralized Amir down to the council of ministers – the executive branch – and to the legislature (the Taliban have not yet formed a separate legislative branch). The Amir appoints all members of the executive branch as well as the legislature – an institution which was defined as the Islamic Council in the Taliban’s 1998 Constitution. The Council of Ministers conducts daily administrative affairs, but the Amir reserves the right to veto the Council’s decisions in case of disagreement. Absent a separate legislative branch, it is the Amir who, it seems, has assumed the role of a supreme lawgiver. Part of the law in the Taliban’s Islamic Emirate comes as binding decrees by the Amir.

Given this highly autocratic political order the Taliban leaders have orchestrated, one can reasonably suspect that the judiciary, including the Supreme Court, in the Taliban’s Islamic Emirate may simply function as nothing more than the government’s puppet. In practice, however, the Taliban Supreme Court exercises a considerable degree of independence and a significant amount of power vis-à-vis the other branches of the government. Some of the Court’s most important powers include the right to exercise Islamic judicial review (examining the consistency of law with the sharia as interpreted by the Hanafi school), the power to issue Islamic legal opinions (fatwas), and the right to examine government conduct for Islamic compliance. Notably, during the Taliban’s first spell in power in the 1990s, the Court exercised what could be described as “weak-form” Islamic review,^[6] meaning that the Amir, not the Court, wielded the final legal authority to invalidate legislation that the Court deemed inconsistent with Islamic values. Currently, however, the Court exercises “strong-form” review and has the power to invalidate legislation it finds in contradiction with Islamic principles and the norms of the Hanafi fiqh (Islamic law as developed over the centuries by jurists associated with the Hanafi school of law). Furthermore, it appears that Islamic punishments (Hudud) are enforced by the order of the Supreme Court.

How is it that the Supreme Court exercises such powers within the framework of an autocratic Islamic Emirate? Apparently, the Taliban state tolerates the independence and influence of the Supreme Court because it serves their interests. Put differently, the Supreme Court is allowed to wield significant amount of power because the Taliban state attempts to deploy it as an agent of legal transformation.^[7] In order to better understand this function of the Court, it is important to know that the Taliban wish to transform Afghan laws and legal institutions in line with the Hanafi understandings of Islamic law. For instance, article 7 of the 1998 Taliban Constitution – a document that reflects Taliban views on questions of law and governance – stated that “legislative affairs” and the “social life” of the polity should be regulated and “adjusted” in line with the norms of the sharia as understood by the Hanafi school.^[8] The Hanafi interpretation of Islamic law (the fiqh), according to the Taliban, already exists, and it does not require codification by the state. It should, instead, be applied organically by judges who are, ideally, the masters of classical Hanafi law. In other words, “the law [in the Taliban state] is portrayed as largely preexisting the political sphere and as waiting to be discovered rather than to be made, particularly through an independent judiciary.” It is here that the role of the Taliban Supreme Court comes to the fore, because it is the Court that exercises the right to discover Islamic law and then to pronounce it as the applicable law of the land.

This transformative function of the Court is visible in the measures that the Taliban’s de facto government has adopted since returning to power in August 2021. For one thing, the Taliban have suspended all laws ratified under the former Islamic republic that constituted the crux of the Afghan legal system; they have replaced them with uncodified Hanafi law “as the framework for resolving the people[s’] problems.” However, it should be noted that lower courts and other governmental institutions do not seem have the right to determine for themselves what Hanafi law is or what it requires. Instead, when faced with a legal question, these bodies are required to make a referral to the Supreme Court. The Court will determine the content of the Hanafi law and communicate it to the relevant institution(s). Absent a separate legislative body, the Court’s responses to these referrals become part of the applicable law in the Taliban state. According to an official estimate, the Supreme Court received 630 referrals over the past year, a majority of which related to the “correct application of sharia law” in the country.

Therefore, the Taliban Supreme Court is on track to undo more than a century of legal developments in Afghanistan. Over the past century, Afghan rulers established, albeit painfully slowly, the supremacy of state (positive) law over uncodified norms of Hanafi fiqh. But the Taliban are rapidly elevating Hanafi law as the supreme law of the land, and the Supreme Court is playing the central role in that venture.

For this reason, an independent and powerful top court fits well within the Taliban’s approach to reconstructing the Afghan legal order. The Supreme Court has taken center stage particularly because the structures of the Taliban state remain underdeveloped, which has hindered the implementation and entrenchment of their favored policies. The Taliban seem to rely on a friendly court to enable the enforcement of their policy preferences – one of which is the Islamization of the Afghan legal system in line with the Hanafi school. The Supreme Court is thereby awarded freedom and influence in nearly all aspects of social life.

Suggested citation: Shamshad Pasarlay, The Curious Case of the Taliban’s Judicial Empowerment, Int’l J. Const. L. Blog, Sept. 16, 2022, at http://www.iconnectblog.com/2022/09/the-curious-case-of-the-talibans-judicial-empowerment/

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[1] Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2009).

[2] Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism 12 (2004).

[3] Bruce Ackerman, Revolutionary Constitutionalism: Charismatic Leadership and the Rule of Law 318 (2019).

[4] See e.g., Rule By Law: The Politics of Courts in Authoritarian Regimes (Tom Ginsburg and Tamir Moustafa eds., 2008).

[5] The Islamic Emirate that the Taliban have long wished to establish in Afghanistan remains remarkably undertheorized. For details on how it may operate in practice and how the Taliban view it, see Alex Strick van Linschoten and Felix Kuehn, The Taliban Reader: War, Islam and Politics in their Own Words (2018).  

[6] Especially, in 1998 Mullah Omar, the founding Amir of the Taliban, issued a decree that required all courts, including the Emirate’s top court to consult the Amir before making a decision in “all important cases.”

[7] Some have argued that the Taliban Supreme Court exercises a remarkable degree of power and independence because the chief justice, Abdul Hakim Haqqani, is a close associate of the Amir. His proximity to the Taliban leader has elevated his position and the status of the court he leads within the Taliban movement.

[8] Author’s translation. A complete English language translation of the Taliban Constitution of 1998 is produced in van Linschoten and Kuehn, supra note 5 at 305–328.