In a recent webinar titled, “Recognition ofas a Legitimate Government of ,” a participant asked me which is currently in place and the status of the from 2004? I couldn’t answer because the status of the was still unclear.
In August 2021, temporarily enact the 1964 , excluding parts that contradict the principles of the Islamic Emirate of , the formal name of the country under the new government. Thus far, have not released a formal document or policy statement that would indicate how they plan to govern.came to power in Afghanistan through unconstitutional means. They initially did not establish a new government or issue a decree suspending or repealing the . However, when prompted by the Chinese ambassador to , the minister of justice noted that plan to
Can the Taliban Govern Responsibly?
When the caretaker administration was introduced last September, the government was modeled on a different system than the one intended in the 2004 , but it shared similarities with the 1964 version. The 2004 model provides for presidential rule, and a direct vote elects a president as the head of state to serve a five-year term.
So far, it is clear that the 2004 constitution that was drafted in 1998. Under that version, the Taliban’s caretaker administration is a theocratic monarchial system with a supreme leader, known as the amir al-Mu’minin (leader of the faithful), as its king.is no longer in force in Afghanistan and that have, more or less, restored their
The Taliban’s Constitution
Under its rule between 1996 and 2001, legislative decree under which a so-called constituent assembly — or ulema committee (a religious body of scholars) — was established, led by Maulvi Noor Mohammad Saqib, the former chief justice of .never introduced a written for nor validated any previous version. But they made some efforts to draft a . This process began in 1998 when the leader of , Mullah Omar — formally known as amir al-Mu’minin — issued a
The decree placed the power to review laws with the committee, under the supervision of the supreme court of. The committee’s task was to look at existing laws, including under past constitutions, and to remove articles that did not conform to sharia. The committee began working on the in July 1998 and decided that the review of the previous should be in accordance with the Hanafi madhab (school of jurisprudence) of Sunni Islam. Articles inconsistent with sharia would be amended or repealed and, if necessary, a new article would be added.
Thewas drafted after a round of sessions, but it was not approved before were toppled by US-led forces in 2001. The preamble of the notes that it was adopted in 2005 by the supreme council of , with 10 chapters and 110 articles. The constitution’s travaux préparatoires (preparatory works) are not publicly available to show which of was chosen as the basis for the Taliban’s version. Yet based on preliminary examination of both versions, it appears that the 1964 , which was adopted under King Mohammad Zahir Shah, has been chosen as a foundation for the Taliban’s model. The Taliban’s constituent assembly has reviewed the 1964 and removed, amended or added articles to the that it believes contradict Islamic law.
Despite the considerable differences between the two constitutions, many articles of the Taliban’s version are verbatim to those of the 1964 model. While not explicitly mentioned, the Taliban’sprovides for a theocratic ruler under the title of amir al-Mu’minin, who would be similar to a king under the 1964 in terms of political power.
The Taliban’sis focused on the religious dynamics of the country, without considering the social and economic implications, and it forms the basis of the Islamic Emirate of . The recognizes Islam as the national religion and adheres to the Hanafi madhab of Sunni Islam. Due to its similarity with the 1964 model, in principle, the commits to the UN Charter, the Universal Declaration of Human Rights, the charter of the Organization of Islamic Cooperation (OIC), the Non-Aligned Movement, and other relevant laws and regulations within the limits of Islamic law and national interests. Power is divided between the amir al-Mu’minin, the prime minister or executive, the Islamic shura (parliament) and the supreme court. Ultimately, however, the amir al-Mu’minin has unlimited power to execute his will in all aspects of the government.
To make sense of the Taliban’s, it is important to examine the responsibilities of the head of state, the shura, the executive and the judiciary and the role of foreign policy.
The De Facto King
Under the Taliban’s Islamic Emirate of, the amir al-Mu’minin is the head of state. He executes his authority in the executive, legislative, and judiciary fields according to the provisions of the and other laws. Under , the amir would be an national, born to Muslim parents and a follower of the Hanafi madhab. The amir al-Mu’minin has similar immensurable powers as the king had under the 1964 . For example, under that version, the king was able, inter alia, to appoint and remove prime ministers and other government ministers, issue a state of emergency, approve the national budget, ratify laws, select and dismiss judges, promote and retire high-ranking officials and declare war. The Taliban’s gives the same powers to the amir.
Unlike the 1964 and 2004 constitutions, the procedure for appointing the head of the state is not clearly laid out in the Taliban’s. Yet one of the tasks of the shura, together with the supreme court and the prime minister, is to decide on what happens in the event of the amir al-Mu’minin stepping down. The amir would inform the speaker of the shura, chief justice of the supreme court and the prime minister about his resignation. After this, a meeting between the shura, the chief justice and the prime minister takes place. However, if the amir al-Mu’minin dies and does not choose a successor, then the chief justice takes over as acting leader.
Thedoes not explicitly state who appoints the amir al-Mu’minin. But it does imply that the authority to appoint him rests with the shura, the chief justice and the prime minister. The one significant difference between the amir and the king under the 1998 and 1964 constitutions, respectively, is that leader of the faithful is accountable and equal before the law like any other citizen. Under the 1964 , the king was not accountable and was to be respected by all.
Chapter three of the Taliban’sdeals with the nature of the shura, the appointment of its members and its powers. Under the , would have a unicameral shura that has, inter alia, legislative power and the interpretation of the . Members of the shura are appointed by the amir al-Mu’minin for an indefinite duration. The amir would appoint three members from the first grade I provinces, a maximum of two from the grade II provinces and one from grade III provinces. (Based on criteria determined by the government, all provinces are given different grades and, according to these grades, they receive particular privileges and allocation of the national budget.)
The members of the shura would also have met the conditions set by the ahl al-hall wa’l ‘aqd, which refers to those qualified to elect or depose a caliph on behalf of the Muslim community under Sunni Islam. Thedoes not specify a method for the appointment of this group of people. Hence, this process remains open to arbitrariness and biased selection of pro-establishment individuals of dubious credibility and competence.
The amir al-Mu’minin also appoints the speaker of the shura from amongst existing members, but thedoes not address the appointment of the deputy and secretary of the shura. The shura has the power to ratify, modify or abrogate laws. However, the procedure of enacting laws and abrogation of laws and how the shura will engage with stakeholders is not specified. The shura also has the power, inter alia, to oversee the actions of the government, make decisions on contentious issues, approve the state budget, ratify international treaties and agreements (together with the supreme court and the council of ministers), approve loans and grants, adopt government policies, and elucidate and question the government.
The Taliban’sdoes not give immunity to members of the shura in case they commit a crime. Article 51 states that if a member of the shura is accused of an offense, the official responsible shall communicate the matter to the speaker. The legal proceedings against the accused would be initiated only when the speaker allows it. In the case of a witnessed crime, the official responsible can start legal proceedings and arrest a member without seeking permission from the speaker.
The prime minister and other ministers who lead the government are the highest executive and administrative authority under the Taliban’s. Appointees to the position of prime minister must meet specific criteria. This includes being a Muslim, a follower of the Hanafi madhab and born to Muslim parents. The prime minister represents the government (executive) and he chairs the council of ministers. The prime minister can delegate his powers to other ministers, sign contracts and agreements at the government level, organize and oversee the affairs of ministries, and appoint, promote, retire and dismiss government officials.
The government under the Taliban’s model is in charge of the country’s domestic and foreign policies, regulates the performance of ministries and independent authorities, takes necessary measures in executive and administrative matters, drafts government-related laws and regulations, drafts and amends the annual budget, supervises banking affairs, ensures public security in the country and approves external expertise recruitment. The prime minister can also propose removing ministers to the amir al-Mu’minin, but they can only be removed if the head of state gives his approval.
Articles 70 to 82 of the Taliban’scontain detailed provisions on the courts and the status and independence of the judiciary. The establishes the judiciary as an independent organ of the state. The only court established under the is the supreme court, while the number of other courts and their jurisdiction is determined by law. The jurisdiction of the courts to hear cases brought before them is exclusive and, as per the , “under no circumstances shall a law exclude from the jurisdiction of the judiciary, as defined in this title, a case or sphere, and assign it other authorities.”
The amir al-Mu’minin appoints judges on the recommendation of the chief justice. The number and qualifications of the supreme court judges are not determined. But for the appointment of the chief justice, an ambiguous criterion of “full competence,” or Ahliat-e-Kamil, has been laid down. The deputies and justices of the Supreme Court are also appointed by the amir al-Mu’minin on the recommendation of the chief justice of the supreme court, taking into account the criteria of religion, piety, sufficient knowledge of jurisprudence, the judicial and legal system of the country.
Under the 1964, the king could appoint judges and review their position after 10 years, but he was not permitted to remove officials from their office through other means. The Taliban’s , on the other hand, does not state the terms of tenure of supreme court judges, and the amir al-Mu’minin can remove judges from their offices.
The power of the amir to remove judges and the appointment of judges for an undetermined period brings the judiciary’s independence into question. The supreme court under the Taliban’sno longer has the power to interpret the under judicial review. That power has been assigned to shura. Thus, the does not recognize the separation of power and enforce checks and balances.
According to the Taliban’s, the foreign policy of the Islamic Emirate is based on the teaching of Islam, human values, securing the public interest and political independence, territorial integrity, playing an effective and constructive role in international peace, and cooperating with the international community.
In principle, thesupports the UN Charter, the charter of the OIC, the Non-Aligned Movement, the Universal Declaration of Human Rights, and other internationally accepted principles and regulations, as long as they do not conflict with Islamic principles and national interests. The condemns the use of force against any country and calls for dispute settlement through peaceful means. It also supports the program of disarmament and the elimination of the weapon of mass destruction.
The Rights of Afghans
So, with all this in mind, what does themean for the people of ?
First, it is clear that under the Taliban’s, the public has no say in the decision-making process — neither in the form of voting, nor with holding government bodies to account. The denies the people their right to elect members to the shura, choose a prime minister, pick members of provincial assemblies or select governors, mayors and members of district assemblies since, according to , elections are considered un-Islamic.
Second, the selection of members of the shura by the amir al-Mu’minin opens the door for picking individuals who are close to the inner circle of, particularly Taliban members themselves. By introducing the strict and ambiguous conditions of Ahl al-hall wa’l ‘aqd for shura appointees and a clause for the amir and prime minister to be followers of the Hanafi madhab of Sunni Islam, women and religious minorities such as Shia Muslims are excluded from positions of power and the decision-making process. Such provisions also contradict other clauses of the Taliban’s , including the one that provides for equality before the law and prohibits all forms of discrimination.
Third, the Taliban’sguarantees certain fundamental rights with limitations. This, in principle, includes freedom of speech, the right to a free and fair trial, liberty, human dignity, right to property, right to assemble unarmed and inviolability of person’s residence. It also provides for certain social rights, including the chance to receive free education. Most importantly, however, it leaves the regulation of women’s education to a specific law, which limits their right to education.
Prime Minister Mulla Hasan Akhund also confirmed such limitations in his first speech, where he indicated that only sharia education is compulsory and that women could seek knowledge in other fields if necessary. Thus, it can be inferred from his speech and theclause that the government will determine and specify faculties where women can take enroll and which think are necessary for women. This provision itself contradicts other clauses of the .
Finally, regarding the rights of children, women and minorities, the Taliban’sdoes not specifically guarantee their protection. However, all citizens are provided with general protection, which includes children, women and minorities.
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
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