Explanation: the Taliban plan to adopt parts of the 1964 constitution “temporarily”; what that could mean
The Taliban announced on Tuesday that they plan to temporarily adopt provisions of the 1964 Afghan constitution that do not conflict with Islamic law or Sharia law to rule the country. A Taliban spokesperson also announced that the group was drafting a new constitution that would be completed by 2022.
So far, the Taliban have not released any documents or policy statements that would indicate how they plan to rule. While this recent announcement may seem like progress, its caveats raise more questions than answers. By allowing the group to remove provisions from the constitution under the pretext of upholding Sharia law (which is very subjective), the Taliban are essentially saying that they will choose which parts of the constitution they adhere to.
In addition, the constitution allows justice and governance to be conducted in accordance with the law, which is drafted by various organs of the state. While the law itself is prohibitive or exclusive, the constitution provides few mechanisms for citizens to voice their grievances. Finally, since the Taliban took Kabul earlier this year, there has been a significant disconnect between what they said they were doing and what they actually did.
What is the 1964 constitution?
Afghanistan has had four constitutions since it became a sovereign nation in 1747. The first was written in the 1890s, which established a system of centralized monarchy across the country. In 1923, a second constitution was drafted which established the king as the main sovereign authority, Islam as the state religion and sharia as the basis of the judicial system. In 1963, during the reign of King Zahir Shah, Afghanistan drafted its most ambitious constitution, which came into effect in 1964.
The 1964 constitution aimed to make Afghanistan a democratic transition and catalyze socio-economic modernization. Some of the most notable elements of the constitution were the creation of two houses of parliament, of which the lower house would be elected by universal suffrage. He also ruled that laws enacted by parliament would replace Sharia law – a provision the Taliban later overturned. The constitution lasted for eight years until Zahir Shah was overthrown, and despite his lofty ambitions, was widely viewed as a political failure. The cabinet and the legislature were constantly at an impasse and unable to pass meaningful legislation.
In 2004, after the NATO invasion of Afghanistan, a new constitution was adopted that contemplates a presidency and enshrines equal rights for women. However, by creating an overly centralized system of governance, the 2004 constitution was seen as a high-level document, dominated by the values of the West and the educated elite of Kabul. The Taliban overwhelmingly rejected this constitution as an illegal entity and a product of US imperialism.
Provisions of the 1964 constitution
About the state
Non-Muslim citizens are free to perform their rituals within the limits determined by the laws for public decency and public peace.
At first glance, this provision allows freedom of religion, however, because it specifies that religion can be practiced “within the limits determined by law”, it is subject to interpretation by the Taliban. Under Sharia law, the Taliban can presumably ban any public expression of religion that does not correspond to Islamic values. The group recently indicated that it would respect the rights of Sikhs and other religious minorities residing in Afghanistan, but during their rule between 1996 and 2001, religious minorities were regularly persecuted and symbols of other religions such as the Bamiyan Buddhas. were destroyed.
On the king
Presumably, the Taliban will replace the powers of the king with the powers of the acting Prime Minister, Mohammad Akhund or the Supreme Leader, Haibatullah Akhundzada. The latter is more likely to be vested with the powers conferred on the king in the 1964 constitution, as it specifies the prime minister as a separate entity.
The King is not responsible and must be respected by all
Upon the king’s abdication or death, the throne will pass to his eldest son. If the king’s eldest son does not meet the qualifications set out in this Constitution, the throne will pass to his second son and so on.
As expected, the “king” is devoid of responsibility and shielded from all scrutiny. While inconsistent with the ideals of a progressive democracy, it is not uncommon in autocracies or illiberal democracies.
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The Taliban have experienced several internal power struggles, most notably when Mullah Yaqoob, the current defense minister, fought unsuccessfully for the post of supreme commander in 2016. While the Taliban establishes a hereditary leadership system, Yaqoob , as the son of the founder of the Taliban, Mullah Omar, will have an even stronger claim to power. This in turn would sideline other leadership contenders like Sirajuddin Haqqani and Mullah Baradar in the name of continuity.
As not much is known about Supreme Leader Akhunzada, it is not known if he has any children who will be vying for the throne. In the past, people with close ties to Mullah Omar have held leadership positions, but the group did not follow a traditional system of primogeniture.
On the fundamental rights and duties of the people
The Afghan people, without any discrimination or preference, have the same rights and obligations before the law.
Although the Taliban have said they will be open to women in government, unfortunately their cabinet does not include women. Likewise, while the group said it respects women’s right to education, recent reports indicate that women have been excluded from Kabul University because, according to the Taliban, conditions are not yet conducive to that they study there. During their last tenure in power, women, Tajiks and other non-Pashtun groups were openly discriminated against, and there is little evidence that things will be any different this time around.
No one can be punished except by order of a competent court issued at the end of a public trial held in the presence of the accused.
No Afghan accused of a crime can be extradited to a foreign state.
While the original constitution provided for legislative laws to replace sharia, the Taliban made it clear that their interpretation of sharia would prevail over everything else.
The second provision is more likely to be adopted because several members of the Taliban, including their senior leaders, are wanted for various crimes, including terrorism charges from the West. This arrangement may pose diplomatic problems for the group, but given that most countries have been willing to speak to them despite their links to terrorism, this is unlikely to be a major obstacle. for them.
Freedom of thought and expression is inviolable. Every Afghan has the right to express his thoughts through speech, writing, pictures and other means, in accordance with the provisions of the law. Every Afghan has the right to print and publish ideas in accordance with the law, without prior submission to state authorities.
Education is the right of every Afghan and should be provided free of charge by the Afghan state and citizens.
As mentioned earlier, freedom of speech and the right to education are two issues on which the Taliban has said it will take a more moderate stance. However, they argue that speech should not threaten state security and that education is only allowed under certain conditions.
On the Shura and the government:
The 1964 constitution provides for the formation of two legislative chambers. One is the House of the People which is elected directly, such as the Lok Sabha, and the other is the House of Elders, whose members are appointed indirectly, such as the Rajya Sabha. The constitution also mentions how the Chambers should interact with the Prime Minister and his Cabinet and how they should be accountable to the people.
The Shura (Parliament) in Afghanistan manifests the will of the people and represents the whole nation.
Members of the Wolesi Jirgah (House of the People) are elected by the Afghan people in free, universal, secret and direct elections, in accordance with the provisions of the law.
The prime minister and ministers are collectively responsible to the Wolesi Jirgah (House of the People) for general government policy and individually for their prescribed functions.
In this regard, the Taliban have indicated that they will be open to free elections. In an interview with VOA, Suhail Shaheen, a spokesman for the Taliban, said the issue would be determined by a future constitution.
“About election or no election, let’s wait,” Shaheen said. “We have a constitution in the future, so we would have deliberations about it in the future, about when we write the constitution, so it would show up then, not now.”
Once again, it is unclear whether the Taliban will keep their first promises and to what extent they will allow free elections. As with the rest of the constitution, these provisions should be taken with a grain of salt. The Taliban have left much room for interpretation based on Sharia law and have emphasized that the 1964 constitution is only temporary. They also committed human rights violations during their short period in power, while openly denying any such existence.