January 2014 marks the tenth anniversary of the current constitution of Afghanistan. Issues have arisen since then over textual ambiguities in the constitution as well as the locus of authority that can address and clarify them. Ambiguities are not unexpected with a new constitution.
The question is whether the constitution itself, and the institution it creates, are able to resolve and clarify the ambiguities in the way that fortifies the constitution and the rule of law.
Following the publication of the paper, Dr Kamali gave an interview expanding on his analysis and reflections. An edited extract of the interview can be found at (http://www.usip.org/olivebranch/afghanistans-prospective-unity-government-test-the-constitution). The full length transcript of the interview will be included in a forthcoming revised version of this paper.
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Also available in: Dari and Pashto.
This article advances an enquiry into President Hamid Karzai’s (r. 2001-2014) constitutional legacy with special reference to relations between the executive and legislature during his presidency. Before engaging in that enquiry, a brief account is given in the introduction of the developments during the months following Karzai’s exit from office. What happened during this period tends to accentuate the unresolved issues of Karzai’s presidency and put Afghanistan’s commitment to constitutionalism to the test. The events of the past six months also point to the need for clarity regarding the status of constitutional interpretation and judicial review, two necessary ingredients of constitutionalism that ensure the conformity of laws and government action with the constitution. Dysfunctional executive-legislature relations and ambiguities over matters of interpretation have often meant that disagreement over issues did not find prompt and effective solutions.
This article is structured with an introduction and six sections. The introduction takes a look, as already mentioned, at the developments after Karzai left office. The first section discusses the presidential system Afghanistan has adopted under the 2004 Constitution, and the succeeding two sections address constitutional interpretation and the question as to who has the power to interpret the Constitution. Sections four and five are devoted to a discussion of judicial review, and the conflict of jurisdiction over who has the power of judicial review in Afghanistan respectively. The
last section looks into the parliamentary powers with special reference to the use of the noconfidence vote by the Wolesi Jirga. This article concludes with a brief reflection back on the post-Karzai developments, the hitherto unmet challenges over constitutional issues Afghanistan is faced with, and the way forward toward solutions.
............ Download the full article in pdf attachment (below)
Available in three languages; 1. English 2. Dari, 3. Pashto
The plan for a “unity government” in Afghanistan that includes both of the top presidential candidates will test the integrity of the country’s constitution, according to a legal scholar who was chairman of the commission that conducted public consultations for the final 2004 constitution. USIP Program Officer Lillian Dang interviews Mohammad Hashim Kamali, an influential expert on Islam and legal issues and a United Nations advisor on constitutional reform................Read the full interview at: United States Institute of Peace
In recent months Kabul, Washington and the Taliban have made overtures to work out a negotiated settlement for Afghanistan and plan the impending exit of foreign
troops from the country. Yet those gestures have not been followed through and the prospects are not getting any better – as the spate of recent violent episodes and perverted behaviour of some US soldiers over the war dead have shown. Time is running out and any further episodes will exacerbate the tension that flared up with the Qur’ān burning, the March 2012 massacre of 17 civilians, and the most daring Taliban attack on 15 April 2012 of five locations in as many provinces........ Download the full article in pdf attachment (below)
The early version of this article appeared in The New Straits Times (Kuala Lumpur) on 02 May 2012.
This paper is presented in three parts and several sections. The first part consists of a stock-taking of recent developments and dynamics that have engaged President Hamid Karzai's governemnt ever since he came to power in December 2001. A mixed picture is presented which draws attention to many problems that have impeded reconstruction efforts in the country. Some positive developments have also occured including, for example, the introduction of a new constitution, presidential and parliamentary elections, as well as resumption of schooling for children that by mid-2006 had numbered four million throughout the country. An overview of the previous constitutions and a brief historical perspectives attempt to show how leadership flaws and internal differences in the royal household plunged Afghanistan into a succession of coups, foreign invasions, and catastrophic consequences for its people. Are there any lesson to be learnt? The second part of this essay focusses on a review and analysis of the 2004 constitutions with special reference to Islam, and the last part takes a similar approach to women's rights......... Download the full article in pdf attachment (below)
Mohammad Hashim Kamali. "References to Islam and Women in the Afghan Constitution." Arab Law Quarterly 22 (2008):270-306
"Constitutionalism and democracy are seen by many, especially Western powers, as the routes towards peace. But the journey is unlikely to be smooth the whole way, writes Mohammad Hashim Kamali."
Published in New Straits Times Monday 05 April 2010
"Confidence-building measures are needed now to put fresh impetus in the stalling peace talks. This may involve a clear indication of interest, especially by the Americans, in peace negotiations. Further clarification over the military bases is also needed as the assumption would hold otherwise that the US is planning a long-term stay in Afghanistan, which is seen as a recipe for continuation of conflict."
By Mohammad Hashim Kamali
New Straits Times
02 May 2012
The security and economic situation in Aghanistan is now so untenable that only a radical rethink of American military policy and exit statergy towards the country can yeild results, writes Mohammad Hashim Kamali.
This book is the revised version of Prof. Mohammad Hashim Kamali's doctoral dissertation "Matrimonial Problems of Islamic Law in Contemporary Afghanistan" which he completed at London University in 1976.
"Reference to Islam and Women in Afghan Constitution," Arab Law Quarterly, 22 (2008), 270-306.
"Islam and its Shari'a in the Afghan Constitution 2004 with Special Reference to Personal law," edited by Nadjam Yassari, The Shari'a in the Constitution of Afghanistan, Iran and Egypt - Implications for Private Law, Tubingen: Mohr Sieback, 2005, 23-43.
"Islam in the Constitutions of Afghanistan," Bayan Journal (Kabul) vol. 6, no. 1 (July 2003), 1-15.
"Islam , Iconography and the Taloban," published in German translition in Berliner Zeitung (full-page magazine section), 10/11 MArch 2001, p. 5. The English version was published by Islam 21 (London), August 2001.
*Leiden: E.J. Brill, 1985, pp 265.