Editor in Chief: Moh. Reza Huwaida Tuesday, April 13th, 2021

The Ups and Downs of Afghan Constitution


rotection of Afghanistan’s Constitution, which, after passing historical ups and downs was approved based on democratic values and international principles in the post-Taliban administration, is a red-line for the people of Afghanistan and for the government at the negotiating table.To view shortly the past regimes in Afghanistan, tribal code of conduct and patriarchal system held strong sway. During the regime of Emir Abdul Rahman Khan, Pashtunwali, a non-written code of conduct and traditional lifestyle which was followed by indigenous Pashtun people, ruled Afghanistan. Women were discriminated on the grounds of their gender based on Pashtunwali. Their rights and freedoms were restricted on a large scale.Nonetheless, Habibullah Khan (1901 – 1919), who succeeded his father Emir Abdul Rahman, adopted somehow moderate approach and restricted the number of wives to four based on Islamic Sharia.His son, King Amanullah Khan (1919 – 1929), however, sought to modernize Afghanistan. The first Constitution of Afghanistan was endorsed during Amanullah’s monarchy. In this constitution, men and women were considered as equals and sexual discrimination had no room in it. That is, all Afghans, regardless of their gender and beliefs, were called citizens. The constitution was, however, in conflict with tribal code of conduct, cultural values of a traditional society like Afghanistan, and religious comprehension of some reactionaries. Therefore, it triggered an uprising and his successor, Habibullah Kalakani, outlawed the constitution with the support of tribal leaders and some reactionaries. Worst, Amanullah was excommunicated by a declaration signed by a number of tribal elders and clerics.Nadir Shah (1929 – 1934), who ousted Kalakani, adopted more traditional approach towards women’s rights and freedoms. Similar to Kalakani, he stood against Amanullah’s modern movement and outlawed Amanullah’s Constitution. Wearing burqa, a head-to-toe covering, was imperative for women during Nadir’s regime.After Nadir’s death, his 19-year-old son Zahir Shah succeeded him and ruled Afghanistan from 1933 to 1973. However, his uncles Hashim Khan and Shah Mahmood and his cousin Daud Khan were the main players and ran his monarchy as prime ministers for three decades. Hashim Khan continued the same restrictive, repressive and traditional system. However, Shah Mahmood was a moderate prime minister (1946-1953) and sanctioned free elections and a relatively free press, and the so-called “liberal parliament” functioned from 1949 to 1952. Therefore, he was dubbed as “the father of democracy”.Prime Minister Daud Khan (1953-1963) introduced several far-reaching educational and social reforms, such as allowing women to wear the veil voluntarily and abolished purdah (the practice of secluding women from public view). The regime still remained politically repressive and tolerated no direct opposition.The last decade of Zahir Shah’s monarchy was dubbed as “the decade of democracy” or “the decade of constitution” for the approval of Constitution based on more democratic principles. Zahir Shah also sanctioned free parliamentary election – in which four women were elected as MPs for the first time and two women were selected as Senators by the King. The greatest achievement of the 1963-73 decade was the promulgation of the 1964 Constitution. It was stated in this Constitution that every Afghan had equal rights and duties before the law. The Constitution also barred the royal family, other than the king, from participating in politics and government – a provision that was perceived as keeping Daud Khan out of politics. This Constitution put great impact on Afghanistan’s current Constitution.The Soviet-backed communist regimes also endorsed and supported democratic but secular Constitution and advocated the rights and freedoms of women and the Universal Declaration of Human Rights (UDHR).Nevertheless, women’s rights and freedoms were restricted during Mujahedeen’s government, which was a serious political backtrack in Afghanistan’s history.Worst of all, a combination of Pashtunwali and Sharia Law in conjunction with the Taliban’s extreme interpretation of Deobandi, Salafi and Wahabi Islam were put to practice during the Taliban’s regime. The Taliban deprived women of their basic human rights and freedoms. Women were restricted within the four walls and in case of going out, they had to wear burqa and accompanied with their male chaperones – this dealt a strong blow to all democratic achievements and the progress made regarding the rights and freedoms of women. Following the downfall of the Taliban’s regime, it was agreed in the Bonn Conference, held on 5 December 2001, that a constitutional Loya Jirga (Grand National Assembly) had to be convened within 18 months to adopt a new Constitution which is being practiced now. The Constitution is based on democratic principles, UN Charter and the UDHR. With the approval of this Constitution, which entitles men and women equally, Afghan women participated in all social, economic and political segments of the government and made great strides.It should be noted that the current democratic constitution was not endorsed overnight and is not necessarily the product of a conference in Bonn. It is the fruit of Afghans’ decades of sacrifices. Hence, it will not be acceptable to Afghan people to gamble this Constitution at the negotiating table. The democratic principles, human rights and freedoms, mainly women’s rights, are not to be bargained for. It is said the Taliban again seek to impose their radical mindset on Constitution, which will mostly likely restrict women’s participation in social and political activities. In short, the constitution should not be compromised at the negotiating table.