>> Tariq Ahmad: Hello, I
want to welcome everyone
to today's webinar,
which is entitled,
"Afghanistan's Legal
Order in Transition:
The Possible Path Forward in
an Uncertain Environment".
This webinar will
explore the implication
of the Taliban's return to power
for Afghanistan's
constitutional and legal system.
Before we get started, just a
couple of housekeeping items.
Please, if you can
submit questions
through the Q&A feature.
To use this feature, click
the Q&A button at the bottom
of your Zoom window, and
if you have any trouble
with the computer audio, you can
use a calling feature as well.
Also, please note that this
webinar is being recorded.
My name is Tariq Ahmad, and I'm
a form law specialist here at --
that covers South Asia here at
the Law Library of Congress.
Today I'm very excited and happy
to welcome Dr. Shamshad
Pasarlay as our guest speaker.
Shamshad is a visiting
lecturer at the University
of Chicago Law School,
and his research
and scholarly interests focus
on comparative constitutional
studies
of Afghanistan's constitutional
history, judicial politics,
religion, and constitution
making.
Shamshad has also been
a tremendous assistance
to the Law Library in the past,
for research projects
as a consultant.
So we're very grateful for
having him as a guest speaker
in our webinar series.
He plans to speak for about
40, 45 minutes, and will leave
around 15 to 20 minutes
for questions.
So with that, let me
pass it on to Shamshad.
>> Dr. Shamshad Pasarlay:
Thank you very much, Tariq.
And it's a pleasure to
once again be here, though,
virtually in doing
this presentation
for the Library of Congress.
[clears throat] Excuse me.
In today's talk and presentation
I will discuss what the Taliban
since returning to
power has done in terms
of particularly the legal
order of the country,
and what they have not done, and
what that could tell us in terms
of the future trajectory
of the Afghan legal,
and more specifically,
constitutional order.
I will try to finish even
before the 45 minutes mark
to give some space for
questions and a discussion.
With that, since we returning
to work in the last summer,
the Taliban has done
certain things.
They were quick to establish
an interim executive branch,
and fill it with their own
representatives or people
from their own rank and file,
in what seemed to be a division
of spoils, if you will.
They also were very quick
and did not waste any time
in restaffing the
judiciary, the Afghan courts.
This second action is
understandable, and it seems
to be a continuation
of the Taliban's focus
on the judiciary.
There has been a lot
of scholarship in terms
of the Taliban's
makeshift or shadow courts
and what role they
played, both in terms
of rivaling the late
Islamic Republic's judiciary,
as well as in enforcing the
Taliban's brand of Islam.
So the focus today
on the judiciary
that they immediately restaffed
and created, appointed justices
of the Supreme Court, and
also replaced a lot of judges
of trial and appellate courts
throughout Afghanistan is I
think telling.
Because the people that
they have appointed
to these judiciary
organizations --
to these courts were
all it seemed --
based on the electoral
reading of their names,
it seemed that they
were versed in --
apparently in the Hanafi Fiqh.
Now, one has to dig deeper
into the educational background
of all those -- at least
the represented model
of those judges to
say with confidence
where they were trained and
what made -- what they may do.
But it seems that the Taliban's
focus on the judiciary is
to promote their brand of Hanafi
Fiqh, or their interpretation
of Hanafi Fiqh; Hanafi
Fiqh being Islamic law,
developed by scholars over the
centuries who were associated
with the Hanafi school.
So this is what the
Taliban has done.
Now, what they have not done
-- at least with the same force
and speed that they -- the same
attention that they have given
to the judiciary is
to the legal system.
They have been over the past
like almost ten years now --
sorry, ten months now, they have
been a little less enthusiastic
about drafting laws
or passing laws,
the Constitution a
different question in itself.
We do have some degrees -- some
[inaudible] and some orders
that come from the address
of the Amir [phonetic],
the Amir [inaudible]
or the Taliban leader,
and also certain edicts from
the newly established Department
of Vice and Virtue, for the
ministry for the promotion
of good and the forbidding
of evil.
So then the question here is,
"What is the legal status,
or what is the status for the
validity of the laws that exist?
Are they still valid?
Are they not valid?
Are these laws that were --
most of them were drafted in
the late Islamic Republic,
under the terms of
the 2004 Constitution,
to some extent are
applicable or not?"
I draw here on some of
the laws and decrees
that the Taliban
adopted in the mid 1990s
when they first ruled
Afghanistan.
So in 1996 when the Taliban
took control of Kabul,
one of the first
things that Amir,
then Mullah Muhammad Omar
did was to issue this decree
that I have cited here.
Which said, "All those laws
and regulations and charters
of the former governments -- "
not only the former government,
but the former regimes, "that
are repugnant to Islamic Sharia
and the Hanafi Fiqh
will be invalid."
Or in other words, they
will be valid so long
as they do not contradict with
the Sharia and the Hanafi Fiqh.
And for that, they did create
some sort of a committee
of [inaudible], one of the
leading authors on the Taliban.
[Inaudible], one of
the leading authors
on the Taliban has written
on the Taliban reports
that the Taliban's attorney
general, it was from him
that they created a committee
that was tasked in their term
to Islamize the laws
of Afghanistan.
Of course that is a long
process; it needs a long time.
And before that process
was complete,
the Taliban government fell.
So it didn't, it seems to me
-- although they have not --
the Taliban has not had this
type of a decree that they did
in the -- in 1996, to say
what is the applicable law
in the country and the
courts will adopt those laws.
But they do seem to have
revived some of the laws
from the Taliban's first rule in
the 1990s, and then the other is
that they are currently as
we speak reviewing the laws
of the late Islamic Republic
to ascertain or to scrutinize
which are consistent with the
Hanafi Fiqh and which are not.
So apparently there
are two committees
as we speak, that operate.
One is a committee that
is tasked with the review
of all laws of the
previous government,
to make sure they do not
contain even a single provision
or an article that
is inconsistent,
not only with the
Sharia I must stress,
but also with the rulings
of the Hanafi Fiqh.
That is one of the
committees established.
The second committee is mostly
-- is a committee that is tasked
to review or study the
Taliban's laws that -- when --
from their first
rule in the 1990s.
So both seem to be
staffed with --
again, I will be cautious
here to discuss the expertise
of the committee members, but
their names are like "Shay",
or "Mullah", or "[inaudible]",
signaling some sort
of a religious schooling.
But again, my tentative
point here
in this religious schooling will
be that we really don't know
as of yet how much -- where they
are schooled and how much --
and what was their
expertise in terms
of the Islamic law
and the brand of it.
So the task of this committee
is of course to remove
from the statutes -- from
the existing statutes
that I'm talking about, statutes
that were drafted and rectified
under the late --
the Islamic Republic
in the 2004 Constitution
for the past two decades;
to remove that from --
Tariq, you may correct me
if I get it mistakenly.
This seems to be something that
the Council of Islamic Ideology
in Pakistan -- of course
with different formation
and different expertise --
so in Pakistan the Pakistani
Constitution discusses the idea
for a previous institution
called
"The Council of Islamic
Ideology".
And its task is to
advise the president --
the Parliament, either
House of --
the Parliament, the
provincial governors,
and provincial assemblies on
the consistency of draft laws,
I guess, that sort of an
abstract type of Islamic review;
the draft laws from -- to advise
them whether draft laws are
consistent with the injunctions
of Islam in the Sunnah,
is I think the Pakistani
Constitution's repugnancy
clause, which says, "No law can
be repugnant to the injunctions
of the Koran and the Sunnah."
So these committees are simply
to some extent like that.
But of course there's
a different combination
and formation in Pakistan
whether the Taliban's committee
is formed differently, again.
So the reason I say
that and I cite that is
for these two news
articles that could be found
at the Taliban's Ministry
of Justice website.
If you go look and dig deeper
into that ministry's website,
you'll find these news
articles that discuss these --
that text of committees.
So until these committees do
this review process and complete
and come up with their
recommendations or report
and findings, in terms of
what laws are consistent
with the Hanafi Fiqh -- not
only the Islamic Sharia,
but also the Hanafi Fiqh -- I
will go into the deep difference
between the two, then
I think it seems to me
that Hanafi Fiqh will be the
de facto law of the land.
Certain laws are -- it seems
that have also been kind
of reviewed on an ad hoc basis.
For example, last month I think
the Taliban minister of --
the spokesperson said that
they don't have any particular
problems with the law on the
-- on access to information.
By not having any -- I
think their terms were --
and the terms that they used was
it's not harmful or something.
It's -- the term was,
"[Foreign language]."
So it did not have any
kind of deficit -- defects.
So by that I think -- I would
interpret it as under --
according to them that may be
consistent with the Hanafi Fiqh
and the Sharia, so that law
on an ad hoc basis
will be applicable.
Again, of course I will
highlight and stress here
that what happens in practice is
an entirely different question.
And at the risk of
stating the obvious,
the official Taliban practice
and then what is written
in a law -- they do like to say
that the freedom of information,
the mass media law, is an
entirely different question
that I will not get into.
So this is the way that --
the legal development or
developments that relate
to the legal system as a whole.
So it doesn't seem
to be very different,
very radically different,
this entire idea of starting
from 2018 when the peace process
first started the Taliban has
changed rhetoric.
So that -- to me at
least, tentatively suggests
that that may not be the case.
And of course we now have
an advantage of hindsight
of at least close to a year
of [inaudible] of governance
for that entire thesis
of Taliban 2.0
or Taliban has changed.
I will not go into
details of that.
We can -- I think we can
discuss that question ourselves.
That is the legal aspect
of the developments.
Now I will come and
spend some time
on discussing the constitutional
development, and what type
of a constitution the
Taliban may be envisioning
for Afghanistan.
I would highlight one --
two points here before
I discuss the details
of the Taliban's constitutional
vision; is starting from the --
from 2018 -- and I
think it was June 2018
when the Taliban first
[inaudible] possible peace deal
with the US.
They -- from there
-- from that time
until today they have
been very ambiguous.
And I think that was --
that ambiguity in terms
of the constitutional order
was deliberate and some extent,
you know, strategic, and
we'll discuss why that may be.
I think one that is that the
Taliban still do not have a
clear vision of what sort
of a constitution they may
be installing in the country
or they should or may
install in the country.
The second I think
is the problem
that the internal fractions that
there seems to be now surfacing
and cracking up to the open
within the Taliban movement
about this entire idea
of a constitution.
I think there is still
some concerns whether --
in their turf, the
Taliban's turf, or truly --
quote, unquote, truly
Islamic society
or a purely Islamic government
-- again, quote, unquote,
will require constitution
or not.
But it seems that they have come
a little further away from that
and may be open to the
idea of a constitution,
as compared to the first
rule in the mid 1990s.
So in 1998, after taking
control of Kabul and kind
of reshaping the entire
structure of the government
to kind of remodel it based
on the structural government
under President [inaudible],
which was --
it's still to some extent build
up on the monarchy's
executive structure,
is so did the Taliban kind
of restructure their
executive branch?
And it's at this time that
they also contemplate and think
about the idea of
writing a constitution.
So in June 1998, the
Taliban Amir leader,
the Mullah Muhammad Omar,
Omar issues a decree --
a decree is the Decree
Number 18.
In it, it asks the Council of
Ulama, or the Council of Jurists
within the Taliban
Supreme Court --
the Taliban Supreme
Court had a council
that was called "Council
of Ulama".
To ask -- and they -- to some
extent still they kind of seemed
to have revived it again;
to ask them to kind of look
at previous constitutions
and remove
from the past constitutions as
any provision that goes against
or did not comply strictly to
the rulings of the Hanafi Fiqh
or to the Sharia, and
then based on that to come
with a recommendation or
suggestion for a constitution
that would be truly Islamic, or
in other words a constitution
that does not include a
single article that is
against the Sharia
or the Hanafi Fiqh.
And that Council of Ulama
steps in very quickly,
prepares a draft constitution,
like the [inaudible],
which is the -- a [foreign
language], or the [inaudible]
of charter of the Islamic
Emirate of Afghanistan.
Now, according to the
preamble of that document,
it seems that that document was
adopted in 1998 in that council,
larger Council of Ulama.
That may be correct because
there were some other
indications within other laws.
My colleague, Dr.
Muhammad Bashir [inaudible]
and I are doing a research
project where we look
at the Taliban -- at the laws of
the Taliban era, Taliban 1990s.
And there is a law,
apparently, which considers
about the constitutional
council.
It's called the -- it
was adopted by the --
was drafted by the
Islamic Council, they --
and then was signed and
ratified by the Amir.
The law is the law
of the constitutional
council, [inaudible].
And it seemed to be that
council was roughly a model
of a similar council,
a French style council
that existed [inaudible]
1987 Constitution
under President Najibullah.
So the council was kind
of modeled on that,
but exercised different powers
that were structured
differently.
So the law gave that council --
one of the powers given to that
council was abstract judicial
review, meaning that
it asks the council
to review the Constitution --
the compliance, if I kind
of verbatim translate
that off the top of my head.
Is that to review laws
and regulations that come
to the Amir for signature and
ratification, to make sure
that they do not
violate the Constitution,
so it saves the Constitution.
Now, of course it would be --
it's not like very strong
argument kind of extrapolated
from that point saying
that there may have
been a constitution
that if we combine the two --
and you could argue that the
Constitution was ratified
in 1998.
And then that council, of
course, had another power
which was the power of abstract
Islamic review to ensure also
that the state laws
were laws that are --
that will be passed
by the Taliban legislative
bodies do not contradict the
Islamic Sharia.
And when the Taliban
government fell,
this charter kind of disappears.
Again, I'm talking
about the 1998 charter.
And then in 2004 when
the 2004 Constitution
of Afghanistan is ratified,
then the Taliban kind of --
according to the preamble of
the charter, if one reads that,
it says that that
charter was then reissued
by the Taliban Leadership
Council based
in Qatar [phonetic].
So that was -- again,
that resurfaced in 2015.
Didn't anyone care
about that constitution,
the Taliban 2005 not relevant.
Of course the charter
disappeared
from the mainstream
discourse or media
and academy circles
and policy circles.
And then in 2011,
I guess, UNAMA,
the United Nations
Assistance Mission
in Afghanistan did
a comparative piece
on the Taliban 2005 charter --
and in 2005 meaning
the 1998 reissue
in the 2004 Constitution
of Afghanistan.
So they did a comparison of
their Islamic commitments,
how much -- to what
-- in what terms
and to what extent both
commit to Islam in the Sharia;
a separation of powers, and
then the comparison of the --
of human rights in the two.
But again, there were a couple
of articles discussing
that charter in 2014.
Again, and suddenly -- then
this charter just disappears
and suddenly all
of us journalists
and scholars observed these
policymakers then turn our
attention suddenly to the 2005
charter when this process began.
Because the idea then was that
the Taliban would be in one way
or another part of
the Afghan government.
Yet 2018/19 no one thought
that it would be the way
that we witnessed in -- on
August 15th or August last year.
But the idea was the
Taliban may become part
of the Afghan governments
that obviously had problems
with the 2004 Constitution.
And in particular in the
way that it was ratified,
calling it a foreign imposition,
or calling it the constitution
of the Kabul administration.
We will like to see -- to draft
a new constitution then we
started to discuss what type
that constitution will be.
And then in this height of
these based on the 2001 --
on that 2005 charter, then
another document appears.
And in 2020 total
new strands a piece
on a supposedly a
draft constitution
that the Taliban
may have prepared.
That I have put a
question mark on it
because the Taliban expressly --
the leaders at the same time
say this is not our product.
This is not what we did.
Okay, one could debate this,
whether that was [inaudible].
If you look at the
provisions or the norms written
in that constitution, you --
one could from merely looking
at it attribute it
to the Taliban.
But again, they say
it's not ours.
To make matters even more
confusing, particularly
since they came to power --
and now the question is the
1998/2005 charter is revived,
it doesn't seem like
it -- the 2020 charter,
it doesn't seem like it.
So what the Taliban does they
make statements here and there
in meetings with
the international --
representatives of the
international community,
about what type of a
constitution they want.
So sometimes they
say we will respect,
restore the 1964
Constitution of Afghanistan.
Again, I think to all of us
in this room I don't have
to highlight the
tensions that existed
when the laws were written
in the 1964 Constitution.
Then the way that the
Taliban has governed
in the past then will -- and is
currently governing Afghanistan.
So again, the tension
is just so visible.
And then ironically, again,
if you look at the next slide,
this is the Ministry
of Justice's --
Afghanistan's Ministry
of Justice
under the Taliban's website.
So if you look at it, then
it says the 2004 Constitution
of Afghanistan lists it as
a constitution enforced.
Again, yes, one it -- we don't
have to kind of read too much
into this simple post.
You go to the Ministry of
Justice and collect the laws --
to the collection of laws
and enforced constitution,
[inaudible] you will see
the 2004 Constitution there.
And then the acting foreign
minister I think in February
or March in a meeting
with the EU representative
for Afghanistan, did say
that the 2004 Constitution
will be respected.
Again, they make
these -- all these --
"We will respect their
1964 Constitution's norms.
We will respect the
2004 Constitution."
They do make a broader statement
that, "Okay, we will do so long
as their norms or values do
not contradict with the Sharia
under Islamic framework.
We will respect it
to that extent."
And then again, the question
is, "What does that mean?"
And it seems that only the
Taliban apparently knows what
does that mean; we don't.
But if you combine it with
the foreign minister's remarks
on saying that, "We will respect
the 2004 Constitution," --
again, I will stress here
that these types of statement
on a constitution usually
comes in the Taliban meetings
with some sort of foreign
government representatives.
The statement on the [inaudible]
statement the temporary
restoration of the 1964
Constitution, I think came
out of the blue and caught all
of -- everyone by surprise.
And it came in a meeting
with the Chinese ambassador.
And the statement on the
2004 Constitution came
with the EU ambassador
canceling a meeting with them.
So but again, if you look at it,
one can also think like, "Okay,
this was -- this
constitution was there
and then the Taliban have simply
forgotten that this is there.
But they have made a
lot of other changes
to the Ministry of
Justice's website.
But this -- they have not
-- they have put the --
they have changed the tricolor
flag and put their own flag
in it, the ministry
of justice --
and then the biography
of their own ministry
of justice [inaudible].
So this -- then one has to
kind of ask and question,
"What is the real deal?"
I think that why the
2004 Constitution --
as far as I know the Taliban has
not made any official statement
on the aggregation of
the 2004 Constitution.
And why that may not be, and
why is this Constitution still
in there?
So I think -- and I think I
highlight and just tentatively,
it could be like two or
three reasons for that.
One, in order of likelihoods,
first one; the first one is
that the Taliban never
considered the 2004 Constitution
as a legitimate constitution.
So one would wonder that by
not officially aggregating it,
the Taliban is simply avoiding
to dignify the Constitution.
They think maybe that this
is not a constitution at all,
and we will not dignify it
by an official revocation,
an official element.
That's one.
Second, they may aggregate it,
but once its alternative
[inaudible] is prepared;
is written.
So one common way of
constitutional annulments --
like the vocation or aggregation
of past constitutions
in [inaudible] there
have been many;
have been through other
written constitutions.
The final article or the
second -- my last article of --
a lot of Afghan constitutions
contain a clause
that they consider
the annulment clause,
which says that with the
enforcement or ratification
of this constitution --
whichever that could be,
the constitution of the
previous government, the regime,
or the constitution of
that era, is nullified,
is obsolete; aggregated.
The Taliban charter,
particularly the 1998 charter
itself contains an article
which says when this
Constitution or charter comes
into force, then the charter
of the previous governments,
all of them are aggregated
or nullified.
So it may be possible that they
will officially aggregate this
Constitution when the Taliban
writes its replacement.
And the third and less
likely explanation
or reason could be the
Taliban simply forgot
that this is listed there.
But again, if you look at the
news articles that they run
at the recourse that they
put online at the Ministry
of Justice's website, one good
thing that it might be unlikely
that they did not notice this.
So now for all practical reasons
I think we know the Taliban's
governance at this
point does not have the
constitutional founding.
By "constitutional founding"
I mean there is no written
constitution that could at least
direct how governance should
happen or occur.
It's definitely not the 1964
and the 2004 Constitution.
Again, I will avoid kind
of stating the obvious.
And the only institution,
by the way,
I thought that the Taliban may
not dissolve was the permission
that they dissolved couple
of days ago besides the
Human Rights Commission,
the Independent Commission
for the Supervision
of the Implementation
of the Constitution
that was established out
of the 2004 Constitution,
or the Constitutional
Oversight Commission.
I thought that may survive,
simply because it was closer
to resemble closely to some
extent the constitutional
council that the Taliban
had in, you know, the --
under their previous regime.
But again, I was wrong,
they dissolved it.
So they -- if not
this Constitution --
again, I will avoid
stating the obvious in terms
of a discrepancy or the distance
that we've seen doing the norms
of those constitutions and then
the actual Taliban governance is
then -- is widely and
blatantly visible.
So what is the real deal then?
First, I think based on what
I have done and followed
over the past year
or so in terms
of the Taliban's
constitutional order
or the preferred
constitutional vision, there --
I think there is no
written constitution
in the interim or otherwise.
Currently the Taliban
are governing
under what I consider
the real constitution,
the Taliban's real constitution.
And again, when I say
a "real constitution",
I do not use the
term "constitution"
in this liberal
constitutionalist sense;
meaning that it's
not a constitution
that will impose limits
on the powers of the Amir.
Rather, it is a constitution
that empowers the Amir,
empowers the Taliban
state, if there is one,
and in the government, and
gives it an immense degree
of discretionary power.
Because they think without
such a strong autocratic type
government, it will be
impossible for the Amir,
for the ruler and
for the government
to implement God's commands.
Or to create this
ideal Islamic society
that the Taliban
thinks has been --
you know, has been ordained
by God and they are put
on this mission to do it,
as was clear in the --
in their spokesperson's
remarks a couple of days ago.
So I think this real
Constitution can be gleaned
from both the written
sources and also
from unwritten constitutional
rules.
The written part of
this comes from --
a lot of this comes
from the laws
that the Taliban has
apparently revived.
And these are laws that the
Taliban ratified in the 1990s,
in the mid 1990s when they
first ruled Afghanistan.
One of the laws -- and there are
many examples; one of the laws
that seems to have been
revived and constitute part
of the Taliban's
unwritten constitution --
by "unwritten", I mean that
constitution is not collected
or written in one master text,
like the 2004 Constitution
or any -- many other written
constitutions around the world.
So if you look at the law
of the Council of Ministers
that was written in 1997, I
suppose that didn't define
or describe a type of
an executive branch
which had a prime minister,
several deputy prime ministers,
and numerous other ministers.
So the current structure,
the entity interim executive
branch seems to resemble --
seems to be structured
under this law.
And it's likely because
this is --
this seems tentatively able
to conclude that this is one
of the laws that they
have revived apparently.
The similar is the very feared
ministry of promoting good
and prohibiting evil,
or the Vice
and Virtue Ministry also seems
to be exercising its
mandate according to the law.
There was a law called the
"Duties of the Ministries
of the Islamic Emirate
of Afghanistan" --
it was also ratified --
passed, let's say, in 1997,
which described the
organization,
the responsibilities
and authorities of all
of the ministries in the --
and like the Ministry
of the Interior,
Foreign Affairs,
and all of this.
And if you look closely at the
Vice and Virtue departments,
the ministry's functions
and organization it seems
that they operate
under this law.
And the unwritten part --
uncodified part of this
unwritten Constitution
or this real Constitution
seems to be some of the rules
that concern the way -- the
powers, responsibilities,
and the method of -- the
election of the Amir,
meaning the Taliban head of
state; so how he may be elected.
And that seems to be based on
Taliban's written statements,
and to some extent is
reflected in the 2020 --
to 2020 charter as well that
the Amir will be reelected
by a council who was called the
"Ahli Halwa [phonetic] Act",
or the "Council of the
Learned Ones", or the council
that Clark Lombardi and
my former supervisor --
and Andrew Marsh has done
this wonderful piece for USIP
that they call this --
council is called the "Council
that Loose and Bind" [phonetic].
So these are a big group
of learned individuals
who will elect the Amir.
And then it seems that
who will elect the Council
of Ahli Halwa Act -- it
seems that there's no method
for its election, and they
didn't want people to elect.
In the other parts of these
unwritten, uncodified,
I would say, kind of
constitutional norms
or the powers to the Amir.
So the Amir is remarkably
autocratic;
exercises a lot of powers.
It seems to me there is
no meaningful constraints
on the powers of the
Amir at this point.
But I think theory
one could suspect
that over time maybe
some sort of limits
or constraints rooted
deeply in Islamic theory,
in political theory could
emerge and may become part
of this unwritten constitution,
or may be codified
in a written one.
But as things stand today, this
doesn't seem to be the case.
So the Amir is autocratic,
is -- command is absolute;
no one can disobey him.
And those who disobey him
then the state is responsible
to prosecute them.
And what is the law under this
unwritten constitutional order?
It seems that the Hanafi Fiqh
is basically the de facto law
of the land.
It is because there is this
one other quote that I have
from the law on the right
side of the screen --
at least on my right
side of the screen,
where that this is a law called
the "legislative procedure law".
And it says that all
institutions, the ministries
or the ministry of
Justices, even the --
that those bodies that can
propose or draft legislation
or draft laws shall first
look at the Hanafi Fiqh,
and then the Islamic Sharia,
and then after that look
to other competitive examples
in writing a legislation.
So this will be written
in accordance
where no law shall be
repugnant to the basics --
to the Islamic Sharia, and to
the rulings of the Hanafi Fiqh.
So another law that I did
not report here on kind
of the side here was -- it
was a decree by the Amir,
Mullah Muhammad Omar, at that
time 1990s that said all --
when the courts make a decision
based on that that type of law
and Islamic legal
opinion roughly.
And that that law is
rooted in the Hanafi Fiqh
that no one has the right to
oppose the court's decision.
And this is, again, in shoulder
to shoulder with other norms,
other laws that are basically
either the codification
of the Hanafi Fiqh or is
[inaudible] or is kind
of scrutinized for consistency
with Islamic -- with
the Hanafi Fiqh.
So it seems like
Hanafi scholars,
like those who are apparently --
again, we don't have a lot in
this respect to say anything
with confidence,
that the laws that --
that the people who seem to
make these laws for compliance
with the Hanafi Fiqh seem
to be Hanafi scholars.
Their task is to
kind of recommend
and suggest whether a
particular law is in line
with the Hanafi Fiqh or not.
The Amir, the Taliban Amir kind
of has the final say on it.
He is apparently the final judge
of the state laws' compliance
with the Hanafi Fiqh.
I will conclude by first saying
these final remarks, but if --
and it seems likely if the
Taliban writes a constitution,
it seems that they will,
but when we don't know,
it may look like a lot
like this unwritten --
and some of the norms -- some
of the principles, if you will,
of this unwritten constitution
that I've kind of sketched here,
it will codify these rules.
It will be hard to
see the doing --
the writing of the constitution
as markedly different
than this unwritten one.
Tariq, I will stop here.
If you have or the
participants --
I already see some
text in the Q&A.
I'll be happy to discuss.
>> Tariq Ahmad: Thank
you so much.
That was an excellent
presentation.
We have about 15 minutes; 15
to 20 minutes for questions.
I think I'll start it off.
So we've -- you've kind
of made a reference to it
in your presentation,
and we've seen
that the Taliban has been
unwilling to provide a lot
of details and has
been fairly ambiguous
about their constitutional
vision
and their plans for governance.
And you've kind of briefly
mentioned this and I wanted
to get more from you about this.
Does this kind of
reflect internal debates
and factionalism regarding
this vision, and whether --
to what extent are there debates
over retaining certain liberal
and democratic elements
from past constitutions
like the 2004 Constitution?
>> Dr. Shamshad Pasarlay:
Thank you, Tariq.
Let's take the second
part of the question first
because I think that's an
easier one to respond to.
I will doubt that if they
were, you know, liberal --
I don't know how to frame
this, "liberal elements",
but let's say elements that
are more right, friendly,
and create a system that is --
that has an elaborate form
of checks and balances
and that is responsive
to fundamental rights.
I would doubt that they will
retain any such elements of it.
To me it will look like an
entirely different constitution,
at least compared to the written
constitutions of Afghanistan.
So in my work previously
I've argued
that Afghanistan did have
an unwritten constitution
until 1933 when [inaudible]
wrote the first written
constitution of Afghanistan.
So I would think that the
Taliban's constitutional
imagination -- and just looking
at the documents that I cited,
it might look a remarkably
different constitutional order.
Some would -- could
argue that it could be --
closely resemble the
[inaudible] draft constitution.
[Inaudible] when they were kind
of ruling Afghanistan
before the Taliban's rise
in the 1990s during a civil
war, they wrote a constitution
that looked very differently
from the past Afghan
Constitution.
Now, some may argue that
that is not so different
because the 1931 Constitution
of Afghanistan had [inaudible],
but that, I would argue, is very
democratic and a different --
entirely different context.
And we could discuss
that at the chance.
But that may look somehow
like this, but not --
I would not see if any --
let's say, quote, unquote,
"liberal elements" of the 2004
Constitution will be retained.
And on the terms of
factionalism or the division
within the Taliban, I
see already there --
there are some --
were journalistic pieces at
least highlighting the tracks
that seem to be opening in that
like very -- like fairly --
the most eye-catching past.
And a part of this entire
Taliban's return was
when [inaudible]
kind of disappeared
from the public scene
and seemed to be --
to have retreated to Kandahar.
And there were reports
that they had some rifts
with the [foreign language].
So there seems to
be some tension.
But again, we don't know a lot
about what these
tensions are really about.
Is it on power sharing?
Is it on women's rights?
Let's put it that way.
Is it on -- or is it
on the constitutional
vision of the Taliban?
So there seems to
be some factions,
some cracks in the movement.
But it is -- at this point it
is unclear what these kinds
of divisions that are
slowly, slowly surfacing.
By the way, the Taliban
did a great job in keeping
that secret, if there
were any disagreements
within the movement.
[Inaudible] like other movements
in Afghanistan you see they are
united against a certain party
and then once that
party disappears,
then the internal
cracks begin to go open.
But again, I think we will
have to see more, you know,
on that to really know
what these divisions
and disagreements are about.
So to -- in short, there
seems to be disagreements,
there seems to be divisions,
but it's not clear, as of yet,
what they are about; is it about
power sharing or who gets what,
and then -- or the border?
I mean, it's our -- I would say
that Mullah Hibatullah
Ahun [phonetic],
the current Taliban Amir -- who
by the way has not been seen
in public, I don't know if
he has the same position
and the same charisma
that Mullah Omar had.
I would doubt it, but
there are certainly other
like even individuals that have
kind of come through the ranks
of the Taliban but might
want something to say.
So yes, there is
factions whether --
how much that is related
to a constitutional order.
I think it's a little
hard to say at this point.
>> Tariq Ahmad: Thank
you so much.
There's one question, and I
think you've already touched
on it, but the question is,
"Will the Taliban be able
to form a legal system
that guarantees the rights
of all citizens of the country?"
So I think you've touched
on that a little bit.
Let's see --
>> Dr. Shamshad Pasarlay: Yes.
Again, I think if we look at
the evidence that has been given
to us from the 1990s
-- well let's say --
let's just accept the
state of exception argument
when the Taliban respected
rights a lot, women's rights,
minority rights; a lot.
And the argument was, "We
are in a state of war.
So let's do that and then
look at the rights and come
to a certain question."
But based on the past year, I
think we have seen, you know,
with some of the
decrees that are coming,
and then the very recent one on
how women should appear on TV.
So I would not be very
optimistic in that sense
that creating a legal
system that is respective
of fundamental rights or
equal rights for all citizens.
There's really an ethnic aspect
of that conflict who gets what;
see complaints that the
state institutions are filled
with a particular ethnic group.
Newspapers are being banned.
So it's just getting --
it's very hard to imagine that
it's legal system like that --
or at least in the short
term could be foraged.
>> Tariq Ahmad: Okay,
another question we have is,
"Do you think the Taliban
takes codification seriously?
That is, does Taliban think
reducing their constitutional
order or broader injunction
to a fixed rigid document
desirable; necessary?"
I think the answer
is no, but would love
to hear your thoughts.
>> Dr. Shamshad Pasarlay: Yes.
I think most -- well I
still myself wondered
when I was doing some -- when I
writing my doctoral dissertation
on what the constitutional
history of Afghanistan
and looked at the Taliban
and could not find any
until I got my hands on
the 2005 or 1988 charter.
It seemed that the
argument then was,
"We don't need the
written constitution,"
because the Sharia
-- if we're honest,
all the constitution we need.
That is the constitution;
the fixed constitution.
We don't need another one.
Part of that I think
was the problem was
with the name of
the constitution.
Can you have something
other than the [inaudible]
or Sharia law and call
it a constitution?
So if a constitution --
if I'm not like an expert
of the English language,
which comes from "constitute".
And what constitutions do, they
usually constitute a state,
Constitute a nation,
or something.
But if you translate that into
our native Afghan languages
or [foreign language], the
two languages that I know,
it's called like [foreign
language], or something
like a fundamental
law, or a basic law,
like the German basic law,
that was a part of the problem.
You cannot put something --
elevate a human made product
that -- should we call [foreign
language], this basic law.
For us, the Sharia
is the basic law.
My -- or I think it was -- it
may reflect something like that.
But again, if you look --
and then when they sat down
and tried to write the
draft, this 1998 document
and that didn't look
constitutionalist --
by "constitutionalist", I mean
it did not include any norms
that could like restrict
the powers of the Amir.
And that charter,
compared to others,
was basically an
empowering document.
It gave the Amir a remarkable
degree of discretionary power
that he could exercise
to Islamize --
in their terms, quote, unquote,
"to Islamize the society."
And how do they do it is an
entirely different question.
Now -- and I say, I think the
question is an important one,
the reason that they have not --
have come up with a constitution
today as we speak --
or at least an interim document,
is to kind of why would we want
to limit ourselves by a master
text that we would respect,
and that text or that
document would tell us what
to do, what not to do.
So let's do what we do
and broadly frame it,
give it an Islamic tone,
and let's say that's
Islamic and that is not.
And that will meet several
-- give us more discretion,
more power, whereas
codifying something
into a constitution
then we will --
we are basically
tying our hands.
Yes, if you have a
competitive environment,
you have different parties,
you have different groups,
you have equal number
of powerful factions,
then they can force
you to tie your hands
to abide by a constitution.
But if you are the women or take
all, now you have won this world
and there's no need -- I
think that's the reasoning.
There's no need to
write something,
at least during this
transitional period
that we are Islamizing
the society.
And whatever they mean by that,
then we will tie our hands.
So I think one of the reasons
is that yes, I don't think
that they will take
the entire project
of codification seriously.
And in our recent -- that we
have done with Dr. Bashir,
so we -- one thing that we do,
we look at the text of the law
and how they are codified.
And you will see the lack of
expertise when it comes to --
simply to this -- to legislative
text and what word they write,
it seems to be a
little further away
from what you would
consider a well-crafted
legislative document.
>> Tariq Ahmad: So
we have a question
from Scott Warden from USIP.
"Based on your knowledge
of the Taliban
and the current situation,
would pressing the Taliban
to form a constitutional
commission
and draft a constitution
that is inclusive
and observes human
rights as a condition
of recognition be helpful,
or would it accelerate the path
away from the 2004 Constitution?
Is now the right time to
ask them specific questions
about their constitutional
visions or later?"
>> Dr. Shamshad Pasarlay:
Yes, that's a great question,
and I think that basically leads
to the engagement
with the Taliban.
I think one aspect of the
change that I have seen --
I of course will say this
again, clearly I do not agree --
did not agree in 2018, '19, '20,
and '21 that the
Taliban has changed.
And I don't even -- I still find
it hard to accept this thesis
that the Taliban has changed,
in terms of how they have
approached this question
of governance broadly.
One area that they
seem to have changed --
or at least are willing
to soften their behavior
is how they view the
international community.
So they are a little open
to international community,
to the pressures;
because there are some --
there's an overheated debate
about whether the
Taliban are transitioning
from this uncertain
movement to --
from an insurgence
to governance.
And my good friend, Bashim
[phonetic] Bashir, again,
has an interesting idea.
He says -- and which I think
is to some extent correct.
So this Islamist movements
in [inaudible] have always been
good challengers challenging the
government very effectively.
But there have been
bad governors.
That was the same with
the [foreign language].
It seems to be to some extent
the same with the Taliban.
I think the Taliban will
write and listen to ask --
if we ask -- to Scott's question
to clarify their
position, they will.
They will even -- I think --
I may be wrong as I was on
the Independent Commission
for Constitutional
Oversight, they may not be
but they will say that,
"Okay, we will respect rights.
We will respect --
retain some elements
of the 2004 Constitution."
But I think they will
say that we will do
so under an Islamic
framework; under --
so long as nothing is
contradictory to Islam.
So that I think is the real
challenge for us to engage,
because that then
references to the question
of who interprets Islam,
and how they do it.
We have, for example,
the Egyptian Supreme
Constitutional Court
that has a very liberal
approach to interpreting Islam.
In the Federal Sharia Court,
Tariq, and Pakistan is --
also to some extent I
think will be like this,
accepting this modernist
element or approach
to interpreting religious
scriptures,
though conservative ones.
But when it comes
to the Taliban,
I think that will be the hardest
part to kind of negotiate
or clarify in terms of, "Yes,
we will accept Article III
of the Constitution,
the 2004 Constitution,
which says no laws should be
departed with the basics of --
to the tenets and provisions of
the sacred religion of Islam."
They would have an
article like that,
but the outcome will be
very different than what was
in the 2000 -- [inaudible]
2004 Constitution
for the Supreme Court
did have its problems.
They have this problem but
the Taliban will have --
they will interpret
it differently.
So I think yes, it's time
to kind of press them.
I think there is already this
push in pressing them to kind
of clarify their positions.
But in terms of when it
-- on women's rights,
it seems that they are
not listening to anyone.
Well, the deputy leader talks
with CNN saying, you know,
the hijab is not mandatory.
We are not obliging
people to do that.
And then you'll see it
today in national television
that they say like women
should cover themselves;
like only the eyes
should be apparent.
Well, apparently, they don't
listen, but there -- you can --
one could link it to the
question of recognition
to international
aid, as is discussed
in this recent USIP piece on --
by Clark Lombardi
and Andrew Morris
that could be this
possibility to get them --
at least clarify and soften if
we kind of ground that debate it
and approach it from an
Islamic political theory
or legal theory perspective.
Yes.
>> Tariq Ahmad: There
are a couple of questions
that you can dovetail it
with your last answer
about women's rights.
One question is about, "Will
further US intervention
in Afghanistan would
be productive
in regarding the Constitution
and women rights issues
within the region?"
And the other question
was -- one second.
I think -- wait -- oh,
yes, yes, "In your opinion,
according to the existing
tension between Taliban
and Haqqani, what will the
situation fate of women's rights
in the next constitution
of Afghanistan?"
>> Dr. Shamshad Pasarlay:
Yes; I think I will --
let's take an easier
question first.
US intervention, again, I think
in the international
developments
in this our experts
will be better suited
to comment on that.
I think it's still
room for intervention.
I think Tom West already is
discussing this idea of like
that we will -- kind of
forcing the Taliban to kind
of create some sort of
an inclusive government.
Again, it's just hard.
It's the ambiguity that
is associated almost
with every statement on
governance with the Taliban
so it is really hard to dig
deep into that and to find out,
you know, what is it that they
want so we can then assemble --
[clears throat] excuse
me, accordingly.
Unless that ambiguity is
clarified, I think the extent
of -- [clears throat] excuse me;
the extent of international
engagement or intervention
from the part of the US
will be a little hard
because we won't
know what to do.
That's I think perhaps
not a very convincing
and clear answer, but
that's what I think.
In terms of women's rights,
it's very disappointing.
It's not only the divide
between the Haqqanis
and the non-Haqqanis,
it's the fighter;
it's the Taliban
fighter on the ground.
And part of what they thought
was, "Okay, there is --
" they thought that US is here,
we are occupied so jihad."
The second was like this --
I say this again with
my personal view,
they think that the -- and they
did the same thing in 1992,
that this entire [inaudible]
society has been distanced
from Islam.
And today, they think
the same way.
What I think -- it's my view,
they think that we are
commissioned by God
to Islamize the society,
to create this ideal
Islamic society.
And one way to create
that is to remove fitnah,
or immoral deeds is what --
the fitnah argument, right?
Women coming out --
women exercising any rights
then is what they think I think
they think.
Women coming out with a
visible face, or high heels,
or wearing perfume, or
appearing on television,
or walking without a
mahram, a male companion,
creates the opportunity
for the fitnah.
So you will not have like this
ideal type of Islamic society.
And I will just highlight
this one video that I say,
this free journalist talking
to a Taliban fighter like,
"What do you like the most
now that you can freely walk,
and what do you hate the most
now that you can freely walk?"
He said, "I like the most
now I have to walk freely.
I don't have to shave because to
not to be -- appear like a thug.
So I'm free to move everywhere,"
so this -- the joy of freedom.
"What I hate," he said, "is
because I still see women
and girls walking
without scarves
and veils out on the street."
So to convince those fighters
who fought will be a little
hard; it's to get [inaudible]
of the divide between the
Haqqanis and the non-Haqqanis.
So I see the future for all
human rights in general,
particularly for women's rights
I think is not very promising.
And it's here -- to
Scott's question,
that the international
community, or at least countries
like the US, who can
still exercise some type
of a leverage, could press on --
them on to kind of at least to
avoid the worst case scenario.
It will be bad for sure, and it
-- though it's sad to say that,
and disappointing to say
that, but it will be bad,
but it will be kind of
force them at least to kind
of prevent the worst
case scenario where women
or girls could not
be able to kind of --
they will be eliminated from
the public sphere and this idea
of gendered apartheid
taking shape
and taking root inside
the country.
Tariq.
>> Tariq Ahmad: Well, there is
-- I think that brings to --
end to our presentation.
I just wanted to thank Shamshad
again for this tremendous,
excellent, and really
illuminating presentation.
We're really thankful for
your knowledge and expertise,
and grateful for our
continued collaboration.
Now, if attendees have any
further questions or would
like to get more detailed
reference information on any
of the issues that we
have explored today,
you can use the
"Ask a Librarian"
feature on our website.
Please also note that our
next webinar, which will be
on June 16th, will be covering
the legal transformations
in Ukraine and Russia before
and during the recent invasion.
And we'll hope to see you soon.
Thank you again,
all, for attending.