– Mohammad Rubaiyat Rahman
Author is pursuing LL.M. in South Asian University (SAU) and an awardee of SAU President Scholarship (2012-2014).
Author’s SSRN Link:
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The year 2014 would be a glittering year for Afghanistan for motley of reasons. The upcoming Afghan Presidential Election, the withdrawal of international troops are not only events to make this year memorable, rather it is the 10th anniversary of the Constitution of Afghanistan that has gilt edged the year 2014 as memorable in the country’s recent history. Afghanistan is the platform where three cultural and geographic regions meld: (1) The South Asia region to the south east; (2) Central Asia to the north; and (3) the Iranian Plateau in the west. To measure the position of Afghanistan in the orb of international relations, Thomas Barfield aptly opines in the introductory part of his book:
“… Afghanistan itself remains just the vague backdrop in a long running international drama where others hold the sparking parts. ”
Plumbing through the legal history of Afghanistan, one would find the subliminal but preen history of the constitutional law of Afghanistan. First constitution was passed in 1931. Later, through the maelstrom of political events, national parliamentary body, formed by coalition of religious conservatives, passed a new constitution in 1964 which created a constitutional monarchy and a bicameral legislature. Following the overthrow of the constitutional drafting commission was charged with writing a new constitution for the country. On 4 January 2004, the Afghan National Assembly ratified the new constitution. Its framers (35 member team who took a year to prepare it) characterized it as a meld of the best of international standards as applied to an Islamic republic.
The longest-standing source of law in Afghanistan has certainly been Islamic law, or Shari’a. The new constitution creates a nation that pledges to be both Islamic and democratic. Despite through the wordings of Article 3 (Chapter 1), the constitution forms Afghanistan as an Islamic Republic, article 2 (Chapter 2) reiterates that followers of other faiths in the country shall be free within the bounds of law in the exercise and performance of their religious rituals. The preamble in tandem with articles 6,7 and 48 of the constitution reflect its commitment to respect and conform UDHR and other wide arrays of civil, economic (article 6), political and social rights. The constitution also includes concrete provisions on human rights protections, (for example, articles 6, 7, 24– 32, 37–38 and 40) which meet international standards and norms. The constitution sets up an independent judiciary (articles 117–133), headed by a supreme court.
A major challenge in the post Taliban-era Afghanistan had been to pave ways of re-establishing the position of state-based legal rules in the face of bodies of law with greater religious or traditional resonance. Since 2004, Afghan law, in conformity with the constitution has been extensively revised and amended, but most new laws still do not reiterate the spirit of the constitution up to the hilt. Skimming through recently published reports and research papers depict a jarring image reverberating that materialization of the essence of Afghan Constitution is still like a distant foghorn.
As per U.S. Dept. of State’s latterly published Human Rights report, in Afghanistan the most significant human rights problems include torture and abuse of detainees; increased targeted violence and endemic societal discrimination against women and girls; widespread violence, including armed insurgent groups’ killings of persons affiliated with the government and indiscriminate attacks on civilians; and pervasive official corruption. The report has also pointed out that widespread disregard for the rule of law and official impunity for those who committed human rights abuses were serious problems.
During Taliban period, Afghan women were denoted as the ‘vanished gender’. To depict the plight of Afghan women during the Taliban regime, Anwesha Ghosh quotes the statement of , Haron Amin, an Afghan Diplomat to Washington (during 2002-03),
“If you look at the history of Afghanistan, you see that Afghan women were never beaten publicly because there was always a very, very high degree of respect provided or given towards them. In the 1860s, Ayisha Durrani, a forward intellectual women poet, in fact, wrote on political issues. We [Afghan] had women like that … … Throughout the 20th century, … had progressive movement or governments in Afghanistan that wanted to copy and move along with what was happening in the rest of the world.”
The bedraggled situation of Afghan women has been changing. More than two million girls are now attending school, which was not allowed under Taliban rule. However, there are other gender issues to mull over for conforming the wordings of article 22 (i.e., men and women’s equal rights).
Although advancing at a steady but ceaseless pace, climate change law in South Asia is still in its infancy. Afghanistan is not any exception from that. Important case studies that highlight the nexus between climate change and conflict are -the relationship among the conflicts in Afghanistan; drying of the vital Helmand River, and the booming of opium trade within the Helmand Province. This Province remains a flashpoint area for several reasons. The Taliban and its allies have a strong presence here, and it has been home to some of the most frequent and violent clashes between the insurgents and coalition forces in recent years. It is also the single largest opium-producing province in the world. The vibe of civil conflict and a weak and ruffled central government have led to years of environmental degradation and ramshackle mechanisms for water management. Under the froth of such negligence, the amount of water flowing into Helmand Province from the Helmand River has decreased. Hence, as the drought has continued ceaselessly, the farmers in Helmand have found it increasingly difficult to grow traditional staples and such situation has forced many of them to turn to the cultivation of drought-resistant opium crop. However, in past, the situation was otherwise. Earlier to the abseiling situation, Helmand province had been an agricultural hub to Afghanistan for centuries due to the presence of the Helmand River. It is because of this river that the area was once known as the ‘bread basket of Western Asia’. A number of staple crops had been grown here over the years, including wheat and other cereals, sugar beets, vegetables, orchards, cotton, and seeds. An historic drought began in 1998; it had been the worst drought in the 175 years of recorded history in the region. This has escalated with decades of conflict to cause a precipitous drop in the level of the Helmand River. In 2001, the Helmand river flow declined to 98% below compared to its average annual flow. In 2001, the first year the Helmand River did not reach the Sistan Basin. All of the standing water disappeared, replaced by vast salt flats. Consequently, the entire Sistan Basin ecosystem has collapsed.
If a functioning government, in tandem with good governance and rule of law mechanism, were existed in Afghanistan, it may have been able to take some effort to mitigate the effects of this drought. However, none exists, as it has been destroyed by internal strife. The high level of insecurity in the Helmand Province is a contributing factor in the growth of the opium market and the level of support for the insurgency. The people of Helmand have not been able to rely on the central government to protect them from the constant threat of bodily harm, let along to provide them with the necessary tools for economic and human development. This relationship is readily apparent when one studies the correlation between opium production and number of security incidents. In 2010, the UNODC found that where security conditions were ruffled or not in existence, opium was produced in 66% and 79% of these villages, respectively.
Therefore, it is undeniable that the realm of climate change holds pivotal interest for Afghanistan. Thence, the country can mull for emendation of its constitution to induct provisions ‘for granting inalienable rights to nature’.
Fleeting thoughts may pass though one’s mind about the role of the Constitution of Afghanistan in championing the dignity and rights of the Afghan people. Definitely, for the preceding ten years, the provisions of the Constitution have been thumping to wipe out the common people’s memories of oblivion, despair and anomie which had wreathed them since Soviet invasion. Despite, a little progress happened. However, apt time has not arrived to cast a final comment as to the Constitution. On the eve of its 10th year anniversary, one can only opine that the gist of the Afghan constitution has not yet quit its pursuits to champion human dignity and also to establish the pilasters of rule of law in the state mechanism of Afghanistan.
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Mohammad Rubaiyat Rahman, ‘Constitution of Afghanistan: The Great Expectations’ (South Asia Canteen 2014) <https://southasiacanteen.wordpress.com/2014/03/08/constitution-of-afghanistan-the-great-expectations/> accessed
Mohammad Rubaiyat Rahman, Constitution of Afghanistan: The Great Expectations, 2014 S. Asia Canteen, Mar. 8, 2014 at (2014), https://southasiacanteen.wordpress.com/2014/03/08/constitution-of-afghanistan-the-great-expectations/.
 Whit Mason, The Rule of Law in Afghanistan (Cambridge Univ. Press 2011)
 Anwesha Ghosh, ‘Afghan Women at the Crossroads: Reflecting on the Past to Understand the Present’ in Mandira Dutta (eds), Gender and Human Development in Central and South Asia (1st, Pentagon Press, New Delhi 2013)