Non-Violation Of Islamic Law Under The Afghan Constitution

Abstract

The Afghan Constitution of 2004 has imposed two sets of limits on rule making in the country. On the one hand, the rules made ought to meet the Islamic limits and, on the other hand, they have to satisfy the human rights and democracy limits as stated in international law. Firstly, as for the Islamic limits, it will be shown that “non-violation”, rather than compliance, is meant. Secondly, the content and scope of the Islamic limits are dealt with. Thirdly, it is argued that no official religion is designated, though two Muslim jurisprudential schools are introduced for relevant cases. Fourthly, two pertinent authorities are introduced and discussed. That is, the Supreme Court and the Independent Commission for the supervision of implementation of the Constitution are established in order to undertake the duties of monitoring, respectively, “compliance” with and “implementation” of constitutional provisions, while a third issue of “interpretation” of the provisions has been remained ambiguous and, hence, creating controversies. Fifthly, it shall be shown that certain requirements of the second set of limits, in particular that of the rule of law, is the main pillar of the whole constitutional system. Thus, it cannot be readily undermined. Sixthly, the resulting conundrum of satisfying both sets of limits will be introduced. Finally, an attempt will be made to find a way out of the conundrum.