Constitution of Afghanistan
Encyclopedia
The Constitution of Afghanistan is the supreme law
of the state
Afghanistan
, which serves as the legal framework
between the Afghan government
and the Afghan citizens
. Although Afghanistan (Afghan Empire
) was made a state in 1747 by Ahmad Shah Durrani
, the earliest Afghan constitution was written during the reign of Emir
Abdur Rahman Khan
in the 1890s followed by the 1923 version.
The current Afghan constitution was approved by the consensus
in January 2004 after the 2003 loya jirga
. It evolved out of the Afghan Constitution Commission
mandated by the Bonn Agreement
. The constitution provides for an elected President
and National Assembly
. The transitional government of interim president Hamid Karzai
was put in place after the June 2002 loya jirga
. Presidential elections took place in October 2004, and Karzai was elected to a five-year term. Elections for the National Assembly were delayed until September 2005
. The Constitution of Afghanistan consists of 160 articles and was officially signed by Hamid Karzai on January 26.
consists of two houses: the Wolesi Jirga (House of the People) and the Meshrano Jirga (House of Elders).
The Wolesi Jirga, the more powerful house, consists of a maximum of 250 delegates directly elected through a system of semi-proportional representation (SNTV). Members are elected on a provincial basis and serve for five years. At least 64 delegates must be women; and ten Kuchi
nomads were also elected among their peers. The Wolesi Jirga has the primary responsibility for making and ratifying laws and approving the actions of the president and has considerable veto power over senior appointments and policies
The Meshrano Jirga will consist of an unspecified number of local dignitaries and experts appointed by provincial councils, district councils, and the president. The president also appoints two representatives of the physically disabled. The lower house passes laws, approve budgets and ratify treaties – all of which will require subsequent approval by the Meshrano Jirga.
Courts are allowed to use Hanafi jurisprudence in situations where the Constitution lacks provisions.
consists of the president, his two vice-presidents and 25 ministers. The ministers are appointed by the president but need approval from the Wolesi Jirga (lower house).
as its sacred and state religion
. A system of civil law
is described, but no law may contradict the beliefs and provisions of Islam. It was widely reported that Sharia law is not specifically mentioned, but Hanafi jurisprudence is one of the six branches of Sharia law. Moreover, concessions are made to Shia jurisprudence in cases arising strictly between Shi'ites
.
Followers of other religions are "free to exercise their faith and perform their religious rites" within the limits of the law. There is no mention of freedom of thought
, and apostasy
from Islam is punishable by death.
, from torture and of expression and speech
. If accused of a crime, citizens hold the right to be informed of the charges, to representation by an advocate, and to presumption of innocence
.
Article 34 states, "Freedom of expression shall be inviolable. Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall have the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law."
Provisions are made to ensure free education and healthcare for all citizens.
, Turkmani
, Baluchi
, Pashai
, Nuristani
and other current languages in the country, Pashto and Dari shall be the official languages of the state." In addition, other languages are considered "the third official language" in areas where they are spoken by a majority.
Article 20 states that the Afghan National Anthem
(Wolesi Tarana) "shall be in Pashto with the mention of "God is Great" as well as the names of the tribes of Afghanistan."
The constitution aims "to foster and develop all languages of Afghanistan." (Article 16)
) as well as adopting "necessary measures for housing and distribution of public estates to deserving citizens".
The constitution requires the president to choose two special Kuchi representatives to sit in the Wolesi Jirga.
The constitution also provides for the promotion of education for nomads.
, a convert from Islam
to Christianity
outside Afghanistan, was threatened with the death penalty for apostasy
. Rahman was released under international pressure on the theory that he was insane and that the case against him had "investigative gaps," and found asylum in Italy
. The constitution itself was not changed in response.
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
of the state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
, which serves as the legal framework
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
between the Afghan government
Politics of Afghanistan
The politics of Afghanistan consists of the Council of Ministers and the National Assembly, with a president serving as the head of state and commander-in-chief of the military. The nation is currently led by the Karzai administration under President Hamid Karzai who is backed by two vice...
and the Afghan citizens
Demography of Afghanistan
The population of Afghanistan is around 29,835,392 as of the year 2011, which is unclear if the refugees living outside the country are included or not. The nation is composed of a multi-ethnic and multi-lingual society, reflecting its location astride historic trade and invasion routes between...
. Although Afghanistan (Afghan Empire
Durrani Empire
The Durrani Empire was a Pashtun dynasty centered in Afghanistan and included northeastern Iran, the Kashmir region, the modern state of Pakistan, and northwestern India. It was established at Kandahar in 1747 by Ahmad Shah Durrani, an Afghan military commander under Nader Shah of Persia and chief...
) was made a state in 1747 by Ahmad Shah Durrani
Ahmad Shah Durrani
Ahmad Shah Durrani , also known as Ahmad Shāh Abdālī and born as Ahmad Khān, was the founder of the Durrani Empire in 1747 and is regarded by many to be the founder of the modern state of Afghanistan.Ahmad Khan enlisted as a young soldier in the military of the Afsharid kingdom and quickly rose...
, the earliest Afghan constitution was written during the reign of Emir
Emir
Emir , meaning "commander", "general", or "prince"; also transliterated as Amir, Aamir or Ameer) is a title of high office, used throughout the Muslim world...
Abdur Rahman Khan
Abdur Rahman Khan
Abdur Rahman Khan was Emir of Afghanistan from 1880 to 1901.The third son of Mohammad Afzal Khan, and grandson of Dost Mohammad Khan, Abdur Rahman Khan was considered a strong ruler who re-established the writ of the Afghan government in Kabul after the disarray that followed the second...
in the 1890s followed by the 1923 version.
The current Afghan constitution was approved by the consensus
Consensus decision-making
Consensus decision-making is a group decision making process that seeks the consent, not necessarily the agreement, of participants and the resolution of objections. Consensus is defined by Merriam-Webster as, first, general agreement, and second, group solidarity of belief or sentiment. It has its...
in January 2004 after the 2003 loya jirga
2003 Loya jirga
A 502-delegate loya jirga convened in Kabul, Afghanistan, on December 14, 2003, to consider the proposed Afghan Constitution. Originally planned to last ten days, the assembly did not endorse the charter until January 4, 2004. As has been generally the case with these assemblies, the endorsement...
. It evolved out of the Afghan Constitution Commission
Afghan Constitution Commission
The Afghan Constitution Commission was established October 5, 2002 as required by the Bonn Agreement, which stipulated that a new Afghan constitution be adopted by a loya jirga...
mandated by the Bonn Agreement
Bonn Agreement (Afghanistan)
Officially the Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions, the Bonn Agreement was the initial series of agreements intended to re-create the State of Afghanistan following the U.S. invasion of Afghanistan in response to the...
. The constitution provides for an elected President
President of Afghanistan
Afghanistan has only been a republic between 1973 and 1992 and from 2001 onwards. Before 1973, it was a monarchy that was governed by a variety of kings, emirs or shahs...
and National Assembly
National Assembly of Afghanistan
The National Assembly is Afghanistan's national legislature. It is a bicameral body, comprising two chambers:*Wolesi Jirga or the House of the People: the 250-member lower house.*Meshrano Jirga ) or the House of Elders: an upper house with 102 seats....
. The transitional government of interim president Hamid Karzai
Hamid Karzai
Hamid Karzai, GCMG is the 12th and current President of Afghanistan, taking office on 7 December 2004. He became a dominant political figure after the removal of the Taliban regime in late 2001...
was put in place after the June 2002 loya jirga
2002 loya jirga
An Emergency "Loya Jirga" was held in Kabul, Afghanistan between 11th and 19th June 2002 to elect a transitional administration in Kabul, Afghanistan. The Emergency Loya Jirga was called for by the Bonn Agreement. The agreement was drawn up in December 2001, in Bonn, Germany...
. Presidential elections took place in October 2004, and Karzai was elected to a five-year term. Elections for the National Assembly were delayed until September 2005
Afghan parliamentary election, 2005
Afghanistan held parliamentary and provincial council elections on 18 September 2005. The first results were declared on 9 October, with final results being delayed by accusations of fraud, and were finally announced on 12 November.-Results:...
. The Constitution of Afghanistan consists of 160 articles and was officially signed by Hamid Karzai on January 26.
Legislative branch
The National Assembly of AfghanistanNational Assembly of Afghanistan
The National Assembly is Afghanistan's national legislature. It is a bicameral body, comprising two chambers:*Wolesi Jirga or the House of the People: the 250-member lower house.*Meshrano Jirga ) or the House of Elders: an upper house with 102 seats....
consists of two houses: the Wolesi Jirga (House of the People) and the Meshrano Jirga (House of Elders).
The Wolesi Jirga, the more powerful house, consists of a maximum of 250 delegates directly elected through a system of semi-proportional representation (SNTV). Members are elected on a provincial basis and serve for five years. At least 64 delegates must be women; and ten Kuchi
Kuchis
Kuchis , are Afghan Pashtun nomads, primarily from the Ghilzai, Kakar, Lodi, Ahmadzai as well as some Durrani tribes, but occasionally there may also be some Baloch people among them that live a nomadic life travelling between pastoral lands in Afghanistan and in Pakistan...
nomads were also elected among their peers. The Wolesi Jirga has the primary responsibility for making and ratifying laws and approving the actions of the president and has considerable veto power over senior appointments and policies
The Meshrano Jirga will consist of an unspecified number of local dignitaries and experts appointed by provincial councils, district councils, and the president. The president also appoints two representatives of the physically disabled. The lower house passes laws, approve budgets and ratify treaties – all of which will require subsequent approval by the Meshrano Jirga.
Judicial branch and court system
The nation's top court is the Stera Mahkama (Supreme Court). Its members are appointed by the president for 10-year terms. There are also High Courts, Appeals Courts, and local and district courts. Eligible judges can have training in either Islamic jurisprudence or secular law.Courts are allowed to use Hanafi jurisprudence in situations where the Constitution lacks provisions.
Cabinet
The current cabinetAfghan Cabinet of Ministers
The Cabinet of Afghanistan is made of the heads of all the government ministries. The president selects the members of cabinet with the approval of the National Assembly of the country.-Current cabinet of ministers:...
consists of the president, his two vice-presidents and 25 ministers. The ministers are appointed by the president but need approval from the Wolesi Jirga (lower house).
Districts
The constitution divides Afghanistan into 34 provinces, with the addition of the Panjshir region as a province. Each province is governed by a provincial council with members elected for four-year terms. Governors are appointed by the president. Every village and town will also have councils, with members serving for three years.Religion
The Constitution describes IslamIslam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
as its sacred and state religion
State religion
A state religion is a religious body or creed officially endorsed by the state...
. A system of civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
is described, but no law may contradict the beliefs and provisions of Islam. It was widely reported that Sharia law is not specifically mentioned, but Hanafi jurisprudence is one of the six branches of Sharia law. Moreover, concessions are made to Shia jurisprudence in cases arising strictly between Shi'ites
Shi'a Islam in Afghanistan
Shi'a Islam in Afghanistan makes up 10-19% of the total population of the state, while the remaining 80-89% practice Sunni Islam.Many of the Pamir language speakers of the northeastern portion of the country are followers of the Nizari Ismaili sect, while majority of the Hazara people, the third...
.
Followers of other religions are "free to exercise their faith and perform their religious rites" within the limits of the law. There is no mention of freedom of thought
Freedom of thought
Freedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
, and apostasy
Apostasy
Apostasy , 'a defection or revolt', from ἀπό, apo, 'away, apart', στάσις, stasis, 'stand, 'standing') is the formal disaffiliation from or abandonment or renunciation of a religion by a person. One who commits apostasy is known as an apostate. These terms have a pejorative implication in everyday...
from Islam is punishable by death.
Civil and human rights
Citizens are guaranteed the right to life and liberty, to privacy, of peaceful assemblyFreedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, from torture and of expression and speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
. If accused of a crime, citizens hold the right to be informed of the charges, to representation by an advocate, and to presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
.
Article 34 states, "Freedom of expression shall be inviolable. Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall have the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law."
Provisions are made to ensure free education and healthcare for all citizens.
Language
Article 16 of the constitution states that "from amongst Pashto, farsi, UzbekiUzbek language
Uzbek is a Turkic language and the official language of Uzbekistan. It has about 25.5 million native speakers, and it is spoken by the Uzbeks in Uzbekistan and elsewhere in Central Asia...
, Turkmani
Turkmen people
The Turkmen are a Turkic people located primarily in the Central Asian states of Turkmenistan, Afghanistan, and northeastern Iran. They speak the Turkmen language, which is classified as a part of the Western Oghuz branch of the Turkic languages family together with Turkish, Azerbaijani, Qashqai,...
, Baluchi
Balochi language
Balochi is a Northwestern Iranian language. It is the principal language of the Baloch of Balochistan, Pakistan, eastern Iran and southern Afghanistan. It is also spoken as a second language by some Brahui. It is designated as one of nine official languages of Pakistan.-Vowels:The Balochi vowel...
, Pashai
Pashai
Pashayi or Pashai are a Dardic ethno-linguistic group living primarily in eastern Afghanistan and in Khyber Pakhtunkhwa province of Pakistan. Their total population is estimated to be 500,000. They are mainly concentrated in the northern parts of Laghman and Nangarhar provinces and eastern Kapisa...
, Nuristani
Nuristani
The Nuristani people are an ethnic group Aryan-Iranian to the Nuristan region of northeastern Iran and Afghanistan. The Nuristanis are a people whose ancestors practiced what was apparently an ancient Indo-Iranian polytheistic religion until they were conquered and converted to Islam in the late...
and other current languages in the country, Pashto and Dari shall be the official languages of the state." In addition, other languages are considered "the third official language" in areas where they are spoken by a majority.
Article 20 states that the Afghan National Anthem
Afghan National Anthem
The Afghan National Anthem was adopted and officially announced in May 2006. According to article 20 of the Constitution of Afghanistan, "The national anthem of Afghanistan shall be in Pashto with the mention of "God is Greatest" as well as the names of the ethnicities of Afghanistan." The lyrics...
(Wolesi Tarana) "shall be in Pashto with the mention of "God is Great" as well as the names of the tribes of Afghanistan."
The constitution aims "to foster and develop all languages of Afghanistan." (Article 16)
Kuchi people
Article 14 obliges the government to implement effective programs for "improving the economic, social and living conditions" of nomads (KuchisKuchis
Kuchis , are Afghan Pashtun nomads, primarily from the Ghilzai, Kakar, Lodi, Ahmadzai as well as some Durrani tribes, but occasionally there may also be some Baloch people among them that live a nomadic life travelling between pastoral lands in Afghanistan and in Pakistan...
) as well as adopting "necessary measures for housing and distribution of public estates to deserving citizens".
The constitution requires the president to choose two special Kuchi representatives to sit in the Wolesi Jirga.
The constitution also provides for the promotion of education for nomads.
Controversy
The constitution's provisions on religion drew international controversy in 2006, when Afghan-born Abdul RahmanAbdul Rahman (convert)
Abdul Rahman was an Afghan citizen who was arrested in February 2006 and threatened with the death penalty for converting to Christianity. On March 26, 2006, under heavy pressure from foreign governments, the court returned his case to prosecutors, citing "investigative gaps". He was released...
, a convert from Islam
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
to Christianity
Christianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...
outside Afghanistan, was threatened with the death penalty for apostasy
Apostasy
Apostasy , 'a defection or revolt', from ἀπό, apo, 'away, apart', στάσις, stasis, 'stand, 'standing') is the formal disaffiliation from or abandonment or renunciation of a religion by a person. One who commits apostasy is known as an apostate. These terms have a pejorative implication in everyday...
. Rahman was released under international pressure on the theory that he was insane and that the case against him had "investigative gaps," and found asylum in Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
. The constitution itself was not changed in response.