Duality of Islamic Norms: Uncodified Constitutional Principles and Political Pursuits in Afghanistan

Uncodified constitutional Islamic principles provide a large portion of the current unwritten Constitution of the Islamic Emirate of Afghanistan.

Uncodified constitutional Islamic principles provide a large portion of the current unwritten Constitution of the Islamic Emirate of Afghanistan (IEA) or its basis, or clandestine cabling. The Constitution is based on several widely held but usually implicit beliefs about the proper use of power. Because Afghans lack a written constitution and few Sharia court cases have raised constitutional issues until recently, constitutional form and culture have combined to create a state of Islamic Emirate where even fundamental constitutional principles remain elusive. Consequently, there has not been much in the way of legal definitions of Islamic constitutional principles. However, as guiding principles of the Constitution, the rule of law, parliamentary sovereignty, and separation of powers are acknowledged by political organs and courts worldwide. The constitutional norms that essentially restrict the authority and conduct of political actors coexist with these principles and are reflected in them to differing degrees. Despite the apparent distinction between political and Islamic norms, many unwritten constitutional norms and principles include political and Islamic components. However, several paths exist for these standards’ normative development and enforcement.

Uncodified Islamic Constitutional Principles

In Loya Jirga’s examination, neither executive decision-making nor political discourse concepts are acknowledged nor applied as formal Islamic constitutional norms. There are indications that Islamic courts are delving into political standards of behaviour by making decisions based on connected or interwoven Islamic constitutional principles or using the Islamic aspects of political norms. Therefore, the issue of the interrelationships between the political and Islamic aspects of unwritten Islamic constitutional rules is full of possibilities. Conventions and Islamic constitutional ideas indeed have some fundamental similarities. Most importantly, their substance and normative power do not originate from written Islamic text representations. Constitutional traditions and uncodified Islamic principles are likewise linked to high levels of flexibility. Although it would be exaggerated to say that every norm is flexible, many of them—including those that influence Sharia’s and the government’s daily operations—are adaptable to shifting moral and political perspectives.

Conversely, Islamic principles are malleable in that they can be partially upheld and observed. Consequently, Islamic laws often have an all-or-nothing application, but a principle may be somewhat violated without losing its significance. There could also be justifiable differences in how certain Islamic principles’ requirements are perceived. On the other hand, maximalist interpretations of the Islamic rule of law see the concept as providing the basic framework for a just Islamic system. At the minimalist end of the spectrum, for example, the rule of law can be claimed to stand solely for the fundamental principle of governing in conformity with Islamic law. Most people consider the rule of law a Islamic ideal that Islamic courts outline and uphold. The idea that the Islamic courts, and not the legislature, should decide the boundaries of the power to exclude review under the rule of law is not controversial. It is ultimately up to the Supreme Court of the IEA to decide on the content and limitations of this power. However, the traditional procedural criteria of even tenuous conceptions of the rule of law speak to Islamic and political acts and behaviours. The rule of law is also a principle of Islamic morality.

Islamization of Political Pursuits

Political actors’ observations indicate that the political branches define the parameters and content of the Islamic rule of law. In carrying out their legislative and oversight duties, the Loya Jirga, international agreements, delegated powers, and human rights commitments have taken several distinct and coherent stances regarding the interpretation of specific Islamic constitutional standards, such as the rule of law and the separation of powers, in the legislative context. These stances are based on Islamic constitutional principles. Because of this, the IEA’s Islamic constitutional criteria have not shown how the Islamic normative substance of the Constitution relates to the legislative process. Meanwhile, Islamic courts accept and uphold supposedly political principles, such as constitutional rules that control governmental and Sharia authorities. The way that Sharia and the government interact with each other informs government business. Parallel to the Islamic acknowledgement of constitutional principles, this acknowledgement strengthens the argument that all parties involved in the Constitution should view the relevant standard as having regulatory weight, including those to whom it does not apply.

Even if Islamic court notice of a norm might not significantly alter the political pursuit’s locus of enforceability, it might nonetheless be a pragmatic sign of widespread agreement regarding the Islamic norm’s existence and extent. A reinforcing quasi-Islamic codification and judicial examination of political pursuits, like those contained in the Sharia injunctions, can also enhance the concretization of Islamic constitutional principles that may not often be expressed. The acknowledgement highlights the fluidity and changeability of the boundaries between political and legal norms and that legal and political actors may occasionally be held accountable for adhering to these standards. Thus, an Islamic standard is justifiable. First, the determinative factor is the subject matter rather than the norm’s origin. Second, the ability of the Islamic courts to intervene would be restricted in cases where the issues in dispute are not appropriate or capable of being resolved by an Islamic court as part of constitutional proceedings. Constitutional competence and institutional capability determine whether the subject matter suits judicial determination. The Islamic court, therefore, used the Sharia Law’s injunctions, allowing judges to define terms like aggravation, mistreatment, and victimizing behaviour. The Sharia-based ruling and the events leading up to it show how political and legal norms are concurrent and interconnected.

Connection between Constitutional Principles and Political Pursuits

The relationship between political and unwritten Islamic constitutional principles and political pursuits can be conceptualized and framed in various ways. I put out four ideas; however, they are not necessarily comprehensive, and their bounds are not entirely impenetrable. First, while a concept may only have direct enforcement in one or the other Islamic or political pursuits, it is still acknowledged and considered by both. The overwhelming legitimacy and desirability to impose the strong rejoinder that judges are the guardians of Islamic principles representing political pursuits and constitutionally conservative definitions. Second, Islamic constitutional principles and political pursuits may share moral imperatives or normative underpinnings. The Islamic concept of judicial independence and the custom that politicians should not disparage specific judges have as their shared goal of defending the judiciary’s right to decide cases based only on their merits. This freedom is necessary for the Islamic rule of law and for decision-making to be fair.

Third, it is possible to regard a general concept as giving rise to norms and regulations, some relevant in the political arena and some applicable in the Islamic domain. The concept of Loya Jirga’s primacy shows this dynamic. The idea provides the basis for the Islamic customs that the Loya Jirga must continue to support the government to remain in power and that Taliban ministers must answer to the Loya Jirga for all decisions and acts made while serving in their ministerial capacity. Fourth, depending on the institutional procedures and constraints of the political and Islamic branches, a concept may be relevant in both Islamic and political contexts within the uncodified Constitution but enforced differently by each. The accountability principle is valid in political and constitutional pursuits but is subject to different enforcement mechanisms. This is a more realistic view of the decision’s effects, even though the Islamic courts are accused of turning accountability to Loya Jirga into an Islamic principle.

Application of Uncodified Islamic Constitutional Norms

I think the first idea is overly cautious and constrictive. It offers a depressing perspective on the values and standards that give the Constitution life. Furthermore, it is based on the false presumption that there are distinct boundaries between unwritten Islamic constitutional principles and the political pursuits and customary norms that frequently demonstrate their applicability. A large portion of the value of uncodified constitutional norms and principles in constructing constitutions and ensuring constitutional responsibility stems from its dual character and application. Even though the IEA’s criteria may be contested and not Islamically enforceable, the division of powers is a valuable instrument for constitutional arguments.

There are several reasons for using this constraint. Firstly, there is no reciprocal exclusion between these groups. For example, it is possible to embrace the second category of shared moral imperatives in addition to the other categories. A shared moral or social imperative can be the foundation for an unwritten constitutional principle based on a general concept that gives birth to political norms and legal regulations. In this way, the degree of abstraction affects how the categories are distinguished under certain conditions. The second rationale for exercising caution is that the most accurate or persuasive framing may vary depending on the jurisdiction of the issue and how its constitutional norms and powers are distributed. More accurate representations of the Islamic and political aspects of the unwritten norms and principles of the IEA’s Constitution will inevitably result from determining the degree to which factors rely on Afghan constitutional architecture and power distribution rather than general Islamic design.

There is No Conclusion

Unwritten Islamic constitutional norms and principles may have both Islamic and political aspects. This may be problematic when the Islamic courts enforce constitutional standards historically or seemingly perceived as political. Such occurrences arouse concern about two conventional boundaries that divide Islamic constitutionalism concerns. In particular, this perspective gives rise to charges of judicial intrusion into political affairs, the transformation of political matters into Islamic matters, and, ultimately, the Islamic system’s control over political responsibility. Although the analysis conducted here suggests that hard and fast divisions, while nominally appealing for their simplicity, cannot provide an adequate or accurate picture of the complex interrelationships between Islamic constitutional principles and their political and legal relations, the ideas here do not prioritize questions of the Islamic legitimacy or desirability of judicial enforcement of political pursuits. Afghanistan has to go from the supremacy of the Loya Jirga to constitutional superiority due to its uncodified Constitution.

Dr. Nafees Ahmad
Dr. Nafees Ahmad
Dr. Nafees Ahmad is an Associate Professor at the Anwar Gargash Diplomatic Academy (AGDA), Abu Dhabi-UAE. He holds a doctorate in International Refugee Law and Human Rights. His scholarship focuses on Refugees, Asylum-seekers, Migrants, Stateless and the role of AI in their protection.