Afghanistan: Process of ‘Islamization’
Under The Second Afghan Constitution
(1931 – 1964)

Abdul Latif*

Nasir Shah came into power on 13 October 1929. Hazrat Sahib of shore Bazar, Kabul, his brother Sher Agha and other religious leaders of Afghanistan assisted his coming into power. Basic objective of the change was to reverse the ambitious modernization efforts of Amir Aman Ullah Khan. Nadir Shah, aware of the political temperament of the masses, went for more freedom to the religious leaders, than they enjoyed during the rule of ex Afghan rulers Amir Abdur Rehman, Amir Habib Ullah Khan and Amir Aman Ullah Khan. The religious leaders were given greater influence and many privileges. The judiciary was particularly made their almost exclusive domain, by establishing “Jamiat Ul Ulama” (Association of Islamic Scholars) and re-opening of high government posts, to please the clergy. The constitution of 1931, framed by Nadir Shah, recognized the power and semi-independent status of the religious leaders.
 

Supremacy of Shariah

Supremacy of Shariah (Islamic Law) was most important judicial doctrine of the second Afghan Constitution. Immediately after coming into power, in October 1929, in his first policy statement (Khate Mashi), Nadir Shah declared that the government would carryout state business according to Shariah and desires of the Afghan people. Ministry of Justice and the Parliament were made responsible for implementation of Shariah in the state affairs. Establishment of the Department of Ihtishab (for implementation of Islam in every day life, in an organized manner), was promised. All Afghans were declared to be equal in their rights, according to Shariah, without any discrimination on the basis of nationality or origin.
The Constitution of 1931, later confirmed and elaborated this judicial doctrine regarding sovereignty of Islam and supremacy of Shariah, with Hanafi School as authoritative law. Adherence to the principles of Islam in various fields of the government has been articulated in at least 18 of the 110 articles of this Constitution. The constitution was named as Usulnama-e-Asasi (Fundamental code of Principles). The term Uslnama (code of Principles) was used for all the laws enacted during this period, to show that these rules and regulations were merely ‘Principles’ enacted by the parliament, to elaborate and implement the “Shariah”, the fundamental law of the land. Unlike Amir Aman Ullah’s constitution of 1923, which stressed over the ‘state laws’, the Constitution of 1931, emphasized over the Shariah.
Shura-i-Milli, an entirely elected body under the Constitution of 1931, was assigned the responsibility to elaborate, enact and implement the Shariah, it was directed not to enact any law repugnant to the principles of Islam (Article 65). Under the Constitution, government was required to refrain from infringing the principles of Islam in areas such as personal liberties (Article 10 & 13), Public Education (Article 22). Press and Publications (Article 23), private ownership (Article 15) application of punishment (Article 7, 11 and 19). Article 88 declared that suits filed in ‘Shariah Courts’ shall be further adjudicated under principles of the Hanafi law and Article 91. Any person may plead in any court, provision of the Shariah law to protect his rights. So the statutory laws enacted by the parliament had subsidiary position to the Shariah in the day to day administration of Justice in the courts. Two major laws of this period, enacted in the mid 1950s, namely the law of court administration 1956 (Usulnama-e-idari mahkim) and the law of civil procedure 1957 (Usual ijrat-e-Muhakimat) were aimed at consolidating the Shariah and to ensure uniformity in judicial practice concerning trial, appeal procedures, evidence and jurisdiction of the courts. Such speedy efforts for codification of law were made to meet some of the urgent needs of the Shariah oriented judiciary, as per the constitutional requirements. While compiling law of the court administration 1956, whole sections of the Ottoman Majallah on various topics were simply translated from the original Arabic Text. For instance Article 125 of the law of court administration – 1956, discussing Iqrar (confession) as a means of proof, states that confession and its related subjects shall be determined in accordance with Articles 1572 to 1612 of the Majallah al-ahkam al-adlia. It appears that codification of law was made only in the areas of Islamic law where clarification and consolidation was evidently necessary for the courts, Shariah being the supreme law of the land.
Emphasis over the Shariah, by the Constitution of 1931, could be assessed from the fact that whenever, references were made both to Shariah law and statutory rules, the former usually occurred first. For instance, in his oath of office, the king was to pledge before the National Council to swear by Almighty God and the Sacred Quran to rule according to the Shariah of Muhammad (Peace be upon him) and the fundamental rules of the country (Article 6). Powers of the king included ‘protecting and implementing the Shariah and Civil Laws’ (Article 7). Private property was to be protected ‘according to the Shariah and special codes’ (Article 15). Similarly no one was to enter a private residence with out an order under Shariah Law as the law of the land (Article 16). In its section on the judiciary, all references were made exclusively to the Shariah. The courts of justice were thus to adjudicate ‘general suits under Shariah Law’ (Article 87).
They were not to delay adjudication ‘of cases except as provided by Shariah Law’ (Article 92). All punishments prescribed by the Shahiah were implemented in letter and spirit. Hands of the thieves were amputated as per instructions of the Shariah. In early 1940s, the punishment was executed under local anesthesia by Afghan Surgeons.
After going through the above Constitutional provisions, Hashm Kamali has concluded that the Constitution of 1931 upheld the classical Islamic doctrine that sovereignty belongs to Allah (God). He adds that the absence of an explicit declaration, for sovereignty of Allah, is not of great significance. Even when a Constitution, formally subscribes to the Islamic notion of sovereignty, the question still remains, whether or not it has been translated into material guidelines for law and government.

Jamiat Ul Ulama (Association of Islamic Scholars)

Jamaiat-ul-Ulama (Association of Islamic Scholars) was established at Kabul in 1929, as a consultative body, under the ministry of justice, for implementation of Shariah in the country and for establishing contact with Muslim organizations abroad for promoting cause of Islam. Major legal questions were subject to the deliberations of this elite clerical council, appointed by the king to advise him on religious and legal matters. Duties of this council also included publication and translation of religious books, assessment regarding standing of local ulama, issue of a monthly Islamic and literary magazine, maintaining contact with all religious institutions and mosques of the country and preaching of Islam and exploring ways and means for revival of Islam. Ex-officio members of the Association included head of the Arabic Religious school of Kabul, a representative of the superior court, one representative from lower courts, Eid festival prayer leaders and Khateeb (those entitled to deliver religious sermons) from two mosques of Kabul (Pule Khishti & Shah-e-Do Shamshera). The members of the Association were required to be Afghan Nationals belonging to the tribes of Afghanistan, not involved in un-necessary litigation, pious, highly educated from local or leading international Islamic institutions and known as a leading religious scholar in their area. Twenty members were elected to the association from all provices and regions of Afghanistan.
It is interesting to note that such an important organization of judicio-legal value remained without a permanent Head, during entire period of the 1931 Constitution’s remaining in force. Mulla Buzurg remained its ‘acting president’ for a long period, later Maulvi Saleh Muhammad worked as Muawin (Deputy Head) and Qazi Abdul Karim as Secretary of the organization. It appears that office of the permanent president of Jamiat ul Ulama was deliberately kept vacant, to avoid the Constitutional obligation of consulting this elite body on legislative and judicial matters and likely embarrassment to the Government from conflicting views of the Council.

Ministry of Justice

Fazal Umar Mujaddidi was appointd as Justice Minister with Fazal Ahmad Khan Mujaddidi as Deputy Minister of Justice. Justice Ministers of this period were Fazal Umar Mujaddidi (1929-32), Fazal Ahmad Mujaddidi (1932-44), Mir Atta Muhammad Khan (1944-54) and Syed Abdullah (1956 onwards). Deputy Ministers of Justice during this period included Fazal Ahmad Khan Mujaddidi, Amir Ullah Khan, Abdul Karim Haqqani, Mir Syed Qasim Khan and Maulvi Muhammad Qasim Khan. Entire judiciary in the country, including the superior courts, were supervised by the Minister of Justice. The Minister of Justice was administrative as well as judicial head of the court system. 
Ministry of Justice dedicatedly worked for formulating laws, regulations, judicial instructions, codification of laws in various areas and even translating material of Islamic law from original Arabic sources. Such efforts were aimed at providing sufficient guidance to the courts for uniform judicial practice under the Shariah. In 1956, Directorate General for compilation of laws’ was established in the Ministry of Justice, for consolidation of Shariah laws in an organized manner, required for implementation of Shariah in the country & guidance of judiciary in particular. Some leading law instruments compiled by the Ministry of Justice during this period were as under:-
(i)   Usulnama-e-Idari Mahakem-e-Adliya (Law of Court Administration – 1956). This law code of 284 sections was compiled for guidance of the judges on jurisdiction, procedure of the court, rules of jurisprudence, etc. Objective of the law code was to achieve uniform judicial practice, redefining jurisdiction & functions of the three tier court system (Primary, higher & Cassation), earliest possible settlement of the cases, explaining subject matter & time limitation for appeals at various levels, under the new judicial system of Shariah.  
(ii)  Talimaat nama-e-Tafshish-e-Maslaki.  (Regulations on Professional Investigation). It was compiled to provide instruction to the investigative organs, in a coordinated manner at various levels of the judicial proceedings. This code spread over 71 sections was also aimed at unified judicial practice, under the Shariah law at various levels.
(iii) Talimaat namah-e-Tazkiya-e-Shuhud (Regulations on admissibility of the evidence).  As evidence has a great role in leading to a right and just decision by a judge, lack of codified law on this subject, usually posed a number of difficulties for the judges. To overcome such problems, Ministry of Justice, compiled law of evidence spread over 39 sections in 1335 Hijri Shamsi (1956). These regulations were compiled under instructions of the Shariah.
(iv) Talimaat namah-e-Wasaya (Regulations on wills). A minor mistake in interpreting will of a person may place life long career and future of people at risk, therefore, it was imperative to compile proper legal instructions on wills & inheritance. To safeguard rights of the minors under Shariah, Ministry of Justice compiled comprehensive regulations on the subject, spreading over 71 sections.
(v.)Talimaat namah-e-Wakalat-eDawa (Regulations on Defence of Case). These regulations, were compiled for effective defence of the rights of the citizens in the course of law. It was public welfare measure, to provide facilities of defence to an accused or aggrieved party.
(vi)Talimaat namah-e-Tahrir-e-Wasaiq (Regulations on writing of legal deeds). These regulations spread over 40 sections were compiled by the Ministry of Justice in 1956-57. Keeping in view importance of legal documents as an evidence/proof under Shariah law. These regulations were of great importance in the judicial proceedings. It may however be recalled that, Usulnama-e-Dawaere Tahrirat (Law of legal instruments-1933), Usulnama-e-Mudiriat haey Auraq (Law of the registration directorates – 1933) formed fundamental law on the subject.
(vii)Usulnamae Nikah-e-Urusi (Law of Marriage – 1934). The law was compiled to place restrictions on unnecessary expenditure on marriages. It prohibited exhibition of the trousseau and walwar (bride price). Subsequent Marriage Law (Usulnama-e-Izdewaj) of 1949 authorized the government for action, if the parents of bride did not allow her to join her husband, merely for demand of bride price. Denouncing the excessive and non Shariah expenditure in marriage ceremonies, the 1949 marriage law also empowered the competent authorities to refer violators of this law to Shariah Courts for punishment.
(viii)Usulnama-e-Taine Miade Murafia wa Tamiz wa Daawa-e-Haquq (Law on limitation for Higher & Cassation courts and civil cases – 1945). This law was further elaborated by the regulations enacted in 1956 as Usul-e-Istema-e-Dawe Wa Taine Miad-e-Murafia wa Tamiz Talabi dar Daawae Haqooq-o-Jazai. (Principles of hearings, limitation for Higher & Cassation Courts in civil and criminal cases).
(ix)Usulnama-e-Ijraate Haquqi-e-Mahakem (Law of civil procedure – 1957). It was consolidation of civil procedure in the light of Shariah for uniform judicial practice n the Shariah courts. Usulnama-e-Mahakem-e-adliya wa Faisala-e-Munaziaat (Law of the courts & settlement of the disputes) was also compiled for the same purpose.
(x)  A number of other Usulnama (Regulations) were also compiled for guidance of judiciary in the special jurisdictions of commercial disputes & military cases like the following:-

1. Usulnama-e-Haquq-e-Wazaef-e-Askari (Law of Military duties & rights)
2. Usulnama-e-Jazae Muhakem-e-Askari(Criminal Law of the Military Courts)
3. Usulnamae Tijarat (Law of Trade)
4. Muhakem-e-Mamurin-e-Mulki dar Utaq haey Tijart wa Faisalae Munazeat-e-Tijarti (Accountability of Govt Officials in Chambers of commerce & settlement of Commercial disputes)

Judicial Reforms
           
Besides the hectic efforts of the Justice Ministry, for compiling laws, regulations, instructions, law manuals, to facilitate uniform judicial practice in the country, under the Hanafi jurisprudence of Shariah as discussed above, a number of other judicial reforms were carried out during this period. Some of these measures were as under:-

1. Independence of Judiciary. Article 89 of the Constitution guarantees freedom of all courts against all kinds of interference. All cases were to be referred to law courts and were to be heard in open except where other wise provided under the Shariah. All citizens were at liberty to quote any provision of Shariah for defence of their rights in the courts.
2. Eradication of ‘Tribal’ Justice Article 2 of the Constitution declared that all areas and regions of Afghanistan constituted a single royal organ of the state, no distinction would be made in any way between different parts of the kingdom. This provision was made to subject all areas & regions of the country, to the central law of the land, the Shariah. It implied abolition of 'tribal territory' having different administrative and legal set-ups. Under article 93 of the Constitution no one was allowed to establish court (tribunal) outside the judiciary for settlement of particular cases. More over, under article 87, all the cases had to be referred to the law courts. These Constitutional provisions were aimed at eradicating the administration of local tribal justice, earlier prevailing in the form of Jirga, adjudication of the cases according to local customs & traditions, known as Pukhtunwali. Such Constitutional provisions were meant to put an end to the murderous feuds, an outcome of the tribal code of honour and revenge. So the settlement of personal disputes were placed in the exclusive jurisdiction of the law courts. As a further safeguard, articles 25 and 26 of the Constitution protected the people from arbitrary taxation, by providing that fixed revenues and taxes can only be levied according to the rules given in the appropriate codes. It appears that a deliberate, though indirect, attempt was made to use power of the religious establishment for extending the jurisdiction of the king over the tribal leaders.

Concentrating all the judicial powers in the Shariah oriented judiciary while keeping right of final appeal with the king, appears to be an unwritten compromise for achievement of this objective. Such a compromise between the religious leaders and the rulers was quite probable at the time of Nadir Shah’s coming into power, when the tribal leaders were at the helms of affairs due to civil war in the country. Instead of their effective role in running the day to day business of the government and administration of tribal justice, the tribal chieftains were given privilege of their effective role in the traditional Loya Jirga (Grand Assembly). No new taxes could be imposed or radical changes in the policy effected, without consulting this Grand Assembly. Matters not catered for in the Constitution, like amendment of the Constitution, were also presented before this Assembly.

1. Training of Judges. Madrasa-e-Ulume Shariah (College of Islamic Law) was established at Paghman by the Ministry of Education in 1322 Hijri Shamsi (1943-44). It was declared that in future, those qualified from this Institution would be appointed as judges. In 1962, the college was shifted to Bagram, Kabul. Maulvi Abdul Haq Khan was Principal of this college. Later this institution was affiliated with the University of Kabul as Puhanzai-e-Shariah (Faculty of Islamic Law). Besides teaching of Islamic Law, this college offered a number of other subjects of practical value to the judiciary. These subjects included writing/compiling of the deeds, drafting cases, judgment writing, financial and administrative matters and interpretation and application of rules and regulations to various cases. Course of studies was formulated in such a manner that graduates of the college may be able to efficiently shoulder the responsibility of a judge.

d.   Accountability of the Judges. According to a popular saying “Power corrupts and the absolute power corrupts absolutely”. So after concentrating all powers in the judiciary, it was imperative to device a system of ‘check and balance’ against misuse of the power for corruption by some judges. Prime Ministry used to monitor cases of malpractices by the judiciary. Article 24 of the Constitution provided for redress against any misuse of power by the judiciary, in a form of appeal to the Prime Ministry and the king. Those involved in corruption were also punished. For instance, Mullah Ajab Gul, a co-judge of Kabul municipality was terminated from his office, by the Prime Minister Hashim Khan, for accepting bribe. He was declared unfit for the government service and his mercy appeal was also turned down by the Prime Minister.
Executive Control over the Judiciary

Though sovereignty of Allah (God) and supremacy of the Shariah were the main themes of the Constitution of 1931, the state power in the Constitution was quite definitely vested in the person of the monarch, and next to him in the executive branch of the government. The king was the supreme head of the executive, legislative and judicial branches of the government and of the national army. He had no responsibility and was inviolable. Prime Minister, the chief executive, was appointed by the king, appointment of other cabinet ministers by the Prime Minister was also subject to the approval of the King. The final authority in all the legislative, executive and judicial fields rested with the king. The king was at liberty to adopt all necessary ,measures to put down the insurrection and restore the peace in case of emergency, under article 104 of the Constitution.
In a system with entire authority of the king, independence of the judiciary guaranteed under article 89 of the Constitution was merely a matter of political expediency. In fact the judiciary was under complete executive control. Minister of Justice, an executive authority, was both administrative and judicial head of the entire court system. Under article 24 of the Constitution, final verdicts of all the courts were subject to appeal to the concerned Minister, the Prime Minister and finally to the king. The king was already inviolable and not answerable to any one, including the judiciary. To keep the judiciary under the executive influence, qualification of judges were not laid down in the Constitution, nor a constitutional procedure was given for impeachment of the judges. Without any laid down procedure obviously their jurisdictions became the ‘Royal prerogatives’. The Constitution of 1923 contained a provision that ‘His majesty the king is the servant and protector of the true religion of Islam, the Constitution of Nadir Shah contained no such formality. He was a king and ‘servant’ to none. So the judiciary under this period was definitely under the executive influence. 
Nadir Shah, a ‘slow moving’ and ‘Shrewd person, had framed the Constitution of 1931 keeping in view objective realties of the Afghan society and political expediencies of the time. The Constitution, reflective of his political wisdom, remained in force for 34 years, without any fundamental change. The constitution on the one hand, assured blessings of both the powerful religious and tribal leaders to the monarchy, at the stage where it was precondition for establishment of a government. On the other hand, it established powerful executive machinery for the state, which deliberately weakened the influence of both the religious and tribal classes over the Afghan society. The liberal parliament of 1949, mostly allowed use of press freedom for tarnishing image of the religious establishment. The religious establishment was made target of criticism, in the form of ‘letter to the editor’.
In the decade of Sardar Daud as a Prime Minister (1953-63) more oppressive policies were adopted for strengthening the executive authority by consolidating the strength of the army and the police. To demonstrate ‘Confidence gained’ by the government against the religious establishment, Prime Minister Daud, foreign minister, other cabinet members, high ranking civil and military officers appeared on reviewing stand of Jashne Istiqlal (Independence celebration – 1959) with their unveiled wives and daughters. Females of the elite of Afghan society had exposed their faces for all to see. It was a clear warning to the religious leaders that Afghan society was modern enough to do without the slogan of Shariah, and the support of religious establishment was no longer a political compulsion of the Administration. The campaign against religious establishment continued for the next five years, on various pretexts, including corruption of judges and unnecessary wastage of government funds over the Mullah (religious leaders). The ‘Shariah’ based Constitution of 1931 was finally scraped on October 1, 1964.

Conclusion

Nadir Shah effectively used the religious leadership by raising slogan of supremacy of the Shariah. After Revolution against Amir Aman Ullah, due to his ambitious modernication efforts, Nadir Shah was supposed to raise slogan of supremacy of the Shariah. As a slow movig and shrewd person, Nadir Shah by establishing a powerful administrative machinery of the state, gradually controlled and de-powerized the religious establishment. After 34 years of the constitution, people started campaign against the religious establishment. Constitution of 1964, came with modern concepts of separation of powers between executive, judiciary and parliamentary organization, under the control of the monarchy. ‘Slow modernization’ under constitution of Nadir Shah, for 34 years, gradually evaporated influence of the religious leadership in Afghanistan. The slow and long campaign launched against religious leadership, by the government, was quite fruitful. The religious establishment unable to use ‘Shariah’ as an instrument for remaining in ‘power’, could not stop the modern ideas and concepts brought into field by the constitution of 1964.
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