Afghanistan's Constitutions: A Comparative Study and their Implications for Afghan Democratic Development

摘要

Afghan constitutions have had a tendency to marginalize Afghan society. As a result, the continued ethnic fragmentation of Afghanistan has minimized the capacity of constitutions of the past to achieve societal stability. Instead, past Afghan constitutions have explicitly supported regimes rather than address the problem of the fragmentation of Afghanistan into small ethnic, linguistic, familial, and in some cases, religious, elements. While Afghanistan's current constitution accommodates the multi-ethnic pattern of Afghan society, it provides only a partial solution to the challenges of state-building created by multi-ethnic societies. The purpose of this thesis is to assess the sustainability of Afghanistan's current constitution, signed 28 January 2004. It will analyze the legacy and impact of past constitutions on the current constitution, examine the relationship of Afghan society and polity in relation to the constitution, and appraise the importance of a constitutionally based legal system for Afghan democratic development. The 1923, 1964, and 1977 Constitutions are analyzed according to the following elements: codification, legal status, distribution of sovereignty, relationship between the institutions of the state, individuals and the state, religion and the state, ethnicity and the state, and constitutional reality. The author contends that each of these constitutions was missing important elements that prevented it from having an impact on rural tribal society. She then examines how each of these constitutions affected the present constitution and speculates why the 2004 constitution draws so heavily from the 1964 constitution. A concluding section discusses the implications of this analysis for Afghan state-building.