Enforcing Article 3 of the Afghan Constitution

Lessons from the Pakistani Federal Shariat Court

Abstract

This article illuminates the possible negative consequences of enforcing Art. 3 of 2004 Constitution of Afghanistan through judicial review. The argumentation is based on a historical survey of the origin and development of the Islamic repugnancy clause in Afghan legal history, a conceptual critique of the dogmatic ideal expressed in the Islamic repugnancy clause, ending with a comparison with the Pakistani experience with enforcing a similar clause through judicial review. It concludes that the current enforcement mechanism creates the fundamental risk of transferring quasi-legislative powers to a small un-elected group of officials by opening a gate to a supra-constitutional level of law that is not compatible with modern constitutionalism.