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Constitution of Afghanistan
Ratified	October 1964

A 1965 postage stamp of Afghan Post with a picture of the proclamation of the constitution

The 1964 Afghanistan Constitution was the constitution of Afghanistan from 1964 to 1973, when it was annulled following a coup d'état though parts of the constitution were reintroduced by the Taliban government in 2021. It was drafted by a committee of foreign-educated Afghans, including Sardar Abdul Hakim Ziai and Sardar Abdul Rahim Ziai, appointed for the task by Mohammed Zahir Shah. The primary goals of the Constitution were to prepare the government and the people for gradual movement toward democracy and socioeconomic modernization. A Loya jirga (grand council of notables) had debated, modified and approved its innovations, which included a bill of rights for all Afghans, explicitly including women. After public review, the constitution was put into effect in October 1964.

Although Afghanistan became a sovereign nation in 1747 under the rule of Ahmad Shah Durrani, the earliest Afghan constitution was written during the reign of Emir Abdur Rahman Khan in the 1890s followed by a 1923 version. The 1964 Constitution transformed Afghanistan into a modern democracy, though flaws in that system eventually led to its collapse.

After the Taliban takeover of the country half a century later, the new regime said they would reinstate parts of the 1964 constitution that were “not in conflict with Islamic Sharia (law)” to govern the country.

History

Drafting and Implementation

The drafting of a new constitution was called for by the King of Afghanistan, Mohammed Zahir Shah. He had ruled for 30 years over a period of relative stability, with economic and political progress coming slowly but steadily.

In March 1963, the King’s cousin and Royal Prime Minister, Mohammed Daoud Khan, was forced to resign. He was first asked to resign due to his foreign policy having led to closer ties with the USSR and an economic downturn from a blockade imposed by Pakistan. Instead, he asked King Zahir Shah to approve a new one-party constitution which would increase Daoud’s power. After being turned down, he finally resigned.

King Zahir Shah replaced Daoud with a cabinet of commoners with foreign doctoral degrees and appointed other foreign-educated Afghans to a constitutional drafting committee just two weeks after the Royal Prime Minister’s resignation. The committee’s objective was: “to prepare the government and the people for gradual movement toward democracy and socio-economic modernization.” The constitution was drafted across a period of 18 months, during which all sectors of society were consulted.

After it was drafted, a Constitutional Loya Jirgah, a grand or great council of notables, was created for the purpose of debating, modifying, and approving the new constitution. Historical reports describe this Loya Jirgah as an open forum, with a debate and review process for each article before any modifications and its approval. The 452 members of the Loya Jirgah (which included 6 women) signed the constitution on September 20, 1964, and just 10 days later King Zahir Shah’s signature made it official. The ratification of the constitution, in 1964, ushered in the era known as “new democracy.”

The implementation of the 1964 Constitution represented several major shifts in the political culture of Afghanistan. All members of the royal family except the King were banned from participating in politics or government. Individual rights were elevated above tribal ones. New provisions that would normally be stopped by conservative clergy were introduced. Constitutional and parliamentary law were established as above religious law.

The 1965 Afghan parliamentary election was seen as “remarkably fair” and members were elected from across the political spectrum. This included members from the anti-royalist faction, as well as four from the ideologically communist People's Democratic Party of Afghanistan (PDPA), although individuals could not run as members of a specific party and the PDPA avoided community labelling. The lower house of the Afghan parliament featured criticism of the government, a sign of democracy.

Decline and Fall

While the 1964 Constitution created a more democratic government with a degree of freedom greater than ever before in the history of Afghanistan, it failed to make this system stable. In the decade following its establishment, Afghanistan had three separate elections and four different governments, all of them failing to pass needed reforms. The document provided for a constitutional monarchy, with some limited power in the hands of elected officials, but the King had ultimate authority. Control of the military was a major factor in this, solidifying royal superiority. For peace and stability—which the 1964 Constitution ultimately failed to achieve—executive and military subordination to civilians is essential.

Despite the relatively progressive developments of the new constitution, it still had many provisions to ensure that the King maintained a strong influence. While members had the right to form political parties, this required the passage of legislation to manage their formation. The King refused to sign this legislation, meaning they never became legal. Cooperation between the King’s cabinet and parliament, something fundamental to traditional parliamentary systems, was discouraged. The cabinet had control over the composition of parliament’s upper house. The executive branch had the option to slow or stop parliamentary legislation. All these provisions created an oppositional relationship between parliament and the cabinet that led to political deadlock, preventing the passage of laws.

On the opening day of parliament in October 1965, a violent student demonstration led in part by newly-elected legislator of the PDPA Babrak Karmal resulted in two students being shot and killed when General Abdul Wali sent in troops to restore order. There were few limits around the military in the 1964 Constitution, with the King as the commander and the legislature's approval only necessary for dispatching troops abroad. King Zahir Shah’s handpicked prime minister, Yousuf, was forced to resign. The unrest this generated in Afghan military leaders contributed to them resisting the increased freedom of expression, assembly, and media outlined in the new constitution.

The 1969 parliamentary elections did not see a significant increase from the low turnout of the elections 4 years earlier. All female delegates and half of the leftists lost their seats, and a greater number of non-Pushtun members were elected. Pushtuns historically have been the largest ethnic group in Afghanistan and dominated politics. As deadlock continued, public disapproval increased and the King came under criticism, even as his personal popularity remained high. This disapproval was particularly high among the growing population of secondary and university students, whose opportunities were limited.

On July 17, 1973, while King Zahir Shah was receiving medical treatment in Italy, his cousin Mohammed Daoud Khan returned and took control of the government in a nearly bloodless coup. The response to Daoud’s coup by the public was generally positive, a reflection of the public’s dissatisfaction with the previous regime.

Other Constitutions and Intermediate History

After the 1973 coup, the 1964 Constitution went out of use as the country cycled between different regimes and constitutions. New constitutions were implemented in 1976, 1987, 1990, and 2004.

Daoud and his administration were overthrown by another coup less than 5 years after his own, with a Communist government led by the Khalq faction of the PDPA taking power. This was replaced in late 1979 by Babrak Karmal, who led the other PDPA faction, who was installed by a Soviet invasion. Around the same time, the Mujahideen rebels united against the government and Soviet influence, beginning a protracted civil war. With the rebels receiving arms from the United States, Britain, and China, it was also tied into the Cold War as a proxy conflict. The Mujahideen took over in 1992, and in 1995 the Taliban rose to power. Most Afghans approved of the Taliban, but the United States didn’t recognize the government.

After the September 11 attacks, Afghanistan refused to turn over suspected mastermind Osama bin Laden to the United States, and American warplanes began bombing Taliban and al-Qaida targets. In December 2001, the Northern Alliance pushed the Taliban out of Afghanistan and an American-backed government led by Hamid Karzai began. A new constitution was adopted in 2004 with citizen input, and presidential and parliamentary elections were held. The United States stayed heavily involved in Afghanistan, but began the process of withdrawing in a peace deal with the Taliban in February 2019. The last troops left in August 2021.

2021 Taliban Takeover and Reimplementation

In August 2021, the Taliban regained de facto control of Afghanistan after the nearly 20 year long War in Afghanistan. On September 28, they announced that they planned to temporarily enact provisions from the 1964 Constitution of Afghanistan that are “not in conflict with Islamic Sharia (law).” The group also announced that they were in the process of drafting a new constitution that would be finished by 2022. Exactly which provisions the Taliban would use was not immediately clear. Regarding elections, which are featured in the 1964 constitution, a Taliban spokesman said: “About election or no election, let’s wait.”

There are many questions about how a reimplementation under the new Taliban government would work. The absence of a king is one notable example, as the monarch is deeply integrated into how the 1964 Constitution works. As described in Title II of the Constitution, the king has broad powers including command of the armed forces and appointing many members of the government. The Taliban could instead delegate these powers to a different official. Further, the Taliban’s statement of uncertainty for elections suggests they may alter some of the democratic aspects of the Constitution.

Title I: The State

In Article 1 of the 1964 Constitution, Afghanistan is defined as a “Constitutional Monarchy”, as well as an “independent, unitary, and indivisible state.” It also specifies that the word “Afghan” applies to all citizens of Afghanistan, noteworthy because the term had previously been used specifically to refer to ethnic Pushtuns.

Article 2 enshrines Islam as the “sacred religion of Afghanistan,” though it also stipulates that non-Muslims can freely “perform their rituals” within legal limits for public decency and peace.

Title I also makes Pushtu and Dari the official languages, defines the flag, and makes Kabul the capital (though a later provision allows the capital to be moved under emergency circumstances).

Title II: The King

Title II primarily defines the powers and qualifications of the King. The King’s “rights and duties” include commanding the armed forces, declaring war and armistice, signing and proclaiming laws and treaties, appointing the Prime Minister, the non-elected members of the upper house of parliament and its president, the Justices and Chief Justice of the Supreme Court, judges and high ranking military officials, proclaiming and ending a state of emergency, and issuing pardons. This section of the constitution gave the King broad powers which he used to maintain strong influence, something which weakened the ability of the government to function democratically and contributed toward its eventual fall.

The King is required to be an Afghan national, a Muslim, and a follower of the Hanafi doctrine. The constitution also only considers male members of the royal family to be eligible for succession. The full rules of succession are defined in Articles 18 and 19. The kingship is passed first to the King’s sons in order of age, then the King’s brothers in order of age. If there is no son or brother possessing the qualifications of kingship, the King is elected from the descendants of Mohammed Nadir Shah by an Electoral College of the Loya Jirgah, Government, and Justices of the Supreme Court. Title II also contains provisions for regency.

The “Daoud Clause”

Article 24 of the constitution stipulated that members of the royal family could not participate in political parties and could not be the Prime Minister, a Member of the Shura, or a Justice of the Supreme Court. The inclusion of this provision appeared to many as an intentional move to block Mohammed Daoud Khan—the cousin of King Zahir Shah and his former Royal Prime Minister who had been forced to resign—from returning to power, leading to it becoming known as the “Daoud Clause.”

This provision eventually failed to accomplish that purpose when Daoud overthrew the new constitutional monarchy that the 1964 Constitution provided for as leader of the 1973 Afghan coup d’état. The “Daoud Clause” made it so that Daoud, who had grown more and more restless as he remained out of power, had no way to once again enter the government without voiding the constitution.

Title III: The Basic Rights and Duties of the People

Title III primarily serves to outline the rights of the Afghan people. These rights include equal protection of the law, inviolable liberty and dignity, freedom of movement, no extradition to foreign states, no illegal searches or seizures, freedom and secrecy of communication, freedom of thought and expression, printing and publishing ideas, assembly, education, “balanced facilities for the prevention and treatment of diseases,” and work. In addition, Article 26 lays out criminal rights, mainly the rules around arrests, trials, detainment, and punishment. It outlaws the use of torture and specifies that debtors do not lose any of their liberties. These rights were liberal and democratic on paper, but in reality were not always fully protected. One example of this is freedom of the press, as different sources were given very different treatment by the King, including the banning of some opposition opposition publications like Khalq.

The right to political parties is given in Article 32, however as aforementioned the necessary legislation to make this right a reality was never approved by the King, so political parties could not be formed.

The duties mentioned include paying taxes, defending the country, following the provisions of the constitution, and bearing loyalty to the King.

Title IV: The Shura (Parliament)

Title IV defines the structure of Parliament. Parliament “manifests the will of the people and represents the whole of the nation.” It consists of two houses: the lower house, called the Wolesi Jirgah or House of the People, and the upper house, called the Meshrano Jirgah, or House of the Elders. The lower house is elected by the people in a “free, universal, secret and direct election,” with members chosen from electoral constituencies in a first past the post system. The lower house elects one of its members as President of the House. For the upper house, one-third is appointed by the King, one-third is elected by each Provincial Council from amongst its members, and one-third is elected by the residents of each province. Its president is appointed from amongst its members by the King.

Other articles describe the qualifications for voters, qualifications and right for members of parliament, outline the legal process for accusing a member of an offense, the rules and steps of the debate and legislative process, the working schedule, the rules for an Enquiry Commission to “investigate and study the conduct of the Government,” and the budget process.

Implementation

The electoral system developed on the basis of this constitution weighted regions with Pushtun majorities higher than others. Pushtuns are the largest ethnic group in Afghanistan.

Article 64 is notable for its provision which states: “There shall be no law repugnant to the basic principles of the sacred religion of Islam and the other values embodied in this Constitution.” This is another place where Islam is specifically enshrined into the text of the constitution, but the system allowed for the elected representatives of the people to decide how to carry out that provision. As comprehensive legal codes were passed, the application of Islamic legal interpretations by judges became less necessary.

Title V: The Loya Jirgah (Great Council)

Title V describes the structure of the Loya Jirgah. It is summoned in special occasions by a Royal proclamation, and consists of members of parliament and the Chairmen of the Provincial Councils. Its deliberations are open by default, but a secret session can be held if approved by the Loya Jirgah. The Loya Jirgah is presided over by the President of the lower house of parliament, or if absent, the president of the lower house. Decisions are made by majority.

Title VI: The Government

Title VI describes the structure of the executive branch, which consists of the Prime Minister, the head of government, and the Ministers. The Prime Minister and Ministers can be chosen from parliament, but cannot simultaneously serve in both positions. The Prime Minister presents the members and policy of the Government to parliament, who take a vote of confidence in the Government, after which the King issues a Royal decree appointing the Head and members of the Government. Title VI also outlines the process for the government falling, listing the situations in which this happens including the death of the Prime Minister, the end of the legislative term, or a vote of no-confidence. This section features the guidelines for impeachment.

Title VII: The Judiciary

Article 97 describes the judiciary as “an independent organ of the state.” Title VII outlines the structure of the branch, including appointments, composition, and authorities. Most prominent is the Supreme Court, which is appointed by the King and serves as the “highest judicial authority in Afghanistan” under the constitution. The King can review the appointment of each Supreme Court Judge after 10 years, but they otherwise stay in their position unless impeached. It is a unitary court system, with no power of judicial review. In cases where there is no provision in the constitution or law for a case, the courts make a decision “by following the basic principles of the Hanafi Jurisprudence of the Shariaat of Islam.”

Implementation

While the 1964 Constitution was intended to establish an independent judiciary as part of a system of checks and balances, in reality it achieved neither independence nor coherence. There were three main problems that prevented the goals of the constitution from being reached. Those were a lack of enough qualified judges and lawyers to ensure the fair and even application of the law, the entrenched influence of local traditional practices for resolving disputes, and the superior authority of the King and Prime Minister over the judiciary.

Title VIII: The Administration

Article 108 describes the administration of Afghanistan as “based upon the principle of centralization,” as the constitution creates a unitary state. The central administration is divided into administrative units called provinces, as well as municipalities organized to administer the affairs of cities.

Implementation

Under this constitutions centralized, unitary system, provinces were subject to the national government and had little agency of their own, with very limited decision-making power in determining their own structure, leadership, or staffing. Title VIII outlines the structure of “Provincial Councils,” locally elected bodies formed for the “realization of the development targets of the State in the manner specified by law” and to advise the Provincial Government. However, the law required to actually create these councils was never passed, so they were never given a chance to form. Afghan's diversity makes fully centralized government difficult, and the failure to fully build out the provincial system thus contributed to the eventual downfall of the 1964 Constitution.

Title IX: State of Emergency

Title IX provides an emergency recourse for situations where “the preservation of independence and the continuance of normal life become impossible through the channels provided for in this Constitution.” It allows the King to transfer all or some of the powers of parliament to the executive.

Title X: Amendment

Title X describes the process by which the constitution can be amended.

Title XI: Transitional Provision

Title XI gives provisions for the transition to the 1964 constitution from the previous regime.

External links

• Text of the 1964 Constitution

Category:Law of Afghanistan Category:1964 in Afghanistan Category:1964 in law Category:Government documents of Afghanistan Category:Defunct constitutions Category:1964 documents