SHARIAH’S POSITION IN AFGHAN 2004 CONSTITUTION: A LEGAL ANALYSIS

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The legal position of Shariah in the 2004 Afghan constitution has been considerably debated due to the full involvement of the international community in the constitution-making process. Though Article 3 of the 2004 constitution of Afghanistan states that “no law shall contravene the beliefs and principles of Islam”, considering this provision and others, the position of Shariah in the constitution seems ambiguous. Some legal experts at national and international levels consider the 2004 constitution to be one of the most Islamic constitutions, recognising the supremacy of Shariah. Contrary to this, some scholars think that a set of constitutional provisions predicate a limited applicability of Shariah by referring to Hanafi Fiqh as a gap-filling law in Article 130. Keeping this problem in mind, this research paper examines the supremacy of Shariah in light of all provisions in the 2004 constitution. It aims to outline the actual role of Shariah within the 2004 constitution by elaborating on the different concepts of Shariah and law in the Afghan legal system. The study which follows qualitative research methodology is conducted through major library research and an empirical study, employing comparative and analytical approaches per doctrinal and non-doctrinal methods. It exposes the conceptual and applied aspects of the legal provisions relating to the applicability of the Shariah in the 2004 constitution. The research generally relied on primary sources such as the constitution of Afghanistan and the Quran and Sunnah for the Shariah. The researcher considered the connection between the various constitutional provisions on Shariah in conjunction with the hierarchy of legal norms and found that Shariah has a weak position under the 2004 constitutional setup up as a judicial review attests. The 2004 constitution provides a limited applicability of Shariah in the sense that no law shall contravene the Shariah while at the same time, the term law does not include the constitution- itself and the term Shariah generally refers to Hanafi Fiqh as a subsidiary source of law. The constitutional provisions on Shariah are not amendable, as the 2004 constitution declares them irrevocable. To strengthen the position of Shariah, it is proposed that the primary step is to define the term law comprehensively to include the constitution. However, the best alternative is that Afghans enact a new constitution that provides the supremacy of Shariah.