The Constitution and the Rule of law in developing Countries:The example of Afghanistan

By: Dr. Phil Najibullah Anwar  

Today, Afghanistan could celebrate over 100 years of constitutional history. Ghazi Amanullah Khan proclaimed the first constitution of Afghanistan in 1923. This constitution aimed to modernize the country, promote the rule of law, establish legitimacy, ensure the protection of human rights, balance power, and encourage economic development. 

Before coming to power, King Amanullah Khan criticized his father for governing as a tyrant and an absolute ruler. However, after assuming power in Afghanistan, he did not govern differently; his rule was marked by authoritarianism. While creating a constitution was a very progressive step for its time, he was unfortunately unable to establish a true rule of law. The constitution granted the king extensive powers, including the authority to appoint all high-ranking government positions, control over the military, and a lack of separation of powers. The king was the sole ruler and did not appoint a prime minister for most of his reign.

During King Amanullah Khan's reign, the centralization of power was evident in various aspects of governance. One significant example was in the foreign ministry, where he removed his ministers seven times within ten years. The 1923 constitution, which Amanullah Khan introduced, granted him substantial authority, particularly over the council of government ministers. 

In parliament, limitations on free debate further concentrated power. Delegates were not allowed to freely discuss issues of their choosing; instead, they had to submit their speeches to Sher Muhammad Khan, the president of the parliament, who had the authority to decide which topics could be debated. This centralization and monopolization of power by the King contributed to the challenges he faced in implementing his reforms and maintaining stability in the country.

In 1928, during the Loya Jirga in Paghman, Abdur Rahman Khan Ludin, a prominent politician, criticized the King: “Your Majesty considers himself a progressive and democratic king, but for years the country has not had a prime minister.” The position of prime minister remained vacant until the end of King Amanullah Khan's reign. After this speech, Ludin was dismissed from his position as president of Kabul’s customs.

Despite introducing a constitution, the King ignored it whenever it suited him and even suspended it during times of crisis. Whenever a new regime or ruler came to power in Afghanistan, they would declare the previous constitution invalid and no longer in force.

In Afghanistan, as in many other developing countries, the constitution has often become a tool for those in power to maintain their hold, monopolize authority, and control the government for the benefit of their clan, family, or party. In these countries, constitutions are formally accepted but rarely implemented. In contrast, modern states design their constitutions to be permanent and difficult to change or invalidate, although they can be amended over time. 

Unfortunately, we cannot genuinely celebrate 101 years of our constitutional history, but we can take pride in its legacy.