C OUN T RY R E P O RTS
Afghanistan
Amal Sethi
The University of Hamburg
I. INTRODUCTION
Last year’s report discussed the growing
influence, power and territorial control of
the Taliban. Talks had commenced between
the Taliban and the Trump administration.
American forces were slowly retreating
AFGHANISTAN from Afghanistan. Peace talks with the
Ashraf Ghani government had not begun,
but there was hope that they would in a
manner that would be conducive to Af-
ghanistan’s future.
All signs were pointing to 2021 being a wa-
tershed year for Afghanistan. It was evident
that the Taliban would have a role to play in
the country’s future. It was also likely that
it would want considerable overhauls of the
constitutional arrangements put in place
in 2004. Per the Taliban, the 2004 Consti-
tution was a Western import, incompatible
with local values, and the biggest obstacle
to peace. When and in what manner the
Taliban could be integrated into formal Af-
ghan politics was a question surrounded by
disagreement and uncertainty. There was
certainly some hopefulness that the Taliban
would be involved in Afghan politics like a
normal political party, albeit one that held
some hard-line beliefs. Last year’s report
predicted that there might be no certainty
on this front in the near future. Neverthe-
less, as this year’s events have shown, this
was not the case.
Very few observers would have anticipated
Afghanistan to fall to the Taliban the way it
did, and at the speed it did. However, now
that the Taliban has a complete grip over
power in Afghanistan, several pertinent
questions arise not only for peace in the
country but also for constitutionalism.
II. MAJOR CONSTITUTIONAL
DEVELOPMENTS
The Failure of the Political Order Established
by the 2004 Constitution
Last year’s report mentioned how the 2004
Constitution created a unitary and central-
ized state in a country deeply divided along
ethnoreligious lines and largely controlled by
warlords and militias who make their earn-
ings from the illegal narcotics trade. When
the Taliban was ousted in 2001, the central
government-controlled only about thirty per
cent of the territory in Afghanistan. Scholars
like Shamshad Pasarlay have argued that this
political order created by the 2004 Constitu-
tion cannot be blamed for the collapse of the
government.1 A centralized state was seen as
necessary at the founding to prevent frag-
mentation and preserve national unity and
territorial integrity.2 In due time, the central-
ized state could devolve powers to regional
governments.3 Even if this had been the case,
a better alternative could have been to use
‘sunset clauses’ to ensure that this setup was
temporary.4 The plan to leave state building
to the benevolence of a few people at the
center of a society with very little experience
with modern democratic governance always
had the odds stacked against it.
However, what made the unitary and cen-
tralized state more problematic was its com-
bination with hyper-presidentialism (where
excessive power at the center was concen-
trated in the hands of the president) and the
single non-transferable vote (SNTV) elec-
toral system.5 While the precise reasons for
these choices are beyond the scope of this
2021 Global Review of Constitutional Law | 9
report, miscalculations, narrow-minded poli-
tics and power ambitions played a significant
part.6 These choices were criticized even
during the initial years of the 2004 Consti-
tution.7 There was very little evidence that
such systems could work in Afghanistan.
In the post-World War II era, no country in
the Global South that adopted a presidential
form of government has been able to sustain
democracy on a continual basis.8 Every one
of them has witnessed a democratic break-
down at some point.9 Meanwhile, SNTV
electoral systems are barely used in success-
ful democracies because they produce strong
anti-coalition incentives.10
The downsides of these choices began
showing within a few years of the creation
of the 2004 Constitution. As highlighted
in last year’s report, presidential elections
were contested battles fought along regional
and/or ethnic lines and marred by corruption
and impropriety allegations. The success of
democracy requires the consent of election
losers, and in Afghanistan, the losers rare-
ly conceded.11 The results of these elections
were brokered between the top candidates
rather than decided by numbers. Given the
deep divides in society and the power held
by the Office of the President, this would al-
ways be the inevitable result of a system that
fosters a ‘winner takes all’ outcome. This
system prevented the creation of multiparty
coalitions, which could have been of great
significance in a deeply divided society like
that of Afghanistan. The SNTV system did
not help on this front. The net result was that
Afghanistan never developed a meaningful
party system.
The centralized nature of the government
meant that warlords who controlled the bulk
of the territory had very little incentive to
cooperate with the central government (or
change their ways). Without the coopera-
tion of those in control, the central govern-
ment could barely provide public goods or
establish law and order in large parts of the
country. This engendered severe public dis-
trust in the central government and led to the
creation of parallel state institutions.12 Even
hyper-presidentialism revealed its ugly side
early on. Afghanistan’s second president,
Ashraf Ghani, made no attempts to involve
10 | I•CONnect
regional and ethnoreligious elites in his ad-
ministration and instead tried to entrust pow-
er to a close circle of Pashtuns in Kabul.13 In
2018, in a rather contentious incident, Ghani
dismissed the powerful governor of Balkh,
Atta Muhammad Noor.14 This action was
seen as an attempt to weaken a political and
ethnoreligious rival.15 Incidents like this one
only weakened the legitimacy and popularity
of the central government headed by the pres-
ident in the eyes of the Afghan populace.16
This background allowed the Taliban to
slowly capture village after village and es-
tablish their own justice and security sys-
tems. Many in Afghanistan trusted the Tal-
iban to care for them better than the central
government.17 This fact, combined with the
severe lack of legitimacy and popularity of
the government, resulted in Afghan soldiers
being unwilling to fight against the Taliban.18
Thus, in mid-2022, when the Taliban went
on the offensive, major towns and cities fell
in quick succession.
While the 2004 Constitution is not the root
of all problems in Afghanistan, it arguably
ensured that Afghanistan barely ever stood a
chance at democratic flourishing.19
The Establishment of a New Political Order
Back in 2019, when the Taliban was enter-
ing into negotiations with the Trump admin-
istration, it had stated that it did not seek a
monopoly on power and hoped to operate
inclusively.20 Whether it would (or could be
forced to) stick to its words was always ques-
tionable, considering that the Taliban as a
group is extremely authoritarian in its inter-
nal workings and not familiar with any other
approach. Nevertheless, since the Taliban was
handed the keys to an autocratic system with
no decentralization and no meaningful oppo-
sition, it had very little incentive to govern
democratically.21 This is precisely what has
been witnessed since it gained control. The
Taliban, in fact, reversed all democratic gains
Afghanistan made in the last two decades.
Immediately after coming to power, the
Taliban started implementing a new politi-
cal order. In September 2021, it announced
an interim government.22 This interim gov-
ernment contains no women or officials
from the previous regime and includes very
few members of ethnic-minority communi-
ties.23 The interim government comprises
of men listed as terrorists by foreign gov-
ernments and international organisations.24
It is ultimately accountable to the Taliban’s
leadership council, with whom actual pow-
er rests.25 An all-powerful religious cleric
heads the Taliban’s leadership council, and
there are no formal rules regarding his ten-
ure or appointment.26 The leadership council
oversees various commissions and admin-
istrative organs through which the Taliban
operates the interim government.27 These
commissions focus on matters such as eco-
nomics, education, health and military.28
Beyond constituting the interim govern-
ment, senior members of the Taliban have
ruled out any democratic governance in
Afghanistan on the grounds that it does not
have any place in an Islamic society.29 The
Taliban has also remained silent on whether
it will hold any elections in the future.30 It
even dissolved the election commission in
charge of supervising elections during the
previous regime.31 A Taliban spokesman as-
serted that ‘There is no need for these com-
missions to exist and operate… If we ever
feel a need, the Islamic Emirate will revive
these commissions’.32
The Taliban has provided little detail about
the legal system under which it will operate
beyond stating that it will govern in accor-
dance with Sharia. Not much can be con-
cluded from such a claim in isolation. Sharia,
which simply means ‘the way’ in Arabic, is
a corpus of codes and principles drawn from
the Quran and the sayings and way of life of
the Prophet Muhammad. While Sharia can
illuminate a wide range of subjects, includ-
ing trade and economics, it offers no guid-
ance concerning some of the more complex
laws needed by modern states.33 Much of
how things function in practice depends on
the interpretation of some of the core tenets
of Sharia. However, different branches of Is-
lam have markedly different interpretations
of Sharia, to the point that scholars have ar-
gued that some interpretations of Sharia can
be in line with the principles of the rule of
law, democracy and natural justice as under-
stood in the Western world.34
Nevertheless, there is little evidence to suggest
that the Taliban’s version of Sharia attempts
(or would attempt) to do so. If anything, it can
be argued that the Taliban’s version of Sharia
is more extreme than any other practiced in
the world.35 While the Taliban has promised
to operate less harshly than during its previ-
ous rule (and is arguably doing so),36 it still
does not meet even the most modest human
rights standards. For illustrative purposes, let
us take the issue of women’s rights, which has
received much international attention. The
Taliban certainly passed some decrees that ex-
panded women’s rights in areas such as mar-
riage, divorce and property compared to what
existed when it was last in power.37 It has even
ordered its government ministries and Su-
preme Court to enforce these decrees.38 At the
same time, within days of assuming power,
the Taliban asked female journalists, judges,
bank officials and other professionals to stop
reporting to work.39 Outside Kabul, women
have been prohibited from leaving their hous-
es without a male relative escort.40 The Tali-
ban has also prevented women from entering
universities and has closed down some wom-
en’s clinics and schools.41 It also shut down
the Women’s Affairs Ministry and replaced it
with a Ministry of Vice and Virtue.42 The Min-
istry of Vice and Virtue, which existed during
the previous Taliban rule, is a department of
religious police that oversees the enforce-
ment of the group’s morality codes.43 In the
past, members of the ministry drove around
neighbourhoods in pickup trucks and publicly
humiliated and whipped women who did not
adhere to their rules.44
Problematic actions have been witnessed on
other fronts as well, like the resumption of
public executions and flogging.45 This begs
the question of why the Taliban has devel-
oped such an understanding of Sharia. There
are three important factors at play here. The
first is the idea that harsh punishments are
a means to control the population.46 Since
the Taliban does not have a strong state ap-
paratus to control the population, violence
and public forms of punishment become
a control mechanism.47 The next reason is
that the Taliban rejects anything it views as
even remotely Western.48 Since the Taliban
considers progressive values to have West-
ern roots, it seeks to implement the most
extreme, regressive versions of Islam possi-
ble.49 The third reason is that to highlight its
victory over the West, the Taliban is more
than eager to implement its firebrand ver-
sion of Islam in a rather public manner.50
III. CONSTITUTIONAL CASES
Last year’s report mentioned that the Afghan-
istan judiciary under the previous regime was
one of the least transparent public institutions
in the world. The judiciary did not publish
or report any of its decisions unless doing so
served some ulterior purpose. The ways to
gain information regarding judicial decisions
were: (1) when the government took a par-
ticular action in response to a decision of the
judiciary and provided the latter as the justifi-
cation for their action; (2) press statements by
judicial institutions; (3) statements by judges
and government officials; (4) news articles;
and (5) statements by lawyers and law pro-
fessors who were in the know of what was
happening in judicial institutions.
As stated in last year’s report, since two female
judges associated with the studies directorate
of the Supreme Court and one lower court
judge were the victims of targeted assassina-
tions, it was very unlikely that much would
change on the transparency front in 2021. In
a tense political environment, judicial institu-
tions would be hesitant to publicize the details
of their work. This has precisely been the case.
The websites of the Supreme Court and the
Independent Commission for Overseeing the
Implementation of the Constitution (ICOIC)51,
which have not yet gone offline, contain no
information regarding any decisions rendered
before the Taliban came into power. Official
government gazettes from the first half of the
year also provide no information. Based on the
limited information available, two significant
decisions of the Supreme Court with constitu-
tional elements can be studied. No decisions of
the ICOIC were identified. The two Supreme
Court decisions are as follows.
The cases of Mohammad Amin Farhang and
Wahidullah Shahrani (corruption)
Wahidullah Shahrani was the Minister of
Mines in the Hamid Karzai government. He
was accused of misusing his constitutional
authority in awarding the contract for a ce-
ment factory and a coal mine in Herat to an
Iranian firm.52 He was sentenced to 13 months
in jail and fined $1,500,000 on charges of
misuse of constitutional authority by a spe-
cial court.53 This was the first time a special
court in Afghanistan sentenced a minister for
corruption.54 The Supreme Court confirmed
this decision of the special court.55 Shahrani
did push back against the decision and stat-
ed that it contravened the law.56 He claimed
that he was not interrogated and that no no-
tice was served to him.57 This was believed to
be a rather political decision.58 Beyond this,
there is no information regarding the provi-
sions of the law or the legal reasoning behind
this case. More details on the legal reasoning
could have highlighted interesting constitu-
tional issues regarding fair trial guarantees,
the power of special courts and the constitu-
tional authorities and immunities of ministers.
In a similar case (decided by the Supreme
Court instead of the special court), Moham-
mad Amin Farhang was charged with mis-
using his constitutional authority in handling
a raisin export contract.59 Farhang served as
the Minister of Industries and Minister of
Commerce in Hamid Karzai’s government.60
In late February 2021, the Supreme Court
sentenced Farhang to a one-year prison term
and an $864,000 fine.61 This information
is based on a press statement by one of the
judges of the Supreme Court, Abdul Malik
Kamawi.62 Like in Shahrani’s case, no infor-
mation is available regarding the provisions
of the law or the legal reasoning regarding
this case. Per news reports, Farhang was not
present when the Supreme Court handed this
sentence.63 Another case concerning Far-
hang’s mishandling of the import of 100,000
metric tons of oil that resulted in a loss of
$19,000,000 for the government, was pend-
ing before the courts as of March 2021.64 No
subsequent information on this case has been
made available. Before the Taliban came
into power, the Attorney General’s office had
stated that almost a dozen corruption cases
involving former ministers were underway
at the special court.65
In addition to these corruption cases, cas-
es related to the Kabul University attacks
2021 Global Review of Constitutional Law | 11
deserve mention. In November 2020, two
gunmen in military uniforms attacked Ka-
bul University, taking at least 22 lives
(including 18 students) and injuring 40
people.66 The Islamic State took credit for
these attacks. The Interior Affairs Ministry
stated to the press that Mohammad Adil,
the mastermind behind the attack, had been
sentenced to death by the Supreme Court.67
Moreover, in a press statement, the Su-
preme Court mentioned that five other col-
laborators in the attack had been sentenced
to various jail terms on charges of treason,
transfer of explosive materials and cooper-
ation with the Islamic State.68 Although a
death penalty case might have raised con-
stitutional rights questions in many other
jurisdictions, the Kabul University attacks
case was likely treated as an ordinary crim-
inal law issue given that the death penalty
was very readily awarded in Afghanistan.
After the fall of the Ghani government, the
Supreme Court and ICOIC created by the
2004 Constitution became de-facto inoper-
ative. Many judges associated with courts
operating under the Western-backed gov-
ernment fled, fearing retaliation by the Tali-
ban. For months, there was a judicial lacuna
in Afghanistan, which created problems. At
the time of writing this report, the Taliban
has instituted a new Supreme Court with
its own social media handles. However, the
social media accounts have been silent on
whether this new Supreme Court has started
issuing decisions.
Nevertheless, the judicial system under the
Taliban functioned in a very organised and
sophisticated manner even when the Taliban
operated in exile. This gives us significant
clues as to how the judicial system would
work going forward. Like judicial systems
in other countries, the Taliban’s judicial sys-
tem was a three-tier system in which appeals
from local courts went to a provincial court,
above which, at the apex, sat a Supreme
Court.69 During the Taliban government’s
exile, the Supreme Court operated from
Quetta in Pakistan.70 These courts relied
heavily on the judge’s own interpretation
of Sharia.71 Although decisions of the lower
courts and provincial courts were available
in local registers maintained by the Taliban,
there was very little information regarding
12 | I•CONnect
the decisions of the Supreme Court.72 Ad- Afghanistan (even if it is a version of con-
ditionally, the lower and provincial courts stitutional law that we do not approve of).
dealt with simple criminal and civil cases.73
Issues of constitutional significance were
handled in an authoritarian manner by the V. FURTHER READING
Taliban leadership. This also speaks to how
the Taliban viewed the role of courts and Carey J and Reynolds A, ‘The U.S. Helped
judges in society. The Taliban saw judges as Design Afghanistan’s Constitution. It Was
agents of the ruler and, hence, made no ef- Built To Fail.’(Washington Post, 8 Septem-
fort to create an independent judiciary (both ber 2021) <https://www.washingtonpost.
when they were first in power in the 1990s com/outlook/2021/09/08/afghanistan-con-
and in exile).74 Thus, currently, the Office of stitution-failure/>.
the Chief Justice of the Supreme Court and
the Office of the Minister of Law and Justice Maizland L, ‘The Taliban in Afghanistan,’
are handled by the same individual (Abdul (Council on Foreign Relations, 15 Septem-
Hakim Ishaqzai). Like many authoritarian ber 2021) <https://www.cfr.org/background-
regimes, the Taliban often handpicks judges er/taliban-afghanistan#chapter-title-0-5>.
and ensures that they align with its ideolo-
gy.75 If judges do not eventually side with it, Pasarlay S, ‘Fatal Non-Evolution:
the Taliban simply ignores them or, worse, Afghanistan’s 2004 Constitution and the
retaliates against them.76 Collapse of Political Order’(VerfBlog, 9
September 2021) <https://verfassungsblog.
de/fatal-non-evolution/>.
IV. LOOKING AHEAD
Pillalamarri A, ‘Afghanistan’s Failed Con-
stitution’ (The Diplomat, 12 August 2021)
The year of 2022 will have a major bear-
<https://thediplomat.com/2021/08/afghani-
ing on constitutional law and politics in
stans-failed-constitution/>.
Afghanistan. The precise legal and political
systems that the Taliban would look to put
Rahimi H, ‘The Taliban, The Afghan State,
in place will become clearer in the months
and The Rule of Law’ (Al Jazeera, 1 Sep-
to come. This will undoubtedly dictate at
tember 2021) <https://www.aljazeera.com/
least the short-term future of life and peace
opinions/2021/9/1/the-taliban-the-state-and-
in Afghanistan. Nonetheless, it is also possi-
the-rule-of-law>.
ble that we might not get a lot of clarity on
this front. The Taliban might purposely keep
things vague because this serves their inter-
est by preserving a degree of flexibility to
do as they please, spin information as they
wish and avoid internal disagreements. An-
other important issue will be how the inter-
national community responds to and engag-
es with the Taliban. Experts have cautioned
that threats of force and sanctions from the
international community might do more
harm than good, especially to the rights of
the common Afghans.77 For those of us in-
terested in constitutional law, the operation
of the Supreme Court will undoubtedly be
of interest. The Taliban has fully embraced
social media and technology. Although it
would be highly optimistic to expect com-
plete transparency from the Taliban, there
always remains hope that we may get more
opportunities to study constitutional law in
1 Shamshad Pasarlay, ‘Fatal Non-Evolution: Af-
ghanistan’s 2004 Constitution and the Collapse
of Political Order’(VerfBlog, 9 September 2021)
<https://verfassungsblog.de/fatal-non-evolu-
tion/> accessed 1 March 2022.
2 ibid.
3 ibid.
4 Amal Sethi, ‘Book Review: Afghanistan Legal
Education Project, An Introduction to the Consti-
tutional Law of Afghanistan (Stanford Law School,
Rule of Law Program, 2nd Edition, 2015),’ (2021)
5(2) Indian Law Review 250, 256.
5 John Carey and Andrew Reynolds, ‘The U.S.
Helped Design Afghanistan’s Constitution. It
Was Built To Fail.’(Washington Post, 8 Septem-
ber 2021) <https://www.washingtonpost.com/
outlook/2021/09/08/afghanistan-constitution-fail-
ure/> accessed 1 March 2022.
6 ibid. See also Sethi (n 4) 250-259.
7 See Barnett Rubin, ‘Crafting A Constitution for
Afghanistan’ (2004) 15(3) Journal of Democracy
5; See also Andrew Reynolds, ‘Electoral Systems
Today: The Curious Case of Afghanistan’ (2006)
17(2) Journal of Democracy 104.
8 Bruce Ackerman, ‘The New Separation of Pow-
ers’ (2000) 113(3) Harvard Law Review 633, 646.
9 ibid.
10
ibid.
12 Akhilesh Pillalamarri, ‘Afghanistan’s Failed
Constitution’ (The Diplomat, 12 August 2021)
< https://thediplomat.com/2021/08/afghani-
stans-failed-constitution/> accessed 1 March
2022.
13 Pasarlay (n 1).
14 ibid.
15 James Mackenzie and Matin Sahak, ‘Stand-
Off Over Powerful Afghan Governor Foreshadows
Bitter Election Fight’ (Reuters, 7 January 2018)
<https://www.reuters.com/article/us-afghani-
stan-governor-atta-noor/stand-off-over-power-
ful-afghan-governor-foreshadows-bitter-elec-
tion-fight-idUSKBN1EW07N> accessed 1 March
2022.
16 Pasarlay (n 1).
17 ibid.
18 ibid.
19 Carey and Reynolds (n 5).
20 Kathy Gannon, ‘Taliban Say They Are Not Look-
ing To Govern Afghanistan Alone,’ (APN News,19
January 2020) <https://apnews.com/article/zal-
may-khalilzad-taliban-ap-top-news-internation-
al-news-asia-pacific-0624283628154a48b09f31f-
f173e3ad9> accessed 1 March 2022.
21 Jennifer Brick Murtazashvili, ‘The Collapse of
Afghanistan.’ (2022) 33(1) Journal of Democracy
40, 51-52.
22 Lindsay Maizland, ‘The Taliban in Afghanistan,’
(Council on Foreign Relations, 15 September
2021) <https://www.cfr.org/backgrounder/tali-
ban-afghanistan#chapter-title-0-5> accessed 1
March 2022.
23 ibid.
24 ibid.
25 ibid.
26 ibid.
27 ibid.
28 ibid.
29 Lexi Lonas, ‘Taliban Commander Rules Out De-
mocracy In Afghanistan’ (The Hill, 19 August 2021)
< https://thehill.com/policy/international/568551-tal-
iban-commander-rules-out-democracy-in-afghani-
stan-it-is-sharia-law> accessed 1 March 2022. stan-168967> accessed 1 March 2022.
30 ‘Who Will Run The Taliban Government,’ (Inter- 53 ibid.
national Crisis Group, 9 September 2021) <https:// 54 ibid.
www.crisisgroup.org/asia/south-asia/afghanistan/ 55 ibid.
who-will-run-taliban-government> accessed 1 56 ibid.
March 2022. 57 ibid.
31 ‘No Need: The Taliban Dissolves Afghanistan Elec- 58 Jamshid Fedaie, ‘Wahidullah Shahrani, a Vic-
tion Commission’ (Al Jazeera, 25 December 2021) tim of Political Rivalry’ (Afghanistan Times, 16
<https://www.aljazeera.com/news/2021/12/25/tal- January 2021) <https://www.afghanistantimes.af/
iban-dissolves-afghanistan-election-commission> wahidullah-shahrani-a-victim-of-political-rivalry/>
accessed 1 March 2022. accessed 1 March 2022.
32 ibid. 59 Haseeba Atakpal, ‘Ex-Minister Gets Year in
33 Andrew Jeong et. al, ‘The Taliban Says It Will Prison, $864K Fine’ (TOL News, 23 February 2021)
Rule Under Sharia Law. What Does That Mean?’ <https://tolonews.com/afghanistan-170242> ac-
(The Washington Post, 25 August 2021) <https:// cessed 1 March 2022.
www.washingtonpost.com/world/2021/08/19/ 60 ibid.
sharia-law-afghanistan-taliban/> accessed 1 61 ibid.
March 2022. 62 ibid.
34 Noah Feldman, ‘Does Sharia Mean the Rule 63 ibid.
of Law’ (The New York Times, 16 March 2008) 64 ibid.
<https://www.nytimes.com/2008/03/16/news/16i- 65 Shaheed (n 51).
ht-16shariaht.11119704.html?> accessed 1 66 ‘Mastermind of Kabul University Attack Sen-
March 2022. tenced To Death’ (TOL News, 1 January 2021)
35 Ron Synovitz, ‘Taliban ‘Tribal Version’: Shari’a <https://tolonews.com/afghanistan-168925> ac-
Is Not The Same Everywhere’ (RFE/RL, 2 October cessed 1 March 2022.
2021) <https://gandhara.rferl.org/a/taliban-sha- 67 ibid.
ria-law-afghanistan/31488108.html> accessed 1 68 ibid.
March 2022. 69 Ashley Jackson and Florian Weigand, Rebel
36 Murtazashvili (n 19), 51. Rule of Law, (Humanitarian Policy Group, 2020)
37 ‘Taliban’s Supreme Leader Issues Decree on 4-5.
Women’s Rights’ (TOL News, 3 December 2021) 70 ibid.
<https://tolonews.com/afghanistan-175725> ac- 71 ibid.
cessed 1 March 2022. 72 ibid.
38 ibid. 73 ibid.
39 Daniel Victor, ‘What is Sharia Law, and What 74 Haroun Rahimi, ‘The Taliban, The Afghan
Does it Mean for Afghan Women Under Taliban’ State, and The Rule of Law’ (Al Jazeera, 1 Sep-
(The New York Times, 19 August 2021) <https:// tember 2021) <https://www.aljazeera.com/opin-
www.nytimes.com/article/shariah-law-afghani- ions/2021/9/1/the-taliban-the-state-and-the-rule-
stan-women.html?> accessed 1 March 2022. of-law> accessed 1 March 2022.
40 ibid. 75 ibid.
41 ibid. 76 ibid.
42 Synovitz (n 35). 77 ‘The World Must Act Now To Stop Afghans Starv-
43 Victor (n 39). ing’ (The Economist, 13 November 2021) <https://
44 ibid. www.economist.com/leaders/2021/11/13/the-
45 ‘Kidnappers Body Hung in Public View’ (Hin- world-must-act-now-to-stop-afghans-starving>
dustan Times, 25 September 2021) <https:// accessed 1 March 2022.
www.hindustantimes.com/world-news/kid-
nappers-body-hung-in-public-view-punish-
ment-that-taliban-are-bringing-back-in-afghani-
stan-101632588226185.html> accessed 1 March
2022.
46 Ron Synovitz, ‘Judge, Jury, And Executioner:
Taliban Brings Afghanistan’s Justice System Un-
der Its Thumb’ (RFE/RL, 1 October 2021) <https://
gandhara.rferl.org/a/taliban-afghanistan-jus-
tice-system/31588972.html> accessed 1 March
2022.
47 ibid.
48 Kali Robinson, ‘Understanding Sharia: The
Intersection of Islam and the Law,’ (Council on
Foreign Relations, 17 November 2021) <www.cfr.
org/backgrounder/understanding-sharia-intersec-
tion-islam-and-law> accessed 1 March 2022.
49 ibid.
50 Synovitz (n 35).
51 As was discussed in last year’s report this is
the parallel institution to the Supreme Court that
also exercises some power of constitutional inter-
pretation.
52 Anisa Shaheed, ‘Ex-Mines Minister Criticizes
Court Ruling, Pleads Not Guilty’ (TOL News, 3
January 2021) <https://tolonews.com/afghani-
2021 Global Review of Constitutional Law | 13
 Albania
Arta Vorpsi, PhD
Professor of Constitutional Law
University of Tirana, Law Faculty

I. INTRODUCTION position and continuous attacks against ma-

jority and foreign ambassadors in Albania,
which according to the latter was not in con-
The year 2021 was an election year, as such
formity with the role of the head of the state
characterized not only by political polar-
in general and much less with that of the
ization caused by the electoral process, as
ALBANIA president in a parliamentary system.3 After
it normally happens in Albania, but also by
investigations made by an ad-hoc parliamen-
the effects of some other political develop-
tary commission the majority discharged the
ments that enormously affected the political
President, and passed the matter to the Con-
climate after the election. The parliamentary
stitutional Court to confirm or withdraw the
life remained affected by a prolonged boycott
decision of the parliament. The Court, after
(more than 2 years) from the opposition co-
8 months (in February 2022) repealed the
alition, which finally returned in parliament
parliament’s decision on the ground of no
in September 2021, after the election in April
“heavy breaches” of the constitution by the
of the same year.1 Further, the biggest oppo-
President of the Republic.4
sition party (Democratic party) was heavily
hit by the official statement of the US State
This report will focus on constitution-
Department sanctioning former Albanian
al developments during 2021 that include
Prime Minister, President and founder of
the general election process, a proposal to
Democratic Party, Sali Berisha and his im-
change the constitutional mandate of vetting
mediate family members, because of his “in-
institutions, the continuous renewal of jus-
volvement in significant corruption.”2 Right
tice institutions (re)designed by the constitu-
after, the actual leadership of the Democratic
tional reform approved in 2016 and some of
party expelled Mr. Berisha from the parlia-
the most important decisions of the Constitu-
mentary fraction which led to a division of
tional Court during 2021.
the party in two groups, pro and against the
US State Department sanction. The conflict
was transferred before the court, both groups
claiming formal leadership of the party. II. MAJOR CONSTITUTIONAL
DEVELOPMENTS
Meanwhile, the difficulties of the pandemic
have slowed down the process of vetting judges Parliamentary elections
and prosecutors and the renewal of high courts.
Therefore, a two-year length of the mandate of The political environment remained polar-
vetting organs was proposed by international ized throughout 2021, during which the gen-
partners to verify most of the assessments. eral election took place. Previously, during
2020 a constitutional reform on the electoral
In parallel to that, once again, the parliamen- system was undertaken.5 The election pro-
tary majority initiated another impeachment cess took place on 25th April, less than 50%
procedure against the President of Republic, (46.33%) of the voters participated to choose
because of his active support towards the op- between 12 political parties/coalitions. The

14 | I•CONnect