1923 Constitution of Afghanistan

Independence and the Third Anglo-Afghan War

Following the death of Habibullah Khan in February 1919, his son Amanullah Khan ascended to the Afghan throne and immediately declared full Afghan independence from British suzerainty. The Third Anglo-Afghan War, which lasted from May to August 1919, ended with the Treaty of Rawalpindi, by which the United Kingdom relinquished its control over Afghanistan's foreign affairs. Afghanistan thus became a fully sovereign state for the first time in the modern sense, free to conduct its own diplomatic relations.^[4]

The restoration of full sovereignty created both an opportunity and a necessity for internal reform. Amanullah sought to transform Afghanistan from a loosely organized tribal polity into a modern, centralized nation-state capable of engaging with the international community on equal terms.^[4]

Reform programme

Following independence, Amanullah initiated an ambitious programme of political, legal, social, and educational reform. Influenced by the modernizing states of the Ottoman Empire and Iran, as well as European constitutional models and Islamic modernist thought, his government sought to codify laws that had previously existed in a diffuse or informal state. Central to this project was the creation of a written constitution, a document that would formally define the relationship between the state and its subjects, and legitimize the new order both domestically and internationally.^[5]

Article I to III – state identity and sovereignty

Article I declared Afghanistan to be completely free and independent in the administration of both its domestic and foreign affairs. All parts of the country were placed under the authority of the king and were to be treated as a single, undivided unit without discrimination between different regions.^[9]

Article II proclaimed Islam as the state religion of Afghanistan. Non-Muslim residents, specifically Jews and Hindus, were guaranteed full state protection provided they did not disturb public order.^[8]

Article III designated Kabul as the capital, while guaranteeing that citizens of all cities and villages would receive equal treatment from the government, with no special privileges accorded to the people of the capital.^[9]

Articles IV to VII – the monarchy

Article IV vested the succession to the Afghan throne in the royal line of Amanullah Khan on the principle of male inheritance, with selection to be made by the king and the people of Afghanistan. A king on ascending the throne was required to pledge to rule in accordance with the principles of the sharia and the constitution, to protect the country's independence, and to remain faithful to the nation.^[9]

Article V defined the king as both servant and protector of Islam and ruler of all subjects of Afghanistan.^[9]

Article VI established that the affairs of the country were to be administered by ministers selected and appointed by the king, with each minister individually responsible for his ministry and the king not personally liable.^[9]

Article VII enumerated the prerogative rights of the king, including: mention of his name in the Friday prayers (khutba); minting of coins in his name; appointment and dismissal of the prime minister and other ministers; ratification and promulgation of public laws; command of the armed forces; declaration of war, conclusion of peace, and treaty-making; and the granting of amnesty and pardon.^[9]

Articles VIII to XXIV – rights of subjects

The constitution dedicated a substantial chapter to what it termed the "general rights of the subjects of Afghanistan." Key provisions included:

• Article VIII – citizenship: all persons residing in Afghanistan, regardless of religious or sectarian affiliation, were considered Afghan subjects. Citizenship could be acquired or lost under separate law.^[9]
• Article IX – personal liberty: all subjects were endowed with personal liberty and prohibited from encroaching upon the liberty of others.^[8]
• Article X – freedom from arbitrary arrest: personal freedom was declared immune from violation. No person could be arrested or punished except pursuant to a court order or applicable law. Slavery was declared completely abolished, and no man or woman could employ others as slaves.^[9]
• Article XI – freedom of the press: the press and domestic newspapers were declared free in accordance with applicable press law, with the right to publish newspapers reserved to the government and Afghan citizens. Foreign publications could be regulated by the government.^[9]
• Article XII – right of association: subjects had the right to form private companies for commerce, industry, and agriculture.^[9]
• Article XIII – right of petition: every subject had the right to submit individual or collective petitions to government officials for the redress of grievances, with the right to appeal successively to higher authorities and ultimately to the king.^[9]
• Article XIV – right to education: every subject had the right to an education at no cost. Foreigners were not permitted to operate schools, though they could serve as teachers.^[9]
• Article XVI – equality of rights and duties: all subjects were declared to have equal rights and duties in accordance with the sharia and state law.^[9]
• Article XVII – right to civil service: all subjects were eligible for employment in the civil service in accordance with their qualifications and the needs of government.^[9]
• Article XVIII – proportional taxation: taxes were to be levied in proportion to the wealth of the citizen under applicable law.^[9]
• Article XIX – property rights: real and personal property was protected. Expropriation for public purposes required prior payment of fair compensation.^[9]
• Article XX – inviolability of the home: the dwellings of all subjects were declared sacrosanct; no government official or private person could enter without permission or due legal process.^[9]
• Article XXII, XXIV – prohibition of torture and forced labor: confiscation of property and forced labor were absolutely prohibited, with an exception permitting labor services in time of war under applicable law. All forms of torture were prohibited, and punishment could only be imposed as provided by the penal code.^[9]
• Article LXXIII – secrecy of correspondence: personal correspondence handled by the post office was to be protected from search or inspection unless a court order was issued.^[9]

Articles XXV to XXXV – council of ministers

The constitution vested responsibility for government administration in the Council of Ministers and independent departments. The king served as chairman of the council; in his absence, the prime minister presided. Ministers were selected and appointed by the king and were individually responsible to him for both the general policy of government and their personal conduct in office.^[9]

The Council of Ministers was charged with formulating foreign and domestic policy. Decisions of the council, as well as treaties and agreements, required royal ratification to take effect. A special annual high assembly (darbar-e-ali) was to be convened each year before the independence celebrations, at which ministers and heads of departments would report on their achievements to an audience of senior officials, tribal elders, nobles, and royal appointees.^[9]

Ministers were subject to trial for official misconduct before a high court (diwan-e-ali) constituted on a temporary basis for that purpose; for personal misconduct outside their official duties they were subject to the ordinary courts as private citizens.^[9]

Articles XXXIX to XLIX – provincial and state councils

The constitution established a State Council in the capital and local advisory councils in the provinces and district centers. Membership in these councils was composed of both appointed and elected members in equal numbers; appointed members of the State Council were directly selected by the king, while elected members were chosen by the people in accordance with separate electoral provisions.^[9]

The councils were empowered to make suggestions to the government for the improvement of industry, commerce, agriculture, and education; to petition the government regarding irregularities in taxation or administration; and to lodge complaints regarding violations of the constitutional rights of the people.^[9]

The State Council was given the function of reviewing legislation proposed by the government before it was transmitted to the Council of Ministers and thereafter to the king for ratification. It was also charged with reviewing the annual budget prepared by the Ministry of Finance and scrutinizing all contracts, treaties, and agreements concluded by the government with foreign parties.^[9]

Articles L to LVII – the courts

All trials were declared to be public, with exceptions for specified matters prescribed by a separate law on courts. Citizens and litigants were entitled to use all legitimate means to protect their rights before a court. Courts were required to avoid delay in hearing cases and were declared free from all forms of interference. No special court to hear a particular case could be established outside the regular judicial framework.^[9]

All courts were to decide disputes in accordance with the principles of the sharia and applicable civil and criminal laws (Art. 21). A High Court for the trial of ministers was to be established on a temporary basis as needed and dissolved upon the completion of its work.^[9]

Articles LVIII to LXII – financial affairs

All state taxes were to be collected under applicable taxation law. An annual budget detailing government revenues and expenditures was to be prepared, and an end-of-year financial report reconciling actual revenues and expenditures against the budget was required. The constitution provided for the establishment of an auditing office with the function of reporting on whether revenues and expenditures had corresponded to the budget.^[9]

Articles LXIII to LXVII – provincial administration

Provincial administration was based on three principles: decentralization of authority; clear delineation of duties; and clear determination of responsibilities. Branch offices of the ministries were to be established in the provinces.^[9] Citizens were to seek initial redress from these provincial branches, with recourse to superior officials and provincial governors available when local officials were unable or unwilling to act in accordance with law. The government was empowered to proclaim military administration in any part of the country experiencing disobedience or rebellion threatening public security.^[9]

Articles LXVIII to LXXIII – miscellaneous provisions

• Article LXVIII made elementary education compulsory for all citizens of Afghanistan.^[9]
• Article LXIX declared that no article of the constitution could be canceled or suspended for any reason — an entrenchment clause.^[9]
• Article LXX provided that the constitution could be amended upon the proposal of two-thirds of the members of the State Council, followed by approval of the Council of Ministers and ratification by the king.^[9]
• Article LXXI required that any clarification or interpretation of constitutional articles be referred to the State Council and approved by the Council of Ministers before publication.^[9]
• Article LXXII directed that in the process of legislation, the actual living conditions of the people, the exigencies of the time, and especially the requirements of the sharia were to be given careful consideration.^[9]

The principal amendments

• Article II was amended to specify that the official religious rite of Afghanistan was the Hanafi rite specifically, in addition to the general declaration of Islam as the state religion. A requirement was added that Hindus and Jews pay a special tax (jizya) and wear distinctive clothing.^[8]
• Article IX was amended to bind Afghan subjects to the religious rite and political institutions of Afghanistan, effectively introducing a religious limitation on the personal liberty guaranteed in the original text.^[9]
• Article XXIV was amended to permit punishments prescribed by the sharia and laws codified in accordance with the sharia, qualifying the prohibition on torture and extrajudicial punishment.^[9]
• Article XXV was amended to designate the prime minister as chairman of the Council of Ministers when presiding in the absence of the king, replacing the original designation of acting chairman.^[9]
• Article XLII(b) was amended to insert the word "state" before "taxation," clarifying that the taxing power was vested solely in the central state and not in local officials or tribal leaders.^[9]

Influence on later constitutions

The 1923 constitution laid the structural foundation for subsequent Afghan constitutional development, influencing the drafting of the 1931 Constitution drafted under Mohammed Nadir Shah, as well as later constitutions in 1964 and 1977.^[16][17] Many of its structural features, a Council of Ministers, provincial councils, a bicameral advisory state body, and codified judicial procedures, were retained in modified form in later Afghan constitutional documents.^[18]