Shamshad Pasarlay

Shamshad Pasarlay is an Assistant Professor at Herat University School of Law. He holds a bachelor’s degree from Kabul University School of Islamic Law. His LLM and PhD in comparative law are from the University of Washington. He has worked in the Law Library of Congress. Dr Pasarlay’s research interests include comparative constitutional law and Afghanistan’s constitutional history. His scholarship on judicial politics, religion and constitution-making and constitution-making/design in deeply divided societies has appeared in numerous journals, including the International Journal of Constitutional Law, Asian Journal of Comparative Law and Washington International Law Journal.

Designation: Herat University, School of Law
Institution: Herat University, School of Law
Paper: The Dangers of Deemphasizing Short-Term Interests in Constitution-Making: Afghanistan and Beyond
Abstract: "Constitution-making is usually considered as a higher form of lawmaking. Under this view, constitutions are written for indefinite future and for the future generations, and constitution-makers should look beyond their own horizons and interests. Building on the history of constitution-making processes in Afghanistan, this paper argues that in deeply divided and heavily armed societies, the success or failure of any constitution-making process depends on whether short-term political interests of powerful actors have been taken into consideration. Short-term interests in constitution-making during turbulent political change cannot be wholly disregarded. Successful constitution-making procedures in unstable political environments are designed in a way that ensures all powerful groups realize some of their short-term goals. Recent constitution-making episodes in Central Asia suggest that constitutions are essentially products of the same kinds of political maneuverings and shortsighted reasoning that make up ordinary politics, and the decision by a powerful actor to respect or disrespect a recently drafted constitution seems to be the product of the same calculus that leads them to obey or disobey ordinary law. This paper examines how Afghanistan’s constitutional history and insights from recent constitutional amendments in Central Asia can help us understand, and arguably revisit, some of the claims that constitutional theorists have made about constitution-making processes."