AFGHANISTAN The New Constitution

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What’s in the new Afghan constitution? The constitution of the Islamic Republic of Afghanistan, approved January 4 by a 502-member assembly in Kabul, creates a nation that pledges to be both Islamic and democratic. It establishes a presidential system that roughly follows the U.S. model, dividing government power among executive, legislative, and judicial branches. While it does not include an explicit reference to sharia, or Islamic law, it states that no Afghan law “can be contrary to the beliefs and provisions” of Islam. Experts say the extent of Islam’s influence in practice will hinge on who controls Afghanistan’s government.

How was the constitution created? A 35-member team that included Afghans and foreign legal experts spent a year working on the draft constitution. At a nationwide series of public meetings, nearly a half-million Afghans were asked what they thought should be included in the constitution. The draft was written in relative secrecy and, after several delays, the final version was released in November 2003. Beginning in mid-December, a constitutional loya jirga, or grand council, consisting of a diverse set of Afghan representatives appointed by provincial authorities and transitional government officials, began to debate the document. It was approved after three weeks of council sessions.

When will it go into effect? The constitution became the official law of the land when it was approved. But until general elections are held, power will remain with Afghanistan’s transitional government, which has been in place since June 2002 and is headed by President Hamid Karzai. Presidential elections are scheduled for June 2004, but experts say that delays in voter registration caused by the nation’s dangerous security conditions will delay them. September is the earliest that elections can go forward, says Barnett Rubin, the director of studies at the Center on International Cooperation at New York University and a constitutional adviser to the Afghan government. Elections for the National Assembly will likely be delayed further—perhaps until mid-2005, Rubin says.

When will judicial reform take place? Major judicial reform and the creation of the new Supreme Court will not get under way until the new government is seated, experts say. The transitional judicial system is beginning to function, but most of the judges are religiously trained mullahs, says Said Arjomand, a sociology professor at the State University of New York at Stony Brook and an adviser to Afghanistan’s constitutional loya jirga. The nation’s current chief justice, Fazl Hadi Shinwari, has outlawed cable television, opposes co-education, and is said to practice the strict form of Islam called Wahhabism. Arjomand says there is a government working group on judicial reform, but as of last month it hadn’t yet met.

What is the main barrier to implementing the constitution? Widespread lawlessness, which has increased since the fall of the repressive Taliban regime in 2001, many experts say. Contributing to the problem are regional militias controlled by so-called warlords, widespread opium cultivation, and the weakness of the poorly funded national army, which has fewer than 10,000 soldiers. Outside of the capital, Kabul, the central government’s authority is weak. National acceptance of the constitution—and the success of the Afghan state—depend on a steady spread of the government’s writ.

How will the new executive branch be structured? It will be headed by a president who will be directly elected to a five-year term. The president must be Muslim, an Afghan citizen born of Afghan parents, and may be re-elected only once. His responsibilities will include:

Serving as the commander-in-chief of the armed forces of Afghanistan Determining the fundamental policies of the government with the approval of the National Assembly. Appointing the nation’s ministers, the attorney general, the director of the central bank, and the justices of the Supreme Court with the approval of the main legislative body, the Wolesi Jirga. Appointing the nation’s first and second vice presidents. The office of the second vice president was created as a compromise in the constitutional negotiations—originally, many delegates favored the creation of the office of a prime minister to dilute the president’s power. How will the legislative branch be structured? The National Assembly of the Islamic Republic of Afghanistan will consist of two houses: the Wolesi Jirga, or House of the People, and the Meshrano Jirga, or House of Elders. The Wolesi Jirga is the more powerful house. Its 250 delegates will be directly elected through a system of proportional representation. According to the constitution, at least 64 delegates—two from each province—must be women. It has the primary responsibility for making and ratifying laws and approving the actions of the president.

The Meshrano Jirga will consist of an unspecified number of local dignitaries and experts appointed by provincial councils, district councils, and the president. It must also ratify laws, but its decisions about the state’s budget and development programs can be overruled by the Wolesi Jirga.

How is the judicial branch structured? The republic’s top court is the Stera Mahkama, or Supreme Court. Its members will be appointed by the president for 10-year terms. There are also High Courts, Appeals Courts, and local and district courts. Eligible judges can have training in either Islamic jurisprudence or secular law.

What laws will the court system apply? It will base its judgments on existing Afghan law—much of which is rooted in Islamic law—and the new constitution. In cases in which no law covers a particular issue, the courts’ decisions will be “within the limits of the constitution” and in accord with Islamic jurisprudence. On cases of possible discord between the constitution and Islam, the Supreme Court will have to arrive at a compromise. “A secular judge could overrule sharia, but a fundamentalist court could rule the other way around,” says Arjomand. “It all depends on who will review the laws.”

What are some areas of potential discord? Women’s rights is one main area. The constitution states that “the citizens of Afghanistan—whether man or woman—have equal rights and duties before the law” and includes special provisions to encourage women’s access to education and government. But traditional Islamic law treats men and women differently in some cases, and existing law in Afghanistan maintains some of these distinctions. “I am not really satisfied because of the contradictions,” said Ahmad Nadery, commissioner of Afghanistan’s independent human rights commission, in an interview with The Los Angeles Times. “If a conflict arises between an international [human rights declaration] and the country’s law, it doesn’t say which has precedence. If we have a conservative judicial system—which we do—it will interpret the laws in a conservative way.”

Religious freedom. The “sacred religion of Islam” is the state religion of Afghanistan. However, followers of other religions are “free to exercise their faith and perform their religious rites” within the limits of the law. There is no mention of freedom of conscience, however, and some experts say they are concerned that there is no protection for Muslims who may not wish to practice their faith. Right to life and liberty. Right to privacy. Right of peaceful assembly. Freedom of expression and speech. If accused of a crime, the right to be informed of the charges, represented by an advocate, and presumed innocent until proven guilty. Freedom from torture. Other rights, as included in international agreements signed by Afghanistan, such as the Universal Declaration of Human Rights. What does the constitution say about Afghanistan’s many ethnic groups? All people living in Afghanistan are to be considered Afghan, regardless of their ethnic background. However, the constitution does grant each of the nation’s 14-plus ethnic groups the right to speak its own language. The country’s official languages will be Pashto, spoken by Pashtuns, the nation’s largest ethnic group, and Dari, a form of Persian spoken predominately by Tajiks and Hazaras, who together are some 35 percent of the population. The national anthem will be sung in Pashto only. However, in a final-hour concession that saved the constitutional negotiations from failure, other languages will be recognized as third national languages in regions where they are spoken by a majority.

Hey. The US Constitution was adopted with inherent contradictions (slavery) that were 'resolved' much later. Why expect so much more from these camel herders?

Hopefully they'll have some Jeffersons, Hamiltons and Madisons step forward and interpret what they've begun in such a way as it grows better than it's begun. As far as "camel herders", although there are some camels in Afghanistan, I believe you're applying an Arab characterization upon a mostly non-Arab population.

Overall, it's a pretty good explanation of what's probably a pretty good constitution -- about as good a one as can be made, given the present state of things in Afghanistan (i.e., political balance).

She is a bit off on the languages and ethnic groups. Pushtuns (Pathans) are probably 40% of the population. Most Pushtuns also speak Dari, and most Dari speakers speak a little Pushtu (the languages are not very close to each other). Dari was the language of the court and the most urbane Pushtuns before the 1973 revolution that led to the 1978 and 79 communist revolutions. Educated people, of whom there are relatively few thanks to 25 years of unremitting war, usually can read and write both Dari and Pushtu, and speak a third language such as English, French or Russian.

This is a disappointment to General Rashid Dostum, who wanted his group's Uzbek language placed on an equal footing, but he did get the ability for them to school the kids in Uzbek which is a big thing for him.

The ability for the courts to go secular or sharia sounds loopy, and it is, but it is what is possible now as a compromise, and it's a very Afghan thing to put off the hard dispute to solve tomorrow. So no one won that one? Not exactly. I think Karzai won a big one here. It looks like under the new constitution he can appoint judges as he pleases, for a ten year period. He has had some difficulties with the chief judge of the supreme court, a sharia guy; and now he has the authority to appoint him, or not, at will. This gives him all kinds of negotiation leverage -- which is how the game is played in Kabul.

Afghanistan has never had what we would consider a strong central government, and people's national identity is thin compared to their tribal/ethnic/village one. So Karzai has quite a juggling act to do, and he is a very impressive and skilled politician. He has outmaneuvered some pretty slick guys like MOD and Tajik warlord Mohammed Fahim Khan, and the Tajik lord of western Herat, Ismail Khan, whose brand of Islam differs little from the Taliban variety. But he spends every day on the high wire with all the warlords, and the Taliban, gunning for him -- sometimes literally.

d.o.l.

Criminal Number 18F

Criminal Number 18F, thanks for your input...and thanks for your service as well. I read your bio and see you've returned from Afghanistan within the last year. I have a number of friends that go to Afghanistan on humanitarian missions. They have quite a big hole to dig themselves out of in so many ways. I agree that Karzai seems to be a very skilled politician. The primary things that make me nervous is firstly, he's only one person, and there are occasional efforts to kill him and it only takes on successful one to throw a big wrench into the works. And the other being that it appears that with this basis of constitution is really dependent upon who instigates it. There is plenty there that could lead to something not all that far from the Taliban if it's implemented by someone of that sort of mindset.

Very true. The thing is, most of the cosmopolitan Afghans left during the long years of war. (Karzai's family ran restaurants in the USA, among other things). Most of the people who remained are rural and their Islam is direct out of the pages of the Koran, and sincerely heartfelt. For good or for ill, they believe. Personal Islam is the norm there now.

Karzai is not alone in being a moderate, but he is just about unique in being a mod who is also a Pushtun tribal elder. (He's related to the King, but then so were Daoud of the 1973 coup and the notorious Babrak Karmal, who died in exile in Moscow). Most of the other Pushtun leaders are fundamentalists of one stripe or another; America has more real friends in the north of the country among the Tajiks and Uzbeks, and especially among the Hazaras.

The biggest threat to the government is not Omar and Osama, but Gulbuddin Hekmatayar. I was very disheartened in 2003 when Younis Khalis joined Gulbuddin. They are both religious fundamentalists, but Younis was always basically a decent fellow, and Gulbuddin is not. He is an evil monster who would bring a black era down on Afghanistan. Again (sigh).

d.o.l.

Criminal Number 18F

I had gleaned that Hekmatayar was a bad dude. I wonder why they haven't been able to grab him yet. Is he also bouncing back and forth across the boarder?

I was also aware that those more warm to the US were in the north (not that I'm particularly comfortable with Dostum, but I guess he's somewhat predictable at least). You state one reason in particular for some of my trepidation, which is that Karzai is a rare bird as far as from one of the two primary groups in the south that make up the largest segments of Afghan population. I'm glad to hear there are other moderates...and I hope they are being groomed for public service. Now that's a concept I suspect is foreign to Afghan leaders....service.

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