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Silk Road  Policy Brief_____      ___

The Afghanistan Draft Constitution: A Legal Assessment

Anna Jonsson, LL.M.

Director, Constitutional Developments and Human Rights Project
Silk Road Studies Program, Uppsala University

5 November 2003

A draft of the Afghan constitution was distributed on November 3, 2003. This draft Constitution is to be adopted at a Constitutional Loya Jirga in December 2003, and is therefore subject to amendments and changes before coming into force. This is an initial legal assessment of the draft constitution in its present form, pending a more detailed study. The draft Constitution is rather detailed, containing a preamble and 12 chapters with altogether 160 articles. The preamble stipulates that Afghanistan is an Islamic republic that respects the Universal Declaration of Human Rights. The draft Constitution is intended to be an important element in the efforts to resolve the most acute questions in post-conflict Afghanistan, including the internal power struggle, respect for individual rights and freedoms, the task of creating a functioning society in which all individuals have their natural place, for example through improving education for women and children. In order to achieve this, a firm institutional basis and effective law enforcement are required. The present draft constitution has many elements that could help create such a firm institutional basis. Of course, given the difficult conditions in present-day Afghanistan, this draft Constitution can only be expected to be one initial step towards this aim.  However, the draft Constitution in its present form leaves many questions unanswered. In particular, the role of Islam in the legal system is vague, and the possibility of rivalries between different state organs over overlapping jurisdictions is also present.

The State

The disposition of the draft constitution is such that it starts with accounting for the idea of the state. Afghanistan is a unified Islamic Republic. No law can be contrary to the sacred principles of Islam and to the Constitution itself. Yet all other religions can be practiced within the limits of the law. This implies that even though religious minorities are free to practice their religion, they will always ultimately be subject to the sacred principles of Islam. The word Sharia is, however, not explicitly mentioned. Article 17 of the draft explicitly stipulates the State’s responsibility for the development of religious education as well as for improving and organizing the conditions of the mosques, madrasas and religious centers. Friday is a public holiday and the calendar of the country is to be based on the pilgrimage of the Prophet Muhammad, although state offices work after the solar calendar.

The Afghan State takes upon itself to guarantee social security, respect for human rights and freedoms, and to realize democracy in the country. The unification and equal treatment of all national groups and tribes throughout the country and a balanced development are to be ensured. Meanwhile, the production and smuggling of narcotics are to be prevented by the state according to article 7. This article also binds Afghanistan to abide by the United Nations Charter, international treaties and conventions that Afghanistan has signed, and the Universal Declaration of Human Rights. The Draft does not mention whether international principles and standards in general are part of the Afghan legal order. Neither does it mention where in the hierarchy of legal norms international law will be found.

The state encourages and takes upon itself, within the limits of the law, to protect private capital investments and enterprises on the basis of principles of market economy. A central and independent national bank is to be established. Foreign trade is to be conducted according to the needs of the national economy and public interest.

While Pashto and Dari are the official languages of the State, seven languages are mentioned explicitly in the draft. The State is to promote all spoken languages, and television and radio broadcasting are free in all other languages in the country. However, the national anthem shall be in Pashto according to article 20 of the draft. The capital is to be Kabul and the national flag is described in detail.

It is worth mention that the Constitution and its values and principles are mentioned only after the sacred principles of Islam. In this sense, the Afghan state cannot be considered a secular state. This carries both advantages and liabilities. Several of the post-Communist countries suffered a moral vacuum when the Communist system fell apart and was to be replaced by democracy and liberalism. Since newly established State institutions did not succeed in preventing the moral vacuum, by failing to protect fundamental rights and freedoms, there was nothing to fall back on to unite the people. Severe problems related to weak state efficacy and legitimacy arose. As the development of institutions in Afghanistan will not be easy, moral values and ideas common to the majority will be important to fall back on to make the process less difficult or at least to keep the Afghan people united to some degree. In an illiterate society like the Afghan society, the need to adhere to tradition increases further.  The real challenge will be to make sure that State institutions are not being hijacked by religious fundamentalists and that all individuals’ rights and freedoms will be respected and guaranteed. Whether this draft leaves that possibility open will be further discussed in the conclusion.

Fundamental Rights and Duties of Citizens

The first article in Chapter 2 of the draft which regulates fundamental rights and duties of citizens lays down the principle of non-discrimination. No Afghan citizen should be discriminated against. In the light of the internal struggles of the country, especially among national groups and tribes, it is not surprising that the non-discrimination principle is the first to be established in the draft. It might be important for establishing the legitimacy of the constitution and of future governments. This article is also fundamental for the future implementation of women’s rights. However, the formulation of the article is such that it probably cannot have direct effect in itself, but must be applied in combination with other articles stipulating more detailed rights and freedoms, for example the rights to education and work.

Article 23 establishes that the right to life is a gift from God and that it can only be deprived if stipulated by law. In addition, the liberty and dignity of individuals are inviolable natural rights which can only be limited if they pose a threat to the security of others or to public interest and if this is done in the form of law. The state has the obligation and duty to protect and respect the liberty and dignity of all human beings.   Torture is prohibited, as is the retroactive effect of criminal law. These articles together clearly state the individual as the primary subject of the State and that the interest of individuals come before that of the State. This is further underlined by article 51 of the draft, according to which any person suffering undue harm by government action can sue the State for compensation before a court of law.

The presumption of innocence is stipulated, as is the prohibition of collective responsibility – importantly as certain tribal traditions in Afghanistan are based on the principle of collective responsibility. It is stated that innocence is the original state, and crime is a personal action in the sense that prosecution, arrest and detention of an accused cannot affect others. The accused has the right to a legal counsel and in criminal cases, the state shall appoint an advocate. In sum, in the sphere of criminal law, the only significant missing element in the bill of rights regards the limit for how long an accused can be kept in custody without a court decision. In addition, the death penalty is not explicitly mentioned in the constitution, while the stipulation that the right to life can be deprived only if stipulated by law makes it implicit.

According to article 32, being in debt does not give someone right to violate the right to freedom and liberty. Means to settle the debt are regulated by law.

Citizens of Afghanistan have the right to vote and to be elected. Freedom of speech is guaranteed and prior submission to the state for control is forbidden except when stipulated by law.   As concerns political rights, article 35 stipulates a general right to establish political parties. However, political parties must have programs which do not violate the sacred values of Islam and the values of the Constitution. Affiliations to foreign political parties and sources are forbidden, as are political parties based on ethnicity, language, region and religion. Military and paramilitary objectives and structures are not allowed for political parties. Political parties that have been set up respecting this article cannot be dissolved without lawful reason and the decision of an authorized court. The right to demonstration is recognized.

The right to privacy in terms of confidentiality of communication and correspondence, and the protection of a person’s residence against invasion is protected by articles 16 and 17 of the draft. Freedom of movement is protected, as are property rights. However, according to article 41, foreign individuals do not have the right to own immovable property in Afghanistan. Exceptions are made for diplomatic missions and missions of international organizations of which Afghanistan is a member.

The right to education is stipulated in articles 43-46 of the draft. The State is obliged to deliver education, free of charge, up to the secondary level in the whole country. Compulsory intermediate education is also to be provided by the State. Native languages are to be taught where they are spoken. The state is to develop and implement an improved system of education for women. It is also to improve education for nomads and to work to prevent illiteracy in the entire country. A unified educational curriculum based on Islam and national culture in accordance with academic principles is to be devised and implemented by the State.  The curriculum of religious subjects is to be developed taking into account the different Islamic sects existing in Afghanistan.  The State shall also set up and operate higher, general and vocational education. Private education in this sphere is possible with the consent of the State. Foreign persons are permitted to set up such institutions. The conditions for admission to State institutions of higher education and other related matters are to be regulated by law.

Work is the right of every Afghan. Choice of occupation is free within the limits of law, and forced labor is prohibited. The responsibilities of state administration are laid down, as is the right to compensation in case of maltreatment by state administration. The right to health care is stipulated in article 30-31 of the draft, and the state encourages private medical services and health centers. 

Article 54 of the draft stipulates that traditional family values are protected by the State. The State takes special care of the physical and physiological wellbeing of the family, especially mother and child, the upbringing of children, and the elimination of principles contrary to the sacred principles of Islam. This article can be interpreted as leaving the door open for the application of Sharia in matters related to family law.  

All Afghan citizens as well as foreign individuals and agencies are liable to pay taxes. Every kind of tax, duties and incomes collected are to be delivered to the State account. Thus, private or sect-based taxes are not in congruence with the Constitution. 

According to article 58, an independent human rights commission is to be established. The commission will monitor, observe, receive complaints and assist individuals in their contacts with authorities when human rights have been violated.

It is notable that women’s rights are not explicitly mentioned in this Chapter of the draft, although women are protected by the non-discrimination principle. Women are mentioned explicitly only in matters concerning education and family matters. However, due to the history of Afghanistan, it would be desirable for discrimination on the basis of sex to be explicitly addressed in the Constitution. It would not only be important legally, but would also send a positive signal to the women of Afghanistan.

In a state of emergency, the President, with the consent of the heads of the National Assembly and the Supreme Court, can suspend or restrict the right to demonstration, the right not to be pursued, detained and arrested without support in the law, and the right to privacy of correspondence and residence. These restrictions are however to be declared invalid immediately when the state of emergency stops. Apparently, the restrictions do not have to take the form of law, which of course might increase efficiency but at the same time it weakens the protection of rights and freedoms. The President declares a state of emergency, which has to be confirmed by the National Assembly.   

State Institutions

The Afghan President is elected for a term of five years. Presidential candidates must be citizens of Afghanistan, born by Afghan parents and Muslim. The candidate is not allowed to have any other citizenship. The candidate must be over 40 years of age on the day he or she becomes a candidate, and should not have been convicted of crimes against humanity, criminal acts, or deprivation of civil rights by a court. No one can be elected President more than two terms. The President is elected in direct elections if more than 50 percent of the cast votes have been obtained. Should this not be the case, a run-off election will be held between the two candidates who received the highest number of votes. The President will have a vice-president. The vice president will not automatically become president if the elected president would have to step down; instead new elections are to be held in that case. The salary and expenditures of the President are regulated by law. After the expiration of his term, the President is entitled to financial benefits for the rest of his life in accordance with the law, except in case of dismissal.  According to article 63 of the draft in which the presidential oath is laid down, the primary loyalty lays with sacred values of Islam rather than with the constitution. In addition, the President cannot act based on ethnic, linguistic, religious, political and regional considerations during his term in office.  Impeachment of the President can be initiated by one third of the members of the Wolesi Jirga. If two thirds of the Wolesi Jirga votes for impeachment, the Wolesi Jirga shall convene the Loya Jirga within one month. If the Loya Jirga approves the accusation by two thirds, the President is dismissed and the case referred to a special court. A special court will be composed of three members of the Wolesi Jirga, three members of the Supreme Court appointed by the Loya Jirga and the Chair of the Meshrano Jirga according to article 69 of the draft.

The Government works under the Chairmanship of the President. Ministers are appointed by the President and approved by the National Assembly. Ministers must be citizens of Afghanistan and not younger than 35. Ministers are responsible to the President and the Wolesi Jirga for their duties. The ministers are also prohibited from acting on the basis of ethnic, linguistic, religious, political and regional considerations during their term in office. It should be noted that there is no provision for a Prime Minister, which might be good for stability. By not establishing a post of Prime Minister, an alternative power base has been avoided.

The National Assembly is the highest legislative organ in the republic, as a manifestation of the will of the people. The National Assembly represents the whole nation. It is stated in article 81 of the draft that every member of the National Assembly shall take into judgment the general welfare and supreme interests of all people of Afghanistan when casting their vote. Thus regional, religious, national or other loyalties are to be avoided. The National Assembly consists of two houses: the Wolesi Jirga (the House of Peoples) and the Meshrano Jirga (the House of Elders). Membership cannot be held in the two houses simultaneously. Members of the Wolesi Jirga are elected by the people in direct elections. The mandate is five years. The number of members of the Wolesi Jirga, proportionate to the population of each region, shall be 220-250. At least one female candidate shall be elected from each province. Members of the Meshrano Jirga are elected from among the members of each provincial council. Each council elects one person for a period of four years. Each province elects one person from among themselves for a period of three years. The President appoints the remaining one third from among experts and experienced personalities for a period of five years. 50 percent of the President’s appointees must be women. A person who has been elected shall loose his place in the council and be replaced in accordance with the law. It is not clear from the draft how many members the Meshrano Jirga will have. Members of the National Assembly must be citizens of Afghanistan and should have received that citizenship at least ten years before becoming a candidate. Members of the   Wolesi Jirga should be 25 years old at the date of candidacy, while members of the Meshrano Jirga should be 35 years old at the date of candidacy or appointment.

The Wolesi Jirga can interpellate and issue a vote of no confidence regarding each of the ministers according to article 91-92 of the draft. Thus, ministers have individual liability which might be good for a country like Afghanistan with strong regional and individual interests. By holding ministers accountable on an individual basis, the misuse of office might be restricted.

Laws are adopted when approved by the National Assembly and endorsed by the President unless the Constitution stipulates otherwise. The President can veto a law. The Wolesi Jirga can however override the President’s veto by a two-thirds majority. In case a decision by one house is rejected by the other house, a special committee will be composed to solve the matter. The committee is composed from equal members of each house. The decision of the committee will be enforced after approval by the President.

No member of the National Assemble can be legally prosecuted for expressing his or her views while in office. Members of the National Assembly do not have criminal immunity; however, the procedure is qualified in the sense that if a member is accused of a crime, law enforcement must inform the house before prosecuting. Should it be an evident crime, law enforcement agencies can pursue and arrest the accused without prior notice to the house of which the accused is a member. However, if detention is required, law enforcement agencies are obliged to immediately notifying the house of which the accused is a member.

The Loya Jirga is the highest manifestation of the people of Afghanistan. It consists of members of the National Assembly and Chairpersons of the provincial and district councils. Ministers, Chief Justice and members of the Supreme Court can participate in the session, although they do not have a right to vote. The Loya Jirga is convened to take decisions on issues related to independence, national sovereignty, territorial integrity and other supreme interests of the country. It is also convened to amend the Constitution and in order to initiate an impeachment procedure against the President. Decisions of the Loya Jirga are taken by a majority of the present members except when otherwise stipulated by the Constitution.

The Judiciary is headed by the Supreme Court as the highest judicial organ in the Islamic Republic of Afghanistan. The Supreme Court has nine judges, appointed by the President and approved by the Wolesi Jirga. The judges serve for one term only and that mandate period is 10 years. The President appoints the head of the Supreme Court. Supreme Court Judges can only be dismissed prematurely if a trial due to a crime committed during the performance of duty has been initiated. Only the Wolesi Jirga can initiate and carry out this procedure. In order to be appointed judge of the Supreme Court, candidates cannot be younger than 40 at the time of appointment, must Afghan citizens, should have either education in law or in Islamic jurisprudence, and should have experience and expertise in the judicial system of Afghanistan. The candidate shall also be known for high ethics and good deeds. Judges cannot be members of political parties during their mandate period. The Supreme Court can exercise judicial review at the request of the government and the courts. It shall have the authority to interpret the Constitution, laws and legislative decrees. Members of the Supreme Court enjoy economic benefits for the rest of their lives provided they do not occupy state or political positions.   Court sessions are to be open except otherwise stated by law. In all cases the decision shall be public. The court is obliged to state the reasons for the decision. Capital punishment is conditioned upon approval by the President. Courts apply the Constitution and other laws. Should there not be a provision in the Constitution or other law applicable to the case, the decision shall be within the limits of the Constitution in accordance with Hanafi jurisprudence and in a way to serve justice in the best possible manner. As concerns the Shia population of Afghanistan, courts will apply the Shia school of law in cases dealing with personal matters. In other cases in which the Constitution or other laws do not regulate the matter, and if both parties are Shia, courts will resolve the matter according to the laws of this sect. The attorney’s office is part of the executive branch.

The Central Government and the Provinces

The Islamic Republic of Afghanistan is a centralized and unitary state. The Afghan administration is to be based on central and local administrative units in accordance with the law. The central administration is divided into units, each to be headed by a minister. The local administrative unit is a province. The number, areas, parts and structures of the provinces are to be regulated by law. Some delegation of powers to the local administrations will take place in the name of expediency, the right to local self-government and in order to increase popular participation in public affairs. Every province will have a provincial council. Members of the council are elected in direct elections by the residents of the province.  The mandate period is four years. The Council elects one of its members as chairman. The Chairman will be a member of the Loya Jirga. In addition, district and village councils will be set up. Members of these councils are elected by the local people in direct elections for a mandate period of three years. The right for nomads to participate in these councils is to be regulated by law. Municipalities are to be set up in order to administer city affairs. Mayors and city council members are to be elected.

Amendments of the Constitution

Provisions in the Constitution on the adherence to the fundamentals of the sacred religion of Islam and the Republic regime cannot be amended. Amendments of fundamental rights are allowed only in order to make them more effective. Other contents of the Constitution can be amended on the proposal of the President or by the majority of the National Assembly. The constitution cannot be amended during state of emergency or while the vice president is in power. The Loya Jirga shall approve the amendments by a majority of two-thirds of its members. It shall be endorsed and enforced by the President.

Conclusion

Some of the most acute questions to solve in post-conflict Afghanistan are the internal power struggle, the respect for individual rights and freedoms, and creating a functioning Afghan society in which all individuals have their natural place by for example improving education for women and children. In order to achieve these goals, a firm institutional basis and effective law enforcement is required. The draft might help to create such a firm institutional basis. Terrorism and the drug trade are outlawed. Afghanistan is an Islamic Republic to be guided first of all of the sacred values of Islam, and the Constitution itself comes only second after the sacred values of Islam. The question is whether this leaves the door open for Islamic radicals and provides them with an opportunity to impose their views on the country. Sharia is not explicitly mentioned, but the door is left open, most blatantly in matters related to family life.

It is interesting to note that the Islamic Republic of Afghanistan has five state organs with separate state powers. This might be a way to consolidate power if it means that all interests will feel that they get a voice, that they are listened to, and that they have a real influence. There is also an obvious risk of overlapping jurisdictions, rivalry and power struggles between the different organs although the division of power seems fairly adequate and clear. Interestingly, the government is led by the President, a fact that naturally decreases the risk of power struggles between the President and the Government. The institutional structure as established in the Constitution cannot be changed according to the draft. This measure is intended to provide for stability, but it remains to be seen if it will be able to do so given the risk of rivalry between state institutions.

The extent of local-self government is vaguely defined in the draft. It is to be further regulated in law. However, the provinces are represented at the central level in the Meshrano Jirga and the Loya Jirga. The latter is not in session permanently, but is convened under special circumstances stipulated in the Constitution. The Loya Jirga in these circumstances stands above the President, and its powers are important since they relate to matters such as amending the Constitution, impeaching the President, and decisions on issues related to national security. Only the President can convene the Loya Jirga unless otherwise stipulated by the Constitution. 

One question raised by this draft is why a constitutional court or the equivalent has not been stipulated. It would clearly help to enforce the rights catalogue in the Constitution, contribute to uphold the division of powers between the different groups in Afghan society, and given that the institutional structure cannot be changed, it might act as a neutral mediator.

As concerns corruption and the misuse of office, the draft addresses these questions in the sense that President has a secured income after his mandate period which provides an incentive not to hang on to power. Moreover, the Supreme Court judges enjoy economic benefits for the rest of their lives after their mandate period runs out. Although this might not be enough to hinder corruption and inefficiency, it sends a signal that the problem is recognized and needs to be dealt with.     

Women’s political participation is made easier with explicit statements as to the participation of women in the House of Elders and in the House of Peoples, although with respect to the Afghan women and their recent experience, a manifestation of their rights and the outright prohibition of discrimination on the basis of sex would be desirable.