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AFGHANISTAN: The New Constitution

Author: Sharon Otterman
January 6, 2004

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 tosharia, 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.

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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."

What other civil liberties are guaranteed in the constitution?

Among them:

  • 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.

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