Hurdles in Implementing New Afghan Constitution
By Amin Tarzi
On 26 January Afghan Transitional Administration Chairman Hamid Karzai signed into law the new Constitution of the Islamic Republic of Afghanistan. Present at the signing ceremonies and sitting next to Karzai was the frail former monarch of Afghanistan, Mohammad Zaher, who had some 40 years earlier in 1964 signed his own constitution for the country.
Those members of the international community that have backed the process of Afghanistan's emergence from years of foreign intervention, civil war, and despotic rulers have rightfully welcomed the new Afghan Constitution as a guideline with which the country can reemerge as nation-state.
Strictly from a textual point of view, the new Afghan Constitution represents a good starting point for the country on its path of forming a pluralistic and inclusive society in which, in due time, true democracy can be fostered. However, as the history of constitutionalism in Afghanistan sadly illustrates, the texts of most of the six previous constitutions that have been promulgated did not truly reflect the aspirations of the majority of the people of Afghanistan. It can be argued that most of the previous constitutions, to varying degrees, were drafted and passed without much input from the Afghan masses. Thus, constitutions of the past fell victim to intrigues and manipulations of various centers of power that viewed those constitutions as threats to their status in the society.
Claims Of Foul Play
Two days after the adoption of the new constitution, a group of around 20 delegates to the Loya Jirga headed by Abdul Hafez Mansur, claimed that the document signed into law by Karzai does not exactly conform to the draft agreed upon by the Loya Jirga. Mansur, a member of the religiously conservative Jamiat-e Islami and one of the staunchest supporters of a parliamentary system, said that "the constitution which was signed by [Karzai], if it is carefully read...compared to the constitution approved and ratified by delegates to the Loya Jirga has changes." Mansur claimed to have personally "discovered more than 15 changes".
The Constitutional Commission rejected Mansur's charges, stating that some misunderstandings may have occurred, due to the fact that delegates to the Loya Jirga were handed a draft of the constitution on the night of 3 January before the assembly made final changes to the document. Kabir Ranjbar, head of Afghan Lawyers Association, said on 29 January that while the draft of the constitution approved by the Loya Jirga, has indeed been altered, these "changes do not affect the content of the constitution and are not something to be taken seriously." Ranjbar suggested that people "should not discredit the document or lessen the interest of the people regarding the document and regarding its enforcement."
While Ranjbar's suggestion that people ought to regard the new Afghan Constitution as a whole as a good framework for Afghanistan to move ahead is valid and ought to be heeded, the history of the country has illustrated that even constitutions that were formulated with the good of the nation in mind, were forward-looking, and were approved in appropriate fashion became tools for the dissenters, who sought to derail the overall process of state building. As such, the wording of the new Afghan Constitution should leave no room for misunderstanding, and the process through which it was adopted should have been very transparent. Any lingering opacity or perception of foul play about the constitution will make the already difficult task of implementation an even thornier undertaking.
Potential Discrepancies In Constitutional Interpretation
Commenting on the draft of the Afghan Constitution, I wrote in November: "The most dangerous legislation here regarding the role of religion remains Article 3...because it might easily be used by conservative religious forces to undermine legislators that they deem to be 'un-Islamic.' The interpretation of which laws might be 'contrary to...Islam' is an open-ended proposition that is not immune to abuse". Article 3 of the draft constitution stipulated that "no law can be contrary to the sacred religion of Islam" and the values enshrined in the constitution. In the approved version of the constitution, Article 3 was amended to read, "In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam." Omitted in the final text is the reference to the values enshrined in the constitution.
Even before Hamid Karzai signed the new constitution into law, controversy over the vagueness of Article 3 sparked controversy between the conservative Islamists and the more moderate, secular-oriented forces in Afghanistan.
The controversy began when the state-owned Afghanistan Television surprised its prime-time viewers on 12 January by showing a decades-old film clip of a poplar female Afghan singer. The broadcast marked the first time since the mujahedin took control of Kabul in 1992 that a female singer was displayed on official Afghan television. Immediately, conservative Islamists cried out that this presentation was against the code of Islam.
Nevertheless, Information and Culture Minister Sayyed Makhdum Rahin said that songs by female Afghan singers would continue to be broadcast on Afghanistan Television, adding that the new constitution affords men and women equal rights, including in the arts. However, another member of Karzai's government, Deputy Chief Justice Fazl Ahmad Manawi, called the broadcast of female singers an act against the provision of the new Afghan Constitution. Karzai, while supporting the broadcast of female singers, rather ambiguously allowed room for more debate on the matter. He stated that "Afghanistan has had women singing in the Afghan radio and television for now over 50-60 years," and people have welcomed the broadcasting of women singers on television. However, Karzai gave the Islamists room to maneuver by adding that all sides "have to work in the context of today's cultural and social environment and do whatever is suited for that."
Commenting on the issue of the broadcasting of female singers, a Herat-based publication wrote that "as the guardian of Islamic values and the constitution," the Afghan leader "should use his power to prevent any action that contravenes Islamic laws and values and, as a consequence, fulfill his responsibility for Islam, religion, and society."
The problem of Article 3 of the constitution stems from the fact that those who pushed for a presidential system were forced to concede something to the political camp led by the former mujahedin leaders, who initially favored a parliamentary system. The role of Islam in the Afghan Constitution, which many observers predicted would cause much controversy, did not cause significant open debate at the Loya Jirga. This could partly be due to the fact that as a compromise for accepting a strong presidential system, the mujahedin leaders won concessions on various matters related to the role of Islam in the new constitution. This trade-off resulted in the added provision that no law in Afghanistan could be "contrary to the beliefs and provisions" of Islam. This very significant clause basically gives the official and nonofficial religious leaders in Afghanistan sway over every action that they might deem contrary to their beliefs, which by extension and within the Afghan cultural context, could be regarded as "beliefs" of Islam. The use of preemptive symbolic language to secure a relatively smooth approval of the new Afghan Constitution may entail high costs in the future.
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