... What? It's Monday in my world!
Anyway, as I've mentioned on and off for the past several days, I've been thinking about that constitution that Afghanistan seems to have accepted on the fourth. Awhile back I did an article talking about their draft constitution, which went through the Loya Jirga last month and came out with revisions shortly after the new year. Now, the CCA's site is still being a brat about letting me at the final draft, but Hazara appears to have gotten their own hands on a copy. This is neat not just because they have the multiple translations and the initial draft sitting there (granted, I can get the graft through CCA.. grumble), but the main changed passages seem to be marked in this one, which makes keeping an eye on what's up a little easier. Cool. So yeah, I'd decided back in the first place that I was going to be talking about the final draft and its significance when it came out, so let's get on to that.
The Afghan constitution is nicely laid out by sections. The first, typical of constitutions, is the preamble. There's little difference from the draft here - referring to Allah's lawful mercy as opposed to simply Allah's mercy, that sorta thing. Many of the changes overall have an interesting combination of democratic and theocratic modifications throughout the document; Islam is emphasized throughout relative to the draft, but the population of the country recieves its own boost. References to the nation of Afghanistan become mentions of the people of Afghanistan, and so on. The latter is definately a neat change, I think, and a step in the right direction.
Into the meat of the thing, let's talk about Chapter One ("The State"), which is the most basic principles of the country in general. There's twenty-one articles here, covering everything from the state religion and name to the requirements for the national anthem ("shall be in Pashtu and mention Allahu Akbar and the names of the ethnic groups of Afghanistan"). Changes in Chapter One are additions, and a lot of them. The country's name is changed from simply Afghanistan to the Islamic Republic of Afghanistan (1-2), and a number of expansions in religious matters tighten some definitions. The rights of non-Muslims are a bit more explicitly outlined; however, the predominance of Islam is as well, and it will be interesting to observe how the two are balanced in years to come. Article Four is almost doubled in length, specifying the ethnic groups making a part of the country. Languages will be fun; it looks like Afghanistan will be a potentially tetralingual country in certain regions, as Pashto, Dari and some Turkic languages are all considered official. Some other changes are made, including the specifying of two national holidays, what appears to be a national ban on alcohol, and - disappointing me - the removal of the provision which would nationalize local archaeological finds.
The second section, "Fundamental Rights and Duties of Citizens," is the single longest part of the constitution, at thirty-seven articles. Oddly enough, it escaped the Loya Jirga's politicking largely unscathed, with a few minor additions. Chapter Two goes on at length and in detail about rights, mostly legal ones including the assumption of innocence, and placing women and men on an explicitly equal footing with regard to rights and duties. In this section, in fact, every change except for one is an explicit reinforcement of one right or another - promoting confidentiality between lawyers and clients, elements to avoid explicitly theocratic political parties, and supporting rights for the disabled more overtly. The two most interesting changes in this section are Articles 43 (2-22) and 49 (2-27). The former is the article which states education is a right to be provided by the state; the added text specifies that education to the bachelor's level is a right, a truly ambitious plan that I certainly hope succeeds. The second of the two articles specifies that "Active participation, in times of war, calamity, and other situations threatening lives and public welfare is one of the primary duties of every Afghan." I can't think of any countries which turn national defense into a public affair like that. If any country has figured out that rights come with responsibilities, however, it'd probably be these guys, and I can't help but applaud that mindset.
Next we have Chapter Three ("The Presidency") and Chapter Four ("The Government,") a series of 21 articles which sums up the executive branch. The most "guh?" addition here is the fact that the president has not one but two vice presidents, "one first and one second" (spot the awkward translation; I need to learn Pashto!). Presidents seem to operate on fixed terms, through a series of runoffs until someone has a majority, with a new election being held if one of the candidates up and dies on the electorate. The President's gotten a slight decrease of power, answering to the National Assembly on broad national policy, for instance. The President has a large list of powers, but these come to relatively little. The general appearance of the situation is that the president is definately subordinated to the legislative branch, which can actually put him on trial should one third of the lower house. The fourth section on the government (i.e., the Cabinet and its ministers) is essentially unchanged, with one addition - the handling of the dual nationality issue. This was one of the issues which nearly caused the constitution to fail, but has obviously been solved. In the new draft, the issue of dual citizenship is handled by asking for approval of the Wolesi Jirga to confirm or reject a minister's nomination.
Section Five covers the National Assembly, Afghanistan's legislative branch, and is the second-longest of the chapters, with twenty-nine articles. Surprisingly, this one goes almost untouched as well. The changes include specifying an upper limit to the size of the lower house (250 representatives), and a few quotas with regards to women, the disabled, and nomadic groups, especially in the Meshrano Jirga, the upper house which has both appointed and elected components, with term lengths varying from three to five years. This'll make for some interesting switches as time goes by; the fact that the whole legislature is going to swap out at the same time roughly every sixty years should make for some interesting spectacle later on. Most of the rest of this section is about various parliamentary procedures, which should be familiar to anyone who's seen a bicameral legislature in action. A big surprise for me is the sixth section, on the Loya Jirga, which goes absolutely untouched.
Following these three sections is the chapter on the judicial branch, numbering twenty fairly short articles. The judiciary's position is fairly unchanged from the draft, aside from stylistic changes which don't affect the actual content. Some fiddling with the appointment terms is added for the initial few sets of judges, to ensure a smooth transition into the new government, but beyond that little is changed in this section. Most of Chapter Seven focuses on the Supreme Court, which is appointed by the President with the lower house's approval. Judges serve a single ten-year term, from which they cannot be dismissed short of committing a crime and being impeached. There are a number of standards for the judges in Article 118 (7-3), including age, citizenship, education ("higher education in law or in Islamic jurisprudence), reputation, criminal record, and no association with political parties. An interesting article is Article 129 (7-14), which requires the court to state the reasoning behind a particular decision, and Article 131 which takes Islamic interdenominational differences into account when determining which legal system to use. The judiciary has a fine institution in this constitution; however, its power will depend on how activist the federal courts end up being.
The next few sections comprise twenty-seven articles covering administrative divisions, states of emergency, the amending formula, and miscellaneous and transitional affairs. There are relatively few modifications in these parts, mostly the insertion of titles added in the government sections of the constitution, plus the addition of two new articles (11-6 and 11-7) concerning electoral commissions to supervise the upcoming elections, as well as the constitution's implementation.
Overall, the new constitution looks pretty promising. My earlier analysis covers most of my other bases in terms of my opinions about it. I'm still going to settle by my original view of cautious optimism. The fact that this thing got overwhelmingly accepted by the Loya Jirga, to me, lends an air of legitimacy to it that would be hard to match in a lot of societies. The document itself also seems well balanced, being neither a theocratic mess nor a cutpaste of the US constitution, both of which would Suck.
The changes seem to be relatively minor, although the ethnicity issue was main stumbling block. Of course it's still early to say for sure how this thing is going to work, and since Iraq became more popular on the news it's become increasingly difficult to get good information on what's up in Afghanistan. What's going to happen to the country over the next few years? Right now, I honestly can't tell you. They're dealing with ethnic strife, instability, a peacekeeping force deliberately hobbled by the United States, and the risks of a resurgent Taliban. On the other hand, they have some zones of stability, a minimum of cover, a growing national defense and enough peace and quiet to get this thing drafted.
Afghanistan itself is not going anywhere anytime soon. The country and its people will still be there for years to come, whether we pay attention to them or not. I feel that the west has an obligation to keep an eye on the place, if just to make sure that one of the initial reasons for going there in the first place remains mostly fulfilled. As it stands right now, Afghanistan is on a crossroads, and the path it takes will depend on the actions of a great many people. With luck, the right decisions will be made, and they'll be able to build something both we and they can be proud of.
Posted by zibblsnrt at January 13, 2004 06:34 PM