Live from the Nuke Free Zone

Well, that was interesting timing. Couple days after I make my post on the democratization process in the Middle East, the Afghans go and draft a constitution on us. My omniscience isn’t to the point where I could have known to wait a few days before posting, sadly, but I can do with the timing either way.

If anything, this is one of those ultimate examples of the idea of self-imposed, rather than foreign-imposed, democracy, right down to the thing’s amusing ability to offend Western sensibilities while remaining a reasonably liberal document. If you’re curious - and you damn well should be if you pretend to care about the region - but in a rush, you can read the BBC’s analysis of the document here; the more politically and temporally inclined may read the actual document here at the website of the Afghanistan Constitutional Commission. The English translation of the constitution is rather horrid in places, but alas, it’s what I’m going by as I read through the thing.

The process of creating the thing is somewhat fascinating, and there are signs that Kabul put a really significant effort into figuring out what the Afghan people wanted in such a document. Some 500,000 public opinion surveys were taken, randomly enough that the process made room for submissions of responses by illiterate people - itself a level of public participation rare if not unique in this sort of thing. (If anyone has examples of another country’s constitution having quite that level of public participation, I’d like to know about it.) The whole shebang goes off to the Loya Jirga, a concept which ranks way up there on my list of “favorite national institutions,” in December for a final once-over, at which point it will be approved.

There were concerns by all sides in this of course - the secular/religious balance of the new system, the question of the militias and national unity, and the ever-present concern of siezures of power, and so on. Drafting the thing strikes me as breakdancing through a minefield while wearing clothing composed entirely of nitroglycerine, given the volatility of the region. While being on fire.

Looking at it, it strikes me as though they might manage to pull it off.

Talking about it in general, I’ll spare you the boring details of constitutional mechanisms and try to get to the basic interesting things about it.

First, the constitution establishes Afghanistan as an Islamic republic. Note the twinning of the words there. It’s not only an Islamic republic, it’s an Islamic republic with the democratic machinery one would assume in that. Too many people have kneejerked and dismissed the constitution as a return to the Taliban because it dares to mention the region’s religion. People are far too quick to dismiss this as a theocracy simply because of the fact that it says Islam is the state religion. While I am a bit uneasy about some of the requirements - for instance, the President must be a Muslim - other religions are also recognized in Article Two of the constitution. Again contrary to popular conception, Islam does at least explicitly recognize Judaism and Christianity as beliefs to be tolerated.

There’s a lot of language throughout the constitution which implies some pressure from outside sources, even despite its largely indiginous character and nature. For example, the President appoints a third of the Meshrano Jirga (roughly corresponding to a senate in the American sense, and a rather amusing anarchy of multiple variable term limits..) - and half of that third must be women. As something of a feminist, I say cool, though I also tend to dislike any kind of arbitrary limitations to candidacy for office which aren’t simple age or citizenship.

Incidentally, the Meshrano appears to give not just provinces, but provincial districts or counties, representation at the federal level. I wanna learn Pashto just so I can watch sessions of the legislature.

The Loya Jirga has a section of the constitution devoted to its powers and responsibilities. I kinda like this organization in general, as a sort of emergency/specialpurpose assemblage of all the political, cultural and ethnic groups (with provisions for stuff like the nomad community). This thing was big when it last met, I don’t recall how much but certainly many hundreds. To this they add the national legislature (probably roughly another 350-400 people - IIRC not enough to make a majority) and major constitutional powers, such as the ability to amend and the ability to impeach the executive, which are not held by any other body.

The judiciary seems like a bit of a mixed blessing. On the one hand, they don’t perform the insanity of determining judges by popular vote, a horrible idea if ever I’ve heard one. On the other hand, the judges do serve a definate term (albeit a ten-year one), and are forbidden from holding federal court positions twice. This potentially makes judicial manipulation by the government somewhat easier, but on the other hand the fact that the justices are only there once means they don’t need to worry about popular backlash - after all, they’re not campaigning for reelection, there’s no mechanism for removal short of actual criminal activity, and they’ve got their pension anyway. It’ll remain to be seen how this body of the government works.

Incidentally, they seem to be able to judge test cases and issue advisory rulings, which sets the stage for an activist judiciary, which could be a good thing in an otherwise dogmatic region. Some other interesting things with the judiciary include its being required to justify rulings and not just give them, and the fact that presidential approval is needed for death sentences.

Some other interesting things overall include the requirements for public office. The higher offices, such as the executive and especially the judiciary, have somewhat detailed requirements for the offices, including a strongly worded “recommendation” for significant higher education, and so on.

Article 55 is somewhat unique in terms of constitutions, as it places the responsibility for national defense on “all citizens of Afghanistan” and not just the army. If any country has experience with this concept it’d be this one, though. At least nobody can debate their right to bear arms. This strikes me as a bone thrown to the militias, implicitly recognizing their legitimacy while giving them a task to be involved in for the sake of the larger country.

Overall, there’s the tone throughout the constitution of getting Afghanistan a bit cleaned up in the eyes of the world. It specifically recognizes a number of UN Conventions and establishes room for a Human Rights Commission, and (the historian in me is biased, but this ranks among my favorites) specifically nationalizes and protects archaeological resources. The HR Commission is particularly noteworthy, as there is the implication that it is providing Afghan citizens with a route of appeal outside of and above the standard government mechanisms, whether it be a fast track around bureaucratic mechanisms or a hotline to the United Nations. It’s rare indeed to see something like a human rights commission explicitly laid out in the national constitution from what I can see. However, if anyone understands the need..

Anyway, that’s essentially my amateur’s take on the draft constitution. I think it’s a fascinating piece of work, balancing a number of secular, religious and political concerns to create a piece of work quite different from other basic laws I’ve seen in the past. We’ll find out next month whether it is going to be accepted after the Loya Jirga discusses it, and it’s a matter of time over the following years to see if it works.

Karzai stated that the constitution was trying to keep “the next 100, 200 years” in mind writing the document, and there are signs through it of an attempt to establish a system which will not just serve as a bandage, but will bind together a region shattered by warfare in a way that will allow it to be at peace with itself, maintain its own national character, and come back into the family of nations.

Myself, I can only wish them the best.