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The Constitution of Afghanistan became the official law of Afghanistan when the 2003 Loya jirga approved it by the consensus on January 4, 2004. It evolved out of the Afghan Constitution Commission mandated by the Bonn Agreement. The constitution provides for an elected President and National Assembly. The transitional government of interim president Hamid Karzai was put in place in June 2002. Presidential elections took place on October 9, 2004, and Karzai was elected to a five-year term. Elections for the National Assembly were delayed until September 2005. The Constitution consists of 160 articles.
The document was officially signed by interim president Hamid Karzai on January 26. However, two days later a group of delegates led by Abdul Hafiz Mansoor made claims that the version Karzai signed contained more than fifteen changes from the document approved of on January 4. The group sent a copy of their complaints to the U.S. embassy, the United Nations Assistance Mission in Afghanistan, the European Union and former king Mohammad Zahir Shah. (For more, see below under Controversy)
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Executive branch
The constitution involves a strong presidential system. The President of Afghanistan is elected directly by the Afghan people to a five-year term, and can be elected no more than twice. The president has two vice-presidents, one being more important than the other.
The President must be a Muslim, an Afghan citizen born of Afghan parents, and must not have been convicted of crimes against humanity, a criminal act or deprivation of civil rights.[1] The president is the commander-in-chief of the armed forces.
Presidential responsibilities will include:
- Determining policies 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
Bicameral Parliament (Legislative branch)
The National Assembly of the Islamic Republic of Afghanistan consists of two houses: the Wolesi Jirga (House of the People) and the Meshrano Jirga (House of Elders).
The Wolesi Jirga, the more powerful house, consists of a maximum of 250 delegates directly elected through a system of proportional representation. Members are elected on a provincial basis and serve for five years. At least 64 delegates (two from each province) must be women; and ten Kuchi nomads are also elected among their peers. The Wolesi Jirga 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. The president also appoints two representatives of the physically disabled. The lower house passes laws, approve budgets and ratify treaties – all of which will require subsequent approval by the Meshrano Jirga. The lower house has considerable veto power over senior appointments and policies.
Judicial Branch and Court System
The republic's top court is the Stera Mahkama (Supreme Court). Its members are 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.
Courts are allowed to use Hanafi jurisprudence in situations where the Constitution lacks provisions.
The General Independent Administration of Anti-Corruption and Bribery
General director: Izzatullah Wasifi (Ezzatullah, Ezatullah) Internet information page: [2]
Cabinet
Ministers that hold multiple citizenships must gain approval of the parliament.
Districts
The constitution divides Afghanistan into 32 provinces, with the addition of the Panjshir region as a province. Each province is governed by a provincial council with members elected for four-year terms. Every village and town will also have councils, with members serving for three years. One of the poorest provinces is the Farah province. [3]
Religion
The Constitution describes Islam as its sacred and state religion. A system of civil law is described, but no law may contradict the beliefs and provisions of Islam. It was widely reported that Sharia law is not specifically mentioned, but in fact Hanafi jurisprudence is one of the six branches of Sharia law. Moreover, concessions are made to Shia jurisprudence in cases arising strictly between Shi'ites.
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, and in fact apostasy from Islam is punishable by death (see below).
Civil and human rights
Citizens are guaranteed the right to life and liberty, to privacy, of peaceful assembly, from torture and of expression and speech. If accused of a crime, citizens hold the right to be informed of the charges, to representation by an advocate, and to presumption of innocence. Women are protected equally before the law; however, the tenets of Islam are given the most moral significance.
Article 34 states, "Freedom of expression shall be inviolable. Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall have the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law."
Provisions are made to ensure free education and healthcare for citizens.
Language
Article 16 of the constitution states that "from amongst Pashto, Dari, Uzbeki, Turkmani, Baluchi, Pashai, Nuristani, Pamiri and other current languages in the country, Pashto and Dari shall be the official languages of the state." In addition, other languages are considered "the third official language" in areas where they are spoken by a majority.
Article 20 states that the Afghan National Anthem (Milli Tharana) "shall be in Pashto with the mention of "God is Great" as well as the names of the tribes of Afghanistan."
The constitution aims "to foster and develop all languages of Afghanistan." (Article 16)
Kuchis
Article 14 obliges the government to implement effective programs for "improving the economic, social and living conditions" of nomads (Kuchis) as well as adopting "necessary measures for housing and distribution of public estates to deserving citizens".
The constitution requires the president to choose two special Kuchi representatives to sit in the Meshrano Jirga.
The constitution also provides for the promotion of education for nomads.
Controversy
Two days after the constitution was officially signed by president Karzai, claims were made that the version signed contained over a dozen changes from the document approved by the Loya Jirga. Those changes included:
- Article 16 (on language): The Pashto/Dari text contains a paragraph not found in the English translation. This paragraph states: "National scientific and administrative terminology shall be maintained," which critics have interpreted as meaning that certain Pashto terms shall be kept only in the Pashto language and not translated into Dari or other minority languages. This has been seen by many minorities within Afghanistan, especially the Tajiks as Pashtun Fascism of the 1950s and 60s. However some experts agree that this a a vital way for the Pashtuns to maintain their dominance over Afghanistan as they have for much of Afghanistan's history.
- Article 50: This article obliges the "State" to undertake administrative reforms. The opposition insisted that this should be "with the approval of the National Assembly," which is how it is worded in the English translation, but it is omitted in the Pashto/Dari version.
- Article 64 (powers of the president): As part of the debate over the powers of the president, the opposition demanded that, in regard to the check the Wolesi Jirga has over the president, the wording be changed from the "confirmation" (ta'id) of presidential decisions to "approval" (taswib). The argument posed by the opposition insisted idea that ta'id confers only the right of rubber stamping, while tawib includes the right to reject. The opposition thought that all "confirmation" had been changed to "approval", but they are not.
The constitution's provisions on religion drew international controversy in 2006, when Afghan citizen Abdul Rahman, a convert to Christianity, was threatened with the death penalty for apostasy. Rahman was released under international pressure on the theory that he was insane and that the case against him had "investigative gaps," and found asylum in Italy. The constitution itself was not changed in response.
External links
- CONSTITUTIONAL HISTORY OF AFGHANISTAN
- Constitution of Afghanistan (2004)
- Afghan Constitution and more
- Afghan Constitution Commission draft presented November 3, 2003 PDF
- Establishing the Rule of Law in Afghanistan U.S. Institute of Peace Report, March 2004
- A Democracy Is Born: An Insider's Account of the Battle Against Terrorism in Afghanistan
