New Afghan Constitution: Well, That Didn’t Go Too Well

Prof. Kim Lane Scheppele of the University of Pennsylvania Law School is an expert on new constitutions. She's not very happy about the new Afghan effort:

An English translation of the proposed constitution of Afghanistan is available [Word .doc].

This constitution will be debated and ratified, if all goes according to plan, in a Constitutional Loya Jirga to be convened in December.

If you want to know more about the process through which it was drafted, the Constitutional Commission's English language website is very informative. It can be found [here] .

International expert opinions (organized under UN auspices but which, so far as I can tell, were mostly ignored on the larger questions) can be found[here].

In my first reactions, it seems to me that the draft constitution is a substantial step backwards from the 1964 Constitution that brought Afghanistan its first representative democracy. Many of the rights provisions are subject to the qualification that the details will be regulated by law (which makes many basic rights subject to legislative limitation). There is a general equality clause but no specific equality clause for women. The constitution nationalizes natural resources and forbids foreigners from owning land.

The President has sweeping powers. The Parliament's role is limited to approval or disapproval of state policy that originates with the President. The President appoints the vice president, all of the ministers (though these may be subject to no confidence votes), one-third of the upper house and all of the judges of the Supreme Court (with the latter subject to the approval of the upper house). There is no Constitutional Court, though there is a Human Rights Commission. Constitutional questions can only be taken up by the Supreme Court upon a petition from the government or the courts. There is no public access to constitutional review.

But by far the biggest change in the new constitution is in the role of Islam. In the 1964 constitution, Islamic law was to be used by judges only where there was no positive law on point, as a kind of common law that could be used when statutes and the constitution ran out. Now Islam is a central organizing basis of constitutional life at an equal or perhaps even higher level than the Constitution itself. Political parties may not be formed that conflict with Islam. The educational system shall be designed to be in accord with Islam. The section on the family requires the state to eliminate traditions contrary to Islam. The new constitution does not specify which branch of Islamic law shall be considered authoritative (the old one did), but one can imagine in a country whose most recent government was the Taliban that the view of Islam on offer throughout the political system may not be particularly friendly to international standards of human rights.

While the current president of Afghanistan is a moderate, the current Supreme Court is left over from the Taliban time and they have quite radical views of what Islamic law requires. In fact, in the present legal system, there are almost no judges educated in secular law because all of the universities have been closed since the start of the civil war. Those who are literate (and far less than half of the male population and less than 20% of the female population are literate these days) learned what they know in madrassas which operated in the tribal lands of Pakistan, and this includes the present judges on the Supreme Court.

I must admit to being both disappointed and wary of the draft constitution. It is a constitution that would be easy to abuse. I'd love to hear others' thoughts on this.

(reprinted from Conlaw list with permission; minor reformatting)

Sets a great precedent for Iraq, right?

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One Response to New Afghan Constitution: Well, That Didn’t Go Too Well

  1. Diomed says:

    I agree with Professor Lane that certain features on Afghanistan’s constitutional landscape are troublesome, the prominence of conservative (reactionary? Islamist?) judges chief among them. However, I feel that the new constitution gives better hope to a free and democratic Afghanistan than dusting off 1964’s constitution would. A good constitution, I believe, will draw legitimacy and demand comprimise from a critical mass of groups, individuals, and factions within a country. This difficult balancing act is sure to draw fire from all directions, and in the end will hopefully balance competing demands and interests in such a way that allows a government to function, protecting the lives and rights of citizens.

    It is therefore important not to judge a constituiton on an absolute scale of more or less democratic, of providing more or fewer freedoms. Just as the American constitution was a balancing act between interested parties and states, so must the new Afghan constitution take into account the actual political landscape, not abstracted ideals (the Weimar Republic was very democratic, and could not stand up to the anti-democratic pressures placed upon it by its own society…this analogy may be all too apt for Afghanistan). This landscape is one that is fundamentally different from the one we saw in 1964. Back then the major ideological battle that was being played out was the question of the cold war: which ideological system, autocratic communism or parlimentary capitlaism, could best provide security and prosperity for its people. Today that question is settled. Another idea, one that only has purchase in Muslim countries, has been gaining in power for decades now. The idea is that a religion, Islam, is the correct model for government. This is Islamism, which is extracted from, not inherent to, Islam. Islamism is a politcal theory, and one that is relatively new on the world stage in its present form.

    We do not feel the pressure of this ideological battle in the politics of the United States because to believe in Islamism you must start from a belief in Islam. Therefore, there is not another cold war or red scare looming, because we need not fear this at home (tangent, I know, and “what about 9/11.” I feel the atacks suffered by the US and resulting war on terror is a result of the US’s global reach and influence. In other words, it’s not about us, but since we are strogly everywhere, especially the Middle East, those disatisfied with the status quo may react to us strongly). Islamists are easily portrayed in the US as a lunitic fringe. Although I will not say a word to defend this ideology, or the tatics that many of its advocates employ, I will say that it presents a real and viable alternative of government to millions of peole in the world.

    The point is that Islamism is real and present. It is an idea that people are willing to organize and to die for, and one that managed to take hold in a particularly vicious form in the country in question. Although those leaders are out of power, the question is not settled in the Muslim world of what form of government is legitimate: democracy, traditonal monarchy (on its way out), or Islamic Republic.

    This idea is powerful enough in Afghanistan that it must be delt with. From our point of view, what the constitution needs to do is bring on that force of legitimacy yet allow liberal forces to have their share of the power. It must mellow radical impulses through engagement. Ignoring the reality on the ground or trying to amend away the Islamic tendancies of Afghanistan will not work, and could undermine the whole of the constitution and new government.

    The Draft Constitution states in article III, that “In Afghanistan, no law can be contrary to the sacred religion of Islam and the values of this Constitution.” This clearly puts the constitution on equal footing as religious law. Secular and Islamist law are balanced. In other places as well there afirmations of secular law.

    I agree, it is dissapointing and worrisome that there were not explicit protections for women, and a greater seperation of powers would serve to moderate extreme policies and parties. However, the most important features of this constitution is that it 1) accurately asses and address the political demands of society, 2) that it can provide a basis for a functional government, 3) that it can ensure that provides liberals and Islamists room on the political dance floor, 4) that, for the sake of legitimacy, it “feels” Afghani, rather than something dictated from afar. For most of these it is essential that the constitution makes some concessions to those who feel that the answer to the question of government lies within the Koran.

    I would also like to note that all political ideologies, no matter how successfully they have been applied, are amorphus and open to interpretation. That is true of Islamism, as is evidenced by the differences between states such as Saudi Arabia, Iran, and Taliban era Afghanistan. That is true of democracy, as evidenced by the numerous different forms of democracy alive in the world, as well as the great evolution our own country and constituional intrepetation have followed. In the US monarchists and democrats found intersection in our constitution, which proved a starting point rather than the final word. In Afghanistan the new draft constitution promises a similar comprimise and future evolution between the competing political ideas there. It is not perfect, maybe not even good. What it is, hopefully, is the basis for a workable and uniquely Afghani democracy.

    I would love to hear your thoughts on this. Thanks for

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