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?
