Afghanistan: Afghan Constitution Seeks Balance

Washington Post
Draft Document Charts a Course Between Islamic and Secular Values.
It is full of grammatical errors, legal lapses and overloaded sentences designed to please too many critics.
But the drafters of Afghanistan's proposed constitution -- completed last week and delivered to President Hamid Karzai for review -- say it comes close to achieving the impossible.

In 182 brief articles and 39 pages, the draft -- a copy of which was obtained by The Washington Post -- manages to balance the competing demands of a confused postwar society that is struggling to chart a course between Islamic and secular values, domestic tradition and international norms, immediate political needs and permanent legal standards.

After nearly a year of contentious private deliberations, conflicting public comment and clashing expert advice, the draft has finally been approved by a 35-member constitutional commission. Now, with Karzai's endorsement, it is scheduled to be debated and ratified at a national assembly in December, paving the way for Afghanistan's first direct national elections.

In a visit to New York last week, Karzai told an audience at Columbia University that the draft constitution will be released to the Afghan public within two weeks. He also told a session of the U.N. General Assembly that the Afghan people want a constitution that reinforces Islamic values, national unity, human rights and security.

According to commission members and others who have seen the unpublished document, the draft is a legally imperfect but politically balanced charter that provides for both a president and prime minister, protects minority rights while bowing to majority wishes, and acknowledges the primacy of Islamic values in Afghan life without making Islamic law paramount.

"We tried to come up with a formula that paid attention to Islamic concerns but also paid attention to international rules," said Sarwar Danish, a legal scholar on the commission. "The most important thing was to preserve unity. By the end, we all agreed on 99 percent of the text, and even the most conservative people who read the draft should not find it objectionable."

It is far from clear, however, whether this compromise will hold between now and December, and whether the national assembly, or loya jirga -- already delayed by two months -- will be able to agree on a new charter or will degenerate into the same chaotic debate and private deal-making that undermined a previous loya jirga last June.

While the question of how far the new constitution should tilt toward religious or secular concepts has dominated most public speculation and debate, experts said a more urgent and volatile issue is what form of government Afghanistan should have and how power should be shared at the top.

The great majority of Afghans, whose views on the constitution were solicited last summer in nationwide surveys, want direct presidential elections but also favor a parliamentary system, which the country briefly enjoyed in the 1970s before it collapsed into a 25-year maelstrom of Cold War conflict, destructive civil war and repressive Islamic rule.

In seeking the soundest political formula, commission members and U.N. advisers have expressed concern that a president with too much power could become a dictator, while a full-fledged parliamentary system could lead to chaos because the country has no large or developed political parties.

Even more worrisome is the prospect that an irreconcilable conflict between two strong leaders, probably representing the country's two major ethnic groups, could lead to a reprise of the brutal factional bloodletting that decimated Kabul in the early 1990s after the government split between President Burhanuddin Rabbani and Prime Minister Gulbuddin Hekmatyar.

"Nobody wants too much power concentrated in one person's hands. We need a division of political power, but we also don't want a conflict in the core of the government," said Abdul Hai Ellahi, a psychiatrist and legal philosopher on the commission. "Afghanistan is going through a transitional stage, and the most important thing is for the government to be conciliatory."

The compromise worked out in the draft is for a semi-presidential system in which a strong executive will be chosen by direct popular vote. He in turn will appoint a weaker prime minister, subject to a parliamentary vote of confidence and relatively easy recall, who will function as the country's day-to-day manager.

By most accounts, Karzai wants to remain president after serving as Afghanistan's transitional head for nearly two years, and no clear alternative has emerged. As a popular leader of the ethnic Pashtun majority, he would presumably win a fair election and appoint an ethnic Tajik, from the second largest group, as prime minister.

At the moment Karzai shares power with leaders of armed Tajik militias in a coalition government forged by the United Nations, and attacks by Islamic guerrilla forces against his government are increasing. In the coming weeks, he could be pressured to alter the constitutional formula or be threatened with a full-scale revolt at the loya jirga.

"In Afghanistan, the aim of politics is not governance but a power struggle," said one foreign expert who is advising U.N. officials here on the constitution. "The number one concern is how to implement the constitution at all if there are warlords and gunmen in the way. That's something you can't fix on paper."

A variety of other problems, some of which nearly derailed the constitutional commission early on, appear to have been ironed out during the months of debate and in last-minute consultations with Afghan and U.N. experts. Some southern regions wanted to bring back the monarchy; some northern provinces wanted a federal system. Both minority ideas were ultimately rejected.

The proper role of Islam in the charter was especially divisive, with conservative Muslim scholars pressing for the full-fledged adoption of strict Islamic law, and warning against the moral dangers of a constitution that was imposed by foreign, non-Muslim experts.

Progressive Afghans, including several women on the commission, were appalled at the prospect of a return to the rigid Islamic ethos of recent Taliban rule, when women were forced to wear veils and harsh physical punishments were meted out to criminals. In the end, though, the panel adopted mild language stating merely that no laws in Afghanistan "shall run counter to the sacred principles of Islam," and specifically protecting the rights of religious minorities.

Another problem was that Afghanistan's last constitution was written 40 years ago when it had a king and was moving toward modern, parliamentary rule. Afghanistan had not yet been devastated by ethnic warfare or suffered from the oppression of ideological and religious extremes.

The commission's first draft, based substantially on the 1964 charter, included scant references to human rights, no provision for independent commissions or tribunals, no clear separation of powers and no mention of international conventions. With advice from U.N. advisers and Afghan human rights groups, all these items have been spelled out in the final draft.

"We had democracy in 1964, but a lot has changed since then. Now a new generation has to start a new democracy," said Abdul Hamid Mobarez, the government's deputy information minister. "We think we need a more progressive, enlightened constitution than the old one, but some groups think it should be even more conservative. I'm sure most of the nation will support a democratic constitution if they are not pressured by armed people."

Some Afghans and U.N. officials have questioned the wisdom of pushing ahead with a new constitution and loya jirga, given the increasing political violence the country has experienced in recent months. But others argue that the only way to give Afghans something to hope for is to keep moving the process ahead, however flawed or tentative.

"We are living in abnormal circumstances, but we can't let that be an excuse to put off the law," Ellahi said. "For now we need to balance power and promote unity. Once our country becomes normal, we can make changes and choose a purer model, but for now we must choose reality and do the best we can."