Ten Years of the Constitution

Statement made by Second Vice-President Sarwar Danesh in the seminar “Ten Years of Afghan Constitution” organised by the Afghanistan Research and Evaluation Unit (AREU) on 8 Qaus 1393 [29 November 2014] in Kabul

Challenges to the Implementation of the Constitution and the Need for its Amendment

Distinguished audience,

Distinguished members of the Cabinet, of the Supreme Court, of the National Assembly, of the Afghanistan Independent Human Rights Commission and of the Constitutional Oversight Commission,

Distinguished guests,

Ladies and gentlemen,

At the beginning, I thank the Afghanistan Research and Evaluation Unit (AREU) for organising this important seminar and appreciate the vast, accurate and useful research this scientific and research institution has been producing in the significant political, legal, cultural and social areas of the lives of the Afghan people over the last years.

Also, I should, at the beginning, note that the topic chosen for this seminar is a timely, prompt and necessary choice, given the country’s current conditions. After 11 years from the ratification of the constitution, it is necessary to think and assess it in different dimensions and at different levels, given the experiences of and challenges to the country’s new governance system during the last decade. This can result in a context where we are able, in the years to come, to review and amend the constitution.

Fundamental Objectives of the Constitution

As a modern political and legal phenomenon in the contemporary world, the constitutionalist movement, in specific terms, started off with the American and French revolutions in the late eighteenth century. In the US, the first constitution was codified after the revolution in 1776, but it was ratified by the leaders of the American independence movement 11 years later in 1787. As the oldest basic law, this constitution has a history of 227 years and has undergone nearly 30 rounds of review and amendment. The second constitution was ratified in 1791 after the victory of the French Revolution. Constitutionalisation spread across the world, particularly in the aftermath of the First and Second World Wars. All countries tried to have their constitutions. Afghanistan promulgated its first constitution – the Founding Document of the State of Afghanistan that contained 73 articles – on 10 February 1922.

In the historical development of constitutional laws, the fundamental objectives for having a constitution and the context in which national sentiments and perceptions were expressed on the need for designing a constitution are particularly noteworthy. The fundamental objectives for the codification of a constitutional law can be explained by several elements, and these are as follows:

1. The element of independence and national sovereignty: This element is so important that nations and countries regarded the possession of a constitutional law as a symbol for and/or an indication of their independence in the nineteenth and twentieth centuries. It was as if a country’s independence was doubted if it did not have a constitution.

2. The element of freedom, resistance to oppression and check on power: This is a very important and fundamental element of codifying a constitution. As we know, the two elements of “freedom” and “power” are usually mutually contradictory and exclusive. If political power is not legally and systematically checked and controlled, this power can exceed its limits and deprive people of their liberty and violate their fundamental rights. This is why there are two main points of discussion in areas of constitutional laws and fundamental rights. One is about the fundamental rights and freedoms of individuals, which are the human rights of individuals, and the other is about the duties and powers of the three branches of the state and government-people interrelationships. The best constitution is one that strikes a logical and reasonable equilibrium between these two elements, namely freedom and power.

3. Nation-building and the strengthening of national unity: In addition to the two elements of independence and freedom, the element of nation-building is a fundamental objective by which one can assess the success of a constitution. According to jurists and historians of constitutional law, the US Constitution has played a key role in building the American nation and in strengthening its national unity. The US Constitution has been able to form a unified and powerful nation and state – the United States of America – out of various scattered nations, ethnicities, languages and states in Northern America. Hence, a constitutional law should be so formulated and implemented that it does not cause schism, discrimination, grudge, hatred and violence among a country’s people but should bring about a peaceful public social and political life and strengthen national unity, harmony, convergence and empathy among all the people residing in a country.

4. Enduring stability: It is a fundamental objective of a constitution to ensure lasting political stability. The constitution should be so formulated and implemented that it creates some kind of durable stability in various political, legal, economic, cultural and social areas and prevent the occurrence of crises, rivalries and conflicts.

The Problems and Obstacles of the Implementation of the Constitution and the Need for its Amendment

The aforesaid four elements (independence, freedom, national unity and lasting stability) are the most important fundamental objectives, in the achievement of which a constitution plays a basic and effective role. This is exactly this role that can ensure a constitution’s compatibility with changing temporal and spatial circumstances and requirements; this is the reason for why a constitution should be a flexible and amendable document. In addition to being stable and continuous, a constitution should also be made adaptable with the society’s changing or evolving conditions. It is only through review and amendment that we can ensure a constitution’s compatibility with changing times as well as its stability and continuity.

The Afghan Constitution is not an exception to this rule. The constitution should evolve as it should stabilise. Although our current constitution is the most progressive and modern constitutional law for the last 90 years and it has brought us significant achievements during the past 11 years, it has also faced many challenges and problems in its implementation. There are various factors and reasons for this, most of which are not related to the text of the constitution and to those who wrote and ratified it in the year 1382 [late 2003/early 2004] but are the result of the changing situation in the country and the broader world. Nevertheless, all these factors make us, after a decade of the experience of this constitution, assess both the challenges and look for solutions.

Seizing this opportunity, I refer to a number of factors and issues in brief:

1. The upbeat and optimistic atmosphere of the years 1381-1382 [2002/2003-2003/2004]:In those years, after the fall of the Taleban and the establishment of a new governance system, a special optimism existed about the country’s future, and the constitutional drafting and review commissions and the constitutional loyajirga codified the present constitution under such an ambiance. There was a perception in those years that the country would begin to enjoy sustainable peace and stability, solve economic and financial problems and eradicate poverty and deprivation. We all know that security and economic capability are two key factors that can guarantee the success of the law and ensure its enforcement.

2. General perspectives on state-building and system-building: Some of the questions or criticisms made today on the constitution are not professionally and technically related to the law but are the result of general perspectives and fundamental policies that had been formulated for the future of the country. For instance, issues related to the type of the political system (whether it be presidential or parliamentary or semi-presidential) and/or the economic system (whether it be state and directed economy or market and liberal economy) and or the administrative system (whether it be centralised or decentralised or federal) fall within the scope of general policies that are regarded as general perspectives on governance. As time goes by and experience is accumulated in a lengthy and long-term process, nations can change their political, economic and administrative systems as needs arise and amend the constitution.

3. Idealism: Considering that Afghanistan is historically an oppressed country, the constitution has adopted an idealistic approach – to the extreme in some cases – to ensure Afghanistan’s release from oppression, the realisation of democracy and the representation of public will and rule. This has, in some cases, left out a context for the implementation of the constitution on the ground. For example, the current constitution requires seven kinds of jirgas and councils as elected bodies, all requiring general elections (loyajirga, meshranojirga, wolesijirga, provincial council, district council, village council and municipality council). Besides, heads of the three branches of the state and of some other institutions should also be elected by the people or by their representatives in the National Assembly (president, all of the mentioned seven jirgas and councils, ministers, members of the Supreme Court, the Attorney-General, director of national security, head of the Afghan Red Crescent Society, mayors and members of the constitutional commission). Although this system can help democracy grow and can strengthen public participation, most of the world’s countries that have a longer experience in democratisation and public participation do not have these many councils, elections and elected offices.

4. International and transnational requirements: Some of our legal problems are due to the needs and requirements of international life. These problems have a transnational aspect and are not specific to Afghanistan either. For instance, international treaties and conventions today constitute a major part of the legal system and international legislation. This is slowly taking the world towards a unified legal system and legislation. The current legal theory is that if there is a conflict between domestic law and international law, international legal rules have supremacy over the domestic ones. These tendencies challenge the constitutions of all countries, including that of Afghanistan. States have an obligation to clarify their position vis-à-vis international law in their international life.

5. Lack of political will in the implementation of law: In many cases, the inadequacy does not lie in the law itself. Rather those at the helm of affairs lack the will to implement the law. Our state, including all its three branches, have time and again contravened the rule of the law particularly in the area of the constitution, the powers and duties of the three branches of the state and the separation of powers or it has at least failed to provide a context for the implementation of the law. For example, if the state cannot implement a programme to conduct a census or distribute national identification cards, the constitutional provisions related directly to census and related matters are not implemented either; or if the state cannot provide an appropriate mechanism to hold elections, naturally the constitutional provisions related to elections are not made operational either.

6. Weakness in law-making: In many cases, the details of an issue should be elaborated in a normal law, and to do this is the duty of the government and the legislature. However, today we have many cases within the text of the constitution itself that have required the three branches of the state particularly the National Assembly to regulate normal laws for the implementation of the constitution, but this has unfortunately not been done. Even laws have not been regulated in very important areas such as the basic structure of the state, the powers and duties of central and local governance institutions, the relations among the three branches of the state and relations among central and local governance institutions. This situation itself leads to violations of the constitution and misinterpretations and misperceptions thereof.

7. The mechanism to interpret and oversee the constitution: In many of the world’s governance systems, most of constitutional weaknesses and/or ambiguities are resolved through proper and accurate interpretations of the constitution. In our country, on the one hand, there are inadequacies and ambiguities in the constitution itself and, on the other hand, there are deficiencies in law enforcement agencies. Besides, there is an inadequacy in articles 121 and 157 of the constitution about which authority or office is competent to interpret the constitution. Moreover, neither the president as the highest office who is required, as per article 64, to protect the constitution nor the constitutional oversight commission that, pursuant to article 157, has an obligation to monitor the implementation of the constitution has been able to create an accurate mechanism for constitutional oversight and to serve their legal duties in an appropriate and necessary manner.

Ladies and gentlemen,

Distinguished audience,

Given the above-mentioned issues and factors, I want to use their scientific seminar and in my capacity as a vice-president to mention to all scholars, lawyers, personalities and political and academic institutions that given the requirements of the time and as per the political agreement between the president and the chief executive officer of the government of national unity, it is possible to review and amend our country’s constitution within the next two years. Therefore, I request you all to study and do research on the constitution from various perspectives and submit your comments and recommendations to us so as to use your research and comments to review and amend the constitution in accordance with the legal standards and the conditions of Afghanistan and the wider world.

I once again thank the AREU as well as you for your attention.