Afghanistan: Constitution, Democracy
& Institution Building
Remarks by Ambassador Said T. Jawad
Radio Free Europe/Radio Liberty
01/27/2003
I would like to thank Radio Free Europe/Radio
Liberty for the special interest and continued support it has
shown for Afghanistan. Thank you for giving me this opportunity
to talk about the most significant milestone achieved by our
people on the path of democracy and state building, our new
constitution.
Yesterday, President Hamid Karzai signed Afghanistan's
new constitution into law, which was ratified by the Constitutional
Loya Jirga on January 4, 2004.
The Loya Jirga consisted of five hundred and two Afghan delegates
from all walks of life and every province and community of our
country, such as nomads, Hindus, refugees and internally displaced
people, gathered together in the Constitutional Loya Jirga or
the Afghan Grand Council. They put all tough issues on the table
and after three weeks of intense debate and emotional speeches
adopted with unanimous acclamation our new constitution, which
is the most progressive charter in the region.
The new constitution is a balanced charter:
1. It seeks and finds an equilibrium between building a strong
central executive branch to strengthen national unity and rebuild
the national institutions that were destroyed by foreign interference
or factional fighting, and respecting the rights of the provinces
to exercise more authority in managing their local affairs by
institutionalizing district and provincial level councils.
2. The new constitution balances a strong presidency
and a parliament with extensive powers of inquiry. It envisions
a strong presidency and a two-chamber national assembly, which
cannot be dissolved by the president, with evident checks and
balances.
3. The new constitution is a careful combination
of respect for moderate and traditional values of the Afghans
society and adherence to the international norms of human rights
and democracy.
The constitution provides for equal rights and
full participation of women. Article 22 of the constitution
states that the citizens of Afghanistan –whether man or
woman- have equal rights and duties before the law.
The constitution obligated the state to abide
to the UN charter and international treaties and convention,
and to create a society based on social justice and protection
of human dignity and human rights and realization of democracy
(Articles 6 and 7).
The constitution for the first time, empowers
the Afghan citizens with unlimited right to access information
from the government [Articles 50 and 51].
It obligates the state to prevent all types of
terrorist activities and the production and trafficking of narcotics
and intoxicants [Article 7].
It recognizes our rich cultural, ethnic and multilingual
diversity and for the first time in Afghanistan and the region,
recognizes all major languages as official in areas where a
majority speaks such languages.
The new constitution provides for a presidential
system. The President is elected by direct majority vote. He/she
serves for a period of 5 years with two vice-presidents and
is subject to a two-term limit.
The President is the Commander in Chief of the
armed forces, and appoints ministers, the attorney general,
head of the national security directorate, members of the Supreme
Court, but only with the approval of the parliament.
While the President enjoys great executive powers,
his/her authority is checked and balanced through oversight
by the legislative and judiciary branches. The constitution
provides for a clear impeachment process if the President commits
crimes against humanity, treason or other crimes [Article 69].
The parliament or National Assembly consists of
two chambers, the Wolesi Jirga (or the lower house) and Meshrano
Jirga (or the upper house or senate).
The 250 members of the lower house serve for 5
years and are elected in proportion to the population of each
province [Article 83]. To insure that 25% of the members are
women, the constitution requires that 2 female delegates be
elected from each of the 32 provinces of the country. Such a
high quota for women is rare in most countries, both Muslim
and non-Muslim. The President appoints 1/3 of the senators,
50% of which appointment must be women.
The constitution creates an independent and able
judicial branch [Article 116].
It institutionalizes Afghanistan civil law system: The Hanafi
jurisprudence will only be applied if there is no existing law
that deals with the matter [Article 128]. In addition, courts
are obligated to apply the Shia school of law in cases dealing
with personal matters involving followers of the Shia sect [Articles
129 and 130].
Another pioneering feature of the new constitution
is that it prohibits formation of a party based on ethnicity,
language and an Islamic school of thought. [Article 35].
The Supreme Court is comprised of 9 members, who
are appointed by the President for a period of ten years [Article
117]. Members of the Supreme Court can be tried in a special
court for crimes committed during the performance of their duties
[Article 127].
The Independent Human Rights Commission is further
empowered and institutionalized by Article 58. The Commission
has the right to refer cases of human rights and fundamental
rights violation to the judiciary and is empowered to assist
in defending the rights of the victims.
The constitution expressly protects the rights
of the disabled and handicapped [Article 53].
The right to an attorney is guaranteed. The state
is obligated to appoint an attorney for the destitute and ensure
the immunity of attorney-client communications.
Recognizing the fact that Free Market economy
is a core value that is necessary for the political democracy
to succeed, the constitution includes specific provision requiring
the state to encourage and protect investments[Article 10},
private enterprises intellectual property rights Article 47].
Foreigners have the right to lease real property
for investment [Article 49].
Ladies and Gentlemen,
The next milestone for our people is to implement
the new constitution and set the stage for free and fair national
elections.
The challenges that we are facing are enormous;
but generally of 3 inter-related categories:
First, the general challenge of building a state
and providing for good governance by reforming, strengthening
and rebuilding national institutions to make them accountable,
capable, and more representative.
Improving local and district level governance
and enhancing government capacity to deliver services to all
corners of the country, especially areas prone to terrorist
infiltration to keep the population on our side. Eliminating
corruption and abuse of power, as well as cultivation and trafficking
of narcotics, which goes hand in hand with terrorism and warlordism.
Second, specific challenges of preparing the logistical
and legal grounds for the election and transition; including
building the institutions and the capacity to prepare and enact
the enabling laws required under Article 157 of the new constitution,
that provides for transitional measures.
Third, security challenges posed by terrorists
and other elements. Theses challenges include:
- Expediting the process of building our national
army and professional police force.
- Enhancing security in provinces by expanding the presence
of the International Security Assistance Force (ISAF) and/or
Provincial Reconstructing Teams (PRT’s) to outside capital.
- Achieving a complete victory over terrorists by denying them
recruiting grounds and preventing cross-border infiltration.
- Implementing the demobilization, disarmament and reintegration
program, which has not progressed well so far.
- Preventing extremists from high-jacking democracy and the
state building process for personal gain or factional agenda.
- We are looking forward to creation of more US
and ISAF led PRT’s and deployment of more robust peace
keeping forces outside Kabul. We hope that NATO will be able
to provide ISAF with more troops and resources.
In order to overcome these challenges and to make
the state building process in Afghanistan irreversible, Afghans
need and demand the accelerated support and the sustained engagement
by the United States of America and the international community.
Afghans cherish the growing partnership and warm
friendship forged between our two nations.
We need further funding for training our national
police force, especially female officers, and resources to reform
the administration and the judicial system, train Afghan judges,
lawyers and prosecutors, fight corruption, and undertake public
campaign to mobilize, empower and educate the people about their
constitutional rights.
Democracy: The new constitution is a blueprint
for democracy in Afghanistan.
It also proves:
1. the limited investment made by the United States
of America and the international community to help Afghans rebuild
their national and democratic institutions has already yielded
very impressive results.
In two short years, the people of Afghanistan,
with the partnership of the international community, turned
a neglected and pariah country over-run by the Taliban and Al
Qaeda, into what President Hamid Karzai calls “a center
for the cooperation of civilizations.”
2. Led by the vision of President Karzai, Afghanistan
is emerging as a model. Afghanistan’s successful advance
on the path to democracy and state building will certainly impact
upon the expectations and the aspirations of people in other
arenas of the global war against terror and tyranny.
3. It proves that the tradition and values of
Islam can be compatible, and mutually reinforcing with an open
democracy.
This constitution is a significant achievement
in our common fight against terrorism. By helping Afghanistan
sustain this important milestone, the United States and other
nations are helping provide the future blueprint for democracy
in similar societies.
Election:
Article 159 of the constitution requires that
the President issue a decree by the end of June indicting the
time line of the Presidential election.
We would like the election to take place on time
and on schedule.
The UN is in charge of voter registration and
so far has registered about ½ million people. The UN
and some human rights organizations have concerns. They want
to make sure that a secure environment is provided for the election.
Instead of delaying the election date, we would
like to ask the UN and the international community to expedite
the delivery mechanism to prepare the ground for holding the
election on time.
Thank you.
