We, The People of Afghanistan…
Said T. Jawad
The Ambassador's Review
04/01/2004
The people of Afghanistan achieved another significant
milestone on the path toward creating a democratic nation-state.
On January 4, 2004, President Karzai signed our new Constitution
into law. Five hundred and two Afghans from all walks of life
and every province and community of the country, including nomads,
refugees, internally displaced people, men and women, tribal
leaders, college professors, international bankers, shopkeepers,
Pashtuns, Tajiks, Hazaras, Hindus gathered together in the traditional
Loya Jirga or Afghan Grand Council, put all intricate issues
on the table, and after three weeks of intense debate and emotional
deliberations adopted with near unanimous acclamation the most
progressive Constitution in the region.
A passage from the preamble of our new Constitution
sets the course for the direction my country has taken:
“We, The People of Afghanistan…for
the creation of a civil society free of oppression, atrocity,
discrimination and violence and based upon the rule of law,
social justice, protection of human rights, and dignity and
ensuring the fundamental rights and freedoms of the people…have
adopted this Constitution in compliance with the historical,
cultural and social requirements of the era….”
A Balanced Charter
The national charter that has been adopted is
balanced and provides for equal rights and full participation
of women. It seeks and finds an equilibrium between building
a strong central executive branch (to further strengthen national
unity and rebuild the national institutions that were destroyed
by foreign interference or factional fighting), and respecting
the rights of volition of the provinces to exercise more authority
in managing their local affairs by institutionalizing district
and provincial level councils.
The new Constitution provides for checks and balances
between a strong presidency and a two-chamber National Assembly
with extensive powers of inquiry, which cannot be dissolved
by the President. Furthermore, it represents a careful combination
of respect for moderate and traditional values of the Afghan
society and adherence to the international norms of human rights
and democracy.
A Powerful Executive Branch
The new Constitution establishes the President
as the head of state, elected by direct majority vote. He/she
will serve for a period of five 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 he/she appoints ministers, the attorney
general, and the head of the national security directorate,
members of the Supreme Court, but only with the approval of
the Parliament. While the President is granted strong executive
powers, his/her authority is checked and balanced through oversight
by other branches. The Constitution provides for a clear impeachment
process if the President commits crimes against humanity, treason
or other crimes.
A Well-built Legislative Branch
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 five years and are elected in proportion
to the population of each province. To insure that 25 percent
of the members are women, the Constitution requires that two
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 one-third
of the senators, 50 percent of which appointment must be women.
An Independent Judiciary
The Constitution creates an independent and able
judicial branch and institutionalizes Afghanistan’s civil
law system. The Supreme Court is comprised of nine members,
who are appointed by the President for a period of ten years.
Members of the Supreme Court can be tried in a special court
for crimes committed during the performance of their duties.
An Articulate Application of Islamic Law
The new Constitution institutionalizes the civil
law system in Afghanistan. Afghanistan has very liberal penal
and civil codes. The Hanafi jurisprudence of Islamic law will
only be applied if there is no existing law that deals with
the matter. In addition, courts are obligated to apply the Shia
school of law in cases dealing with personal matters involving
followers of the Shia sect. Although 99 percent Afghans are
Muslim, the Constitution in Article 2 protects the freedom of
followers of other religions. Another pioneering feature of
the new Constitution is that it prohibits the formation of a
political party based solely on ethnicity, language and/or an
Islamic school of thought.
Gender Equality and Individual Rights
Article 22 of the Constitution states that the
citizens of Afghanistan—whether men or women—have
equal rights and duties before the law. The Constitution prohibits
the amendment of the fundamental rights of the people unless
done to make such rights more effective. The right of every
person to a lawyer is guaranteed. The state is obligated to
appoint a lawyer for the destitute and to insure the immunity
of attorney-client communications. The Constitution obligated
the state to abide by the United Nations (UN) charter and international
treaties and conventions and to create a society based on social
justice, democracy and the protection of human dignity and human
rights. It also specifically protects the rights of the disabled
and handicapped. The Constitution, for the first time, gives
Afghan citizens an unlimited right to access information from
the government. The Constitution obligates the state to prevent
all types of terrorist activities and the production and trafficking
of narcotics and intoxicants.
The new Constitution appreciates our rich cultural,
ethnic and lingual 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. Recognizing that
a free market economy is a core value necessary for political
democracy to succeed, the Constitution includes specific provisions
requiring the state to encourage and protect investments and
private enterprises, intellectual property rights and rights
of authors and inventors.
An Institutionalized Human Rights Commission
The Independent Human Rights Commission set forth
by the Bonn Agreement is further empowered and institutionalized
by Article 58. The Commission has the right to refer cases of
human rights and fundamental rights violations to the judiciary
and is empowered to assist in defending the rights of the victims.
An Emerging Model
Our new Constitution proves that the investment
made by the United States government and the international community
to help us build our national and democratic institutions, although
limited, has already yielded very impressive results. The new
Constitution further reveals that our Islamic and traditional
values are fully compatible, and mutually reinforcing with an
open democracy. In two short years, the people of Afghanistan,
in partnership with the international community, turned a neglected
and pariah country over-run by the Taliban and al-Qaeda, into
what President Hamid Karzai called “a center for the cooperation
of civilizations.”
Led by the vision of President Karzai, Afghanistan
has emerged as a model. Afghanistan’s successful advance
on the path to democracy and state building will inevitably
impact upon the expectations and the aspirations of people in
other arenas of the global war against terror and tyranny. A
moderate, democratic and tolerant Afghanistan is indeed imparting
the conclusive blow to the radicalism preached by al-Qaeda.
The Elections
The next milestone for the Afghan people is setting
the stage for the first free and fair national elections under
the new Constitution. The timetable for the elections is to
be set forth by June 2004. President Karzai insists on holding
the Presidential elections on time as scheduled, but we will
not compromise the legitimacy, credibility and integrity of
the process. We ask our international partners to help the United
Nations in accelerating voter registration to ensure the credibility
of the election process. It is crucial for us that the process
gives all adult Afghans the opportunity to exercise their constitutional
rights to vote in the first national elections for which they
have waited so long. To date, 1.4 million out of 10.5 million
eligible voters are registered. We are about to drastically
increase the number of registration posts from eight to 4,000
throughout the country.
The Challenges
We are realistic about our challenges. We face
the general challenge of building a state and providing for
good governance, after the complete destruction of all national
institutions and a severe shortage of resources and human capital.
To overcome these challenges we must reform, strengthen and
rebuild our government institutions to make them accountable,
capable, and more representative, and we must improve local
and district level governance. We must enhance government capacity
to deliver services to all corners of the country, especially
in areas prone to terrorist infiltration. All Afghans have not
yet benefited from the peace dividend. We must eliminate corruption,
nepotism and abuse of power that undermine our recovery process.
We are also facing the specific challenges of
preparing the logistical and legal grounds for the election
and building the institutions and the capacity needed to prepare
and enact the enabling laws required by the new Constitution.
We also continue to confront security challenges
posed by the terrorists and other elements. To overcome security
challenges we must expedite the process of building our national
army and professional police force. We have asked our international
partners to enhance security in the provinces by expediting
the deployment and presence of the International Security Assistance
Force (ISAF) and/or the Provincial Reconstructing Teams (PRTs).
We welcomed the North Atlantic Treaty Organization (NATO) and
the UN decision to expand ISAF outside of Kabul and to increase
the number of PRTs from nine to 15 before the election. We must
accelerate the demobilization, disarmament and reintegration
program, and prevent extremists from high-jacking democracy
and the nation-building process for personal gain or factional
agenda.
Narcotics pose a serious challenge for all of
us. Cultivation and trafficking of narcotics go hand in hand
with terrorism and warlordism. It is in our best national interest
to fight them all. President Karzai is committed to mobilizing
all of our resources in the fight against narcotics. We know
Afghanistan’s heroin, which sells on the retail market
for one hundred times the farm gate price, is one of the sources
of the illegal money that funds international terrorism and
crimes across the region. It also finances the destabilizing
activities of warlords and criminals in Afghanistan. The international
community and our government cannot afford to wait as these
destructive trends reverse our recovery process and further
endanger global security. Comprehensive and accelerated efforts
are needed to break this vicious cycle. We shall mobilize all
available resources to fight drugs in Afghanistan. The government
of Afghanistan has adopted a National Drug Strategy aimed at
drastically reducing poppy cultivation, encouraging alternative
income streams, destroying drug labs, strengthening law enforcement,
training specialized national police units, and developing the
justice sector to facilitate the proper prosecution and sentencing
of traffickers.
To overcome these challenges and to make the nation
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.
The successful implementation of Afghanistan’s
exemplary Constitution is inextricably linked to President Karzai’s
cooperation of civilizations concept and our partnership with
the international community. The Afghan 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 to provide the future blueprint
for democracy in similar societies, the very best antidote to
extremism and terrorism.
