Did Politics Compromise Afghanistan’s Constitution?

Afghanistan’s National Unity Government was formed after a power-sharing agreement was signed between the two presidential contenders (now the president and chief executive officer), in the runoff presidential elections and was followed by the inauguration of the new president, Ashraf Ghani. The inaugural ceremony, as foreseen in the agreement, involved the signing of a decree by the newly sworn in president, and swearing in the holders of three newly created positions: the chief executive officer and his two deputies.

This series of events brought an end to the apparent political crisis Afghanistan was on the verge of in the aftermath of the runoff elections. But it created mixed reactions for Afghans that was apparent on social media sites. Some felt grateful that the "peaceful transition of power" from one elected president to another took place, saving Afghanistan from going into another period of unrest and civil war. Others considered it the death of democracy in the country because they found, after risking their lives to cast their ballots, their votes had no value. For them, it was the political compromise that won, and the people’s will that lost.

But whether or not this new arrangement is even constitutional under Afghan law has been missing from the public debate. This is understandable from the perspective that Afghanistan felt that it was on the verge of failure, and thus prioritized political progress over anything else — including compliance with the constitution. So, the country acquiesced to the formation of a government with no basis in the constitution, formed by two candidates who had no legal right to do so, and without the consent of the people who will be governed under their newly invented regime.

A constitution, as the supreme law of the land, defines state institutions and their powers. It is the only law that legitimizes the government and political authority of a state. Any other arrangement, emerging outside the constitutional provisions, is merely unconstitutional. In the case of the Afghan National Unity Government, the candidates agreed to create a second high government position, the chief executive officer, who would function somewhat like a prime minister in a semi-presidential system. Despite the fact that the position of a CEO is not contemplated by the Constitution, it was not created through constitutional amendment. Nor was it created through a legislative act, bolstering legitimacy for the position. Rather, the position was created through a presidential decree, demanding a constitutional amendment in two years.

In defiance of the principle of constitutional supremacy, the agreement made between the two electoral candidates, served as the "supreme law," requiring the Constitution to conform to it. Regardless of whether a new senior executive official is or was always needed for Afghanistan, the reality is that, under the current constitutional arrangements, forming this position was an extra-constitutional measure.

Moreover, the Constitution of Afghanistan does not entrust unlimited powers in the president to issue decrees. The president can issue decrees only in specific circumstances (i.e., when Parliament is in recess, and there is an immediate need for legislation), and those decrees then have to be presented to Parliament within 30 days for a vote. It seems quite improbable that a president who takes an oath to "respect and supervise the implementation of the Constitution" should assume to have the power to issue a decree, minutes after being sworn into office, that violates the very spirit and provisions of the Constitution.

In the Constitution of Afghanistan, the Executive branch is comprised of ministers who work under the chairmanship of the president. In its content, the agreement, introduces a new layer in the executive branch of the government. It presents the Cabinet, headed by the president, and consisting of the vice presidents, the CEO and his deputies, and the ministers. It then refers to the Council of Ministers, described as a "new institution, separate from the Cabinet," and the subcommittees of the Council of Ministers, both headed by the CEO. Not only is this arrangement of competing institutions entirely absent from the Constitution, but it also fundamentally changes the structure and composition of the executive power as originally outlined in the Constitution. It must be noted that the constitutional provisions (Article 50) cited in support of the formation of this new executive layer requires the state to "adopt necessary measures to create a healthy administration and realize reforms in the administrative system of the country." It does not allow the formation of an entirely new layer of government power, particularly without any description of its powers, structure, and the procedure and standards for formation.

The agreement has also sidelined the Parliament and the Judiciary in having any role in the formation of the new executive position — a violation of the most fundamental purposes of separation of powers. To begin with, all senior positions in the Executive and Judiciary require a vote of confirmation from the Parliament, according to the Afghan Constitution. Furthermore, if one of the vice presidents resigns or dies, for example, the constitution requires the new appointment to be confirmed by a vote of the Parliament. However, for this new Executive position, the Parliament has been essentially overlooked in the exercise of its constitutionally mandated oversight powers. Secondly, according to the Constitution, the president (for crimes against humanity, national treason, and other crimes) and the ministers are responsible to the Parliament (in addition to the former being responsible to the nation, and the latter to the president). However, the agreement only holds the CEO responsible to the president, once again failing to recognize and respect the powers of the Parliament to be a check on Executive power.

Another interesting aspect of the agreement is that it refers to the "equality" of the powers of the two Executives in making senior-level appointments. It then refers to a merit-based mechanism to be agreed between the two, whereby, the CEO can propose nominees for senior executive and judicial appointments. The agreement emphasizes that the mechanism should provide for full consideration of these nominations. Given that the president has the authority, among others, to nominate ministers in the executive and justices of Supreme Court, it is implied from the text of the agreement, that the president will be sharing this power with the CEO. This arrangement may not highly affect the executive appointments, due to the overall organization of executive into separate administrative units. However, this may have negative implications for the Judiciary as a unified branch. The notion of having diversity in the Judiciary is favorable, and having two sources of appointments may in fact strengthen judicial independence. However, in view of how political the process of reformulating the government has been up to this point, it seems likely that the Supreme Court will become polarized into two competing groups, resulting in deadlocks in most judicial processes. This could be detrimental to the already weak and inefficient Afghan judicial system.

Above all, it is surprising that neither of the other two branches of the government, nor the Independent Commission on Overseeing the Implementation of the Constitution, have challenged the constitutionality of this new government. This could of course be the lack of a clear mechanism or procedure by which to do so, nonetheless, it leaves the nation helpless and hopeless; there is seemingly no entity to actually protect the Constitution from the arbitrariness of the political power. Unfortunately, a situation like this creates a precedent for the future, where amendments are made to the Constitution to accommodate fleeting political interests.

Realizing constitutional values, the main principles upon which the National Unity Government is formed seem to include respect for democracy, formation of a legitimate government, respect for people’s votes, and rescuing the state from imminent civil war. The agreement also requires an electoral reform process to commence immediately, and obligates the government to fight systematic corruption within government agencies, a perennial, endemic problem and one of the main barriers to Afghanistan’s economic and political progress.

While some progress on these policy areas has been made since the signing of the agreement and the formation of the NUG, it remains to be seen if the parties will be able to adhere to all these agreed-upon principles and fulfill their promises to the Afghan people. Unless they succeed, in addition to the irreparable damage they have already rendered to constitutionalism in Afghanistan, they will further fuel the already growing public disenchantment with democracy.

What next?

The 2004 Constitution of Afghanistan is expected to be amended in two years. This is the only constitution of Afghanistan that has remained in force for more than ten years in its original form. But the amendment process requires forethought to ensure there is no backsliding to the relative constitutional achievements of the past decade.

The Constitution allows for amendments with "respect to new experiences and requirements of the time," mainly to adapt to new circumstances. It also outlines the process for amending (Article 150) and requires a team, including members from the Executive, Judicial and Legislative branches (without specifying the number of members), to prepare the draft amendments. Like many others of its kind, the Afghan Constitution requires any amendment to be approved by two-thirds of the Loya Jirga and endorsed by the president. It is silent about any mechanism of oversight.

But to protect the constitution from further political encroachments, it is important that the government allows for broader participation and oversight during the amendment process. This could be in form of an ad hoc oversight body, which includes members from, the Independent Commission on Overseeing the Implementation of the Constitution, the legal scholars, and civil society empowered to check the process and ensure the validity of the constitutional amendments before the Loya Jirga is called to vote on it.

Allowing more participation in the amendment process may partially compensate the exclusion of all these groups in the compromise that was made last month. Not to mention that broader participation will undoubtedly bolster the legitimacy of not only the process, but of the provisions that are expected to govern the country’s political system in the future.

The transformation to a semi-presidential system has to be carefully designed as well. Afghanistan does not need to start from ground zero; many examples of semi-presidential systems exist in the world and Afghanistan has had its own experience as a hybrid system under former constitutions. These comparative experiences, in addition to the contextual realities of Afghanistan, have to be taken into consideration before making choices in the upcoming amendments. An ill-designed system will only reverse the good intentions on which the National Unity Government was formed.

Ghizaal Haress is an Assistant Professor at the American University of Afghanistan (AUAF), where she teaches Constitutional Law. The author is thankful to Hadley Rose, former chair of the Law Department at the AUAF, for reviewing the article.