Analyzing the persistent violation of the Afghan constitution
The Constitution of Afghanistan is now in its fifteenth year. Since its promulgation on January 26, 2004, the Constitution is probably one of the biggest achievements of the post-Taliban regimes. Although it is the most important legal document in the country; in the past 14 years, there has always been a lot of criticism about its violations and non-seriousness in implementing it in letter and spirit. Even the senior authorities of the country accept that the constitution has been widely violated in the past. In a message, due to the Constitution Week, the Second Vice President Sarwar Danish said that the violation of the provisions of the constitution has become widespread in the country. The results of a recent research also show that 94 out of 162 articles of the Afghan constitution have been broken.
Constitution is an official document which lays out guidelines for running the affairs of a state. Afghanistan is one of those countries where, over the years, many constitutions have been evolved and promulgated. The constitution currently in force in Afghanistan – a result of the Bonn Accord – is the eighth the country has since April 9, 1923, when Afghanistan created its first constitution during the reign of Ghazi Aman Ullah Khan. This Constitution had 73 articles. The second constitution was enacted during the kingship of Mohammad Nader Khan, the third in Mohammad Zaher Shah’s kingship, the fourth in Mohammad Dauod Khan’s Presidency, the fifth by the Khalq Democratic party, the sixth and the seventh were approved by the government of Dr Najibullah, the latter was an amended version of the former. The current Afghan constitution was drawn up by Loya Jirga and was signed into law by President Hamid Karzai, the then head of the interim government, on January 26, 2004. The current constitution was prepared after the collapse of the Taliban regime and with the establishment of the new regime in the country. It contains 12 Chapters and 162 Articles.
This constitution, which somehow manages all the affairs in the country and provides the way for people’s monitoring of the government, has been widely violated in the past 14 years. Overall, from the government organizations and departments to the individual citizens of the country, almost everyone has violated the constitution, one way or the other. The Second Vice President, Sarwar Danish, was compelled by the perpetual violation to speak about the violation of the constitution. And, in his early January message, he warned that lack of sufficient capacity to implement the law was one of the main reasons behind Afghan problems.
In a recent joint research report of the Afghan Lawyers’ Association and Pajhwok News Agency Afghanistan, it is stated that in the past 14 years, 94 Articles of the Afghan constitution were violated time and again. Based on this research, more than half of the provisions of the constitution (58 percent) have been violated and from the 38 Articles alone of the Second Chapter, which is about the Afghan citizens, 32 were broken. According to this research, President Ashraf Ghani, Chief Executive Dr Abdullah Abdullah and the Vice Presidents were also among the people who violated the constitution about their authorities.
In addition, in the past years, the reports of several researches were released by the non-governmental organizations suggesting that the government had not only failed to implement the constitution but had also been involved in its violation. For instance, Article 71 of the constitution states: “The government is formed of the ministers and is headed by the President,” while the National Unity Government (NUG) is itself formed in extreme violation of the Afghan constitution. While striking the Peace Deal between Ashraf Ghani and Dr Abdullah in September 2014, it was announced that the constitution will be requisitely amended to create the position of Chief Executive, but it could not happen in the past three years.
Although the issue of violating more than half the provisions of the constitution seems like an exaggeration, there exist many examples of violating the constitution during the Hamid Karzai’s government and later on during the NUG. Some instances of these violations raise questions over the legality of the regime. Not holding the elections on its specified date, extending the duration of Wolesi Jirga, the acting ministers’ continuation of work, extending the work period of members of the Judiciary Branch, limitation of the area on which the law could be implemented, extending the tenure of the President, misusing the authorities, intervention of the members of Parliament in areas out of their authority, improper behaviour with criminals and dozens other examples can be cited where the constitution has been violated. The current Afghan Parliament is also ultra vires the constitution as its term ended on June 22, 2015 – the extension given to it was illegal, to say it politely. The judiciary is headed by an interim chief. The position of Chief Executive is also illegal. The minsters that were sacked by the parliament in November 2016 are still working and have retained their portfolios. The first Vice-President Abdur Rasheed Dostum is out of the country for the last several months due to involvement in a case of rape against a political rival.
The most important reasons behind the violation of the constitution are as under:
1. At high level, internal differences and overall the confrontation between the interests of the political circles have dominated the political scenario in Afghanistan and have led to the violation of the constitution.
2. The existence of corrupt and powerful elements and notorious warlords in the structure of the government is another factor that prevents the law from being implemented in its true sense.
3. The worst security situation, unprecedented insurgency and lack of stability make another reason behind this dilemma.
4. Lack of political willingness, monitoring and suitable response mechanism is another factor behind the violation of the constitution. The Independent Commission of Observing the Implementation of the Constitution is a soulless body and is one of the weak institutions as it has failed to play an efficient role in this regard. It is at a time that the President, as the protector of the constitution, is himself engaged in its violation and the judiciary has also violated the constitution for several times.
5. The violation of the provisions of the constitution by the public has vastly been due to the lack of public awareness regarding the laws.
6. Last but not least, every law requires proper implementation body and a system of checks and balances but in the case of Afghanistan, every figure of authority has violated the constitution in utter disregard to rule of law.
The vanguards of the present Afghan constitution were the NATO forces and Americans but they have been silent spectators and in many cases, they themselves are involved in illegal activities. The parliamentary elections are fast approaching but the situation and status of governance in the country indicates that the election will be rigged due to the huge influence the warlords, miscreants, political groups wield in Afghanistan. The ineffectiveness of the government machinery will also be adding fuel to the fire.
Afghan government has set the precondition for peace talks with Taliban that they should recognize the Afghan constitution but if the authorities themselves are violating the constitution with impunity then how on earth will Taliban recognize this ineffective and fruitless body of laws?
Afghanistan in 2017
The year 2017 was full of challenges and problems for Afghanistan. The political disagreements soared to new heights. The types of the political divisions were confusing and mostly the people inside the government were the government’s opposition. The evident example of this situation was the formation of an anti-government coalition by the government senior officials, in Turkey. The differences between the Presidential Palace and the Parliament also existed and some members of the Parliament stood against the government individually which raised the level of political divisions. Overall, these divisions negatively affected the performance of the National Unity Government (NUG).
The security situation in the country also remained deteriorated and the past year was the bloodiest in the past one and a half decades.
In the past several years, the Afghan government’s peace efforts were focused in two parts; one, the peace talks with Hezb-e-Islami and second, those with the Taliban. Regarding the first part, due to taking a step back in the position of Hezb-e-Islami, the Afghan government succeeded and the leader of this party came to Kabul. However, regarding the second part, it should be said that the government failed and the government’s overall policy in this regard was to put political and military pressure on the Taliban.
Failure in areas of peace was coincided with the worst deterioration of the security situation in the country. The air-strikes of the US forces increased as did the civilian casualties, against which the Afghan government had been silent. In 2017, several major explosions occurred, some of which killed hundreds of people.
Based on the recent report of SIGAR, the territory under the control of the Afghan government has decreased to 57%.
Besides these problems, the Afghan government has had some achievements as well. For instance, in 2017, the level of the national incomes of the government also increased and a larger percentage of the national budget was also spent.
Although the level of unemployment is still high in Afghanistan, the overall economic conditions in 2017 were better than the past three years. In 2017, the development budget of the country was spent 67 percent while this percentage in the past three years was 44 percent, 53 percent and 54 percent, respectively.
In 2015, the economic growth of the country was 1.3% which rose to 2.6% in 2017. The exports of the country also increased in comparison to those in 2015. In 2015, the value of the country’s exports was 580 million dollars, which rose to 723 million dollars in the past year.
In areas of foreign policy, the Afghan government assumed Donald Trump’s decision about the US forces’ stay in Afghanistan as a success; however, emphasis on war and neglecting peace were the factors in this strategy that were highly criticized.
After the US’s harsh stance towards Pakistan, China stepped in as a mediator between Afghanistan and Pakistan and organized a trilateral meeting in Oman to improve relations between the Afghan and Pakistani governments.
In the meanwhile, in other areas of foreign policy, the Afghan government inaugurated the Lapis Lazuli road, which is the shortest way of connecting Afghanistan with Europe.
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