Fourteen years ago, the current Afghan constitution was approved by Loya Jirga and was signed by Hamid Karzai, the then Head of the interim government.
The Afghan constitution is assumed one of the achievements of the current regime and is the most important legal document in the country; nevertheless, in the past 14 years, there have always been criticisms about violating and not implementing it.
The senior authorities of the country also accept that the constitution was widely violated. 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.
How much the Afghan constitution was implemented in the past 14 years? What are the most important factors behind the violation of the constitution? These are the questions that are analyze here.
The Afghan Constitution
Afghanistan is one of the countries, where many constitutions have been developed and approved. The current Afghan constitution, which is a result of the Bonn Accords, is the eighth constitution of Afghanistan.
The first Afghan constitution was drafted in 1301 [solar year] during the reign of Amanullah Khan and was approved by a Loya Jirga in 1303 [solar year]. This constitution had 73 articles.
The second constitution was prepared in 1309 during the kingdom of Mohammad Nader Khan, the third in 1343 [solar year] in Mohammad Zaher Shah’s Kingdom, the fourth in 1355 [solar year] in Mohammad Dauod Khan’s Presidency, the fifth in 1359 [solar year] by the Khalq Democratic party, the sixth and the seventh were approved in 1366 and 1369 [solar years] by the government of Dr. Najibullah, the later was an amendment of the former. The current Afghan constitution was developed in 1382 [solar year] by Loya Jirga and was approved by the head of the Afghan interim government Hamid Karzai.
The current constitution was prepared after the collapse of the Taliban regime and with the establishment of the new regime in the country. This constitution has been approved by a Loya Jirga in 12 chapters and 162 Articles and it was signed by Hamid Karzai on 6 Dalw 1382 [solar year and month].
The violation of the constitution
The Afghan 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 to the individual citizens of the country have been involved in the violation of the constitution in the country, as the Second Vice President spoke about the violation of constitution last week and said that lack of sufficient capacity to implement the law was one of the main reasons behind it.
In the most recent joint research report of the Afghan Lawyers’ Association and Pajhwak News Agency, on 8 January 2018, it is stated that in the past 14 years, 94 Articles of the Afghan constitution were violated. Based on this research, more than half of the provisions of the constitution (58%) have been violated and only from the 38 articles of the Second Chapter, which is about the Afghan citizens, 32 were broken. According to this research, the President and the Vice Presidents were also among the people that had violated the constitution about of 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 also it had been involved in its violation.
For instance, the 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 formed with breaking the Afghan constitution. Moreover, recently there was a major argument regarding using the term “Afghan” to address all the people who took electronic ID cards, while Article 4 of the Afghan constitution states: “Every individual of the Afghan nation is an ‘Afghan’.”
Although the issue of violating more than half of 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 question the legality of the regime.
Not holding the elections on its specified date, extending the work period of Wolesi Jirga, the acting ministers’ continuation of work, extending the work period of members of the Judiciary Branch, limitation of the area that the law could be implemented, extending the work period of the President, misusing the authorities, intervention of the members of Parliament in areas out of their authority, improper behavior with criminals and dozen other examples can be mentioned as examples of the constitution’s violation in the country.
The most important factors behind the violation of the constitution
The following are some of the most important reasons behind the violation of the constitution:
First; at high levels, internal differences and overall the confrontation between the interests of the political circles in the country have led to the violation of the constitution.
Second; the existence of corruption and powerful people in the structure of the government is another factor that prevents the law from being implemented.
Third; the worst security situation and lack of instability is another factor behind the problem mentioned above.
Fourth; 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 one of the weak institutions that 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 engaged in its violation and the Judiciary branch has also violated the constitution for several times.
Fifth; the violation of the provisions of the constitution by the public has vastly been due to the lack of public awareness regarding the laws.
The Afghan constitution is widely violated by the government and the people at a time that in the past one and half decades, accepting the constitution was raised as a redline precondition of the Afghan government in its peace talks with the Taliban.
The dominant culture of breaking the law, political instability, and security instability have resulted in the violation of the constitution by both the government and the people.
Therefore, while from the government authorities to the citizens of the country and from the private institutions to public institutions have all been involved in the violation of the constitution, no serious reactions have been seen in its protest. Currently, it seems that there is a serious need to raise public awareness regarding the laws and promote law-monitoring and implementing organs.