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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.