Afghanistan is on the brink of ratifying a new constitution for a moderate Islamic republic with a directly elected executive president and a two-chamber legislature with no prime minister.  Three distinct forces are contending to shape the final product: realists, idealists and opportunists.    The realists are currently in the ascendant, but challenges from the idealists and the opportunists may continue well after the constitution is ratified.   The outcome will be significant not only for Afghanistan, but could well be a portent of the constitutional debates that lie ahead for Iraq.

President Karzai and the United States government are broadly supportive of the draft constitution currently being debated by the loya jirga in Kabul.  Western advocacy groups and Afghan warlords, however, take major exception to key features of the proposed constitution, albeit for quite different reasons.  

Amongst the Afghan professional classes the draft is perceived as a victory for liberals, complete with voting rights,  guaranteed seats in parliament for women, freedom of expression, a presumption of innocence in criminal trials, and no mention of Islamic sharia law.

Surprisingly this apparently benign development in an otherwise Hobbesian setting has given rise to a considerable furore amongst the chattering classes in the West.  Secularists, genderists and human rights advocacy groups all find massive flaws in the document and will probably make a considerable fuss in forums which impact donors who are critical to financing Afghanistan's reconstruction. 

The Western and secular human rights take on the draft is that it is a substantial step backwards from the 1964 Constitution.   They are concerned that many of the individual rights provisions are subject to the qualification that the details will be regulated by law (which makes many basic rights subject to legislative
limitation). 

European and American gender advocates complain that there is a general equality clause but no specific equality clause for women.     Free market champions fret because the constitution nationalizes natural resources and places restrictions on foreigners owning land.

The executive aspects of the constitution mirror the French 5^th Republic and ensure that the President has sweeping powers.   The Parliament's role is limited to approval or disapproval of state policy that originates with the President.

 
The President appoints the vice president, all of the ministers (though
these may be subject to no confidence votes), one-third of the upper house
and all of the judges of the Supreme Court (with the latter subject to the
approval of the upper house). 

Democratic idealists in the West have complained that there is no Constitutional Court, although there is a Human Rights Commission.  The Supreme Court upon a petition, can only take up constitutional questions referred to them by  the government or the courts.  There is no public access to constitutional review.

This reflects a distinct shift from the system first proposed by the foreign advisors to the Afghan constitutional commission.   Earlier drafts of the constitution balanced the powers of the President with a prime minister and balanced the powers of the executive branch with a Constitutional Court. 

The largest warlords and regional militia commanders prefer the earlier, prime ministerial model for opportunistic reasons.  They believe that their ability to maintain significant regional power will be enhanced by the likelihood that they can build parliamentary alliances to thwart the efforts of the President and the executive branch to curb their influence.

While modernist Afghans are generally quite pleased with the moderate role assigned to Islam in the draft constitution, Western secularists are disturbed by the changes from the 1964 constitution with respect to the role of Islam. 

In the 1964 constitution, Islamic law was to be used by judges only where there was no positive law on point, as a kind of common law that could be used when statutes and the constitution ran out. Now Islam has been given a more prominent role in constitutional life:

• Political parties may not be formed that conflict with Islam;
• The educational system shall be designed to be
  in accord with Islam;
• The legal section on family requires the state to
  eliminate traditions contrary to Islam; and 
• Significantly, the new constitution does not specify which branch of Islamic law shall be considered authoritative (the old one did)

Official American support for the new constitution reflects a triumph of realist foreign policy over neo-Wilsonian idealism.   In an uncharacteristic display of bureaucratic unity, the State Department and the Defense Department both favor the strong-president model which they see as a practical tool to ensure that Karzai remains in firm control, unchallenged by a legislature or judiciary while he struggles to assert his authority over his strongest competitors, the current Defense Minister and the current Education Minister, both warlords with substantial independent military capacity.

The probable dominance of the realists over the idealists and the opportunists in this week's loya jirga will not, however, be the end of the story.

Whether or not the new institutional framework can overcome the centrifugal tendencies of the warlords and commanders remains to be seen.   The first critical test of the constitution will come this summer when nationwide elections are scheduled.   The continued capacity of the opportunists and the spoilers to undermine security in many parts of the country could force the postponement, or even the cancellation of elections.

Under the realist's most favorable scenario, a 2004  election will put the genial, but not always decisive, Hamid Karzai into a constitutionally strong presidency.  At which point Afghanistan will face the somewhat unusual spectacle of a Pierre Mendes France at the head of a state with a de Gaulle constitution.

Realist, idealists and opportunists in Baghdad will be watching with interest.

 

 John Stuart Blackton is a retired Foreign Service Officer who served as director of U.S.AID Afghanistan and director of U.S.AID Pakistan.  After leaving government service he directed a multi-year program of administrative and court modernization for the Egyptian Ministry of Justice, and he is currently a consultant on governance and security issues in Afghanistan, Iraq and the Philippines.