Welcome to the ALEP Blog
A guest post by Mohammad Fahim Barmaki
Over the past ten years, entry into state law schools for the pursuit of legal education in Afghanistan has become increasingly difficult. Public demand has grown tremendously while the job market has not expanded as much. Students pursue a university education in hope of seizing upon economic opportunities that may be available. The legal profession and the notion of participating in democratization and the rule of law have incentivized many to pursue higher education in the field of law. The capacity of state and private educational systems has grown as well, yet for many reasons capacity has not kept up with demand.
Students choose their majors based on a variety of factors, but not always on the job they wish to pursue. Law is typically the second or the third most demanding field in Afghan society. This field of study is not exclusively defined as a field for lawyers. It is very common to work for a law firm after graduating from law school in Western countries—especially in the US; in Afghanistan however, law students’ paths typically take many more directions.
In the course of studying law, legal and political studies are thoroughly mixed with one another and the course of study is frequently called the study of Law and Political Science. Judgeship can be pursued as a career path within the school, and Law and Political Science graduates may also seek a diplomatic and administrative career after their graduation. Of course, there are academic requirements in each field that must be satisfied before students utilize their capacity as a judge, diplomat, or a lawyer. But generally students may decide to choose one of these fields to begin building their career from the start of the third year of their undergraduate studies.
As demand for higher degrees in law is great, there are not many universities to which students in Afghanistan can apply. There are a few state law schools around the country, and a selection of private ones in Kabul and a few other provinces. Some of the most credible public law schools in Afghanistan are Kabul University Law School in Kabul, Herat University Law School in Herat, Balkh University Law School in Mazar-e-Sharif, Jalal-Abad University in Jalal-Abad, and Alberooni University Law School in Parwan.
Legal education is offered not only through the Law and Political Science Faculty, but also through the Sharia Faculty. The Sharia Faculty delves into Islamic laws and jurisprudence rather than positive law and is more Arabic language oriented. Thus, legal education in Afghanistan is a complete mixture of Islamic and positive law where a nuanced skillset in the field vitally requires a subtle understanding of Islamic law. For this reason, a few important Islamic subjects are mandatory components of the curriculum for Law and Political Science students, and nearly every subject adamantly cites Islamic references and must be in accord with Islamic law.
As with students at most law schools, Afghan students usually find it very difficult to adjust to the high expectations and new pressures they face during their first and second years of their law degree. Students are challenged with rich and extremely complex bodies of hybrid Islamic and Roman laws along with political theories. The first year is dedicated to a basic introduction to the laws of Afghanistan, political theories, international organizations, history of international relations of Afghanistan, etc. Students are introduced to more specific legal and political studies in their second year. By the start of the third year the class is separated into two sections: Students who would like to pursue careers in judicial institutions register for the Judiciary Section and those who want to pursue diplomatic careers register for the Administrative and Diplomacy Section.
Students of both sections have basic knowledge of these complementary subjects and even during their specialized third and forth years they may share some elements in their curriculums. This type of curriculum enables each division to pursue a career in both diplomatic affairs and the judiciary under the condition of passing their specific exams before entering either one. Each field’s exam is different and requires specific subjects to be covered in order for students to be proficient enough to pass them. Passing these specialized exams can be quite challenging, as there are no private or public institutions that offer preparation courses. Additionally, many students do not study all of the subjects tested in these exams during their university coursework. They must independently find ways to gain mastery of subjects in which they lack proficiency should they sit for an exam in a field they did not study in their third year.
The curriculum of the judiciary section has been designed to impart to students the practical aspects of the legal system by teaching subjects that are most relevant to judicial and legal work. The same goes for the diplomacy section. By simultaneously dividing and intermingling legal study between two focused paths, there is limited time in these paths of study for hands-on field experience and in-depth subject analysis. Additionally, this style of study allows less opportunity for students to develop lawyerly-thinking, a technical skill that is considered essential to the study of law in the US. Although the style of legal study in Afghanistan may have some disadvantages, it is a rich method of learning that enriches students’ knowledge of the theoretical dimensions of the legal system as a whole.
To augment the limited practical skills that students gain in their first four years of study, additional post-graduate programs have been designed for those who want to become judges or full-time lawyers after graduating. Students who wish to sit for the bench must complete a two-year post-graduate program before they can take the exam. Students who wish to become lawyers complete one-year of additional post-graduate education before taking the Afghanistan Independent Bar Association (AIBA) exam. Similar to the judicial section, students in the diplomacy section must also complete a mandatory one-year diplomacy course after passing the Ministry of Foreign Affairs’ entry exam. Unlike the American Bar Association, the Afghanistan Independent Bar Association (AIBA) does not create a curriculum to be used by law schools. Generally, each university faculty establishes its own legal curriculum and sends it to the Ministry of Higher Education for approval.
Higher degrees, such as a Master’s or PhD, are hitherto unavailable in Afghanistan for the field of law and politics, and for the most part, in all other fields as well. The lack of such degrees significantly limits opportunities for educational advancement in the country. For individuals assiduous in their pursuit of higher degrees and teaching in academia, pursuing academic opportunities abroad may be the only option. Although some schools are developing Master’s programs—Kabul University Law School is developing a Master’s degree in International and Comparative Law, these programs may be years away from actually convening.
There are a variety of teaching methodologies applied by different professors in the field of Afghan legal education. Professors have the chance to direct their own texts and build their own method of teaching. As a result, teaching styles vary widely; some professors focus on dialectic—following the Socratic method, whereas others lecture volumes of material that far exceed the capacity of a one semester course.
The slow progression of Afghanistan’s education system, legal studies and otherwise, can be attributed to the prolonged period of war that has completely annihilated the country’s ability to support academic research. Although some professors continue to write and research, they frequently struggle to find the support that they need to continue their research and get their work published and distributed. In some instances, professors even teach their own written, yet unpublished texts. This crisis is stifling, and the bulk of academic writing and research quickly expires and is swallowed into a black hole. The government has unfortunately further crippled growth by showing little to no interest in supporting research in academia. These factors perpetuate the information void that exists in Afghanistan and neglects to recognize the important role that the intellectual community could play in advancing the country forward.
As with any war-torn country, it should not be surprising to know that the government provides so little compensation for professors and researchers that they must seek other income-generating opportunities outside of academia. As a consequence, many teaching professionals seek employment with NGOs, thus dividing their time and taking their focus away from their teaching obligations. The political and social disasters of Afghanistan have become excuses for the government to neglect the critical needs of the academic community; without accountable support from the international community, the irreparable damage to the higher education system in the country may simply continue to worsen.
The consequences of war continue to linger on, and the greatest repercussion has been inflicted upon the most talented students who rise through the university system, only to stumble into an environment of limited opportunity after graduation. Even for graduates of the prestigious Law and Political Science Schools, there are few prospects for employment. As disconcerting as this is, neither the government, nor private organizations have made significant efforts to provide work or volunteer opportunities for graduates. Based on these observations, the government of Afghanistan must shift its focus to supporting higher education and economic opportunities, without which the future of Afghanistan may be in flux.
-Mohammad Fahim Barmaki is a visiting scholar at Stanford. He received his LLM from George Washington Law School.
A guest post by Mohammad Mojtaba Salem
What lies ahead for Afghanistan, now that the international community has decided to transfer state-building responsibilities to the Afghan government? However frightening this transfer might look, it forces us to think about a fundamental crisis, which is going to be present today and for the years to come: namely, corruption. Admitting that the government is too corrupt for inspiring a national thinking process, who else might have the potential to do so? Students, I would say.
On Tuesday, 27th September 2011, AUAF students inaugurated the first Student Counter-Corruption Seminar. The seminar’s name indicates its theme, but, in fact, the latent objective was recognizing the key role civil society and particularly university students should play in national policy making. We laid out this vision in more detail in the seminar’s agenda and the concept paper.
The first session of the seminar was hosted with the support of CJIATF-Shafafiyat (Transparency) ISAF unit. Indeed, this seminar is the principal outgrowth of a unique interaction between a lead counter-corruption organization and university students. The Tuesday session will be followed by working group sessions on various aspects of corruption: good governance, legal incentive-structure, identification of corruption patterns (petty and grand corruption as well as state capture). Students’ proposals, suggestions, and creative solutions that contribute to the enrichment of counter-corruption strategies will be gathered into a final resolution to be presented on International Anti-Corruption Day on 9th December 2011.
The seminar has attempted to broaden the discussion beyond frequently repeated generalizations about corruption by breaking up corruption into sub-categories, each of which has hindered the progress of a particular sector of the state. Considering the affected sector and the way(s) its progress has been hindered, proposals and mechanisms for dealing with corrupt policies are asked to be developed.
Endemic corruption in the Karzai government is healable if donor agencies, the media, and students (as active citizens) engage in a set of coordinated activities to push the government to implement counter-corruption strategies. This “pushing” is necessary since, in Afghanistan, the government has the most to lose if anti-corruption strategies yield positive results. Therefore, the seminar poses the following core questions: how should such coordination take place? And, what strategies must be formed as a result of that coordination to effectively address corruption in Afghanistan?
The seminar has invited students to formulate their thoughts and opinions in a written form. The best papers will be chosen to be published in the national and international journals and newspapers. Their authors will also have the chance to present what they think is the best counter-corruption strategy to the audience on 9th December, when the seminar ends by marking the International Anti-Corruption Day.
Mohammad Mojtaba Salem is a junior at the American University of Afghanistan pursuing a Bachelor’s Degree in Business Administration and a Legal Studies Certificate.
Students at the American University are not shy about expressing their frustration with corruption and poor governance in Afghanistan. Many are very pessimistic that the current crop of politicians and judges in office will ever reform themselves, despite all the Western training and other rule of law efforts. However, they are not so pessimistic about the future of Afghanistan. When asked about Afghanistan’s prospects for the future and what it will take to right the country, the answer is nearly universal: just do what you can to hold the country together until we graduate – we will be the ones to turn things around here.
The first wave of cavalry has arrived.
The Spring 2011 semester wrapped up a couple weeks ago and we celebrated the first graduation in AUAF history. In front of an extraordinary crowd, including US Ambassador Karl Eikenberry, former US Ambassador (and current AUAF Board member) Zalmay Khalilzad, former Afghan Foreign Minister Abdullah Abdullah, and Kabul Mayor Muhammad Yunus Nawandish, thirty two new graduates received their diplomas. Michelle Obama sent a congratulatory letter and Laura Bush, who was involved in the founding of AUAF, sent a video message.
Two of the graduates were students in my class this year. They were both excellent students and I was proud to see them march. I wish Furmolly and Hadi the very best and I know they both have a great deal to contribute to Afghanistan.
Although no one graduated with a Legal Studies Certificate this year, next year’s graduation should see quite a few. Two other students from my class became the first to complete all the requirements for the Certificate and I expect they will be joined by many more throughout the 2011-2012 academic year.
The graduation received a fair bit of media coverage and AUAF has even posted a highlights video:
http://chronicle.com/article/A-Graduation-Day-in-Kabul/127720/
http://www.csmonitor.com/World/Asia-South-Central/2011/0526/Can-Afghanistan-hang-on-to-its-newly-minted-college-grads
http://afghanistan.usaid.gov/en/USAID/Article/2251/American_University_of_Afghanistan_Holds_First_Commencement
One of the most difficult topics in a standard course on international law is the interaction between international law and domestic legal systems. When a state legally binds itself to a treaty on the international stage, how should its domestic courts respond? Should they apply the treaty immediately and vindicate the treaty rights of litigants? Should they ignore the treaty and wait for the legislature to implement its terms through regular domestic legislation? What happens if a newly ratified treaty conflicts with domestic law that was already on the books? Each state answers these questions differently. In the United States, the Supremacy Clause of the Constitution gives treaties full status of law, yet there nonetheless exists an elaborate body of treaty execution doctrine by which courts decide whether any given treaty should be directly applied by courts or ignored until the Congress passes a new law.
In Afghanistan, the answers to these questions are even less clear than in other countries – in no small measure because the Afghan constitution is so young that there simply has not been time for courts or other government institutions to interpret and elaborate on the relevant parts of the constitution. This presents both positives and negatives for my students who have been grappling with the material. On the one hand, there are no truly correct answers to the basic questions, which makes the subject difficult to study. On the other, there are no truly correct answers to the basic questions, which puts my students on the cutting edge of defining the meaning of their own constitution.
My students just completed their midterm exam last week. The major essay asked students imagine themselves as Supreme Court justices forced to decide a case where the terms of a treaty to which Afghanistan is a party conflicted with a source of domestic law. According to the constitution, how should they go about making a decision? Answers certainly varied, but certain themes emerged.
Many students proposed that Afghanistan adopt a “last-in-time” rule, which is followed by many other countries in the world. Just as a more recently passed law trumps and amends older laws on the books, a more recent treaty should trump older domestic laws. Recent domestic laws should trump older treaties. Students who favored this approach noted that under the Afghan constitution, both laws and (apparently) treaties are approved in the same manner: majority vote in both houses of the legislature and approval by the President. Moreover, Article 94 of the constitution defines law as “what both houses of the National Assembly approve and the President endorses … .” Treaties and domestic legislation therefore have equal status as “law” and should be treated the same.
Others in the class suggested that treaties should trump domestic legislation – even old treaties. These students pointed to Article 7 of the Constitution which states that “ the state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights.” The preamble to the constitution also says as much. If Afghanistan is constitutionally obligated to “observe” treaties, then later domestic legislation that conflicts with it is void. Many last-in-timers retorted that Article 7 and the preamble should not be considered judicially enforceable. Although we teach in English at the American University, the class had an extensive conversation over the meaning of “ to observe” or “ رعایت می کند ” with some proposing that it is best understood as “consider,” and therefore only binding on the conscience of leaders, whereas other s insist it requires adherence. I am afraid I have no idea which is correct.
A couple of students proposed yet a third rule, which has its roots in canons of statutory interpretation rather than the text of the constitution: the more specific treaty or domestic law should prevail. One example raised by a student: if there is a clean air law in Afghanistan (stay with me here…) that regulates allowable emissions down to precise measurements per year, and Afghanistan later signs a treaty in which it agrees to “endeavor to eliminate harmful pollutants” then a court should consider the prior law binding because it is specific and judicially manageable whereas the later treaty is just too general to apply to specific cases.
Despite the general disagreement over how treaties interact with statutes, there was substantial agreement that one type of domestic law will trump treaties: Islamic law. The class was divided over whether it should defeat treaties, but most agreed that it would in practice. Article 3 of the constitution is very clear: “[n]o law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.” Because treaties appear to be “law” under Article 94, they are immediately void if they contradict Islam.
Still, some students could imagine some exceptions. The same students who favored the more specific treaties and statutes over more general treaties and statutes thought that the same standard could apply to Islamic law. There are some tenets of Islamic law that are not particularly precise and are still debated and open to varied interpretation by Islamic scholars. Perhaps treaties should be given the benefit of the doubt if the alleged conflicting rule of Islamic law is vague. Other rules of Islamic law do not come from the Qur’an but rather from sayings of the Prophet. There is an entire Islamic science dedicated to ascertaining the authenticity of sayings – some are unanimously agreed to come from Mohammad, whereas others have weaker chains of transmission. Perhaps, some students suggested, rules based on weakly supported sayings have less weight under Article 3.
The cleverest argument I encountered was that Article 3, as powerful as it is, is strictly limited to “law” which, as we saw before, is defined under Article 94 as that which is approved by the legislature and endorsed by the President. Therefore, when Article 7 says that Afghanistan must adhere to the UN Charter and the UDHR (which is not even a binding treaty), these two documents are not “law” because they are part of Article 7, and therefore not actually approved by both houses. Rather, Article 7 was approved by the Loya Jirga.
As much as I encouraged my students to grapple with legal arguments about the text of the constitution, one student in particular reminded me of the political realities of constitutional interpretation. In true realist fashion, he acknowledged that there were textual and other legal reasons to support arguments for and against different ways of applying international law in Afghanistan. But he said the truth was that if he were a judge, there was no way he could let purely legal considerations dictate the outcome of cases. Some laws, particularly those derived from Islam, are too sacrosanct and politically untouchable – he would have to uphold them over international law in order to remain a member of society in good standing. Similarly, there might be international obligations which the nation is under pressure from western donor states to uphold – he would uphold them to ensure his country continued to receive the support it needed. The relative social and political importance of each law would be paramount. Textual and legal analysis was secondary. This is something judges do everywhere, of course, although they find ways to cloak their decisions in legal terms of art (or create doctrines of abstention or political question). Some might even prefer judicial honesty of this sort in developed legal systems. Regardless, the essay served as a reminder that constitutional interpretation is not an abstract exercise in logic and semantics, but is inextricably bound with contingent social and political realities, particularly in the land of the brave.
-Taylor
Welcome to the reboot of Stanford Law’s Afghanistan Legal Education Project (ALEP) blog and my inaugural post. I have been in Afghanistan for just over a month now serving as ALEP’s “man in Kabul” and as a Visiting Assistant Professor at the American University of Afghanistan (AUAF). This semester I am using ALEP’s latest textbook to teach the first-ever International Law course offered at AUAF. Outside of class, I will be building up the legal studies program at AUAF and supporting ALEP’s broader mission to promote legal education and rule of law development throughout Afghanistan.
During the course of my time in Afghanistan, I hope to bring you a variety of different postings on this blog. Naturally, in-depth legal analysis of news and events in Afghanistan – both those stories you read in Western media and stories accessible only from local Dari and Pashto sources – will be the primary mission. And to add some color between treatises, I’ll contribute stories from the classroom, personal anecdotes, and thoughts about life in Kabul as an American. I also hope to bring you guest pieces representing an Afghan perspective, including some from legal studies students at AUAF.
One of the very first things I saw when I arrived at Kabul airport (besides my view of a Western security contractor thoroughly frisking the baggage handlers before allowing them to approach my plane) was a large sign outside customs that read: Welcome to the land of the brave. The riff on Key certainly rang oddly without a companion line about “the free.” I pondered whether the sign’s omission betrayed a pessimistic outlook on individual rights or whether it was resolutely and optimistically withholding full plaudits for Afghanistan in anticipation of greater rule of law in the future. I am still not sure, but in sha’llah, as I continue my work here, I will learn which.
-Taylor Strickling
Poverty and violence are usually portrayed as the biggest challenges confronting Afghanistan. But ask Afghans themselves, and you get a different answer: corruption is their biggest worry. This past January, the United Nations Office on Drug and Crime released a comprehensive study on corruption on Afghanistan. The results could not be more sobering. Based on interviews with 7,600 Afghans in 12 provincial capitals and more than 1,600 villages around country, corruption ranks as the single greatest concern for Afghans today, and a concern that exceeds the issue of both unemployment and even security.
According to the UN study, in 2009, Afghan citizens paid about $2.5 billion in bribes, which is equivalent to nearly one quarter of the country’s GDP. Sadly, this is similar to the revenue attributed to the opium trade, which the UN estimates in 2009 constituted $2.8 billion. Thus, drugs and bribes can be considered the two largest sources of income in the country and constitutes about half the country’s GDP. Closer inspection of the study’s details paint an even darker picture. The survey demonstrates more than half of all Afghans had to pay at least one kickback to a public official. And, in more than half the cases, the request for illicit payment was an explicit demand by the service provider. In 75% of the cases, bribes were paid in cash with the average bribe to be about $160, in a country where GDP per capita is $425 a year. Worse, according to the same survey, those entrusted with upholding the law are seen as most guilty of violating it. Five out of six recipients bribes are government employees, with the police considered the worst single category of offender. More specifically, around 25% of Afghans paid at least one bribe to police and local officials and between 10-20% had to pay bribes either to judges, prosecutors or members of the Government.
In direct response to calls by the UN, on March 18, 2010, President Hamid Karzai issued a decree aimed at combating corruption by granting the Afghan High Office on Oversight and Anti-Corruption sweeping new powers. The decree, which was initially met with skepticism about its constitutionality, was later met by concerns about its reach and finally, criticized for not reigning the “true” culprits of Afghanistan’s rampant corruption: international institutions operating within the country.
Specifically, the President’s decree granted members of the High Office authority to (1) conduct inquiry-based inspections of all matters related to corruption which would be akin to powers normally granted to judges in civil law countries; (2) register, evaluate, and publish of the assets held by government officials; (3) and should a government official falsify their stated assets, the High Office also possessed the authority to refer the matter to Office of the Attorney General. Second, the President also directed the High Office to closely evaluate the financial status of past and present high ranking government officials (including those within military) by examining the precise relationship between their financial status with their declared income sources, and, if upon suspicion of corruption, would be referred to the Office of the Attorney General. Finally, the presidential decree sought to coordinate all anti-corruption efforts under the aegis of the High Office. Thus, the March 18 decree not only affirmed the role of the High Office, but gave it sweeping investigatory and adjudication powers that would allow it to adjudicate cases along with the Attorney General‟s office and refer them to court if necessary.
Publication of the Presidential decree was closely followed by an appearance by Mr. Mohammed Yasin Osmani, head of the High Office, before the Meshrano Jirga, the upper house of Afghanistan’s National Assembly, who began debating the measure in late March. There, Osmani complained about the limited powers of his office and interference by high-levels officials within the Government, not to mention, complaints directed at his office for their failure to curb high-level corruption. Members of the Meshrano Jirga, however, questioned the legality and authority of the President to accord the High Office with authority already reserved to the courts. To some members, the President’s decree amounted not only to an end-run around the courts and but worse, a presidential maneuver to create a court of specialized jurisdiction, but without the appropriate approval of the National Assembly.
The tenor of both within the Meshrano Jirga and by Mr. Osmani, however, changed a week later when Mr. Osmani was called to further testify about the presidential decree. Initially, members stated the decree’s provisions which allowed the High Office to refer matters to the Attorney General was incomplete since they could not ensure justice since an already corrupt Attorney General’s Office was being put in charge of bringing to justice an equally corrupt official. Other members stated proper enforcement had to be topdown, reasoning that a minister was a culpable as a corrupt employee. Members within this camp also pointed out, to date, no minister has been prosecuted despite the Attorney General’s Office insistence that unspecified high ranking officials are under investigation.
Soon, however, the focus within the Meshrano Jirga turned to international organizations operating in Afghanistan. Specifically, members complained the presidential decree does not go far enough since under the decree, the High Office possesses no jurisdiction to prosecute international organizations, which they believed to be the true culprits of corruption. Mr. Osmani later testified that according to his investigation, fully 80% of all corruption in Afghanistan can directly attributed to international organizations—a charge vehemently and repeatedly denied by both the United Nations the Agency Coordinating Body for Afghan Relief.
The Meshrano Jirga concluded its discussions by calling on the Government to address corruption in international organizations suggesting that foreign organizations to submit their expense accounts to the government and without apparently delving into the other particulars of the presidential decree.
Last week, what started out as a clash of constitutional interpretations between President Karzai and the Lower House of the National Assembly of Afghanistan, the Wolesi Jirga, soon spilled into an all-out event bordering on a crisis between the international community and Afghanistan’s current government. But rather than recount the finger-pointing between the White House, UN and the Karzai government, it may be more instructive to examine how a constitutional debate helped precipitate an international brouhaha
Pursuant to Article 79 of the Afghan Constitution, the National Assembly took up consideration of a “legislative” decree issued by President Karzai regarding the composition of the Afghan Electoral Complaints Commission (ECC) after it was published in the government’s gazette on March 11, 2010. According to Article 79, the National Assembly had thirty (30) days to consider the measure and issue an up or down vote before the decree could become law.
While it is widely known the President’s decree would have reserved the sole authority to appoint the five-member body to the ECC for himself — and remove the three appointments allotted to the United Nations — it was not the only cause for concern among members of the Lower House. According to the legislative record, MPs identified more than twenty separate problems with the decree including concerns about educational requirements for presidential candidates and ambiguity about the selection of women candidates for National Assembly seats. Perhaps most importantly, however, was the concern that the legislative decree would violate Article 109 of the Constitution.
According to Article 109, “[p]roposals for amendments to the electoral law cannot be included in the working agenda of the [National] assembly during the last year of the legislative period.” As it presently stands, elections for the Afghanistan National Assembly are slated to take place in September 2010. MPs found approval of the decree problematic since it would be tantamount to amending the current electoral law within the last year of the legislative period. Even for those conceding that approval of the legislative decree would flout Article 109, they also pointed out that Article 79 only gave them discretion to give the measure an up or down vote, which would ostensibly prevent them from amending the decree to cure it of its numerous flaws. Consequently, when the measure came up for approval, it fell one vote shy of passage.
Since then, the measure has been forwarded to the Upper House, the Meshrano Jirga. And while that body has not voted on the measure, the Meshrano Jirga’s Committee of Chairs has foreclosed debate on the matter again citing the strictures imposed by Article 109. The 102-member body (of which 34 members are directly appointed by the President), has 15 days since submission to consider the matter before it comes to a full vote. From various accounts, negotiations continue on the matter because according to the Constitution, if the Meshrano Jirga were to approve the measure, the two houses would be in disagreement and a joint commission between the houses would be created to resolve the dispute, thereby extending the life of measure for future approval.
Thus, it was the Wolesi Jirga’s rejection of his legislative decree that precipitated the angry rebuke by President Karzai who charged the National Assembly with complicity with the international community (because of the UN’s current authority to select the majority of the ECC’s membership). He also declared, without explanation, the failure of the Wolesi Jirga to pass his legislative decree violated Article 109 even though the Wolesi Jirga rejected the measure. The Speaker of the Wolesi Jirga has since countermanded the President’s rebuke by affirming the Lower House’s argument that the measure had nothing to with the international community, but instead that approving the decree would constitute amending the current electoral law within the last days of the legislative period, —a clear violation of Article 109.
Last week, Afghanistan’s government confirmed for the first time it had enacted the controversial National Reconciliation, General Amnesty and National Stability Law. While there are many substantive points to consider, it might be worth analyzing how exactly the law was passed.
It can be safely said that before last week, the Reconciliation Law was in a legal limbo even through the law had been passed by the National Assembly in March 2007. Part of the conundrum stems from the fact that President Karzai promised he would not sign the measure into law when it came before him three years ago. While it might seem strange for a president to avoid consideration of a bill without regard to the passage of time, in fact, according to the 2004 Constitution, the president is not constrained by a time limit for which to consider a bill for his endorsement. Last week, however, it was revealed the Reconciliation Law had garnered the votes of two-thirds of the membership of the National Assembly when it passed in 2007. As a consequence, according to the President’s spokesperson, the measure did not “require” the President’s signature for passage.
According to Article 94 of the Constitution:
Law shall be what both houses of the National Assembly approve and the President endorses unless this Constitution says otherwise. In case the President rejects what the National Assembly has approved, the President shall send it back, within fifteen days from the date it was presented, to the House of People mentioning the reasons for rejection, and within the expiration of this period, or if the House of People re-approves it with two-thirds of all the votes, the draft shall be considered endorsed and enforceable. (emphasis added)
In other words, unless otherwise stated in the Constitution, it appears (again there is no certitude based on the text alone) the President must endorse or reject a bill and, if rejected, a two-thirds majority of the House of People may override the President’s veto to become enforceable. Here, depending on how you interpret the media reports, the President might have signed the measure because he faced a certain veto-proof majority and regarded a veto fight as futile. (Again, however, why did the President insist he was not signing the measure?) Another way to interpret the news reports from Kabul, was that the President simply avoided signing the measure altogether. This latter set of events, however, suggests the President avoided his constitutional duties by neither endorsing or rejecting the measure passed by the National Assembly as outlined in Article 94.
Moreover, assuming the latter assessment of the facts is correct, that the President refused to sign the measure, but relented to its passage because of a veto-proof majority, it remains that three years transpired since its passage and, any veto would need a separate two-thirds majority to override the President’s rejection —a political feat the President could have accomplished (and perhaps more readily with the passage of time.) This scenario also leaves one to wonder, since the Constitution is silent about how long a president may consider a bill, it, in effect, allows him the authority to simply kill a bill by neither signing the measure or rejecting it. Thus, in this case, the President could have simply waited the National Assembly out. Or, if the President chose, he could have waited to make a decision at some latter point or an intervening National Assembly election. (The next election is scheduled for this coming September.)
This controversy, however, has an added twist. For those who believe the law became enforceable when the President (assuming he did) sign the law, there remains a technical obstacle enumerated in the law itself (see below): the law still had not yet been published in the official gazette. In fact, this was the very position the Afghan government took in May 2009 in responding to a query by the United Nations about the legality of the law. That report stated the Reconciliation law had not entered into force because it was not published in the official gazette. This scenario also raises difficult questions. For example, since the Constitution proscribes no publication barrier to enactment, should not the Reconciliation law have became law in 2007 when the President supposedly signed it? And better yet, if the publication requirement was so constitutionally robust as to prevent the enactment of the law altogether, why wouldn’t such a supposedly reluctant president prevent the law’s enactment by forestalling its publication?
But as it turns out, in December 2009 the Reconciliation law was published in the official gazette and we are left with not only sorting out the substance of the controversial law but what were the procedures that got us here in the first place.
The “Reconcilation Law” (unofficial English translation) source: Official Gazette, publishing date: 13 Qaus 1387 Serial No: (965)
National Reconciliation, General Amnesty, and National Stability Law
Whereas jihad, resistance and the rightful struggles of our people to defend the religion and country is the splendid achievement in the history of the country and are considered as our distinguished national glories, and whereas the realization of national reconciliation policy and ending of war and bloodshed, strengthening of national unity and building of trust among all segments of society is crucial in this juncture of time, therefore the following is approved to achieve the above:
Article 1:
This law is adopted for the purpose of strengthening the reconciliation and national stability, ensuring the supreme interests of the country, ending rivalries and building confidence among the belligerent parties, based on their immunity in case of adherence to the Constitution and other enforced laws of the country.
Article 2:
To strengthen peace, stability and ending the war, the National Parliament of Afghanistan calls on all armed groups in opposition to the government of Islamic Republic of Afghanistan to join the process of strengthening the stability and national reconciliation of Afghanistan and participate in strengthening the system and reconstruction of the country.
Article 3:
(1) All political factions and hostile parties who were involved in a way or another in hostilities before establishing of the Interim Administration shall be included in the reconciliation and general amnesty program for the purpose of reconciliation among different segments of society, strengthening of peace and stability and starting of new life in the contemporary political history of Afghanistan, and enjoy all their legal rights and shall not be legally and judicially prosecuted.
(2) Those individuals and groups who are still in opposition to the Islamic Republic of Afghanistan and cease enmity after the enforcement of this resolution and join the process of national reconciliation, and respect the Constitution and other laws and abide them shall enjoy the benefits of this resolution.
(3) The provisions set forth in clause (1) and (2) of this article shall not affect the claims of individuals against individuals based up on Haqullabd (rights of people) and criminal offences in respect of individual crimes.
Article 4:
(1) Those people who are under prosecution due to crimes against internal and external security of the country shall not enjoy the benefits of this law.
(2) Those people who are sentenced to crimes against internal and external security of the country shall be forgiven or their punishment mitigated by separate decrees, according to the situation and based on recommendations and guarantee of the Commission for Consolidation of Peace, in case of they commit, not to resume their activities against the Islamic Republic of Afghanistan.
Article 5:
In order to help end the violence and distrust between the government and armed opposition factions, and to strengthening stability and national reconciliation, an extraordinary commission shall be appointed by the National Assembly to prepare the grounds for their joining the process of strengthening stability and national reconciliation, in cooperation with the Commission for Consolidation of Peace.
Article 6:
This law shall be enforce from the date of endorsement and published in the official gazette.
There is no god, but God and Muhammad is His Prophet. It is the central unambiguous creed of the Islamic faith. And can be found emblazoned on Afghanistan’s flag, (only Saudi Arabia shares the distinction). Of greater interest, however, is the fact the religious creed is required to be on the flag by the Afghan Constitution.
Consider, however, of the more than 28 million people currently living in Afghanistan, over 99% are Muslim. Eight in ten are Sunni, and nearly all those who remain, Shia. So why a vexillology tutorial in a discussion about the rule of law in Afghanistan? The answer becomes increasingly evident when examining the Afghan Constitution for provisions dealing with Islam:
As to the State:
Afghanistan is ordained as an Islamic Republic. (Art. I)
The state religion is Islam. (Art. II)
No law may contravene the tenets of Islam. (Art. III)
The state shall develop religious teachings, regulate and improve the condition of mosques, religious schools and religious centers. (Art. XVII)
The new year shall be based on the Prophet Muhammad’s migration from Mecca to Medina (which is measured on an absolute lunar calendar of 354 days). (Art. XVIII)
The state flag shall include the creed of the Islamic faith, “There is no god, but God and Muhammad is the Prophet of God.” (Art. XIX)
The national anthem shall include the phrase “God is Great.” (Art. XX)
As to the Fundamental Rights and Duties of Citizens:
The right of form associations may not include, as part of their manifesto or charter, content which contravenes the tenets of Islam. (Art. XXV)
The state shall implement an educational curricula based on the tenets of Islam including the instruction of Islam on the basis of those sects of Islam which currently exist within the state. (Art. XLV)
The state shall adopt measures aimed at the elimination of filial traditions contrary to the Islamic faith. (Art. LIV)
As to the President:
The President and the First and Second Vice Presidents must be Muslim. (Art. LXII)
The President, in assuming the oath of office, must swear an oath to God to both obey and protect Islam. (Art. LXIII)
As to the Government:
While there is no qualification that Minister be a Muslim, in assuming the oath of office, they must swear an oath to God to protect the Islamic faith. (Art. LXXIV)
As to the Judiciary:
Justices of the Supreme Court may possess an education in either legal studies or Islamic jurisprudence. (Art. CXXVIII)
The Justices, upon assuming office, shall take an oath to God to attain both justice and righteousness within the tenets of Islam. (Art. CXIX)
In the absence of any statutory or Constitutional provision, courts shall seek to attain justice through the Hanafi school of jurisprudence within Sunni Islam so long as it does not contravene the limits set forth by the Constitution. (Art. CXXX)
With respect Shia Muslims, courts are required to obey the principles of Shia Islamic jurisprudence when it concerns personal matters and unless provided for by law, courts shall be guided by the principles of Islamic jurisprudence specific to that sect. (Art. CXXXI)
Amendments to the Constitution are invalid ab initio should they contravene the tenets of the Islamic faith or the principles of Islamic Republicanism. (Art. CXLIX)
Clearly, the framers of the Constitution sought to leave Islam’s imprint on nearly every aspect of government. But if one reads these provisions closely, there remains intriguing ambiguities, which while religious in nature, remain legal in question.
For example, there is no precise definition of Islam within the Constitution even though the term is used more than a dozen times. The Constitution makes no clear distinction between Sunni and Shia Islam. Why does such a distinction matter? Because questions of authority and law are part of the fundamental differences between these two major sects of Islam. And without a precise definition of Islam, what is to be understood about the use of the term “the tenets of Islam”? Tenets are understood as the major or significant principles of a particular faith or doctrine, but use of the word tenet suggests an entire body of religious matter of less significance—even residual in nature. What effect would such a definition have on more conservative or fundamentalist views of Islam, which generally argues there is little that can be considered residual within Islam, even, for example, the fact the Prophet Muhammad had a beard?
Another issue to consider is what is meant by the term Islamic Republic? The answer to this question is not only significant because it is the first principle which guides the organization of the Afghan State, but it also serves as the primary restriction to any amendment to the Constitution. To be precise, Afghanistan shares the appellation Islamic Republic with only Pakistan, Iran and Mauritania. In every instance however, none the aforementioned nations, including Afghanistan, began as an Islamic Republic. In fact, the earliest concept of an Islamic Republic dates back to only 1956 when the semi-secular state of Pakistan adopted the title (and even there, Islam was not designated as the state religion until 1973).
For some, an Islamic Republic is merely a nation-state, within the modern framework of nations, which possesses a theocratic form of government, such as current-day Iran. For others, it is an attempt to stake a middle ground between the era of the Islamic Caliphate, and secular nationalism and republicanism where the monarchy is banned and matters of criminal law are to be required to be compatible with classical schools of Islamic jurisprudence. Coincidentally, while Afghanistan clearly is without a theocratic government, it still possesses a constitutional monarch. Does Afghanistan’s “aberration” suggest a novel form of an Islamic Republic and, if so, how can one truly know how to maintain the nature of an Islamic Republic?
Finally, consider the Constitution’s intriguing constraints on term Islamic law (mistakenly equated with the term Sharia). Specifically, the Constitution only uses the term four times, all of which are confined to provisions regarding the judiciary: once regarding the qualifications of Supreme Court justices, twice regarding matters specific to Sunnis and members of other Islamic sects, and once as a residual source of law. But take another look. The provision regarding the requisite qualifications of a Supreme Court justice require a candidate be schooled in Islamic jurisprudence or legal studies. As to the matter regarding Sunnis and Shiites, these matters are limited to what the Constitution calls “personal matters,” and finally, there is a residual clause allowing for the use of the Hanafi school of classical Islamic jurisprudence, which is widely regarded as the most liberal of the classical schools of Sunni jurisprudence. And even insofar as such a school of jurisprudence may be invoked as a source of law, it remains constrained by the other terms contained within the Constitution.
What may be most intriguing of all, is that this discussion is an ongoing one in Afghanistan, particularly in the legal classroom. Why is this fact so startling? Often, matters of religion and religious law were left to the province of distant, male scholars. They certainly were not debated among the general public and certainly not by women. Moreover, both Muslim and non-Muslim will agree Islamic law reached a halting point centuries ago and there remains an ongoing debate about how to reconcile centuries-old theological stances with the innovations of the modern world. For some, there is no room for debate: there is simply nothing new under the sun. For others, it more a question of having both opportunity and forum for which to have such debates.
Interestingly, the ambiguities of the current Afghan Constitution and the forum of legal classes which are based more on inquiry and less on rote memorization, which have led to heated and thoughtful debates. One recent debate concerned the issue of commercial law. Because Article III of the Constitution proscribes no law may contravene the tenets of Islam, how does one deal with the Islamic prohibition on “interest” when it is aimed to correct the issue of the time value of money? Even more intriguing, this very debate took place pitting a number of young professional men in tailored suits against a female Afghan professor donning a traditional hijab.
It safe to say, within today’s classroom, there are few issues of law, whether it be constitutional, commercial or criminal which escapes a debate about its compatibility with Islam, and all born out ambiguity and the desire for certainty. It was once wisely said, “The greater the ambiguity, the greater the pleasure.”
