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Afghanistan: Loya Jirga Adjourns Amid Disputes Over Constitution

  • Golnaz Esfandiari

Delegates at Afghanistan's Constitutional Loya Jirga had been due today to ratify the country's new constitution. But the vote has been postponed after delegates demanded last-minute changes to several articles.

Prague, 29 December 2003 (RFE/RL) -- The delegates to Afghanistan's Constitutional Loya Jirga spent today in a plenary session, studying the amended draft constitution.

A final vote on the draft had been expected sometime later today, but the meeting has now been adjourned after delegates petitioned for further changes to the draft. Loya Jirga head Sebghatullah Mujadadi says delegates are calling for changes to at least seven articles. Their petitions are reportedly being checked to make sure they have the 151 signatures necessary to present their changes for debate.

After more than two weeks of intensive debate, news agencies report that the delegates have agreed on the strong presidential system of government originally proposed by Transitional Administration Chairman Hamid Karzai. However, some amendments have been made to soften the authority of the president. For example, the appointments of ministers, the chief justice and central bank governors would need to be approved by parliament.

The issue of presidential power has been the most contentious of the current Loya Jirga. On the one hand, Karzai repeatedly has said he will only stand in presidential elections scheduled for June if the Loya Jirga approves the presidential system envisaged in the draft. On the other hand, powerful warlords and former mujahedin commanders have insisted on a parliamentary system with a president and a prime minister who would share power.

RFE/RL regional analyst Amin Tarzi, an Afghan specialist, says Karzai's supporters and the former mujahedin commanders appear to have reached a compromise. "Namely, what the president loses here is control over appointing cabinet ministers. And we don't know what his relationship with the Supreme Court will be. But some people have suggested that the compromise includes that the Supreme Court will have more independence than what has been described in the current draft," Tarzi said.

Tarzi says that, as a counterbalance to presidential powers, delegates have reached agreement on a high council that will oversee implementation of the country's laws and the constitution.

"Another compromise which basically puts a balance check over the president's power is the creation of, basically, a kind of a higher council -- 'Diwane Ali' -- which will look at the laws that are passed, either from the president or the parliament, so it makes sure that everything is constitutionally sound," Tarzi said.

Tarzi notes that if the new council comes under the control of conservatives, Afghanistan could face a situation similar to Iran, where the conservative Guardians Council has the power to reject laws that are not deemed compatible with Islam.

"Then [the conservatives] can basically create a two-power structure where you have the president, who may be an open-minded person, but every law that he tries to push forward [is blocked]. We have that example in the Islamic Republic of Iran, and we see that the laws can get curtailed in the system, that you have different forces, and if those forces are controlled by conservative powers, then they can hold it," Tarzi said.

Some analysts have suggested the constitutional compromise is a victory for Karzai. Tarzi looks instead at the potential long-term influence of the conservatives on the new high council.

"The fear is that the short-term compromise that supporters of the presidential system and mainly supporters of Chairman Karzai have won may actually lead to a long-term victory for the conservatives," Tarzi said.

Reportedly, the Reconciliation Committee agreed with changes proposed to Article 3 of the constitution. The article currently says that "no law can be contrary to the sacred religion of Islam and the values of the constitution." Tarzi says the proposed amendment leaves the article open to conservative interpretation of Islam and that human rights could be disregarded as a result:

"Article 3 is the most open article as far as Islam is concerned to interpretation because anything that is against Islam could not go forward. That is a very open question, and if the conservative forces have power, they can come up and say virtually whatever they want is against Islam. It basically gives them at least legally a carte blanche to push their views, especially with the elimination of the values of this constitution which in a way eliminates all the references to human rights, equal rights, and all that," Tarzi said.

Agencies report that the rights of women are specifically included in the amended draft, bowing to demands by female delegates.

Yesterday, the Reconciliation Committee thought it had united the views of the more than 500 delegates in attendance, and the Loya Jirga was adjourned to make available printed copies of the amended draft for all delegates.

Afghan officials and some delegates had predicted the Loya Jirga could reach agreement by the end of last week. As if to presage today's last-minute disagreements, the head of the Loya Jirga, Sebghatullah Mujadadi, said yesterday that reconciling the conflicting views of the delegates has not been an easy task.

"Since the time you decided to trust us [and] elected us, we've been working night and day. God knows that yesterday we worked from 8 in the morning until 8 or 9 at night. Don't worry. We are at your service day and night, but it's not an easy task," Mujadadi said.

According to the presidential decree on the Loya Jirga, final approval of the draft constitution will be by simple majority. Introducing a new article requires a two-thirds' majority.
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    Golnaz Esfandiari

    Golnaz Esfandiari is a senior correspondent with Radio Free Europe/Radio Liberty. She can be reached at