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Afghanistan: Legal Loopholes Give Shah Chance To Head Next Government

Afghanistan's interim government has temporarily restored the country's 1964 constitution until a new constitution is drafted under the transitional government due to take power in June. But the omission of all articles in the 1964 document related to the monarchy has created a legal loophole that makes it possible for the former king of Afghanistan to head the transitional government.

Kabul, 14 February 2002 (RFE/RL) -- When Afghanistan in early February restored the constitution of 1964 as the law of the land, the interim administration in Kabul omitted all of the articles that were related to the monarchy.

That decision means that Afghanistan is no longer a constitutional monarchy as it had been in the 1960s and early 1970s. But it also has created a legal loophole that makes it possible for the former Afghan king, Zahir Shah, to head the country's next government -- an 18-month transitional administration that is to be appointed by a loya jirga and take power in June.

Afghanistan's deputy minister of information and culture, Abdul Hamid Mobarez, told RFE/RL that the loophole is actually a result of an agreement between the three main Afghan groups that met in Bonn in November and early December to map out how the country will make the transition from Taliban rule to democracy.

"According to the Bonn agreement, the parties involved in the talks in Bonn agreed to restore the 1964 constitution with the exception of all the articles related to the monarchy. And because of that, the 1964 constitution has been put back into force with all of the other articles. The interim administration [now] works according to that constitution," Mobarez said.

In historical terms, the 1964 constitution of Afghanistan marked the beginning of a liberal era for the country by limiting the participation of members of the royal family in government.

That constitution had allowed Zahir Shah's family to serve in the foreign service, to be advisers and even to hold low-level positions in government departments. But it also strictly forbade them from holding the positions of prime minister or supreme court justice, as well as from being a member of parliament.

Those articles in the 1964 constitution were directed specifically against Zahir Shah's cousin, Sardar Muhammad Daud, who had served as the Afghan prime minister from 1953 to 1963 and who went on to seize power from Zahir Shah in a 1973 coup.

Daud's policies during the 1950s and early 1960s on "Pashtunistan" -- the name given by ethnic Pashtun nationalists to what are now Pakistan's Northwest Frontier and Baluchistan provinces -- had been a disaster for Kabul's relations with Islamabad.

At the Bonn conference in December, delegates could have prevented the possibility of Zahir Shah returning to Afghanistan to head the transitional government. They simply had to call for the restoration of the 1964 constitution except for the articles that made Afghanistan a constitutional monarchy.

But by also refusing to restore the article which prevents Zahir Shah or his family from heading the government, the Bonn delegates ensured that the former king would at least have a legal option to try and head the yet-to-be-named transitional government.

Kabul's mayor, Fazel Karim Aimaq, told RFE/RL today he sees little chance that Zahir Shah would try to reimpose monarchy in Afghanistan.

"As far as I know, the king of Afghanistan [Zahir Shah] is not in favor of restoring the monarchy and he does not want to be king [again]. But as an elder mediator in the political issues of Afghanistan, he does want to present the gift of peace to the people," Aimaq said.

Nevertheless, Aimaq did agree that Zahir Shah would be eligible to head the transitional government because of the way that all of the monarchy clauses have been dropped from the restored version of the 1964 constitution that is now the law.

Zahir Shah is expected to return to Afghanistan as soon as next month in order to inaugurate the loya jirga that will decide the composition of the transitional government. Aimaq said the unresolved question for now is whether Zahir Shah wants to become a candidate for the administration that is to take over from the current interim government in June.

"Does his highness, besides [his presence in Afghanistan for] the inauguration [of the loya jirga], present himself as a candidate or not? It is one of the questions that does not have an answer at this moment in time. If he does present himself as a candidate [to head the transitional government], then the invited members of the Loya Jirga will decide whether to elect him [or not]. In this case, to my mind, there is no [legal] obstacle [to him becoming the head of the transitional administration," Aimaq said.

In fact, the Bonn agreement was the result of negotiations between three main groups that now comprise the interim administration -- several bickering factions of the Northern Alliance, the Peshawar group, and the so-called "Rome Group," which includes royalists who see a role for the former king in the transitional government.

A 21-member council has been working for the past week at its task of choosing which individuals will be members of the loya jirga. So far, it remains unclear exactly how many people will be members of the loya jirga or where their loyalties lie.

Although Zahir Shah has not publicly stated whether he intends to try to head the transitional government, his spokesman said recently that when he returns to Afghanistan in mid-March, it will be for good.