THE EFFECTIVENESS OF “LOYA JIRGA” IN MAKING THE CONSTITUTION OF AFGHANISTAN
Zabihullah- Hafizullah1
1 Ph.D. Candidate, Ahmad Ibrahim Kulliyyah
(Faculty) of Laws (AIKOL), International Islamic University Malaysia (IIUM).
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ABSTRACT |
Keywords: Constitution-making; Constitutional Loya
Jirga (grand-council); Constitution; Afghanistan. |
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Replacing the old
constitution in Afghanistan was
generally an essential step forward in the nation building process. The
Effectiveness of loya Jirga or Grand Council was important to adopt the constitution and to
confer legitimacy to it. Consequently, the constitution of Afghanistan which
was made by a special Loya Jirga (Grand Council) (13 December 2004- Junuary
2004), was ratified by President Karzai on 24 Jaunuary 2004. Therefore, this
paper will provide a basic historical background
of Constitutional Loya Jirga. Moreover, the author
will highlight
the legal framework for the
Constitutional Loya Jirga and will focus on the role
and Effectiveness of Constitutional Loya Jirga in constitution-making in Afghanistan. Publisher All
rights reserved. |
INTRODUCTION
Consitution-making and constitutional choice
are vital aspects of a democratic
government. New nations and new governments that seek democratic credentials
make writing of a constitution a primary priority. However, the Constitution is
usually changed through a systematic act and processes called constitutional
reform. The Constitutional reform seeks to achieve certainty and predictability
in the law among other things. It involves concepts and processes.[1] In
fact, in Afghanistan, the constitutional Loya Jirga (Grand Council) is the most
representative body assembled in Afghanistan for the purpose of agreeing on the
constitution. In addition, Loya Jirga has the role to review and adopt the constitution.[2]
In
this article, the author begins by examining the historical experience of
Constitutional Loya Jirga as the basis for the today’s constitution in Afghanistan. Furthermor, the
paper will describe the constitution-making process from 2002- 2004. In the third part of his paper, the author highlights the role
and Effectiveness of Constitutional Loya Jirga in
making the constitution in Afghanistan. Finally, the
researcher is going to summarize this article with few thoughts on the
ramifications of finding.
THE CONCEPT AND BRIEF HISTORY OF
CONSTITUTIONAL LOYA JIRGA
To understand the role of
“Constitutional Loya Jirga” in
constitution-making in Afghanista, it is necessary to know the historical background of creation of the constitutions in Afghnanista.
Basically, the concept of loyal Jirga is very important to Afghanistan;
it is based on the Islamic principle of “Shūra”-
the practice of resolving disputes through mutual consultation. Traditionally,
the loya Jirga, is
a tribunal gathering of elders to make discussions by consensus. Its roots are
deeply embedded in Afghanistan’s history. For example, it is mentioned that the
Jirga legacy stretches back to the times of ancient Aryans and the Kushan
Dynasty where “ council of elders and influential people” came together to
settle issues and make important decisions.[3]
Noticeably, the most important convocation
took place in 1747 where Pashton tribal chiefs gathered and elected Ahmad Shah
Abdali (Ahmad Shah Duranni), as the king of Afghanistan.Since then, Loya Jirga
was widely practiced and used to decide on issues related to independence,
nattional sovereignty, territorial integrity, approval of new constitution as
well as supreme national interest.[4]
Therefore, the Constitutional Loya is the most representative body assembled in
Afghanistan for the purpose of agreeing on the constitution. Its role is
to review and adopt the constitution..[5]
Meanwhile, replacing the Constitution is not
a new phenomena in Afghanistan. Since 1923 Afghanistan has been governed by
eight different constitutions which are;
(a) Constituiton of (1923, During King
Amanullah)
(b) Constituion of (1931, King Nadir
Shah)
(c) Constitution of (1963, King Zahir)
(d) Constitution of (1973, Sardar Daoud)
(e) Constitution of (1980, Babrak Karmal)
(f) Constitution of P(1987, Dr.
Najibullah)
(g) The 1990 Constitution ( the proposed
new constitution by government of
Mujahidin and;
(h) Afghanistan Consitution of 2004 ( the
presend Costitution).[6]
It is very
important to remember that, from all these constitutions, it is only the
constitution of 1963 and the constitution of 2004 which introduced a great
degree of democratic participation.Most of them were approved without a great
deal of public participation and they kept almost all of the state power in the
hands of the monarchy with little room for public participation.[7]
In brief, the loya jirga is a general concept which has
been used to approve new constitution, declare war, choose a new king or to
make social and political reforems. However, Constitutioanl Loya Jirga is
specifically a national gathering that brings representives from the various
ethic groups and tribal communities to make a constitution for Afghanistan.[8]
THE LEGAL FRAMEWORK FOR THE
CONSTITUTIONAL LOYA JIRGA
After the fall of the
Taliban in the year 2001, Afghanistan’s political leaders agreed on a new
constitution for the aim of establishing the framework for the institutions of
a new government.[9] Consequently, the Bonn conference of late 2001 agreed
that a constitutional Loya Jirga should write a new constitution. In other words, the constitution- making
process in Afghanistan was one of the three fundamental aspects of the Bonn agreement. These four distinct aspects
are:
1.
Establishment of an interim government;
2.
Holding of an emergency
Loya Jirga to establish a transitional Government;
3.
Drafting of a new constitution for Afghanistan, in the light of which
elections will be held and an elected government will be established.[10]
Furthermore, the Bonn Agreement specifies that a new
constitution shall be adopted by a Constitutional Loya Jirga (CLJ) which must
be arranged within eighteen months of the establishment of the transitional
government. Further, this agreement stipulates that a constitutional commission
shall be established by transitional government with the assistance of the
international bodies. Thus, one of the aims of Bonn conference was a timetable for creating a new
Afghan Constitution.[11]
After the Bonn agreement, the mechanism for
establishment and convening of Loya Jirga
was laid out by the president of the Transitinal Islamic State of
Afghanistan through a decree enacted on
July 15, 2003. As provided in the presidential decree 500 delegates would
serve in the Constitutional Loya Jirga.
Moreover, the decree stipulated the following breakdown for the allocation of
seats:
(a)
Three hundred and forty four
delegates would be elected by the district representatives who had participated
in the first phase of the emergency Loya Jirga elections.
(b)
Forty- two seats were allocated for the refugees in Pakistan and Iran.
(c)
Sixty- four seats were reserved for
women to be elected by women. Two women to be members of the
Constitutinal Loya Jirga will be
elected per province.
(d)
Nine seats were allocated for the
Kuchis (nomads).
(e)
Six seats were allocated to the IDPs in Herat and Kandahar provinces
(f)
Three seats were allocated to the Hindu and Sikh minorities.[12]
The Loya Jirga has played a vital role in the constitution of Afghanistan as it is clear
from article 111 of Afghanistan constitution which provides that the Loya Jirga
can be convened for three reasons:
“ To decide on issues related
to independence, national sovereignty, territorial integrity as well as supreme
national interest,” in order to alter or amend the
constitution, or to impeach the
president.”[13]
Morevoer, Article 110 of Afghanistan
constitution stipulates that in its constitutional mandate, a loya Jirga “… is the highest manifestation of the will of the people of Afghanistan,” and is composed of the National Assembly, and
presidents of all provincial and district councils. However, Members of the
Supreme Court, minsters, and the attorney general may participate without
voting right.
In the light of above
explanations, it can be concluded that the
Bonn agreement, 2001, the decree of president of Transitinal Islamic State of Afghanistan July
15, 2003, and the present Constitution of Afghanistan, 2004 are th legal
framework for the constitutional loya jirga in
Afghnistan.[14]
THE
CONSTITUTION-MAKING PROCESS IN AFGHANISTAN
The constitution is the highest law of the
land which defines and limits the power of government. Both process and
substance are critical for the success of constitution making. Furthermore, the
design of constitution and its process of development can play a crucial role
in peaceful political transitions and post- conflict peace building. [15]
The legal framework for the
Constitutional Loya Jirga provides that, the constitution- making process will be accomplished
through three constitution-making ograns
as follows:
(a)The
Constitutional Drafting Commission ( “ CDC”);
(b)The
Constitutional Review Commission( “ CRC”); and
(c)The
Constitutional Loya Jirga ( “ CLJ”).[16]
The three organs which involved in the constitutional-making
process are described below:
The Constitutional Drafting Commission
The president Hamid “Karzai” appointed nine members of the drafting commission on
October 5. 2002. The main responsibility of the drafting commission was to produce a preliminary draft of the constitution.[17]The Constitutional drafting
Commission divided itself into three committees. These committees included the Research Committee, Drafting
Committee and Writing Committee.
Members of the CDC thoroughly
studied the past Afghan’s constitutions, the constitutions of other Islamic
countries, the constitutions of other post-conflict countries and the
constitutions of developed countries. The CDC also consulted with nationaland
international legal schoolars, relevant state organization, Afghanistan civil
society organizations, Afghan women’s organizations, Afghan organizations for
the disabled and other relevant individuals and institutions. After this period
of analysis and dialogue, the CDC completed its preliminary draft of the future
Constitution, which was then presented
to the president of the Transitional Islamic State of Afghanistan on March 31,
2003.[18]
The Constitution
Review Commission
The
second step was the constitution review commission which consist of
approximately 30 commissioners appointed
by the president of Isalmic Transitional State of Afghanistanon on April 24,
2003. The key responsibilities of the commission were to consult widely with the people of Afghnsitan
and produce a draft by 30 August
2003 and submit to the
constitutional loay Jirga in October.[19]
Moreover, the CRC is comprised of Afghan
legal Professionals, community elders, religious scholars, educated individuals with a wide range of
experience and specialization in various fields,including economic, social
science and international relations as well as other representatives of the
diverse sectors of Afghan society. The primary responsibility of theCRC is to review,
analyze and discuss all provisions of the preliminary Constitutional
draft,suggest necessary amendments and submit a completed draft by August 30,
2003 forsubmission to the Constitutional Loya Jirga in October.
The Key Responsibilities of Constitution Review
Commission(CRC):
·
Performing further research and consultations with experts on various
issues.
·
Writing questionnaires to be used during the public consultation process.
·
Supporting the Secretariat in raising public awareness and education of the
constitution.
·
Conducting public consultation in all 32 Provinces of Afghanistan and in
four refugee
·
camps in Iran and Pakistan.
·
Making the final draft after the views of the Afghan people have been taken
into account.
Finally, the CRC shall present its completed
draft constitution to the president of the Transitional Islamic State of
Afghanistan by September 30, 2003, who then Submitted it to the Constitutional
Loya Jirga on October 01, 2003.[20]
The
Constitutional Loya Ligra - CLJ)
As mentioned earlier the Bonn Agreement envisioned the
facilitation of a Constitutional Loya Jirga (CLJ) to
be convened for the making of a new constitution. The CLJ convened in October and completed
its workd within 25 days by
October 2003. The constitution then was published and after that disseminated among the people of Afghanistan.[21]
Thus, the final debate and Taswīb
( adoption), at a Consitutional Loya
Jirga convened in Kabul from 14 December 2003 to 14 January 2004.Finally, the
constitution was formally ratified by President Hamid Karzai at a ceremony in
Kabul on January 26, 2004. The new
constitution consist of which a preamble and 162 articles are divided
into 12 chapters. The first point in the Preamble emphasises on the Afghan
people’s faith in God and their belief in the sacred religion of Islam.[22]
THE ROLE AND
EFFECTIVENESS OF LOYA JIRGA IN CONSTITUTION- MAKING.
The Bonn agreement intended the facilitation of a
Constitutional Loya Jirga (CLJ) to be convened for the adoption of a new constitution. Therefore,
the establishment of the Constitutional Loya Jirga was one of the three major
things which are mentioned in this agreement.
The role of constitutional loya Jirga was to review the draft of
constitution, discuss proposed changes, amendments, and finally adopt the new
constitution.[23]
This Loya Jirga with 502 representatives
including women delegate began debating on 23 December 2003 and eventually the
constitution of Islamic Republic of Afghanistan, was approved on January 2004
by a 502 members of Loya Jirga in Kabul.
It creates nation that pledge to be both Islamic and
Democratic. The new Consitution established a presidential system that roughly
follows the American style, dividing government power among executive,
legislative and judicial branches.[24] Furthermore, this national
document grants equal right of
citizenship to Afghan men and women and commits Afghanistan to uphold its international human rights obligations. It provides that
Afghanistan is Republic and that no law can be contrary to Islam.[25]
Article 110 of the new consitution deals
with the importance of the loya
Jirga. According to Aricle 110:
“The Loya Jirga is the highest
manifestation of the will of the people of Afghanistan. The Loya Jirga consists
of:
1.
Members of the National Assembly;
2.
Presidents of the provincial as well as district
assemblies.
Ministers, Chief Justice and
members of the Supreme Court as well as the attorney general shall participate
in the Loya Jirga sessions without voting rights.”
Article 111 also provides about the importance of Loya
Jirga. According to Article 111,
“The Loya Jirga shall convene
in the following situations:
CONCLUSION
ü Thus, in the
light of above explanations it can be
concluded that, the consitution-making excercise in
Afghanistan was an important step
forward in the nation building process.
ü The constituitonal Loya Jirga played an integral role to adopt a new
constitution for Afgahnistan.
ü The overall legal framework of the
Constitional Loya Jirga reconqnized by
Bonn Agreement and decree of the president of the Transitinal Islamic
State of Afghanistan.
ü The whole process of adopting the new
constitution started from Obctober, 2002, to
January 2004, around 14/15 months.
ü The Constitutinal Loya Jirga reconsiderd the draft constitution
in the light of citizen’s
suggession. Once the draft of
consitution is finalized by
Consitutional Loya Jirga, then it
is submitted for the approval to the President Karzai.Finally, the Constitution
was approved by President Karzai on 24 January 2004 .
ü The new Afghan constitution consists
of a relatively short preamble and 162 articles divided into 12 chapters.
ü The Preamble of Constitution says the
Afghan people’s faith in God and their belief in the sacred religion of Islam.
ü For most part of the country’s history, it has been rule by power, not by law
ü The Constitutional Loya Jirga did
make an effort to improve life of the people of Afghanistan. It aspires to
creat a modern, demorratic, Islamic
state with a strong central
government, a monopoly of force,
that is guided by the rule of law.
ü Another significant points of the new
constitution of Afghanistan is that it has done much more to ensure a diverse parliment and new laws have paved
the way for political parties to be formed and operate.
ü The present Constitution odoes much more than
previous constitutions for Afghanistan diversity as a whole
because it recognize other languages and minorities’ rights.
REFERENCES
Constitution
of Afghanistan. 2004 (No. 818 of 2004)
Constitution making.
(n.d.). Retrieved from http://www.unrol.org/article.aspx?n=Constitution-making
FrudBezhan, “Loya Jirga -- An Afghan
Tradition Explained,” Radio Liberty. [Online] Available: http://www.rferl.org/content/afghanistan-loya-jirga-explainer/25174483.html
Hart, V. (2003). Democratic
Constitution Making. Retrieved from United States Institute of Peace website: http://www.usip.org/sites/default/files/resources/sr107.pdf
J. Alexander Their. (30
May- June 1, 2003). The making of a constitution in Afghanistan. State
reconstruction and international engagement in Afghanistan, London School of
Economics and Political Science and University of Bonn. Retrieved from http://eprints.lse.ac.uk/28380/1/Thier_LSERO_version.pdfThe secretariat of the constitutional commission of Afghanistan.
Melissa
Jangl, (2014), Detained by U.S. [ Online ] Available:
http://www.detainedbyus.org/afghanistans-consultative-loya-jirga/ (May 2, 2015).
Sharon Otterman. (2004). ,
Afghanistan: the New Constitution. Retrieved from Council on Foreign Relations website: http://www.cfr.org/afghanistan/afghanistan-new-constitution/p7710.
The Constitution-making process in Afghanistan. (
2003). Retrieved from
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN016658.pdf.
Thier,
J. A. (2006). Making of a Constitution in Afghanistan, The. NYL Sch. L.
Rev., 51, 557.at ( May 15, 2015).
The
Management of the Constitution-Making Process in Afghanistan. (n.d.). Retrieved
from
http://www.constitutionnet.org/vl/item/management-constitution-making-process-afghanistan
Support
to the Constitution-Making Process in Afghanistan. (2004) Retrieved from United
Nations Development Program website:
http://www.undp.org.af/WhoWeAre/UNDPinAfghanistan/ClosedProjects/Constitution_Final_Report_2004.pdf.
[1] Hart, V. (2003). Democratic Constitution Making. Retrieved from United
States Institute of Peace website: http://www.usip.org/sites/default/files/resources/sr107.pdf
[2]The Constitution-making process in Afghanistan. (
2003). Retrieved from
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN016658.pdf.
[3] Melissa Jangl, (2014), Detained by U.S. [ Online ]
Available:
http://www.detainedbyus.org/afghanistans-consultative-loya-jirga/ (May 2, 2015).
[4] Ibid.
[5] Ibid.
[6] Thier, J. A. (2006). Making of a
Constitution in Afghanistan, The. NYL
Sch. L. Rev., 51,
557.at p,559-560.
[7] Ibid, at p, 560.
[9] Thier, J. A., no.6 at
578.
[10] The Management of the
Constitution-Making Process in Afghanistan. (n.d.). Retrieved from
http://www.constitutionnet.org/vl/item/management-constitution-making-process-afghanistan
[11] The Constitution-making process in Afghanistan, no. 2
at p, 2.
[12] Support to the Constitution-Making Process in
Afghanistan. (2004) Retrieved from United Nations Development Program website:
http://www.undp.org.af/WhoWeAre/UNDPinAfghanistan/ClosedProjects/Constitution_Final_Report_2004.pdf
[13] Constitution of Afghanistan. 2004 (No. 818 of
2004).Article 111.
[14] Constitution of Afghanistan. 2004 (No. 818 of
2004).Article 110.
[15] Constitution making. (n.d.). Retrived from http://www.unrol.org/article.aspx?n=Constitution-making
[16] The Constitution-making process in Afghanistan, no. 2
at p, 2.
[17] Ibid.
[18] Support to the Constitution-Making Process in
Afghanistan), no.12 at pp, 2002-2014.
[19] The Constitution-making process in Afghanistan, no. 2
at p, 2.
[20]Id, at pp, 9-16.
[21]Ibid.
[22] J. Alexander Their. (30 May- June 1, 2003). The making
of a constitution in Afghanistan. State reconstruction and international
engagement in Afghanistan, London School of Economics and Political Science and
University of Bonn. Retrieved from http://eprints.lse.ac.uk/28380/1/Thier_LSERO_version.pdf
[23]The secretariat of the constitutional commission of
Afghanistan, no. 2, at p, 2.
[24]Sharon Otterman. (2004). , Afghanistan: the New Constitution.
Retrieved from Council on Foreign
Relations website: http://www.cfr.org/afghanistan/afghanistan-new-constitution/p7710
[25]Ibid.