Afghanistan’s constitution and the changing times

Future constituent assembly must be directly elected by Afghan people, and not selected by external forces

“What is the Constitution? It is a booklet with ten or twelve pages. I can tear them up and say that from tomorrow, we shall live under a different system. Is there anybody to stop me?” These were the words uttered by ex-military ruler General Zia Ul Haq in 1977 when he was on a trip to Iran.

Many years later, former president Pervez Musharraf also commented, “If the state is going to be no more, where does the Constitution stand? I think a Constitution is just a piece of paper to be thrown in the dustbin.” The ongoing negotiations between the United States, Pakistan and the ‘Islamic Emirate of Afghanistan’ (Afghan Taliban) make it apparent that the incumbent Constitution of the Islamic Republic of Afghanistan (Afghan State) is headed into the dustbin.

Before we offer funeral prayers for the Afghan Constitution, it is necessary to understand the genesis of this document. The current Constitution of Afghanistan came into effect on January 26, 2004. It is no coincidence that Afghanistan shares the same Constitutional Day with India, who’s Constitution came into being on January 26, 1950.

President Hamid Karzai who signed the 2004 Afghan Constitution was educated in India’s Himachal Pradesh University, and has always maintained a strong sense of admiration for the country.

After all, India has only had one Constitution since Independence, while Pakistan is on its third Constitution. The constitutions of countries like Pakistan, India, Bangladesh, Nepal and Sri Lanka were drafted and debated in constituent assemblies within these countries. However, this is not the case for Afghanistan.

The process of the 2004 Afghan Constitution can be traced as a direct product of the 2001 Bonn International Conference on Afghanistan that took place at Grandhotel Petersburg located in the German city of Bonn.

The Bonn agreement officially known as the “Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions”, was signed two months after the US invasion of Afghanistan following the nine-eleven attacks.

The Bonn agreement established the 30-member Afghan Interim Administration (AIA) meant to fill the power vacuum created by the fall of the Taliban government in Kabul. Hamid Karzai was selected to be the chairman of the AIA.

One-third of AIA members were ethnic Pashtuns, another one-third were Tajiks, and the remaining members were Uzbeks and Hazaras. As president of the Afghan Transitional Authority (ATA), Hamid Karzai appointed a 35-member Afghan Constitution Commission to draft the 2004 Afghan Constitution.

The Taliban leadership was excluded from both the Bonn Conference and the Afghan constitutional process. It is important at this juncture to sympathise with the plight of the Afghan nation for having its entire state construct decided from faraway lands instead of within Afghanistan. This is exactly why even the then president of the Northern Alliance, Burhanuddin Rabbani, opposed the Bonn agreement and the government of Hamid Karzai.

There is no doubt that the legitimacy of the Afghan Constitution and the state setup is indeed contestable. If there is going to be a peace deal between the ‘Islamic Emirate of Afghanistan’ and the United States or the Kabul government, then as a pre-condition, the Afghan Taliban will leverage on its ability to influence outcomes in Afghanistan, and will soon demand that the 2004 Afghan Constitution be dissolved with immediate effect.

In order to bring the stakeholders within Afghanistan on a level-playing field, the Afghan State needs to get into transition mode with an interim setup and a neutral caretaker government under the auspices of the United Nations.

The 2004 Afghan constitution has served its purpose; it has been considerably effective in terms of lifespan. In a journal article by Aziz Huq and Tom Ginsburg (2014), “What can constitutions do? The Afghan case,” published by the University of Chicago Law School, the 2004 Afghan Constitution is viewed as a partial success not only because it has brought into Afghanistan elements of a democratic transition, but also because it has outlived many other constitutions.

The article reports that in the last two centuries, 964 constitutions were promulgated all around the world out of which 406 constitutions survived over a decade. This means that over 58% of constitutions have collapsed within ten years. Given such a comparison, the Afghan constitution is well endured, lasting even longer than the first two constitutions of Pakistan.

Prior to the drafting of a new constitution in Afghanistan, it is necessary that a national census must be achieved as the previous official census in Afghanistan dates back to 1979, before the Soviet invasion of Afghanistan. Thus, nobody knows for sure how many people are living there and also the exact share of ethnic distribution.

The state structure and form of government of a new Afghan State would require a fresh constitution to be constructed based on popular consensus, negotiations and bargaining between the various stakeholders within the Afghan society. There needs to be an Afghan-owned and Afghan-led process.

A future constituent assembly must be directly elected by the Afghan people, and not selected by external forces. The role of foreign forces has to be limited to only facilitating and guaranteeing the Afghan peace process, rather than imposing the regime it supports. In order for there to be peace in the region, Afghanistan must be an independent sovereign Westphalian state.

Allama Iqbal had a deep understanding of the role of Afghanistan in the region far ahead of his time when he wrote, “Asia is a body built of clay and water and Afghanistan is a heart in that body; if there will be peace in Afghanistan, there will be peace in Asia, if there will be turmoil in Afghanistan then there will be turmoil in Asia.”

Published in The Express Tribune, August 6^th, 2019.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.