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One of the basic obligations of the states is to protect the rights and freedom of the citizens, the draft formulated regardless of the two decades of civil war and internal crises by ignored the responsibilities and obligations of the state in protection and securing the rights and freedoms of citizens ( Article 2, 3, 5 and 6) Whereas the States are the main protector and violators of fundamental rights and freedoms of citizens, therefore the constitution shall set mechanisms and add clauses that shall make the government bound to observe and to protect the rights and freedoms of the citizens. The values and principles defined in the Chapter on Rights and responsibilities do not enable the state to step in development, progress of rights and freedoms and to bring prosperity and get international cooperation in the future. · The State obligations toward observing its International Commitments on International Human rights standards which defined in CC draft ( Article 3 and 7) are not stated clearly and is in a very weak language. Deprivation and putting limitation on rights and freedoms of the citizens in the past have been one of the main reasons of the social miss trust and socio-political crises in Afghanistan. The CC draft has confined\ limited the rights of the citizens against Afghanistan’s international obligations on human rights and doesn’t grantee of not limiting the rights and freedoms of citizens. The implementation mechanisms have not foreseen in the draft, while the people due to the past crises lost the culture of obeying the laws, so it’s necessary to have such a mechanism and principles in Afghanistan’s post conflict constitution. Thus the Proposed draft by AIHRC (Articles 20, 26, 28, 29, 30, 38, 40, 41 and 57) provides a clear understanding and adds rules of its implementation to the rights and responsibilities of citizens. · The CC draft in generally focuses on rights and responsibilities of Afghans ( those have been granted Afghan nationality), while Refugees, stateless people and foreigners are living under the jurisdiction and sovereignty of Afghanistan’s State, who are entitled of rights and freedoms that are ensured and granted by International laws. · The two decades of civil war made different walks of the society vulnerable (Women, Disables, handicap persons and children). The post conflict countries’ experiences shows affirmative actions to the vulnerable groups of the society, which is not take in to consideration in CC draft. The provisions (21, 51, and 52) of the proposed draft by AIHRC are addressing such issues. · Mostly for the enhancement and protection of rights of the citizens the constitutions are anticipating the compensation for the violation of the rights or illegal suffering of citizens. Which the CC draft address it in a very weak language (article 53) · Whereas Afghanistan is party to the majority of International Human rights laws and whereas Afghanistan laws and practices doesn’t cleared the status of the International laws once they are ratified by Afghan State, and the CC draft didn’t addressed the statues of International law in situation of conflicts with national law; therefore the proposed draft addresses clearly the status of International laws (Articles 3 and 98) · Afghanistan is a post conflict country, the side effects of the conflict will remain for decades on its population. Therefore the general sprit of the law should consider the past of Afghanistan and its language shall address this issue positively · Check, balance and Cooperation between three power of the state (Executive, Judiciary and legislation) are not taking in to consideration in a way to create a balanced environment. While in the proposed draft taken in to consideration. · The Constitutions are not addressing the interim administration arrangement. However some constitutions have transitional clauses. But the Bonn Accord provide the legal bases for transitional period in Afghanistan then its suggested that a separate regulation\ Code of Conduct should be drafted to be passed by Loya Jirga as will on to address the transitional period.
(link)  Posted By: mariam   November 19th 2003, 2003 5:14 PM

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