Arian Mouj Sharifi
CLJ: Debates over final constitution draft (NYT, AP, Dawn, Reuters, RFE/RL)
Hi all, have been working on some other projects but will make an effort now to get the media monitor here a bit more up to date . . . or at least finish up the Loya Jirga coverage from last winter before the presidential elections this fall . . .
I have attached translations of the original draft constitution and the amendments proposed by the CLJ Reconciliation Committee for your reference.
The New York Times
December 30, 2003
Afghans Clash at a Conference To Work Out a New Constitution
By CARLOTTA GALL
Delegates at the two-week-long constitutional convention here on
Monday accused the chairman of allowing government interference in
the final drafting, while ignoring the views of the elected
It was one of the ugliest arguments of the session. In midafternoon,
as a plenary session of the grand council, or loya jirga, began to
discuss amendments to the final draft of the constitution, some
delegates converged on the microphones and began shouting and
gesticulating for them to be turned on.
"If the government wants to interfere, they should have made it a
government constitution," said one angry delegate, when his
microphone was finally turned on.
"You are talking of amendments to a draft that is not our draft," he
added, referring to final changes made by the chairman and his aides
after a 50-member group coordinated the work of 10 committees.
"We are not here to impose anything on you," pleaded the chairman,
Sebaghatullah Mojadeddi. "We are here to take your votes."
Another delegate said, "We put all our efforts into the working
groups and that was a good procedure, but we all agree that it looks
as if the commission did not even look at our recommendations and
they have not been included."
Officials from the loya jirga's secretariat later complained that the
protest was an organized effort by representatives of one of the most
conservative Islamist politicians, Burhanuddin Rabbani. They have
opposed the presidential system favored by President Hamid Karzai and
his American and United Nations backers, and have advocated a
parliamentary system from the start, as well as including stronger
Islamic strictures in the constitution.
The organizers and members of the government have always feared that
religious conservatives and leaders of former mujahedeen armies would
hijack the constitutional loya jirga by sheer force of numbers and
their intimidating presence.
So far they have been thwarted by a combination of government
lobbying and the strategy of breaking up the 502 delegates into the
10 working groups to debate the draft constitution, which has given
more voice to moderates and minorities.
The reconciliation committee, with 50 members, then took the
committees' findings and drew up an amended draft. That was further
altered by a group of eight people: the chairman and his deputies and
secretaries. Government lawyers, ministers and financiers were also
consulted on some issues.
It is the last stage that has angered many delegates, including some
of the more influential faction leaders, who complained that
alterations were made without their agreement and in consultation
with members of the government.
It was not clear how far they will take their protest as the loya
jirga nears its close. Delegates were gathering signatures on Monday
for amendments on many of the most contentious issues in the latest
Abdul Hafiz Mansur, one of the most vocal opponents of the draft
constitution, said he and his supporters had proposed 16 amendments,
ranging from a call for a parliamentary system to ruling out any
title for the former king, Mohammad Zahir Shah.
Officials said they wanted to avoid further debate and go straight to
voting because delegates were tired of the politicking and time
wasting. But other delegates said people would go home angry if they
were not allowed to debate amendments.
December 29, 2003
Afghan constitution debate centers on role of president, parliament
By STEPHEN GRAHAM
The Associated Press
Delegates to Afghanistan's constitutional convention sparred Monday
over amendments that would weaken the power of the president by
granting parliament the right to consult on major policies and
approve key appointments.
Most of the 502 delegates attending the loya jirga appear to back the
call of U.S.-backed President Hamid Karzai for a constitution
installing a strongly centralized government.
But opponents pressed hard to give parliament more power - and for
the future state to have a more Islamic character.
Officials pleaded for a vote on an amended draft, claiming the two-
week-old gathering in a huge tent on a college campus was wasting
money badly needed by the impoverished country. Karzai has said the
gathering costs $50,000 a day.
But some delegates rose in anger from their seats to demand more
"This government wants to impose its opinion on the people," said
Hafiz Mansour, an outspoken critic of Karzai. "They just want
something to keep themselves in power."
Council chairman Sibghatullah Mujaddedi broke up the unruly meeting
after failing to persuade delegates to skip dinner receptions and
Karzai argues a powerful presidency is the only way to hold the
country together as it recovers from two decades of fighting.
But representatives of the Northern Alliance faction, which helped
U.S. forces drive the hardline Taliban from power in late 2001, warn
it could one day lead to a dictatorship.
The new draft, which Mujaddedi presented on Sunday, would force the
president to consult parliament on major policies and seek its
approval on key appointments, from ministers to the head of the
It would also force parliamentary and presidential elections to be
held simultaneously, probably next summer.
Karzai allies, mainly his ethnic Pashtun kinsmen, vowed to reverse
the restrictions on the presidency in the new draft before ratifying
the charter later this week.
"We want the president to be able to make decisions," said Ahmad Wali
Karzai, a younger brother of the president. "If not, it would be just
like this and we would just be wasting our time," he said, gesturing
around the tent as delegates drank tea or huddled in small groups.
The latest draft also contains a mix of amendments in response to
rival demands of Islamic hard-liners and human rights advocates.
A passage in one key article that previously said that no law could
be contrary to Islam now says legislation cannot contravene "the
beliefs and provisions" of Islam.
One Western diplomat said the new wording could be a backdoor for the
imposition of Islamic Sharia law - a prospect that alarms human
Still, the council has heeded the protests of female delegates to
spell out in the constitution that men and women should enjoy equal
The debate came a day after a suspected terrorist detonated
explosives that killed himself, four Afghan intelligence agents and
their driver. Police said the man detonated explosives hidden under
his clothing after the agents had bundled him into their vehicle near
Loya Jirga okays greater role of religion in state affairs
Former Mujahideen groups appear to have scored a moral victory after a
Loya Jirga committee approved changes proposed by them to the Afghan
draft constitution which called for a greater role of religion in the
The Mujahideen groups have also struck a deal with President Hamid
Karzai that called for curtailment in the powers of the president as
given in the draft constitution, and for creation of a council to
interpret and oversee the implementation of the constitution,
according to a delegate who represented the Mujahideen groups in
Some of the changes were approved by a majority by the 38-member
Two of the delegates who were members of the reconciliation committee
and the two committee observers detailed the changes to Dawn on Friday
evening shortly after the committee's meeting ended.
Given the large number of former Mujahideen leaders and their
political allies in the 502-member Loya Jirga, the changes stand a
good chance of being approved by the full assembly when they are voted
The reconciliation committee, under pressure from these leaders,
agreed on significant changes that would strengthen the role of Islam,
now balanced with the government's secular powers as embodied
throughout the constitution and carried out by the elected officials.
These changes included the second and third articles of the
constitution, members of the reconciliation committee said.
One of the most significant changes has been sought in Article 3,
which currently states that "no law can be made contrary to the sacred
religion of Islam and the values of this constitution."
The reconciliation committee agreed to eliminate the reference to "the
values of this constitution," which includes concurrence with the UN
Declaration on Human Rights.
If the phrase were eliminated, some fear, conservative interpretations
of Islam could take precedence over human rights.
In article 2, which in the draft constitution states "the religion of
Afghanistan is the sacred religion of Islam," the committee voted to
change the wording to "the religion of Afghanistan's government and
people is the sacred religion of Islam."
However, in an acknowledgement to the women rights advocated by many
delegates, the coordination committee also voted to specify in article
4 that the term "citizen" applied to men and women.
According to Siddiq Chakari, a member of Jamiat-i-Islami, the
trade-off with Karzai means that the clause in the draft constitution
that specifies that the president should be directly elected by the
people would remain despite the fact that many in the constitutional
Loya Jirga favoured a parliamentary system, without a president.
However, the power of the president to appoint ministers would instead
be given to parliament, said Mr Chakari, who was a member of the team
that held negotiations with Mr Karzai.
A new article would be added to create the Diwan-i-Aali, or high
council, which would supervise the implementation of the constitution,
including review of the new laws passed by parliament.
The council members would be appointed by the president immediately
following the Loya Jirga's approval of the constitution.
This addition leaves a room for a conservative interpretation of the
constitution - depending entirely on who is selected for the council.
Some delegates opposed the creation of this council for that reason.
"All the (Jihadi) delegates wanted the word 'Islam' added to the end
of every article," said a delegate. "They did not even want a market
economy, rather Islamic economy to be written," he said.
Mr Chakari said the Jihadi leaders had also been advocating for
special rights in the constitution, "but the privileges they were
demanding have not been fulfilled."
The reconciliation committee, however, has to agree on another 22
articles that would probably be put to vote. These include:
1) the list of powers of the president, which some delegates want
2) The powers of parliament, which some delegates want to enhance.
3) That parliament should be elected at the same time as the
president, presumably in June 2004.
4) The official languages, which the draft says are Dari and Pushtu;
ethnic Uzbeks have advocated that their language should also be made
one of the official languages.
5) The national anthem, which the draft says should be in Pushtu; some
have suggested a new anthem that is still in Pushtu but includes names
of various tribes of Afghanistan.
6) The former king's title of "Father of the Nation" and awarding of
ceremonial privileges to him.
7) Former Mujahideen groups want to be accorded some privileges.
8) That anyone appointed as a minister could not have dual citizenship.
10) The article allows Shia jurisprudence to be used "in cases dealing
with personal matters" among Shias, who are in the minority in
Afghanistan; but some delegates feel that only the Hanafi law of the
majority Islamic sect should be used.
Vague Afghan constitution leaves courts more power
COMPROMISE: The version of the constitution being considered is
unclear about many religious issues, leaving it up to the
conservative judiciary to fill in the blanks
REUTERS , KABUL
Monday, Dec 29, 2003
"It matters because all the constitutional articles can be referred
to the courts, and interpretation of these articles will depend on
the judiciary. If you have a conservative judiciary you will have a
conservative interpretation." Ahmed Rashid, a Pakistan-based Afghan
The sensitive issue of Islam, and strict Shariah law imposed by the
ousted Taliban, has barely surfaced during two weeks of debate over
Afghanistan's constitution that is reaching its closing stages.
But as the interim leader bids to win delegates over to his vision of
a strong presidential system that will weaken opponents, observers
are wondering what concessions his supporters have had to make,
including in the area of religion.
Conservative Islamic leaders, many of them former mujahidin, holy
warriors, who defeated the Soviets with US backing in the 1980s, have
been busy jockeying for power at the expense of Washington's
favorite, President Hamid Karzai.
"Rather than viewing the passage of the draft as a sign of Karzai's
strength, you should look at the compromises that have to be made to
the draft," said Vikram Parekh, analyst on Afghanistan for the
International Crisis Group think tank.
A Western observer closely tracking the constitutional Loya Jirga, or
Grand Assembly, in a giant white tent on the edge of Kabul, said
Karzai's opponents could have won a greater say over the appointment
of judges to the Supreme Court.
As a result, conservative clerics may win more control over the
implementation of the law.
That, and the vague wording of religious articles in the draft
constitution, mean the real tussle over the role of Islam in post-
Taliban Afghanistan will come later.
"The draft is very general [on Islam] and leaves a lot of room for
interpretation and that concerns us," said the Western observer.
The Supreme Court is run by conservative Islamists who this year
arrested journalists for offending Islam and closed down their
publication, called for the trial of members of the former communist
regime and tried to ban cable television in Kabul.
Their view of Islam and Afghanistan's future is radically different
from that of the moderate Karzai, widely tipped to win next year's
presidential elections if he runs as expected.
"Clearly the concessions most worrisome for the West and for Afghan
modernists would be those on the judiciary and the Islamic system,"
said Ahmed Rashid, a Pakistan-based Afghan expert.
"It matters because all the constitutional articles can be referred
to the courts, and interpretation of these articles will depend on
the judiciary. If you have a conservative judiciary you will have a
The Supreme Court has had little direct impact on the lives of
ordinary Afghans so far, with political pressure helping to curb its
more radical initiatives.
"The question will be `What happens when challenges are brought
before the Supreme Court?'" said Parekh. "As the court becomes more
functional, and if it becomes an institution that people appeal to,
then we will see its impact.
"There is a fear of giving the court too much power of
The draft constitution, expected to be finalized within days, states
that "in Afghanistan, no law can be contrary to the sacred religion
of Islam." It also speaks of a "progressive society," human rights
and a "realization of democracy."
While many Afghans are concerned about lawlessness and violence since
the fall of the Taliban, there seems little appetite in the deeply
conservative Muslim country for a return to draconian Shariah imposed
by the regime.
The Taliban carried out public amputations and executions, and the
regime denied all females the right to education and most women the
right to work.
Loya Jirga Adjourns Amid Disputes Over Constitution
By 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
Prague - The delegates to Afghanistan's Constitutional Loya Jirga
spent today in a plenary session, studying the amended draft
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,"
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.
Afghan Constitution Debate Sours Amid Meddling Charges
The Associated Press
KABUL - Debate over Afghanistan's new constitution soured Saturday, as
government allies said religious hardliners were trying to Islamize
the charter and one critic complained of alleged U.S. meddling.
Two-week-old talks among the 502 delegates to the loya jirga, or grand
council, are snagged on a dispute over the power of the future
presidency under the charter, which is supposed to lead to summer
President Hamid Karzai and U.S. officials are hoping a
government-presented draft awarding sweeping powers to the country's
chief executive in a tolerant Islamic state will be accepted.
But they face deepening opposition from powerful leaders of the armed
factions who fought the Soviet occupation in the 1980s under the
banner of Islam and still hold sway in the provinces.
Council spokeswoman Safia Saddiqi said Saturday that eight of the
draft's 160 article were hotly contested in a secretive committee
drawing up possible amendments.
Hashmat Ghani, a member of the so-called reconciliation committee and
brother of the country's finance minister, said there was a solid
majority for a presidential system.
But he said Abdul Rasul Sayyaf, a deeply conservative Islamist, was
"trying to put the word Islam into every article."
Rights groups have expressed concern that Karzai may concede control
of the supreme court to conservatives in order to win their backing,
opening the door to restrictions on the rights of women and religious
"There are people here with their own agendas, who want this either to
work not all or to work in a way that gives them a position," Ghani said.
He said there were also calls for a ban on alcohol, for foreigners as
well as Muslims.
"Mr. Sayyaf likes to provoke the international community," Ghani told
the Associated Press in the huge, closely guarded tent where the jirga
is taking placed.
The draft is also under attack from representatives of the Northern
Alliance faction, which helped U.S. forces drive out the Taliban two
years ago for harboring Osama bin Laden.
Hafiz Mansour, a delegate from the alliance who accuses Karzai of
seeking dictator-style powers, said there were two dozen points on
which rebel delegates wanted to force a vote.
"The government wants to impose their ideas and their draft," Mansour
said. "Behind this draft is America and the United Nations. Even if
you don't want it, it is imposed on you."
Mansour and several Northern Alliance leaders have called for a
parliament strong enough to call the president to account.
Karzai and U.S. Ambassador Zalmay Khalilzad have warned against an
unworkable confusion of parliamentary and presidential systems.
Afghans remember with horror how presidents and prime minsters fought
each other during the 1992-96 civil war which paved the way for the
Still, Ghani conceded there was broad support at the council for
bolstering parliament, and said one compromise might be to set up a
commission to make sure the constitution is implemented fairly.
mariam   August 12th 2004, 2004 1:15 PM
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