Saturday, December 20, 2003

The heated controversy regarding the creation of Afghanistan’s new constitution is, in many respects, a positive development cloaked in negative tones. Although the bitter debate will slow the completion of the legal document, it also illustrates to the Near East the open society Afghanistan has become, has sparked an interest in democratic issues among many Afghans and could even indicate that tribal leaders are imparting some significance to the document.

Afghanistan’s President Hamid Karzai has expressed his frustration with the reticence of the Constitutional Loya Jirga to approve the constitutional draft he supported, even though this document varies considerably from the version put forward by the Constitutional Drafting Commission in November 2002. Mr. Karzai’s expectation of a speedy validation of his favored constitutional draft, which was made public last month, would have been optimistic even in established democracies, and was far removed from Afghanistan’s reality, given its diverse power bases. Even if Mr. Karzai were successful in eventually extracting approval of the draft he favors, the document would be devoid of meaning or enforceability if it isn’t supported by the country’s people and main tribal leaders.

Some of Mr. Karzai’s main contentions about the constitution are valid. Mr. Karzai has contended that the country should have a strong president and no prime minister. In a country as fractured as Afghanistan, this position seems unreasonable. The Northern Alliance warlords will have to have some (probably military) senior executive posts.

Also, Mr. Karzai has gone too far in limiting the power of the legislature — which is, after all, the main opportunity for the regional representatives to wield official power. And to the extent Mr. Karzai can transform chieftains’ martial-backed power into official power, he will democratize the country. Under the draft, the president would have the power to appoint one-third of the upper house of parliament and dismiss and appoint judges. The president would appear to have ample ability to initiate laws by presidential decree and would be able to take some serious actions, such as declaring war, without legislative approval. Requirements on provinces to send public funds back to the central government are unenforceable. Instead, the constitution should establish greater accountability in provincial spending.

The Bush administration has backed Mr. Karzai in his efforts to obtain the constitutional draft of his choice. This support is understandable. Mr. Karzai has demonstrated a willingness to share power along ethnic and tribal lines. He is a Pashtun — the ethnic group most important to U.S. counter-terror efforts — and he knows how to be friendly with the West without being obsequious. But U.S. officials should consider nudging Mr. Karzai into more realistic directions on constitutional matters.

The ink on constitutional papers is no guarantee laws will be upheld. If Mr. Karzai wants Afghanistan to create a relevant and enforceable document, he must make more legitimate, accountable current power structures, rather than create an attractive but unattainable alternate reality — on paper only.

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