My Outlook column this week.
Our President always comes up with brilliant statements that hit the headlines around the world, sometimes crying in public for the future of his son, the other threatening the international community to join Taliban. I had seriously thought it was an April Fool hoax when President Karzai said the insurgency could become ‘national resistance’ if the foreigners continue meddling in Afghanistan’s internal affairs. In that same statement, he had said foreigners also don’t want the parliamentary elections to go ahead.
The latest such statement came from the President on the seventh anniversary of the Constitution last Tuesday. As every year, a symbolic official gathering marked the anniversary, where President Karzai said, “fortunately we have had some success in our work in the past seven years, but of course there were some failure in implementing the constitution.” The President took credit for the success of ‘implementing’ the constitution, but when it came to failures, he added “the foreigners should stop interference in implementation of constitution, which they have been meddling.”
In his typical style, the President painted the picture by fairly admitting for a bit of the failure giving the example of District elections, as demanded by the Constitution, which the Government has been failed to conduct so far. I was surprised how he didn’t blame it too on the foreigners. What amazes me more than anything is his ‘diplomatic language’ criticizing the ‘foreigners’, a word that does not give a particular sense which foreign country is he talking about. Though, like giving the example of District elections for his Govt.’s failure of implementing the Constitution, the President could also make it clear which foreign country is making what interference in the implementation of our constitution? It sounds very odd that foreign countries have the influence to even interfere in the ‘implementation’ of the Constitution. But what specific, our President does not bother to tell us.
The fact is that the Government of President Karzai has been violating the Constitution more than several times. The Constitution demands creation of District Councils’ elections, which the Government has failed to conduct. It is also violation of the Constitution when the President completely ignores rejection of cabinet members by the parliament for several times, but still ministries are run by acting ministers. Some laws approved from Parliament were being delayed by President, which have not been implemented.
When the President extended his tenure before the controversial Presidential elections, it was a violation of the Constitution by himself, who blames foreigners for his own deeds. Even in the wake of the parliamentary post-election crisis, there is violation of Constitution. The five-member Special Court “approved” by the President on recommendation of the Supreme Court is very controversial bringing the very legitimacy of the Special Court under question, and violation of Constitution in case.
There are three circumstances under which special courts are formed. They are all about impeachment of the President, cabinet members, Chief Justice or any member of the Supreme Court. The Constitution makes it clear that only the above three circumstances merit formation of a Special Court.
According to Article 69 of the Constitution, “Accusations of crime against humanity, national treason or crime can be leveled against the President by one third of the members of the Wolesi Jirga. If two-third of the Wolesi Jirga votes for the charges to be brought forth, the Wolesi Jirga shall convene a Loya Jirga within one month. If the Loya Jirga approves the accusation by a two-third majority of votes, the President is then dismissed, and the cases is referred to a special court. The special court is composed of three members of the Wolesi Jirga, and three members of the Supreme Court appointed by the Loya Jirga and the Chair of the Meshrano Jirga.”
Article 78 of the Constitution says, “If a Minister is accused of crime against humanity, national treason or criminal act of crime, the case shall be referred to a special court in accordance with the article 134 of this constitution.”
Article 127 of the Constitution says, “when more than one-third of the members of the Wolesi Jirga demand the trial of the Chief Justice or a member of the Supreme Court due to a crime committed during the performance of duty, and the Wolesi Jirga approves of this demand by a majority of two-third votes, the accused is dismissed from his position and the case is referred to a special court.”
The above-mentioned three circumstances are the only cases to form special court. Thus the very legitimacy of the current panel for Special Court to investigate the accusations of candidates for parliamentary elections is under question and a violation of the Constitution by the President. The above articles of the Constitution that I have quoted also mention the process of how to appoint members of the Special Court. But the way members of the current Special Court have been appointed, it makes the political motives behind it very clear. The respected election watchdog organization, the Free Election Foundation of Afghanistan has already said the special court is “unconstitutional”.
The masses unaware of the Constitutional specifics can easily believe the accusation of President Karzai blaming foreigners for his own failures and violation of the Constitution. And what punishment does the law explain for someone who violates the Constitution?
The Constitutional Oversight Committee should make sure the Constitution is observed and respected. It has the authority to oversee implementation of the Constitution by all three pillars of the state, as well as highlighting cases where it has been violated and bring those responsible to justice. In case of the Special Court, the Oversight Committee has been quiet. But even if they take notice, they can only refer the case to another court, or Supreme Court, which itself has recommended the Special Court.
Our Constitution needs amendments and provisions, after the crisis such as the post-election and in many other aspects. It is the responsibility of the parliament and public intellectuals to hold extensive debates on all aspects. But we cannot afford chaos and crisis. The current game pushed by the Palace regarding the change in election results is leading the country towards such a situation, where things can get on an irreversible stage.
President Karzai wants us—the masses—to believe that foreigners are meddling in implementation of the Constitution, but the facts are that the Government has been the hurdle and violating. The western allies of Afghanistan who are spending billions of dollars, and sacrificing blood of their young men and women to bring peace and stability in this doomed country, have been helping with implementation of the Constitution, from assistance in conducting the elections to supporting the governance infrastructure. Blaming them for your own failures is too naive.