Sunday, February 28, 2010

Afghan President Hamid Karzai is taking advantage of a "loophole" in the Afghan constitution to alter the landscape of Afghanistan's elections, the New York Times reported on Tuesday. This has been decried by the international community and his political opponents, saying the move "threatened the nation’s stability." It seems fairly certain that Mr. Karzai is undermining the independence of the Election Complaint Commission, but it's also certain that he's not doing anything illegal. The Afghan constitution, written in 2003 by more than 500 representatives to the Constitutional Loya Jirga, expressly allows Karzai's policy actions.

Mr. Karzai rewrote Afghanistan's election law, giving the President the authority to appoint all five members of the Election Complaint Commission, which currently consists of two Afghans and three foreigners picked by the UN. How did he do it?

From the NY Times article:

Article 79 states that when the Parliament is in recess, the president has the right to enact emergency legislative decrees, which have the force of law, but that when the Parliament returns, it has 30 days to reject them.

However, another provision, Article 109, states that “proposals for amending elections law shall not be included in the work agenda of the National Assembly during the last year of the legislative term.” That means the one kind of decree that Parliament cannot discuss in the last year of its term is one that changes electoral laws.
So what is the take-home lesson here? I'll offer one: "war-gaming" various policy alternatives needs to be a part of modern constitution drafting. (Not being an expert on the Afghan constitution, nor someone who speaks Dari or Pashto, I won't speculate about other potential issues within the document) In the present day, there's no excuse for being surprised by a constitutional "loophole."

In the world of national security and military affairs, "war games" are a constant activity. Experts act as various states, groups, and individuals, examining the likely result of a given situation. A "red team" might examine the likely actions of Iran in the Strait of Hormuz, while others might take on the perspective of insurgents to determine their likely behavior in different security environments. In doing so, previously unforeseen complications, incentives, and opportunities come to light, allowing better informed policy decisions.

A war game of a draft of the Afghan constitution would likely have uncovered the above loophole. An individual assuming the role of a power-maximizing Afghan president would zero in on emergency executive powers, as these are often the most utilized provisions for the seizure of additional executive authority. Article Seventy-Nine would immediately stand out.

This is not to say that the result is necessarily the wrong one - that is for Afghans to say. But, the result should be a surprise to no one. The loophole does not involve a particularly innovative reading of either article, relying instead on straightforward, plain meaning interpretations of both articles.

Writing a constitution is pretty important, and doing it well is not something that happens by accident. The document must reflect a nation's culture and values, create a government capable of both flexibility and rigidity, and facilitate the peaceful transfer of power via national elections, while at the same time allowing adaptation to future, unforeseeable challenges. Writing a constitution for any country is fraught with challenges, but, with the lessons of 200 years of constitution-drafting and a world of experts, unexpected constitutional loopholes are inexcusable today.
  

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