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."