Beka Feathers
Demagogues and Dictators Afghanistan Parliamentary Analyst

As the situation in Afghanistan has deteriorated over the past two years, the public narrative has increasingly resembled a litany of failure: the central government is full of corrupt warlords who are tied to the drug trade, violate human rights with impunity, and are interested in the idea of governance only insofar as they can profit from it. The Afghan National Police are brutal, biased and uninterested in upholding the rule of law. Corrupt officials are becoming more prevalent than opium poppies. As a result, establishing legitimate government has become critical to success in all other areas of the mission in Afghanistan.

In all the fuss about the failures of the central government, however, a surprising success story is being overlooked. The Afghan National Assembly, the country’s highest representative institution, has begun, quietly, to govern. This is a surprise not only because the parliament has long been the forgotten stepchild of the Bonn Process, but also because Karzai and his international allies have done everything possible to prevent the parliament from becoming a strong check to the presidency.

Afghanistan is one of the most centralized countries in the world, and almost everything leads back to Karzai sooner or later. Consider: In Afghanistan, the President has the power to make the budget, pass decrees, hire governors and police chiefs, even to appoint teachers to local schools. Electoral law makes it almost impossible for political parties to operate by forbidding them to organize along any of the nationally recognized identity lines. The international community has largely supported Karzai’s attempts to further consolidate power in his person. The parliament, meanwhile, has lagged behind other government institutions in funding, resources, and capacity.

But starting this year, the parliament seems to have found its feet. Since January, it has challenged Karzai to appoint qualified ministers instead of warlords and cronies, rejected his attempted takeover of the independent Electoral Complaints Commission (the same body that found a third of his votes fraudulent in the election last fall), and refused to serve as a rubber stamp for decrees. In fact, it's been doing what so many outside observers have said is necessary to keep the government from collapsing entirely: serving as a legitimate, Afghan-led check on Karzai's administration.

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."