KABUL (Pajhwok): Ninety-four articles of the constitution have been violated, with four of 10 people having little information about the basic law and more than half complaining they have no access to justice.
People say of every 10 individuals three enjoy their legal rights, and that the law has brought positive changes to the lives of six out of every 10 Afghans. Many call the freedom of expression the best right they have been granted by the constitution.
The government is weak in implementing the law, as the parliament has also failed to discharge its responsibilities. The absence of judicial institutions in half of the districts has restricted law enforcement in some areas.
These are the finding of a report compiled by Pajhwok Afghan News and the Lawyers Association on the 14th anniversary of the constitution’s adoption. The report identifies constitutional violations over the past 14 years.
In addition, the two organisations conducted a survey on public awareness regarding the law and its implementation, the level of people’s access to justice, effectiveness of the law and the best right and freedoms provided by the law.
Most part of law not enforced
The survey finds that of the 162 articles of the constitution, 94 have been violated or not implemented properly. Some of the articles have been spurned outright and others partially. The enforcement of certain parts of the basic law has been blocked.
The violated articles encompass orders that ensure the basic rights and freedom of the people, as well as the legitimacy of the system. Their violations and implementation have a direct impact on the protection of people’s rights.
The study indicates only those articles which do not curtail powers of government officials and branches have been implemented somehow.
Chapter 1 of the constitution explains fundamental purposes and government duties and responsibilities. The study shows government efforts to achieve these targets are not satisfactory. Of the 21 articles this chapter has, 12 have not been implemented properly and nine others have been enforced just because they are simple, pertaining to issued like calendar, flag, national anthem and capital.
Chapter 2 guarantees public rights, freedoms and responsibilities besides outlining government institutions’ duties in their implementation. The survey finds the situation of citizen rights and freedoms is worrisome. This chapter is comprised of 38 articles, of which 32 have been partially violated. The six articles that have been enforced are simple such as not to award real estate rights to foreigners, the establishment of private universities and the freedom of choice of work.
Chapter three is about the duties, responsibilities and powers of the president. Of the 11 articles this chapter has, five have been flouted. No need has been felt yet for executing the remaining six articles dealing with unexacting things like the selection of two vice-presidents, the president’s salary, referendum, resignations, impeachment and trial.
Chapter four of the constitution deals with government structure, duties, powers and basic aims. Being the executive branch, the government’s prime responsibility is the implementation of laws and court decisions.
The findings highlight the government’s failure in the area of rule of law. The constitutionally-mandated government structure has been complied with. The approval and implementation of the basic government structure law and other rules have been postponed for unknown reasons.
Of the 10 articles this chapter has, six have been contravened and the rest concerning eligibility for becoming a minister have been put into practice or the need for their execution has not been felt so far.
Chapter 5 pertains to composition of parliament, its prerogatives, electoral mechanisms, ratification of laws and maintenance of government-parliament relations. The most important part of this chapter is public representation and monitoring of government activities.
The findings reveal the parliament has not discharged its duties effectively. Of the 29 articles in this chapter, 15 have been defied in part and the remaining 14, which are straightforward, have been translated into action.
For example, the formation of different Wolesi Jirga and Meshrano Jirga commissions, all panels holding meetings, the parliament’s convening for nine months a year and other procedures.
With the extension in Wolesi Jirga tenure, extensions for selected members of Meshrano Jirga and the absence of district council representatives have corroded the parliament’s legitimacy. Thus the entire chapter has been treated with disdain.
Chapter 6 of the constitution concerns the Loya Jirga, which is considered a symbol of the nation’s will and wields special powers. The Loya Jirga’s legal structure is incomplete due to the delay in district council elections.
This six-article chapter could not be implemented due to the delay in district council election. This is a classic example of impediments to enforcing the constitution.
Chapter 9 focuses on the structure of the judiciary, its powers and independence. The survey shows some members of the Supreme Court’s High Council have served beyond their legal tenures. Due to insecurity, judicial organs in most districts have been functional in provincial capitals, curtailing public access to justice. During court trials, a balance has not been struck between official languages. Trials are not conducted in the mother tongue of the parties involved.
Of the 20 articles this chapter has, 10 have been spurned in some measure and the remaining 10 about the Supreme Court structure, eligibility criteria for the appointments of judges, salaries etc, enforced.
Chapter eight explains administrative composition, relations between central and provincial governments, distribution of powers and mechanisms for structures of local and central administration. It also stresses better representation at provincial, district and village levels through jirgas.
The government’s inability to hold district and village council elections is a clear departure from the constitutional course. The delay in district and village-level elections has also affected Meshrano Jirga and Loya Jirga programmes.
The segment envisages election for mayors and urban assemblies but they have not been held. This chapter has seven articles, but two important ones been in a state of suspension and four breached.
Chapter 9 outlines emergency situations. Six articles of it elaborating the emergency situations are yet to be executed, as the need for this has not been realised yet.
Chapter 10 has two articles regarding amendments to the constitution. This chapter is not the subject of discussion because there has been no need for its enforcement and the Loya Jirga structure remains incomplete.
Chapter 11, having seven articles, contains different orders. Six of the articles have been breached and one about the salaries of high-ranking officials implemented.
Membership of military officials, judges and attorneys in political parties, high-ranking officials’ profitable deals with the state, registration of assets at the beginning and end of jobs and independence of government commissions are some of the important orders. There has been no assurance yet of these articles being enforced.
Chapter 12 of the constitution narrates transitional orders in five articles. The absence of a law regarding basic government structures during the transitional set-up was a violation of the constitution and the aberration continues to this day. At least one article of this chapter has been contravened.
According to survey, non-availability of executive guarantees, lack of political well, weak monitoring, security issues, corruption and limited access to justice are blatant constitutional missteps.
As many as 898 people took part in the survey, with the number of respondents from each province determined on the basis of population data from the Central Statistics Organization (CSO).
Of every 100,000 people in each province, Pajhwok interviewed three in late December. Forty-nine percent of respondents were women and 51 men. Sixty percent were aged between 18 and 35 and 40 percent over 35.
Of the youth interviewed, 52 percent were educated and the remaining illiterate, while among elders 34 percent were educated. Each respondent was asked: Do you have information about the constitution? Which is the most important right and freedom given by the constitution? Have you reaped the benefit of legal rights and freedoms? Has the law brought positive change to your life? Do you have access to justice, courts and prosecutors?
Low level of awareness
Findings of the survey show people have little information regarding the constitution. Less than 50 percent of the interviewees said that they did not have even basic information about the basic law. Public awareness level regarding constitution varies in the provinces.
Forty-five percent of Kochis in different part of the country were interviewed. Of them 49 percent said that they had no information regarding constitution.
Forty-nine percent of Kochis said they had information about the constitution, but very little.
Interviewed individuals who said they have information about constitution included three categories who have little information, average level information and a lot of information about the constitution.
Prof. Ahmad Javed Siddiqui, one of the respondents who holds a master degree in Pashto literature and teaches at Balkh University, said he had little information regarding the constitution because he was not a legal expert.
He believed other educated people, barring legal experts and analyst, might not be well-versed in the law of the land.
Media can play a vital role in increasing public awareness with regard to the constitution.
Abdullah, 37, a resident of Farah province, said: “I can’t read and write, but I remember when the constitutional Loya Jirga was constituted. I hear and watch on radio and television that the freedom of expression, women’s rights and other rights are guaranteed by the constitution.”
But Jannt Gula, hailing from the Macro Ryan 3 area of Kabul, said: “I don’t have information regarding the constitution and don’t want to know much about it in the last years of my life.”
According to the survey, the level of awareness about the constitution is higher among youth than elders.
The best legal right
Most of the respondents called the rights to freedom of expressions, education, election, labour and women’s rights better than other rights given by the constitution.
Of all the respondents, 10 percent called the access to justice, protection of civil rights, equality of citizens’ rights, possession right and some others as important rights and freedoms in the Constitution. However, some 30 percent interviewees didn’t respond to the question.
A resident of the Mirwais Maidan locality of Kabul, Ziba, hailed the freedom of expression as the best of among rights.
The 23-year-old university student said: “This because of the freedom of expression that we know the situations in our country, we can criticise the government and even the president in case of wrongdoing.
“We can stage protests and ask for our rights…Had there been no freedom of expression, authorities would have done anything of their choice and no one could have raised the voice. But fortunately, it’s not the case.”
Many have taken advantage of rights
The percentage of those who say they have not exercised their rights is very high in four provinces and very low in four other provinces.
Based on the survey, constitutional rights have been exercised the most in Kunar, Daikundi, Kabul and Herat, where the percentage stood at 75, 63, 56, and 47 respectively. However, in Logar, Badghis, Ghor and Faryab, the percentage was 14, 11, 9 and 8 respectively.
In the remaining 26 provinces — Kunduz, Bamyan, Nuristan, Parwan, Baghlan, Panjsher, Badakhshan, Farah, Uruzgan, Balkh, Paktika, Paktia, Maidan Wardak, Khost, Ghazni, Helmand, Jawzjan, Takhar, Laghman, Kapisa, Nimroz, Sar-i-Pul, Nangarhar, Kandahar, Zabul, and Samangan — the percentage ranged between 38 and 15.
About 43 percent of Kochis say they have not taken advantage of their legal rights.
A 25-year-old resident of the Minara locality of Jabalus Saraj district of central Parwan province, Mashhood said the presence of powerful individuals, widespread corruption in government departments and lack of attention to ensuring justice prevented him and many other individuals from exercising their legitimate rights.
He added he had not cast his vote in the previous election because it was rigged and he usually avoided going to courts because of rampant corruption.
He said: “How can one take advantage of one’s rights in such a situation?” But the results suggest the constitution has brought many positive changes to people’s lives.
Of every five respondents, one says the constitution has not brought about any positive change to his/her life.
A resident of the Balkh’s capital, Mukhtar Sharaf who has graduated from the Political Science Faculty of the Lahore University in Pakistan, believed the law was not applied to strongmen and thus it had not positively changed his life.
He continued: “Whether or not the constitution existed or not, my life is not affected. In either case, I would pursue an education. Despite completing my education, I haven’t found find any job.”
Sharaf claimed many other youth like him had been jobless, while relatives of strongmen held important posts despite having low qualifications.
However, a resident of Bamyan City, Halima Rezaee who owns a vocational training institute for women, said the law had provided her with many benefits.
“I have received education — thanks to my constitutional right. I graduated from the Law and Political Science Faculty and am now trying to obtain a master’s degree.”
Rezaee said it was because of education that she herself was engaged in working and that she had also provided work opportunities for other women.
Access to justice
More than half of the respondents said they had access to justice. In Baghlan, the highest number of people and in Kunar the lowest number of interviewees said they had no access to justice.
In Baghlan, Kabul, Paktika, Maidan Wardak, Sar-i-Pul, Bamyan, Nimroz, Samangan, Balkh, Uruzgan, Ghazni, Herat, Parwan Farah, and Nuristan provinces, six of every 10 respondents said they had no access to justice.
In Zabul, Kapisa, Badakhshan, Paktia, Jawzjan, Logar, Panjshir, Ghor, Nangarhar, Faryab, Khost, and Kandahar, on average one of every four respondents said they had no access to justice.
In Daikundi, Laghman, Helmand, Badghis, Takhar, Kunduz and Kunark on average one of every 20 people said they had no access to justice. This percentage differs among women and men, literates and illiterates.
After Baghlan, even in capital Kabul many people have said they do not have access to justice.
A resident of the Qala-i-Fathullah neighborhood in Kabul, Musa said: “We do have access to courts and prosecution offices, but we don’t get justice.”
He added ordinary people could not easily meet a judge or an attorney to share their issues with, “but rich and influential individuals visit these officials comfortably and convince judges to decide in their favor.”
Musa said it was the reason why many ordinary people did not have access to justice.
Judicial organs in districts
According to information from local organs, Afghanistan has 385 districts. However, the findings show that in half of the districts, courts, prosecution offices, and legal organisations are either operating in provincial capitals or have not activity at all.
At times, the organisations function. But sometimes, they don not or work in other districts.
The issue is more acute in Paktika, Uruzgan, Helmand, Farah, Logar, Maidan Wardak, Balkh, Kunduz, Ghazni and Kandahar. In the nation’s capital, Khak-i-Jabbar district court operates in Kabul and the Musahi district has no prosecutor at all.
Similarly, the study noted there was no such problem in Takhar, Parwan, Jawzjan, Badghis, Bamyan, Samangan, and Panjsher provinces.
Officials’ remarks on survey
Wolesi Jirga’s Secretary Abdul Qadir Zazai acknowledged the issues, saying efforts were underway at resolving them.
“My people are denied rights and the public awareness level in this regard should be enhanced through media, mosques, imambargahs and schools. In some areas, judges haven’t ensured or provided justice, forcing people to either join the Taliban or refer to jirgas.”
He viewed insecurity a major reason behind inadequate enforcement of law, admitting the government had failed to prevent a number of strongmen from breaking the law. However, he explained: “The president is making all-out efforts to enforce the law.”
Zazai claimed the lower house had succeeded in monitoring government activities. He also called the incumbent Wolesi Jirga legitimate. “The elections are delayed due to some issues facing the country.”
However, he asked the government to introduce replacements for the Supreme Court officials who had completed their tenures.
Acting presidential spokesman Shah Hussain Murtazavi confirmed some constitutional articles had not been implemented. But he said the government was trying to fully enforce the law.
In areas where the government’s writ is weak, judicial organs’ performance is not satisfactory. He also admitted reforms had taken place and under a four-year security plan the government would take control of least 80 percent of organisational units and enforce the law there.
The unity government deemed no one above the law, as the president himself worked in compliance with the constitution, the spokesman said. But he acknowledged there might be some people who escaped the law.
Murtazavi said there were problems in holding parliamentary elections but democracy in Afghanistan was flourishing. The president, after consultations with legal experts, had extended the Wolesi Jirga term, he argued.
He added the elections had been postponed to bring about reforms in the system. He also referred o preparations for holding the Wolesi Jirga and district council polls next solar year. “With the elections, the ground for convening Loya Jirga would also be paved.”
The issue of security personnel having political links was being taken serious, he said. With regard to the low public awareness about the law, he said: “One of the parts belongs to the government and the others to people, civil society and media outlets.”
Pajhwok tried to establish contact with judicial organisations, but repeated calls to their representatives went unanswered.
Pajhwok and the Lawyers’ Association want the government to broaden its control and resolve differences within the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC). The ICOIC should prevent violations of the constitution independently and impartially and in line with using its authority.
The drafting and endorsement of the law on basic government composition and local organisations be launched.
They also proposed revisiting the law on ICOIC’s duties and powers. This commission for preventing constitutional violations be given executive powers to annul the decisions and actions that are inconsistent with the constitution.
The president should supervise implementation of the constitution in line with the first paragraph of Article 64.
He should establish a professional (small) unit at the presidential Palace to oversee the implementation of the constitution at the government level, present the president a report every three months and operate in collaboration with ICOIC and relevant civil society organisations.
A special law, proposing penalties for violators, be enacted to guarantee the enforcement of the basic law.
Relevant institutions should conduct effective programmes for spreading awareness with regard to the constitution; the organs concerned should pave the ground for ensuring security across the country.
The international forces, while respecting Afghanistan’s sovereignty, must not violate people’s dignity, rights and freedoms.
For the enforcement of the National Sovereignty Plan, no interference in affairs of the election bodies be avoided. The autonomy of the Independent Election Commission (IEC) be guaranteed.
Election delays be prevented. For Wolesi Jirga and Provincial Jirga elections, provinces be divided into small constituencies.
The powerful territories or mini power centres, thwarting the implementation of the constitution and other regulations, be forced into respecting the law.