KABUL (Pajhwok): Some legal experts believe that certain articles of chapter II of the constitution should be more firmly protected in peace negotiations.
The Taliban, calling the discussion on the constitution premature, say they are ready to guarantee the rights Islam has given the people.
Intra-Afghan peace negotiations, which began in Doha in September 2020, have made no progress so far.
The talks remain stalled, even though the Turkey conference is days away. Afghan leaders, politicians, representatives from some countries and the region will be in attendance. However, the Taliban refused to attend any summits until all foreign forces were pulled out of Afghanistan.
Questions have also been raised about the peace talks in Afghanistan, with some people willing to compromise rights and freedoms to end violence.
On the other hand, there are individuals who underline the preservation of their achievements, rights and freedoms.
Why is this chapter important for citizens?
The fundamental rights and duties of citizens are set out in the second Chapter of Afghanistan’s constitution:
Rights to life, work, ownership, education, freedom of expression, electing and be elected, establish communities and parties and other liberties under the law, prohibition of discrimination among Afghan citizens, prohibition of human torture are among the salient features of this chapter.
It also gives citizens the freedom and privacy of correspondence and communications, safety of home from attack, the right to travel to or live any part of the country and travel abroad. The chapter prohibits forced labour and provides for free medical treatment and facilities to citizens by the government/
In compliance with chapter II, the government has to support family as an essential element of society. There is a presumption of innocence. Citizens are obliged to pay taxes in accordance with the law, and defence of the homeland is the duty of all citizens.
In line with this chapter, no one reserves the right to act against the country’s independence, territorial integrity, sovereignty and national unity by abusing the rights and freedoms set out in the constitution.
The constitution also provided for the establishment of the Afghanistan Independent Human Rights Commission.
Shahla Farid, a professor at Kabul University, told Pajhwok Afghan News this chapter was important to people because it specified the basic rights of citizens and required the government to protect them. In this chapter, some duties have been assigned to the citizens as well.
She explained chapter II of the constitution contained the best articles that did not contradict religious teachings and were included in international documents and the universal declaration of human rights.
Chapter II as a red line in peace talks:
Gul Rahman Qazi, former head of the commission for monitoring and implementation of the constitution, said the chapter was important because it outlined the rights and duties of the people.
If constitutional amendment is raised in peace talks, legal experts ask which articles of the second chapter need to be amended or may be ignored. The articles are not amendable without damaging human rights.
Gul Rahman Qazi said: “If the true meaning is reached through negotiation and communication, none of the articles of the second chapter of the constitution will be ignored, protected and cannot be amended, unless the legislators give a better form; otherwise, this chapter is not modifiable, and the articles of this chapter is a red line and irreversible and crossing it means violating the fundamental rights of the Afghan citizens.
Shahla Farid also suggested that the articles of the second chapter should not be amended. According to her, as far as she has studied, no article of this chapter is an obstacle to peace in the country.
She suggested the chapter — the basis for the exercise of fundamental rights by the citizens — should be the red line during intra-Afghan peace talks.
“Amending some articles of the constitution is one of the conditions set by the Taliban. However, I see any article in the second chapter to be problematic for peace talks.”
In case of power-sharing with the Taliban as part of a political deal, she said, a number of constitutional articles, including Article 34 that deals with freedom of expression, might be amended.
Article 34 of the constitution says: “Freedom of express shall be inviolable. Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall have the right, according to the provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law.”
Nazir Ahmad Hanafi, head of the Wolesi Jirga Legislative Commission, said that chapter could not be amended either; because none of its parts was against Islamic teachings.
Article 3 says that in Afghanistan, no law can be contrary to the beliefs and rules of the holy religion of Islam.
“In connection with what is called an amendment, there is a third chapter called the president chapter,” he remarked.
Hanafi added: “My conclusion is that the first and second chapters are not amendable. If an amendment is needed, it is related to the Presidential Palace, and the terms of the amendment are included in the constitution, which is preceded by discussion, negotiation.”
Dr. Mohammad Naeem, Taliban’s political spokesman, said about chapter II: “The Islamic Emirate of Afghanistan has been set up to protect people and their property and make them prosperous.
“We consider it our responsibility to guarantee all rights that the holy religion of Islam has given the people. Of course, talks on amending the constitution will come next.”
Violation of some articles by rulers:
Gul Rahman Qazi alleged the second chapter of the constitution had been violated by the government and foreign forces.
Ms. Farid called the main reason for the non-implementation of chapter II the weak rule of law in society. As a result, some articles were either not implemented or violated by political leaders, she noted.
She claimed former president Hamid Karzai had violated the constitution more than 30 times during his tenure. Disregard for the basic law made his administration unpopular with the people.
“Also under President Ashraf Ghani, the law has been violated several times. One situation showing the violation of the second chapter is the lack of people’s access to the right to health and education,” she added.
When schools in most provinces were closed due to war and insecurity, the university teacher said, the government could not find ways of reopening them.
The poor quality of health services provided by the government had prompted most people to visit private hospitals, she believed. This contravened Article 52:“The state shall provide free preventative healthcare and treatment of disease as well as medical facilities to all citizens in accordance with the provisions the law.”
“Establishment and expansion of private medical services as well as health centers shall be encouraged and protected by the state in accordance with the provisions of the last. The state shall adopt necessary measures to foster health physical education and development of the national as well as local sports.”
A Pajhwok survey, released in December 2020, said “Chapter II has 38 articles, 32 of which have been partially violated in some cases and the other six have been implemented somehow.
“For example,: not giving property rights to foreign nationals, establishing higher education institutions, choosing jobs, the right to choose and freedom, all are simple and natural.”
Fatima Murchal, deputy spokesperson for the president, said: “The constitution is a framework that forms the basic principles of the system. The Afghan government believes in it and remains committed to safeguarding its provisions.”