Almost 2 of every 3 constitutional articles violated, survey finds

AVA- 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.

Survey

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.