Kabul Report

I had not been to Kabul in five years, and the city looks more or less unchanged. There seem to be fewer women in burqas, and a few more cars. There are quite a few more private shops on the streets, especially beauty parlors and barber shops. But things appear basically the same. 

The mood, on the other hand, is not. When I was here in early 2003, there was a halting sense of hope, but little has materialized from the Karzai government and people are overwhelmingly pessimistic. Streets are still potholed. Jobs are scarce. Prices are rising. Things are moving backward steadily, and the Taliban have attacked places as close as 30 miles away. Literally no one has a good thing to say about Karzai (the "mayor of Kabul") and the government.  Movement is restricted and armed guards protect any place frequented by foreigners or Afghans who can afford the protection.

I was there to discuss a brewing constitutional crisis resulting from poor drafting and last- minute revisions of the draft constitution back in 2003, in which a presidential system was substituted for a parliamentary one, and the constitutional court was eliminated. The motive for avoiding a constitutional court was fear of replicating Iran’s Guardian Council, which regulates political candidates and can strike legislation that it deems to conflict with Islamic law. Because the Afghan Constitution contains a repugnancy clause, in which laws may not be passed that contravene the “basic principles” of Islam, there was some concern that the constitutional court could overly inhibit democratic politics. When the constitutional court was eliminated late in the drafting process, the Constitution gave the Supreme Court the power to interpret laws to see if they conform to the Constitution, but is not clear on whether the court can interpret the Constitution itself. This obscure distinction has led to a conflict between President Karzai and parliament, paralyzing both.

In 2007, the parliament sought to exercise its power to hold a vote of no confidence on a government minister (which itself is a very strange thing in a presidential system). It voted no confidence and wanted to remove the minister. President Karzai disagreed and asked the Supreme Court to decide whether parliament indeed had the constitutional power to remove the minister, and the court sided with the president. The parliament responded by passing a law to set up a “constitutional implementation commission” and granted it exclusive power to interpret the constitution. This would have presumably taken some of the authority away from the Supreme Court. President Karzai vetoed the law, and the parliament held up another law designed to clarify many other aspects of court jurisdiction. A stalemate ensued and positions hardened.  Given the security situation, Afghanistan can hardly afford a constitutional crisis at the moment.  But the political incentives may lead the antagonists to wait until elections, scheduled for next year (which may themselves be postponed). 

The constitutional problem is part of a larger species of constitutional drafting issues.  What happens when a last minute change renders the system incoherent or diffferent in character than anticipated?  Last minute switches to presidentialism also have occured in Brazil in 1988 and other contexts. Alas, we have little scholarship on the question to date. And of course such problems are harder to resolve when the allocation of the power of constitutional interpretation is exactly what is at issue.