Issues related to the current draft constitution that might present a challenge at the Loya Jirga -- or in the event of a smooth approval process, might prove difficult to implement given the current realities in Afghanistan -- include the powers of the president, the role of religion, rights for women, and the monopoly over the use of force.

In the first of a two-part series, we will review the powers of the president and the role of religion. (In Part 2, we will study the rights of women and the monopoly over the use of force.)

Powers of the President

The current draft envisages a strong presidential system, arguably similar to that of the United States, but without the checks and balances of the U.S. system.

The Afghan president would enjoy virtually unlimited power under the document as it currently stands. The Afghan president chooses his or her own vice presidential candidate, for instance, but the draft is unclear about whether the two run on a joint ticket or the vice president is nominated by the president. The removal of the president may only be effected through a seemingly implausible chain of events. The process can be set into motion with a one-third vote in the Wolesi Jirga (House of People) in which those representatives accuse the president of crimes against humanity, treason, or another, unspecified crime. Only then may a sitting head of state be officially charged, with a subsequent two-thirds of the same Wolesi Jirga required to convict the president. Following a guilty vote, the Wolesi Jirga must convene a loya jirga (or grand assembly), at which the accused president may be dismissed with a two-thirds majority.

Under any circumstances aside from the question of his own dismissal, the president has the power to convene a loya jirga, which, according to the draft constitution, would comprise members of both houses of the Melli Shura (National Assembly) and also chairmen of the provincial and district councils. While the election or selection process of such council members is unclear in the draft constitution, the president is granted the power to select one-third of the members of the upper house, the Meshrano Jirga (House of Elders) -- giving the president formidable powers and influence in governance.

In the light of Afghanistan's recent past -- when under the mujahedin governments of 1992-96 the president and the prime minister were waging war in the streets of Kabul and elsewhere in the country -- the proposition of having a single center of power appears logical (see "RFE/RL Afghanistan Report," 16 January 2003). However, there is a danger that the individual elevated to that position might not possess the good intentions of Afghan Transitional Administration Chairman Hamid Karzai, but rather those of a despot. In such a case, the constitution as drafted could be manipulated to create a virtual autocracy with democratic trimmings.

The Role of Religion

Among the most divisive issues in virtually all seven constitutions drafted for Afghanistan since 1923 has been the role of religion -- namely Islam -- in the affairs of the state.

To be sure, Articles 1-3 of the current draft constitution touch on the role of Islam in Afghanistan. Article 1 declares the country to be "an Islamic Republic." Article 2 establishes Islam as the religion of the country and affords freedom of worship to followers of other religions "within the limits of the provisions of law." Article 3 stipulates that "no law can be contrary to the sacred religion of Islam" and the values enshrined in the constitution. Additional roles given to Islam in the draft constitution are the requirements that the president and vice president be Muslim, and that no political party may have a charter "contrary to the principle of the sacred religion of Islam."

But despite labeling the country "an Islamic Republic," Article 4 (following the example of the 1964 Afghan Constitution) stipulates that "national sovereignty in Afghanistan belongs to the nation." In establishing the sovereignty of the people -- and not of God -- the draft can fundamentally be viewed as a secular document. By comparison, Afghan's two officially Islamic neighbors do not grant sovereignty to the people. The preamble to the 1973 Pakistani Constitution proclaims that "sovereignty over the entire Universe belongs to Almighty Allah alone." The 1979 Iranian Constitution links the foundation of the Islamic republican regime to the "exclusive sovereignty of Allah."

Moreover, and most importantly, the draft constitution does not elevate sharia (Islamic jurisprudence) to the position of the source of all laws in the country. An Islamic state or republic in the true sense of the term is distinguished from other forms of states according to whether or not sharia is afforded the status as the main source of the law. In fact, many countries with Muslim majorities today have adopted a combination of sharia and secular law.

The Afghan draft constitution as it stands does not anywhere refer directly to "sharia," although there is one rather vague reference to a sharia-based issue. Article 131 states that "courts will apply Shi'a school of jurisprudence in cases dealing with personal matters" involving Shi'a Muslims. Two uncertainties are raised by the clause, which is the only reference to a sharia-related matter. First, there is no mention of which school of jurisprudence would apply for those who are not Shi'a. Since most Afghans are followers of the Hanafi Sunni school, it might be inferred that the drafters of the constitution assumed that the Hanafi school would apply to Sunnis in Afghanistan. But this detail must be specified in the final draft in order to avoid misinterpretation. Secondly, it is unclear whether sharia is to be applied in all "cases dealing with personal matters," or only if the parties to the dispute request it. These roles -- of the Sunni and Shi'a schools of jurisprudence -- unless clarified in the constitution, could lead to serious legal disputes and disagreements down the road.

The most dangerous legislation here regarding the role of religion remains Article 3, however, because it might easily be used by conservative religious forces to undermine legislators that they deem to be "un-Islamic." The interpretation of which laws might be "contrary to...Islam" is an open-ended proposition that is not immune to abuse.

Expectations And Realities

In the last seven decades, Afghanistan has not experienced a regular transfer of power outside of President Sebghatullah Mujaddedi reluctantly relinquishing power as part of a United Nations plan in 1992. Each new ruler has tried to change the constitution. Today, with foreign assistance, the country has a chance to become a viable state in which the rule of law and respect for international norms would determine the future -- not the rule of the gun. The current draft constitution, while idealistic and tailored to today's needs on the ground for the establishment of a viable central authority, unfortunately risks becoming a tool of future despots or tyrants.

Afghan constitutional history has also clearly illustrated that Islam is a central fact of life for the people of Afghanistan and, as such, must be represented and respected in any constitution created for the country. This draft attempts to strike a balance between secular statehood and Islamic tradition and values. Yet, at the same time, it risks losing acceptance by both the Islamist and the more secular sides.

Afghanistan's experience suggests that not only is the content of a constitution important, but how and by whom -- and in what historical context -- it is drafted and implemented. Islamic symbols and references, if used in a constructive and non-exclusionary manner, may allow governmental authorities to utilize the constitution to transform Afghanistan into a functioning and inclusive nation-state in which most people feel they are citizens regardless of their ethnicity or religion. Only then will the people of Afghanistan collectively have a vested interest in normalcy and in improving the conditions of society after so many years of internal strife and warfare.