Editor in Chief: Moh. Reza Huwaida Wednesday, November 20th, 2019

The Legal Status of the Parliament

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The Legal Status of  the Parliament

The Lower House of the parliament decided to convene its sessions beyond June 22, 2015, after President Ashraf Ghani extended the parliament’s term until new parliamentary elections are held. The extension of the parliament’s working term is coming as an expedient move by the government, the Supreme Court and the parliament itself to avert a political and legal vacuum in the country. A number of the lawmakers described the extension as a legal and necessary measure to avoid a legislative gap and constitutional crisis in the country. This is while others believe the arbitrary extension of the parliament’s tenure is itself violation of the constitution. The government has pledged to announce the date of the upcoming parliamentary elections within one month. The extension of the parliament’s term is coming while there is no timeline set for holding the parliamentary elections and reforms agenda for brining changes to the electoral bodies and procedures.

For Afghanistan’s political spectrum, it seems there is sufficient consensus over the parliament’s prolonged working beyond the end of its legal term. Consensus-building has been one of the approaches of the government for preparing the ground for deciding on extension of the House of Representatives’ term. While developing consensus on issues of national importance is crucial for Afghanistan’s political stability, the required constitutional basis for making decisions regarding the prolonged working of the legislative body has gone ignored. However, the move cannot be justified in terms of constitutionality as the Afghan constitution has no provision for authorizing any party in Afghanistan’s political establishment to extend or terminate the parliament’s working term. Many experts and lawmakers consider the parliament’s working beyond June 22 as illegitimate. Experts and some of the lawmakers believe the move is making another precedent in repeated violation of the constitution in Afghanistan.

This is while others argue that the parliament’s working beyond the end of its legal term would be legitimate and necessary based on the country’s need for having functioning state branches and overseeing the government’s actions. It is required that there should be legal and constitutional basis so to provide the critical legitimacy to the parliament’s decision-makings until the next parliamentary elections are held. The government and the House of Representatives should explore ways for mitigating the impacts of the arbitrary extension of the parliament’s term on constitutionality of the state and political processes.

On the other hand, there is no clarity in the constitution over who can decide in such exceptional cases. The lawmakers’ views differ over who has the competency to interpret the constitution on critical matters e.g. extension of the parliament’s working term. The Speaker of the House maintains that no other agency has the right to question the legitimacy of the parliament’s extended term. The lawmakers have been unable to take a unified stance over who should decide for resolving this constitutional stalemate. In absence of a dedicated body for interpreting the constitution, there are confusions over competency of the Afghan key bodies. With the parliament term extended, the decisions made in the house could be questioned in terms of legality and legitimacy.

The fact is that despite a political consensus among key political and government stakeholders, now there is virtually a legal stalemate in the country. There is no legal solution to the existing constitutional stalemate for the parliament. The stalemate only can be resolved by speedy establishment of election reforms commission and electoral reforms agenda. The government needs to quickly resolve the issue of reforms to the electoral bodies and procedures and task the newly established reform commission to brining the required changes.

The delayed reforms have already created enormous challenges for Afghanistan’s democratic practice of voting for electing the members of the next parliament. It is reported that the Independent Election Commission (IEC) has prepared proposed reforms to the electoral system and procedures. This is while the IEC is not supposed to propose reforms to the electoral system as the body itself needs to be reformed. Based on the agreement which led to formation of the current government, the newly established electoral reforms commission should propose changes to the electoral system. However, due to the disagreements over who should lead the reforms commission, the reform agenda for electoral system and procedures is virtually stalled.

The government needs to implement the provisions of the agreement mediated by the United States on reforms to the electoral system and procedures. The National Unity Government should establish electoral reform agenda and set the date for parliamentary elections. Any further uncertainties involving the upcoming parliamentary elections would exacerbate Afghanistan’s fundamental administrative and constitutional deficiencies. The existing differences over the leadership of the electoral reforms commission have paralyzed the reform initiative for months. It is time for the leaders of the unity government determination for correcting the harms done to the reforms initiative and the parliamentary elections.

The challenges ahead of the upcoming parliamentary elections are enormous. The preparations for the election would be a long and exhausting process. The electoral bodies would need sufficient time and resources to get preparations after they are reformed. The government needs to convince the international community for funding the elections. All these cannot be done without political will from the leaders of the National Unity Government. The President and the Chief Executive Officer should be able to work together to resolve the current stalemate in the process of the parliamentary elections. They should make political compromises and allow the election reforms commission to start working on reform proposals, and the electoral bodies to start preparations for holding the upcoming parliamentary elections.

The current stalemate in electoral reforms and arrangements for holding the upcoming elections has created serious concerns over the current political processes in the country. Afghan political elite should be able to interact while remaining committed to national interests. Since the fall of the Taliban in 2001, there have been occasions of serious risks to the political processes in the country. There have been dangers of derailments of state-building and political processes. The leaders of the unity government needs to remain committed to making reforms and making the political processes right.

 

Abdul Ahad Bahrami is the permanent writer of the Daily Outlook Afghanistan. He can be reached at ahad.bahrami@gmail.com

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