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The draft constitution, envisaging a republic based on Islamic principles, features a strong presidency and a bicameral legislature.
The initial Commission was made up of nine members and started work on October 5, 2002. After its work was completed (although no draft was released) the initial Commission was replaced on May 7, 2003 35-member Reviewing Commission, referred to as the "Constitution Commission." The 35 members were all appointed by president Hamid Karzai. Seven of the members are women.
One of the women members, Shukria Barekzai, said the present constitutional process was the first time the constitution would reflect the beliefs, culture, ethnic composition, faith and wishes of the Afghan nation.
The commission set up eight regional offices in Jalalabad, Herat, Kunduz, Kabul, Gardez, Kandahar, Mazar and Bamyan as well as in the Pakistani cities of Peshawar and Quetta, and in the Iranian cities of Tehran and Mashhad.
The process is being monitored by the United Nations Assistance Mission in Afghanistan and is funded by the United Nations Development Programme.
Consultations with the public started on June 10, 2003. Commission teams from Kabul and regional offices made trips throughout the country, as well as in Iran and Pakistan. Commission member Shokria Barekzai said Afghan refugees in the United States would also be consulted. The commission also distributed posters and leaflets, and began publishing a monthly newsletter. Radio and televison announcements were also made.
Over 100,000 copies were printed, of which 5,000 will bear an official stamp to guarantee against forgeries. On the streets of Kabul, news stands quickly sold out of newspapers that printed the entire text.
On July 16, 2003 (some sources say July 15) President Karzai issued a decree establishing a constitutional loya jirga with 500 delegates, of whom 450 would be elected by "representatives of the people" and 50 would be appointed by the president:
Provincial governors and top-ranking police, administration and military officials will be barred from the proceedings.
The initial goal was for the Commission to present the draft constitution by September 1, 2003, but in August commission members asked for a two-month delay to allow more time to gather reactions. On August 28 Wardak announced that the loya jirga had been postponed until until December 10. The commission wanted more time to consult with Afghans. Farooq Wardak, the director of the commission's secretariat, warned that without a delay the process could break down or result in a poor constitution. A presidential spokesman said the Karzai would make his decision "very soon" but would prefer that "we try all we can to stick to the original time frame."
Delaying the vote on the constitution would possibly delay the June 2004 general elections scheduled under the Bonn Agreement. News reports indicated there were quarrels between conservative and secular elements in the government over including Islamic sharia law and more liberal principles in the constitution.
Wardak said a delay would give Afghans more time to decide if they wanted a republic, a parliamentary system, or a return to a monarchy. Other issues, he said, included the degree of centralization in Kabul and the role of Islam. He said 100,000 questionnaires from all provinces of the country had been completed and sent to the commission.
The Afghan Constitution Commission presented its proposed constitution on November 3, 2003. The ceremony was attended by president Hamid Karzai, former king Mohammad Zaher Shah, and United Nations Secretary General Kofi Annan’s special envoy Lakhdar Brahimi.
The draft proposes a strong central government with a directly elected president and vice-president, but no prime minister. Presidential candidates must be Muslim with Afghan-born parents.
The president may serve a maximum of two five-year terms, and will wield major power as commander in chief. He will be able to appoint various officials in the military, police and national security bureaucracy.
There will be a bicameral legislature, with the president naming one third of the upper house. Half of these presidential appointments must be women. In the lower house there must be at least one woman representative for each of Afghanistan’s 32 provinces.
The draft aims to create a society free of oppression, atrocity, discrimination, and violence, based on legitimacy, social justice, protection of human rights, and dignity, and ensuring fundamental rights and freedoms of the people with a government based on people's will and democracy.
The draft is based on Islamic principles and recognises that no law can be contrary to the sacred religion of Islam. It also specifically allows followers of other religions to be free to perform their religious ceremonies within the limits of the provisions and values of the constitution and the law related to the security, and public orders.
The draft outlines numerous Rights and Duties of Citizens of Afghanistan. For instance, the draft:
The draft also outlines the responsibilities of the President, Vice President and Government Ministers and establishes the National Assembly, which consists of two houses: Wolesi Jirga (House of People) and Meshrano Jirga (House of Elders), as the highest legislative body. It also outlines the administrative structure at provincial and district level.
Political parties can be established as long as the program and charter of the party do not contradict the principles of Islam, and the provisions of the Constitution, the organisational structure and financial sources of the party are public, the party does not have military or paramilitary aims and structures and should have no affiliation to a foreign political party or sources. The draft also specifically excludes the formation and functioning of a party based on ethnicity, language, religion and region.
The draft was distributed throughout the country to Provincial Governors and Wuluswals for distribution to political leaders. It was also be widely distributed via the Regional Offices of Secretariat of the Constitutional Commission to ELJ district representatives, to the media, including magazines Kellid and Morsal.
Mahbuba Hoquqmal, the Afghan Minister of Women's Affairs, said the constitution does not grant protection to women's property rights, and does not prevent women being forced to marry without their consent, and does not offer better guarantees of equal treatment by Afghanistan's courts.
Members of Uzbeks, Turkmens and Baluch said that the Proposed Constitution alientated their cultures. For example, the draft states that Pashto and Dari would be the two official languages, and that the national anthem would be sung in Pashto.
Other issues raised by some loya jriga delegates included whether former king Mohammed Zahir Shah should maintain the title "father of the nation," whether Afghanistan should be a free market economy, and whether higher education should be free.