Published on 03 Oct 2011 at 08:50
More than a year after the 2010 Parliamentary elections, there is no end in sight to Afghanistan’s deepening election crisis. A series of moves by the executive branch that many saw as meddling in the legislature has prompted an extended protest by a large bloc of MPs, paralyzing the Parliament.
The most recent conflict arose from an August decision by the Independent Election Commission (IEC) to exclude nine MPs for electoral fraud. This voided an earlier decision by a Special Court to remove 62 Parliamentarians for allegations of electoral irregularities.
But many Parliamentarians reject the IEC’s decision, saying that once the original results were announced last November, and the Parliament was inaugurated in January, no further changes to the composition of the body were legal or possible.
In an interview with www.bamdad.af, Dr. Mohammad Amin Ahmadi, Secretary of the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) and Chancellor of Ibn-e-Sina Private University, explained the legal basis of the IEC’s final decision and proposed solutions to end this political deadlock.
In your opinion, to what extent is the IEC’s latest decision legally justifiable?
In a six-article proposal to the President, the IEC stated that it would reevaluate election-related documents, particularly those documents already investigated by the Special Court. The IEC gave “justice” as its reason for reviewing the results of the election, saying that it wanted to ensure that there had been no mistakes, and that no one’s rights were violated during the counting process.
However, IEC officials knew that according to Electoral Law, the final decision on cases of electoral fraud belongs to the Electoral Complaints Commission (ECC), and the IEC has no authority to adjudicate election-related complaints once the final results have been announced.
The only legal basis the IEC cites is Article No 62 of the Electoral Law, which stipulates that all the rights of the ECC devolve to the IEC once the ECC is dissolved.
In interpreting of Article 62, some individuals are trying to say that, as one of the ECC’s rights is adjudicating election-related complaints, so the IEC can have the right to adjudicate election-related complaints once the ECC dissolves.
But clearly the Electoral Law stipulates that the ECC’s decision about elections results is final. In addition, the ECC can adjudicate election-related complaints only within a specific period of time. The ECC itself cannot adjudicate election complaints once the stipulated period ends. So this right cannot be transferred to the IEC.
According to the law, we cannot refer to Article 62 in this regard since it would be “an interpretation against legal clarity.”
To what extent is the IEC’s claim to ensure the principle of “justice” in the election correct and justifiable?
It is unclear and unjustifiable. The main principle in ensuring justice is the way in which the elections are implemented. As you know, justice in elections is ensured by transparency, which means monitoring by candidates and independent observer organizations. You can talk about ensuring justice when the election process is transparent and when independent organizations are able to observe properly.
Therefore, the decision taken by the IEC is not within its authority.
If you make secret decisions about election results it violates the principle of justice and makes the election process nontransparent. Sometimes people refer to Article 86 of the Constitution to give legal justification for the IEC’s decision. According to Article 86, ”Credentials of members of the National Assembly are reviewed by the Independent Electoral Commission in accordance with law.”
It is obvious, if we read that article thoroughly, that such adjudication will be regulated by a specific law, meaning the Electoral Law. And the Electoral Law has specified a time for adjudicating electoral complaints and did not authorize the IEC to investigate those complaints after an election has been finalized. Therefore, the decision taken by the IEC is not within its authority.
In this Parliamentary crisis, all sides involved are talking about the implementation of the law and ensuring justice. But everyone has his or her own agenda. The losing candidates want to include the 53 protesting candidates in the National Assembly, while the Coalition for the Rule of Law is against any change in the composition of the current. In your opinion, how should the Constitution be interpreted in the current situation?
In my opinion, the very fact that all sides are referring to the Constitution and talking about implementing the law is good and a positive sign and can be counted as an improvement. But the misinterpretation of the Constitution arises because every individual or group is trying to justify his or her own interests under the law. Unfortunately, we have not reached a level to where we truly respect the law as a credible tool. We are still using the laws as a personal weapon, and this is our social and cultural problem.
Another factor is that we have laws but we do not have the culture to interpret these laws, and there is no legal entity to resolve problems. In countries where there are laws and the rule of law, there is a body of knowledge on how to interpret the law, which results in true understanding. But in our country there is no common understanding about the correct interpretation of the law.
Also, no there are no recognized legal entities to resolve problems based on interpretations of the Constitution. This has resulted in misinterpretation of the Constitution.
Is not the judiciary branch – the Supreme Court and the Attorney General’s Office -- the legal entity entrusted with resolving such conflicts? If so, how successful have these entities been in defending the laws?
The legal entity for interpreting general laws is the Supreme Court. But there are still issues about which entity is to be entrusted with interpreting the Constitution.
In addition to that, the Constitution has anticipated the institution of an “Independent Commission for Overseeing the Implementation of the Constitution.” According to the Constitution, this commission is the legal entity to interpret the Constitution.
The only way to resolve this problem is for all the Reformist MPs as well as the Coalition for the Rule of Law to seek a legal solution.
Article No 121 of the Constitution does not specify any entity [beside Supreme Court] to interpret the Constitution, although Article No 157 anticipated the establishment of a commission for this purpose. This shows that “judicial review” is not completely accepted in the Constitution.
Therefore, making laws regarding an entity to interpret law is within the Parliament’s authority, but the Supreme Court disagrees on the institution of the ICOIC.
When the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) and Supreme Court disagree over the responsibility for interpreting the Constitution, it is not surprising that other entities would have the same problem.
Such disagreement is about the interpretation of the Constitution, not general laws. Since this problem has not been solved, it extends to other entities too.
Do you mean that the judicial branch and the Independent Commission for Overseeing the Implementation of the Constitution have a role in the current tension?
In my opinion, such disagreements can be resolved in accordance with general laws and the Constitution. Claims over election fraud and violations could be addressed as criminal cases by the courts.
But unfortunately, the Supreme Court considered the legal, not criminal aspects of those claims and created a Special Court. As the protesting candidates were claiming election fraud and violation of the law, the Attorney General could have collected proof and pursued the complaints through the courts. Then the current crisis would not have occurred.
What could be the solution to the current crisis?
Unfortunately, the IEC, which had the chance to solve this problem, lost this opportunity. As I said before, the judicial branch could have resolved this issue, but with the approach it adopted it also lost the chance.
The Independent Commission for Overseeing the Implementation of the Constitution has lost this opportunity as well. The Commission can explain the legal perception of the IEC’s final decision if its members wish to do so. But I am not sure whether the Commission’s view is what I think or whether it would be accepted by all sides of the election crisis.
In my opinion, the only way to resolve this problem is for all the Reformist MPs as well as the Coalition for the Rule of Law to seek a legal solution.
They should follow the Constitution and the Electoral Law and convince each other to take a joint decision in the national interest and for the prestige of the Parliament. They should ask other entities to stop their illegal intervention in the internal affairs of Parliament.
Also, the nine winning MPs should be convinced that if they are to come to the Parliament it should not harm the image and independence of the legislature. This should not become a tradition for changing the composition of the Parliament by nontransparent decisions.
The winning candidates should be convinced in a friendly manner that the current stance of the Parliament is not against them. It is to defend the legal prestige of the legislature.
In your opinion, what the parliament should do to keep the its prestige?
Well, the continuation of the current situation is neither in the best interests of the country nor of the executive and legislative branches. Who will approve budget in the future if there is no Parliament? Nobody except the legislature is authorized to approve the government’s budget. Both the executive and the legislature should end this crisis legally.
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