A Loya Jarga, or “Grand Council” in Pashto, is a centuries-old unique Afghan traditional gathering that brings together representatives from the numerous ethnic, religious, and tribal communities as well as the civil society of Afghanistan to choose new leaders, adopt constitutions and decide important political matters.
Looking throughout the history of the Loya Jargas, we shall find Traditional Loya Jarga, constitutional Loya Jarga and Karzai’s consultative Loya Jarga.
In this article, our focus is on the Constitutional Loya Jarga and whether the traditional Loya Jarga can be summoned in the present scenario with a Constitution governing the country. This question is important in the context of recent efforts by Karzai’s camp to pressurize the Ghani government and compel him for calling in a Loya Jarga. They believe the law and order situation in Afghanistan warrants convening a Loya Jarga where the legitimacy of the current “two headed” Afghan government shall be scrutinized.
Apparently they asking for Loya Jarga to solve these crises of the Country but they are actually struggling to get back the power and rule the country. Considering this issue, traditional Loya Jarga was inserted in Afghanistan’s constitution during the regime of King Zahir Shah in 1343 (solar year).
The main question and controversy which remains unanswered is that whether traditional Loya Jarga is in accordance with constitution or not. Is it legitimate based on constitution?
Since it was defined in the framework of law, the concept of traditional Loya Jarga is irrelevant anymore. Hence, in case of conducting traditional Loya Jarga rather than legal one, it will not be binding. Loya Jarga is supposed to be conducted within the provisions provided in the constitution of the country. However, Consultative Loya Jarga is neither binding nor illegal; and has the right only to advice.
Karzai might remember when he opposed the suggestion for holding traditional Loya Jarga in the end of his first administration saying that it was against constitution. On the other hand, he conducted consultative Loya Jarga for signing security pact with the US during the last days of his second presidential period but refused the Jirga’s decision.
The Constitutional Framework for Loya Jarga
Chapter 6 “Articles 110-115” of the Constitution of the Islamic Republic of Afghanistan deals with constitutional Loya Jarga, Article 110 of Afghanistan Constitution stipulates that in its constitutional mandate, a Loya Jarga is the highest manifestation of the will of the people of Afghanistan, and is composed of the members of the National Assembly “Milli Shura”, and Presidents of all provincial and district councils.
However, chief justice and Members of the Supreme Court, ministers, and the attorney general may participate without voting right. This Article is mainly discussing composition of legal Loya Jarga; who shall be members of the Loya Jarga and who has the right to vote and participate.
Article 111 provides in which situations Loya Jarga will be conducted. According to Article 111 of the constitution of the Islamic republic of Afghanistan, the Loya Jarga shall convene in the following situations: to decide on issues related to independence, national sovereignty, territorial integrity as well as supreme national interest; amend provisions of this Constitution and impeach the president in accordance with the provisions of Article Sixty Nine of the Constitution.
Short of Chapter six of the Constitution some other articles also deliberate Loya Jarga, Article 147 of the Constitution states that If the presidential term or the legislative term of the National Assembly “Milli Shura” expires during the state of emergency, the new general elections shall be postponed, and the presidential as well as parliamentary terms shall extend up to four months.
If the state of emergency continues for more than four months, the President shall call the Loya Jarga. Within two months after the termination of the state of emergency, elections shall be held. In the light of this article a Loya Jarga will be convened if the state of emergency continues for more than four months and the presidential term or the legislative term of National Assembly expires, then president of the Islamic Republic of Afghanistan under this article is bound to call Loya Jarga.
Article 150 of the Constitution of the Country explains process of the amendment of the Constitution it asserts that a commission comprised of members of the Government, National Assembly as well as the Supreme Court shall be formed by presidential decree to prepare the draft proposal. To approve the amendment, the Loya Jarga shall be convened by a Presidential decree in accordance with the provisions of the Chapter on Loya Jarga. If the Loya Jarga approves the amendment with the majority of two-thirds of its members, the President shall enforce it after endorsement. According this Article of Constitution Loya Jarga shall only be called by the president to approve the proposed amendment in the Constitution.
Article 69 of the Constitution lays down the process of the impeachment of the President If the president of the Islamic Republic of Afghanistan becomes accused of crimes against humanity, treason and a crime the President shall be demanded by one-third of all members of the House of People “Wolsi Jirga”. If this demand is approved by two thirds of the House of People, the House of People shall convene the Loya Jarga within one month.
If the Loya Jarga, by two-thirds majority, approves the accusation, the President shall be released from duty and the issue shall be referred to a special court, which shall be comprised of the President of the House of Elders “Meshrano Jirga”, three members of the House of People, and three members of the Supreme Court appointed by the Loya Jarga.
This article of the Constitution states that in case the president of the Islamic Republic of Afghanistan becomes accused of crimes against humanity, treason and crime and the accusation has proved then two thirds of the House of People shall call Loya Jarga, this is to be noted that impeachment of the president is restricted with three conditions; Crimes against humanity, treason and a crime. Otherwise, House of People cannot convene Loya Jarga.
The Way Forward
The above discussion indicates that the concept of traditional Loya Jarga is irrelevant now keeping in view the fact that the Constitution has internalized the concept and has provided a distinct system for summoning the Loya Jarga.
In addition, calling loya Jarga remains to be the sole authority of the president of the Islamic Republic of Afghanistan. The Loya Jarga mentioned in Article 69 of the Constitution. However, is called in by the Wolasi Jarga in case of accusing the President of crimes against humanity, treason and crimes which by law are subject to imprisonment of more than 16 years.
*Abdul Wahid Rizwanzai is Associate at RIAA Barker Gillette AFG, an International legal firm and analyst of legal issues.