On Wednesday morning, 10 August 2011, the Palace issued presidential ruling no. 3607 “Regarding the settlement of the 1389 electoral dispute”. It is a remarkably complicated and opaque legal text, which has led to a wide variety of conflicting interpretations. The confusing language and the silence on the side of the palace on what it means suggest that the aim of the ruling was not in the first place to clarify the matter legally, but rather to facilitate the implementation of a – pre-agreed – compromise. The prospect of a swift and largely uncontested resolution is, however, for the moment being obscured by continued confusion and posturing.
What was particularly noticeable was the wide divergence in reporting on what the ruling meant, especially between the international and local press immediately after its release. Many of the initial responses in the international media focused on the part of the text that most looked like an order: all election related proceedings in any organ other than the IEC were to be ceased. Several outlets took this to mean that the court would be disbanded and its ruling annulled, as illustrated in their headlines and many took the ruling to mean that Karzai had somehow been forced to back down. See for instance: New York Times, Karzai Annuls Afghan Court Reviewing 2010 Polls; Washington Post/AP, Afghan President issues decree that courts cannot change election results; Al Jazeera, Karzai: Court cannot change election results; and AfPak Channel: Karzai blinks in Afghan crisis. The headline that seemed to capture the situation best was The Guardian’sHamid Karzai decree fails to resolve Afghanistan election dispute.
The reactions in the Afghan press and political arena were markedly different. For instance Tolo Television, the government channel RTA, and Pajhwok all reported that President Karzai had ordered the IEC to enforcethe Special Tribunal’s verdict. They reported on the strong reaction from sitting MPs who saw this as another attempt to interfere in the composition of the Parliament (see for instance Pajhwok: Parliament, President on warpath), while others quoted the positive responses from the newly “winning” candidates (see for instance Afghanpaper.com, Winning Nominees Welcome President’s Ruling).
It seems unusual for a ruling, that is issued to solve a long-festering dispute, to engender that much confusion. The differing interpretations may simply reflect hurried thinking, but they may also illustrate the divergence in views among the different parties to the compromise, as to what has been agreed and whom it benefits. If the latter is the case, the bickering may well continue for a while longer.
But what does the ruling actually say? Most journalists seem to have been provided with an excerpt of the text, comprised of the main three articles. The original ruling (a copy of which can be found here) also contained two introductory paragraphs outlining the President’s authority. A word of caution on the translation: Every reader of the text – when read in the original language – seems to have come away with different ideas on what it says. A clear understanding of the text is severely affected by the very long sentences, the sometimes unusual wording, and the fact that it refers to a ruling by the appeals court that is not available. Although every translation of an ambiguous text involves some amount of interpretation, we have tried to follow the text as closely as possible and to convey both its original meaning and its confusion.
Translation (by AAN):
President of the Islamic Republic of Afghanistan
Regarding the settlement of the 1389 electoral dispute
Ruling No. 3607
Date: 19/5/1390 (10 August 211)
Given that ruling no. 22 (13/05/1390) of the Civil Affairs and Personal Status Division of the Appeal Court of Kabul province on the disputes arisen from the parliamentary elections of 1389  determined that the right to be an MP (hagh-e wekalat) in the Wolesi Jirga is a right of political privilege and representation (hagh-e emtiazi-ye siasi-ye eghtezai) and the use of this right, in the face of the current tensions that are running high in the country and in view of the highest national and social interest of the community, country and nation, has been vested within the authority of the person of the president, as the judge who has the authority to inaugurate the judiciary, the Ol-ul-Amar [the Amir whose authority is not given by people but is based on religious principles], and the leader of the national policy of the Islamic Republic of Afghanistan, so that the implementation of whatever decision he deems best serves the interests of the country and the nation and matches the realities of the society, may put an end to the existing confusion.
The above mentioned ruling that has been based on the analysis of the jurisprudence and provisions of the articles 60 and 66 of the Constitution and the current situation and the highest national interests and the government’s objectives all require that the president take the necessary steps to realize the principles of justice, rule of law and transparency within the electoral process, to realize the public right to determine their destiny, and finally to maintain the highest national interests, thus I approve:
1. The Independent Electoral Commission is ordered to as soon as possible finalize the legal aspect of the matter based on the provisions of the article (33), (86) and (156) of the Constitution, article (62), (63) and (64) of the Electoral Law and in accordance with the ruling No. 22 dated 13/5/1390 [4 August 2011] of the Civil Affairs and Personal Status Division of the Appeal Court of Kabul province.
2. With the issuance of this order all election related issues of the Wolesi Jirga 1389  which are under proceeding in any other organ except the Independent Election Commission shall be concluded ceased. Criminal issues other than electoral offenses stated in article (63) of the electoral law are an exception to this order.
3. This order shall come into force from the date of endorsement and shall be communicated to the relevant organs for implementation.
Hamid Karzai, President of the Islamic Republic of Afghanistan
So what does this tell us. First of all, the ruling does not explicitly annul the findings and verdict of the Special Electoral Tribunal or explicitly disband the tribunal, nor does it confirm its verdict. In fact, it sidesteps the whole matter of the tribunal by referring only to the ruling of the Kabul Appeal Court. What it does do, is bar any organ other than the IEC to continue dealing with 2010 electoral matters and order the IEC to, as soon as possible, finalise the legal matters relating to the 2010 elections. The ball is clearly in the court of the IEC. At the same time the text contains hints on how the IEC may be expected to rule.
The explicit exception to the order that the handling of all cases related to the 2010 election outside the IEC must be ceased – except those relating to criminal matters – may well have been added to allow for the removal of a smaller number of MPs, not for fraud, but for criminal actions. The reduction of the number of MPs that were to be removed has been one of the main points of contention, and possible compromise, in many of the negotiations over the last few weeks.
Karzai’s order leans heavily on the ruling of the Kabul Appeal Court. It not only upholds the ruling, but it cites it as the main basis for this decision and puts it on a par with the relevant articles in the Constitution and the Electoral Law when it orders the IEC to bring the matter to a close. The problem is that we don’t know what the ruling exactly says. There is general agreement that the Appeal Court has referred its final decision back the President, but nobody seems to have seen the text. (At the time Tolo TV reported that it had been told by an unnamed source that the appeal court had upheld the verdict of the tribunal on unseating 62 MPs, that it had sent its findings to the Attorney-General’s office and that the court called on President Karzai to take the final decision on the issue. This understanding of the Appeal Court’s verdict has probably fed some of the current confusion).
The most remarkable part of the text can be found in the opening paragraph which reiterates the authority of the president to rule in this matter, invoking his authority as “the judge who has the authority to inaugurate the judiciary, the Ol-ul-Amar [the Amir whose authority is not given by people but is based on religious principles], and the leader of the national policy of the Islamic Republic of Afghanistan”. This seems an explicit effort to establish the authority of the president over all three powers and to signal that he retains the right to re-intervene if his order is not properly implemented. The religiously-loaded language seems a new and unnecessary addition.
IEC head Manawi has let it be known that he intends to rule on the matter within a week and that he will do so according to the laws of the country. In the meantime MP Behzad, often a mouthpiece for indirect but provocative quotes, told the parliament that Manawi had indicated that he was under heavy pressure and had been told that he could either acquiesce or face prison. Language emanating from the parliament has so far been belligerentand does not seem to signal buy-in to a compromise solution.
It is as yet too early to gauge what this means for the country’s political relations. Among the internationals there seems to be a growing conviction that the president, under pressure and in need of a lasting relationship with his international partners, has been forced to give in. They see the assurances to MPs earlier today that he does not wish to run for a third term (in 2014) as further proof of this. This could also explain the parliament’s vocal responses, as they may seek to strike at him while they can.
On the other hand, all indications within the Afghan realm over the last week were that a compromise was being reached that was potentially face-saving for all and that would allow all sides to, albeit grudgingly, reaffirm each other’s legitimacy and to move on. It remains to be seen whether the different sides will keep their side of the bargain or whether the temptation to play tricks and come out on top is too hard to resist.
This article was last updated on 9 Mar 2020