Afghanistan Analysts Network – English

Political Landscape

Rejection of Ministers: The Legal Basis

Antonella Deledda 5 min

The rejection of 17 ministerial appointees by the Afghan lower house, beyond its political implications also represent another episode of the conflict between executive and legislative branches of government, which have increasingly exacerbated over the last six years, writes our member ANTONELLA DELEDDA*.

On 2 January, the lower house (Wolesi Jirga) of the Afghan parliament rejected the appointment of 17 of a total of 24 ministerial nominations submitted by President Hamed Karzai. Beyond their political implications (see details and comments earlier posted on our website), the facts represent yet another episode of the conflict between executive and legislative branches of government, which have increasingly exacerbated over the last six years, since the approval of the constitution. Unclear constitutional provisions feed this conflict, making the fundamental charter a hostage of political bargaining.

Article 64.11 of the constitution affords the Wolesi Jirga the power to confirm presidential ministerial appointments, as well as those of other high officials. Such power is reaffirmed by article 77, second paragraph, according to which ministers are responsible to the President and the Wolesi Jirga for their duties. Moreover, article 92 envisages the possibility for the Wolesi Jirga to approve by the majority of its members a vote of no confidence for individual ministers. (Here a link to the full English text of the constitution.)

In the Afghan political arena – and not only there – parliamentary power of confirmation is usually referred to as a ‘vote of confidence’. As a matter of fact, this definition is inadequate in light of the form of government outlined by the 2004 constitution, which foresees a strong presidential system counterbalanced by the legislative body.

The vote of confidence is instead a typical feature of parliamentary systems where the executive reflects the political majority which has emerged out of parliamentary elections and where the obtainment of consent over a political program is a requisite. Moreover, the vote of confidence is usually expressed upon a cabinet of ministers as a whole rather than upon an individual minister per se, although there are some countries where an individual vote of no confidence is a prerogative of parliament. The Afghan system of governmental appointment is in fact more similar to the US one, although in practice the role of parliament has become much more incisive than the merely advisory nature of the US case. (See: ‘Advice and consent of the Senate’, Art. II, Sect. 2, para. 2, of the US Constitution, full text here.).

In the spring of 2006, following the inception of the first elected parliament based on the 2004 constitution, there was an intense debate on the procedure for ministerial confirmation, with interpretation of the laconic constitutional wording. The resulting chapter 13 of the Wolesi Jirga’s rules of procedure disciplines the confirmation of all presidential appointments, not only of ministers, referring to them all as ‘vote[s] of confidence’. As far as the ministers are concerned, the President of the Republic himself is to officially introduce them to the house, after their biographies, citizenship papers, educational and professional documents have been submitted four days in advance. Each of the ministers and other officials is due to go to the Wolesi Jirga and explain his/her work plan, and their appointment is subjected to direct, secret and individual vote.

The attention of the Wolesi Jirga has focused a lot upon the constitutional requirements to be appointed as minister, especially those concerning double citizenship. Article 72 lists the following requirements: 1. citizenship of Afghanistan; 2. higher education, work experience and good reputation; 3. at least 35 years of age; 4. lack of conviction for crimes against humanity, criminal act, or deprivation of civil rights by a court.

The relevant constitutional norm (article 72.1) is clearly ambiguous: after establishing that the appointee shall have only the citizenship of Afghanistan, it then foresees the possibility for a ministerial candidate to hold the citizenship of another country as well- in which case the Wolesi Jirga has ‘the right to approve or reject the nomination’. This norm, besides being redundant since the right of rejecting an appointment is already established elsewhere, could not but add difficulty to the political debate.

In fact, the topic has been central to the discussion held in the spring of 2006, relative to the list of cabinet members – as candidates with double citizenship were requested to produce evidence that they had renounced their foreign affiliation. The issue has persistently continued to re-emerge in the subsequent years, even with regards to the judges of the Supreme Court, which do not have such a constitutional requirement. Again more recently, the house has debated the possibility of prohibiting by law the appointment of candidates with double citizenship – but this would contradict the letter of the constitution.

In reality, the constitutional ambiguity seems to reflect the main feature of the Afghan socio-political dynamic, which is the polarity between a conservative trend and a modernizing drive. On one side there is a deep mistrust over those people who spent part of their lives abroad, coupled with allegations of double loyalty and cowardice for having escaped the war; on the other side the experience gained abroad would be welcome in a country isolated for so long from the rest of the world.

In general, it is to be seen what development will follow from the rejection of the ministerial aspirants. Some precedents indicate the reluctance of the President to submit to the parliament’s will as far as the appointments are concerned. Besides the case of Foreign Minister Rangin Dadfar Spanta, who kept his position after receiving a vote of no confidence in 2007, there was the case of two ministers that, although rejected by parliament, were kept in acting ministerial roles. As a consequence, parliament recently passed a bill forbidding the reoccurrence of such a situation, whilst the Wolesi Jirga’s rules of procedure (article 76) prohibit the re-appointment of candidates already rejected by the house.

The wrestling between the executive and legislative bodies of government remains on-going, with Karzai issuing a decree on 4 January 2010, ordering the National Assembly to continue its session until the completion of the cabinet confirmation. He did so in pursuance of article 107 of the constitution which disciplines parliamentary work, envisaging the possibility of the President to convene an extraordinary session of the parliament during its recess.

But the decree was promptly challenged by the Wolesi Jirga itself, since the constitution refers to the possibility of convening the National Assembly, i.e. both houses, while in this case the order should have concerned only the Lower House. Therefore the decree was deemed unconstitutional. In the meantime, the Wolesi Jirga has decided to go into recess until the submission of a new list of appointments – expected for next Saturday.

* Antonella Deledda is Chairperson of the Italian think tanks ARGO (Analisi e Ricerche Geopolitiche sull’Oriente) – an AAN partner organisation – and ASIAC (Associazione di Studi sull’Asia Centrale e il Caucaso) and Lecturer of Public Comparative Law at LUISS University in Rome. A former Parliamentary Councellor (1987-2007) in Rome and UNODC Regional Representative for Central Asia (2000-2003), she worked as Deputy Coordinator of the Italian Justice Project for Afghanistan and Advisor to the Afghan National Assembly in 2005-2006. She is also a member of AAN.

 

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Government Appointments Cabinet

Authors:

Antonella Deledda

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