This academic research paper conducted by Mohammad Tahir Khan Nasiri, a P.h.D student of International Islamic University Malaysia (IIUM) has reviewed the Afghanistan constitution and the political compromise between the two political Afghan leaders with the brokerage of the United States in the 2014 election in Afghanistan.

1. INTRODUCTION

From the time unmemorable until the creation of the first constitution in 1923 Afghanistan was governed without the prime minister. The post for prime minister has been created for the first time by the first constitution in 1923 by King Amanullah Khan, and then followed by many others with the on and off position until the enactment of the current (2004) constitution.

The current constitution is unique in the sense that it keeps Islam superior and orders that no law can be enacted against it; by the same time keeps its democratic feature too. The current constitution has opted purposely for a strong presidential system and has skipped from having the post of either chief executive or prime minister. Presently Afghanistan has a President who is both the head of the state and head of the government and is able to exercise his executive powers in all branches of government.

The superiority and integrity of this constitution were attacked many times, specifically as the result of the two political compromises between the two top runner candidates of the 2014 and 2019 Presidential elections. The first compromise happened with the mediation of John Kerry, the former foreign minister of the USA. As a result of this compromise, they created a Unity Government (UG) with a temporary post of chief executive.

The second compromise on the integrity of the constitution happened during the presidential elections of 28th Sep 2019 again between the same (previous) two top runners of the presidential elections. However, this time with the mediation of some Afghans like the previous President Hamid Karzai; professor Sayaf and some others. As both of the top runners of the presidential elections Ashraf Ghani and Abdullah Abdullah have taken a presidential oath of allegiance on 9 Mar 2020, everyone was claiming to be the proper president. As the result of this compromise they created the unconstitutional post of the chairman of the peace negotiator and agreed for Ashraf Ghani to be the President of the country and Abdullah Abdullah to have half of the power of the government, and to be the head of the peace negotiation with Taliban.

Although, under both compromises, the integrity of the constitution was attacked this article discusses only the first compromise because the post of chief executive was created under that compromise. Moreover, as the violation of the constitution during the 2014 and 2019 presidential elections happened between the two top runners of the presidential elections, therefore it attracted serious national and international attention.

Using both doctrinal and non-doctrinal legal research methodology, the study under this article covers the prime minister and his historical role in the constitutions and governing systems of Afghanistan; the period where Afghanistan was ruled without a prime minister; the creation of the post of the chief executive; national and international reaction to the creation of this post.

The study found that the majority of Afghans are in favor of the presidential system. However, there was a minority group that relied on the French semi-presidential system, the Turkish previous parliamentary system, and Lebanon’s confessional system. The author of this article also, therefore, included the study of the systems of these countries too. The article finally ends with a suggested solution.

2. HOW AFGHANISTAN WAS GOVERNED WITHOUT PRIME MINISTER

Regarding the legal history of Afghanistan, some writers believe that Afghanistan’s legal history stretches back across millennia.[1]  Afghanistan is the owner of rich cultural history, and Kamali defines Afghans as “people are known for valor, hospitality, and pride in their own identity”, he further says that “Afghans have never been colonized, nor totally subjugated even by their own governments”.[2]  Therefore, there will be a question as to how Afghanistan could maintain its existence and identity, and how the country was governed.

In answering the aforementioned questions I would like to resort amongst other reputable literature, to my first-hand knowledge and experience, and that is to say: generally, from the time unmemorable until embracing Islam, Afghans were governed by their culture; after embracing Islam, by both culture and Islam; and finally after the enactment of the constitution by all three, culture, Islam and the constitution when it was first created by King Amanullah Khan in 1923.

In pre-Islamic Afghanistan, the Afghans governed their affairs by traditional codes of conduct. Most notable of those codes are Pashtunwali codes which to date are widely practiced by the majority of Pashtun tribes. The minority tribes practiced their own codes similar to that of the Pashtunwali codes.[3]  

The principles of rules of law are relatively new. Afghan codes of conduct have progressed over centuries. With the acceptance of Islam, Afghans in particular Pashtuns became unwilling to proceed with or substitute tribal codes for Shariah law. Mullahs (religious leaders) were subjugated to allow for the parallel application of both Shariah law and tribal codes. In case of conflict, Shariahs role was rendered symbolic to allow for the codes to take superiority. The ruler or the sovereign was unwilling and unable to replace the codes for a constitutional law as the sovereign’s legitimacy depended on the loyalty of tribes.

The head of government had all three powers at his disposal. The doctrine of separation of powers (SOPs), according to Rainer for the first time found its way in the Afghan Constitution during King Zahir Shah in 1964. Rainer says that although the first written constitution was accepted in 1923, a significant separation between the legislative, executive and judicial branches of government was chosen during the era of King Zahir Shah in 1964.[4]  Olesen does not agree with Rainer and argues that the doctrine of SOP for the first time took shape during Amir Abdur Rahman Khan (between 1880 to 1901). He was against the traditional practices of Jirgas and the powers that the tribal chiefs were holding. Neither had he (Abdul Rahman Khan) parliament nor proper executive committee. Instead, he had Council of Nobles.[5]  A reformed system of SOPs of Abdur Rahman Khan was adopted by his grandson Amir Amanullah Khan in 1923 and then by the succeeding constitutions of King Nadir Khan and King Zaher Shah in 1931 and 1964 respectively.[6]  Prior to the enactment of the constitution, the only source from which laws and orders were derived were the decrees of the kings and Amirs.

On August 09, 1919, in the third and final Anglo-Afghan war, the English forces were defeated. Amir Amanullah Khan declared the independence of Afghanistan on 18 August 1919.[7]  After the end of war and declaration of independence, Amanullah Khan tried to limit his dependence on tribes; and dared for the first time to reduce the traditionally held power of the tribal leaders, and bring all affairs of the state under one written constitution. Thus, on April 9, 1923, the first constitution of Afghanistan came into existence.[8]  Although Islam was recognized under Article 2 of this constitution as the official religion of Afghanistan, the constitution was still rejected by the people of Afghanistan and revolted against Amanullah Khan, and finally, compelled him to his self-exile.

Amanullah Khan was the first one, who laid down the foundation stone of the constitution in Afghanistan. He had a prime minister, however with no power or only with limited power;[9]  and that is the answer to a question, how Afghanistan was ruled without a prime minister or chief executive.

From 1923 until today, there is the on and off the existence of prime minister in the constitution and governing system of Afghanistan, which is discussed as follows.

3. LEGAL POSITION OF PRIME MINISTER IN THE CONSTITUTIONS AND GOVERNING SYSTEMS OF AFGHANISTAN

The post for prime minister has been created for the first time by King Amanullah Khan in his constitution of 1923, and then followed by many others who came after him, although, the role of prime minister and his powers have largely been symbolic under King Amanullah Khan.

Generally, the prime minister equates the traditional and historical position of Grand Wazir (big minister) in the sultanates of the medieval age to the turn of the 19th century in the middle-east. The role of Grand Wazir was to provide counsel to the King, Caliph, or Sultan. He was the most senior minister and was usually selected by the Ruler. The appointment of Grand Wazir was therefore undemocratic. All executive powers rested with the ruler. The advice of Grand Wazir was not binding on the ruler. The trend of having a Grand Wazir continued for quite a long time.

The post of Grand Wazir was restyled as prime minister to correspond to contemporary politics. In Afghanistan, the prime minister was not elected and was generally selected and appointed by the executive (king) to head the council of ministers. In the 1964 Royal Constitutions of Afghanistan, the King reserved himself the most important powers including the power to appoint a prime minister.[10]  

The post of prime minister first appeared in the 1923 Constitution during King Amanullah Khan. Articles 28 and 7 of the constitution confer powers of selection and appointment of prime minister and other ministers on his majesty the king.[11]  The role of the prime minister was to guide and supervise the council of ministers in the absence of the King. Article 25 states: in Afghanistan, the affairs of government are given to the council of ministers, the king will preside over the council of ministers if the king was not present then the prime minister will preside over the council.[12]  As the ministry was administered by the minister individually, and the council of ministers collectively, each of them was considered responsible for the affairs of his ministry individually, and to the affairs of council collectively; and therefore the King was not responsible.[13]  The policies became effective on receipt of royal assent.[14]  The post of prime minister was undemocratic and its role was merely advisory and symbolic.

By contrast, the Afghan constitution of 1931, introduced the strongest prime minister in the history of Afghanistan; a number of the king’s traditional powers were given to the prime minister, as Article 74 described the prime minister as the President of the Council of Ministers.[15]  The executive role was carried on by ministers who were suggested by the Prime Minister and appointed by the king.[16]  Article 76 made all ministers, collectively responsible for the performance of the general politics of the country and personally responsible for the work of their own ministry to the National Assembly and therefore the king was not responsible.[17]  Article 7 gave power of appointment and removal of prime minister and ministers to the king.[18]  Article 51 says that if the enactment of a new law is needed, it has to be proposed by the ministry, and through ministers with the prime minister has to be proposed to the National Assembly and after approval has to be approved by the king.[19]  Article 78 says that the ministers can work within their limitation and more than that have to send to the prime minister, and the prime minister can only work within his limitation, and more than that have to be sent to the king for his instruction.[20]  Article 110 says that if the king or prime minister order orally one of the ministers or any other officers, they should get written order from the king or the prime minister, and the king or prime minister have to mention that ‘I have ordered that.[21]  

However, the prime minister was appointed by the King. It should be noted that the 1931 constitution was enacted during or immediately after the civil war. The new King Nadir Khan was considered by rival tribes as the usurper of the throne while the overthrown King Amanullah was still alive and could come back to the country if Nadir Khan wanted. The powerful post of prime minister was intended to be kept within the male linage of the royal family. The first prime minister under the 1931 constitution was King’s own brother Prince Mohammad Hashim Khan who ruled the country as Prime Minister together with King from 1 November 1929 until Nadir Khan’s assassination on 08 November 1933 and from 08 November 1933 as de facto ruler of Afghanistan, due to immaturity of his young nephew King Zahir Khan ascending the throne at age 19, until May 1946. Prince Hashim Khan was against civil liberties which he thought would threaten the establishment and the powers of the Royal family.

After some time, King Zahir Shah disagreed with his uncle Hashim Khan and replaced him with his other uncle prince Shah Mahmud Khan who was considered a moderate person and believed in freedom of speech up to somewhat. Shah Mahmud Khan performed this duty as prime minister from May 1946 until 7 September 1953, with the powers given to the prime minister under the constitution of 1931.

As the restrictions on assembly and freedom of speech were a big issue for the newly educated people in Kabul. The freedom of press and speech became a golden chance for these people and this freedom also influenced some members of the National Assembly who became outspoken and critical of the powers of the King and royal family. This led the King to change back his policy and revert to the limitation on free speech and press. To reach this objective, the King appointed his cousin prince Daud Khan as prime minister from 7 September 1953 until 10 March 1963. Daud Khan was known to be a competent person, serious and tough, but he failed to stop critics because he had his own agenda. Daud’s agenda and freedom of press and speech disturbed the harmonious relationship with King and caused rifts within the Royal family. The King had to preserve his superiority and therefore, called constitutional lawyers who drafted a new constitution of 1964.

Under this constitution, the members of the royal family and the king’s close relatives could not take the post of prime minister, ministers, and some other high-ranking posts in the country.[22]  The power and role of the prime minister were significantly undermined. The post of the prime minister which previously, was supposed to be for the royal family only, and had absolute power did not have so much power under the new constitution for non-royal prime ministers.

For the first time, the commoner (none royal) found access to the post of prime minister. Again, like the previous constitutions of 1923 and 1931, the King reserved for himself the most important power to appoint prime minister, accept his resignation, and with the proposal of Prime Minister King was supposed to appoint other ministers.[23]  Based on Article 89 prime minister seeks a vote of confidence from the democratically elected Wolesi Jirga, before receiving Royal assent. The appointment of prime minister, therefore, became conditional upon the receipt of the vote of confidence from the elected people of Wulesi Jirga.

Article 96 made the prime minister and his ministers collectively responsible to the Wolesi Jirga for government policy in general and for their duties individually. Prime ministers and ministers were also responsible for all those affairs of government for which they take King’s decrees and consent, therefore the king was not responsible.

The role and responsibilities of ministers and the prime minister were described in Article 95 which included the prime minister was presiding over the Council of Ministers, guiding and directing the activities of the government and securing coordination in its work. Additionally, the prime minister was responsible for maintaining liaison between the government on one hand and the King and Wolesi Jirga on the other. It also said that ministers were bosses of their own ministries and were working under the order and guidance of the prime minister and the laws approved by this constitution.

The constitution also prescribed that the prime minister cannot substitute king or become a regent in the absence of the King.[24]  

First commoner (none royal) Prime Minister Mohammed Yusuf was appointed on 10 March 1963. The trend continued until 17 July 1973 whereby Daud Khan toppled the government of Prime Minister Musa Shafiq, abolished the monarchy and the constitution of 1964 in a military coup. He declared Afghanistan as a republic and abolished the post of prime minister in a new republican constitution of 1976.

President Daud’s government was toppled in a bloody military coup on 28 April 1978 by the People’s Democratic Party of Afghanistan. They were socialists and called themselves revolutionaries. Article 36 of socialist Babarak Karmal constitution,[25]  claimed that until the normal situation is coming for the proper general election the Revolutionary Council is the highest organization of the country[26]  [self-appointed revolutionary organ]. By issuing decree number 45 President Babrak Karmal reserved the post of prime minister for himself as the chairman of the revolutionary council and gave himself many powers.[27]  Theoretically, this unendorsed constitution had the post of prime minister under chapter five Article 46, but the practically revolutionary council was everything and no proper time came to have an election or a proper prime minister, or approve the constitution through Loya Jirga. The post of chairman of the council of ministers was unconstitutionally functioning until the enactment of the 1987 constitution which re-styled Chairman as Prime Minister in the Democratic Republic of Afghanistan.[28]  

Article 75 (3) of the 1987 Constitution, gave President the power to appoint a prime minister.[29]  Prime Minister’s appointment was conditional upon securing the vote of confidence from Wolesi Jirga.[30]  As Article 75 of both the 1987 & 1990 constitutions of Dr. Najib reserves important powers of the country for the President, therefore, the role of the prime minister remains only symbolic.

From1992 until 2001, the creation and functioning of the post of the prime minister were unconstitutional, because there was no constitution, if there was any it was not ratified by the Loya Jirga or proper representatives of the country. For example, in 1996, as a result of compromise, Rabbani was compelled to appoint Engineer Gulbudeen Hikmatyar the head of the Hizb-e-Islami Party, as a prime minister. Hikmatyar became prime minister from 26 June 1996 until 11 August 1997. Hikmatyar was the only prime minister by name, had no authority, and could not work together. They never trusted each other, no co-operation existed, and there was always struggle for power by each side. No clear border of separation of power existed, and could not draw a strict line to mark the borders of their powers. As a result of this disunity, unconstitutionality, no separation of power, they could not work together. As there was constant clashing between the President and the Prime Minister, and there was not an effective central government, finally Taliban got a chance to oust them both and grab power.[31]  

The title and post of the prime minister were officially abolished when the Taliban Islamic Emirate took over control of a large part of Afghanistan including Kabul in 1996. Mohammad Rabbani, the Deputy Leader of the Taliban was often known as the Prime Minister throughout his rule. With the death of Mohammad Rabbani the deputy leader of the Taliban, around 2000, the Taliban decided not to revive the office of prime minister.[32]  

After the Taliban period, Afghanistan once again became like the republic of 1976 with the post of premiership abolished. However, after the Presidential elections of 2014, practically it appeared in the shape of chief executive, whereas constitutionally it was illegal. It is discussed in detail as follows.

4. CREATION OF THE POST OF CHIEF EXECUTIVE AFTER 2014 PRESIDENTIAL ELECTION

The current (2004) constitution does not have any place for the chief executive. The drafters of the current constitution; the reviewing commission; constitutional Loya Jirga; and general Loya Jirga, all of, purposely opted for a strong Presidential System. However, after the Presidential election of 2014, practically, the post of chief executive came into existence, in the result of John Kerry’s suggestion for solving the problem that occurred in the result of 2014 election between the two top runners of the election, whereas, still the constitution does not have any instruction about the post of chief executive.

Being absolute republican, the current constitution does not provide for the post of prime minister. The ministers are nominated by the President of Afghanistan, referred to Wolesi Jirga for a vote of confidence following which they are appointed by the President.[33]  The President is exercising his executive powers in all branches of government.[34]  It is the President’s constitutional power to guide, direct and advise his ministers in running the businesses of their ministries.[35]  

The Presidential election of 2014 was rigged by all candidates, but no one was the winner.[36]  Article 61 of the current constitution mentions that: if no one wins the votes above 50%, in that case, there should be another election between the two top runners.

In the election of 2014, after the second round of the election, every one of the two top runners was claiming to be the winner. No one from the people of Afghanistan knew which one of the two candidates got the majority votes. The Independent Election Commission was not ready to announce the winner.[37]  It was only guessed Ashraf Ghani Ahmadzai the then and current President got the absolute majority.[38]  The country was in chaos, Abdullah Abdullah the second top runner, was threatening the people of Afghanistan, if not accept him as President, will fight with the government and announce equal government. Afghanistan’s existence and unity were threatened by Abdullah Abdullah and his faction’s fellow from the North who were already controlling the Afghan military and police forces since the collapse of the Taliban, for the last 14 years or more and had employed their men and women in the military and police forces. Both contestants Abdullah Abdullah and Ghani refused to agree on anything else, except appointed as President. The end result was a UG suggested by John Kerry the former Foreign Minister of the USA, in which both parties would have equal share and representation.[39]  Under this solution, the question of how to exercise these powers was unsolved or even not referred to. The alternative opened to Abdullah was to exercise powers from an opposition block in the National Assembly from where he could administer his powers. Abdullah opted for the option of the UG. They created a new post of the chief executive, with a condition that the President exercising his constitutional powers, has to convene Loya Jirga within two and half years for a vote on amending the constitution to elevate the post of chief executive to the prime minister. If approved by the Loya Jirga within two and a half years, the constitution has to be amended and the title and post of chief executive will change to the prime minister; If not approved by the Loya Jirga, or based on any reason the Loya Jirga is not convened at all, then within 30 months the chief executive has to be dismissed and his office created in the result of political compromise is null and void.

Abdullah Abdullah enjoyed his status as chief executive and also as leader of a strong opposition![40]  similar to the prime minister by the leading council of ministers, possession, and control of most influential ministries, and being second in command.

As, no Loya Jirga was called to accept the mentioned post of chief executive or reject it; so, the condition of political compromise for the creation of the post of the chief executive was not fulfilled, therefore the already non-constitutional post of the chief executive was null and void. However, that non-constitutional government continued and ended only after the 28 Sep 2019 Presidential elections.[41] The first politician and leader of a political party were Anwarulhaq Ahadi, who said that “by completion of two years (21 August 2016) the post of chief executive has no legal status, and there should be a fresh election for a proper government.[42]  

Analyzing the discussion above makes it clear that firstly, from the very beginning the post of chief executive was illegal or non-constitutional; secondly, when created by Jon Kerry, the condition was that the Loya Jirga has to be convened, and has either to approve the post of chief executive or reject it. Based on these reasons, the creation of the post of chief executive on the first instance, and second its continuation until the new presidential elections of September 28, 2019, as mentioned by Anwarulhaq Ahadi, was null and void.

4.1. NATIONAL AND INTERNATIONAL REACTION TO JOHN KERRY’S SUGGESTED SOLUTION OF THE POST OF CHIEF EXECUTIVE

On the national level, Afghans were divided into different categories. Some of them welcome the creation of the post of chief executive for their personal benefits. Another group was optimistic for national benefits and believed that having the post of chief executive will help Afghans to control internal fighting and other disasters like tribal, regional, and sectarian prejudices. They sincerely believed the creation of the post of chief executive will help at least to move the country towards unity, stability, and development. An example of this group can be the former foreign minister Rangeen Dadfer Spanta who said the National UG is the necessity of Afghanistan. In reply to a question, how the power between the two will be divided? He said the one who gets more votes will be the President and the second person or his representative will be installed on the second post [chief executive].[43]  

The third category was against the creation of such a post. This category was more experienced and had the study and information of the previous prime ministers. Based on their experience and study of the previous prime ministers, they believed that the chief executive or the prime minister is not a solution for the Afghan problem. They knew that previously, the prime minister could not coup with parliament, could not complete the period prescribed for them, and they were only executing the command of the kings or presidents unless the prime minister was coming from the royal family like Hashim Khan, Shahmahmood Khan and Daud Khan. In that case, the prime minister was not coming from the general public, and instead, he was like the ruler or the king himself.

Apart from the mentioned three groups, Ashraf Ghani Ahamdzai himself, after signing the compromise, had remarked on the UG and said: if I become a president, will take control of the whole power, as it is impossible to have two centers for executing one job. One day later, the presidential next candidate Abdullah Abdullah said that the president has to transfer some of his powers to the chief executive, who will be a prime minister after two years.[44]  

On the international level, the creation of the post of chief executive was appreciated. For example, William Hague the former Foreign Minister of the UK expressed his happiness and congratulated John Kerry for the best work he did.[45]  

Afghan media also expressed its concern in this regard. For example, Mr. Abdul Bari ‘Aridh resembled the National UG in his essay with a shares market. He went further and said this compromise, is just for the personal benefit of the nominated chief executive Abdullah and it will never solve the Afghan problem and even will add to the problems.[46]  Abdul Manan Argand, the editor of Khabarial Web Page, besides other reasons, mentioned that this compromise is against the constitution because there is no post of chief executive in the constitution. He added if some of the powers of the President as decided transfer to the chief executive that is another violation of the law because the powers given to the President in the constitution cannot be transferred to anyone else, as for example, the powers of the Judiciary cannot transfer to anyone else.[47]  

International media also could not keep quiet, and the Azady Radio (Independent Radio) with reference to the essay on Foreign Policy about the current compromise in Afghanistan, called it “two kings for one country”. It added that Afghanistan has always been the victim of fast ways of solution. Instead of helping them, increase their problems. The creation of the post of the chief executive is not the permanent solution. Afghans and the international community, for bringing permanent peace and stability into the country made a constitution ten years ago, but now for the purpose of a short time solution, even the constitution is violated. In short, two authorities of equal powers cannot work in Afghanistan.[48]  

John Kerry’s suggestion for making the National UG, and creation of the post of the chief executive had too many ambiguities. It was not clear how it will work. Some Afghans even though this compromise was the change of the current Presidential System to the Parliamentary System. When these concerns were brought to the attention of John Kerry, he reacted to it on different occasions and said that: the documents [compromise] were not for making the Parliamentary System. He added that based on the compromise for the National UG, only the Post of the Chief Executive was created and he has to work under the President, and later on the President will call Loya Jirga to decide about the creation of this post and see if the permanent changes are for the benefit of the country or not? John Kerry also mentions that: it is not the job of foreigners to explain the political situation and the details of compromise between the candidates of Afghanistan. By no means has this compromise violated the constitutional law, and it respects and recognizes the President of Afghanistan as Head of the Government and all other bases of the State. He also added that democracy cannot be gained within one night…[49]  In a separate gathering on 09 August 2014 where both Ashraf Ghani Ahmadzai and Abdullah Abdullah were present, to announce the National UG, John Kerry said that: this compromise (the establishment of the National UG) is a good step for solving the election problem. He added that there is complete respect in the compromise to the constitution of Afghanistan that the USA is supporting; this compromise does not bring into existence Parliamentary System, does not change the President of the system of the government; according to this compromise, only the post of the chief executive is created which will help the President for the effectiveness of the government.[50]  

There are too many writing, opinions, and conferences that express their concern about making the National UG. Everyone gives different reasons but the same conclusion and says that the National UG is a new kind of arrangement, the post of chief executive does not exist in the constitution, and it is therefore unconstitutional.

The concern of many writers especially Mr. Abdul Bari ‘Aridh came into reality. Besides others, it is the confession of Abdullah Abdullah the chief executive too, who said: the reasons for poor security, not the good economy, and fighting against terrorism is disunity in decisions making between the heads of government if something is done that is still not enough.[51]  

As confessed by Abdullah, the majority of the problems are coming from the National UG itself. Looking to the nature, history, and revolutionary situation of the country, the author of the current research, therefore, recommends a constitutionally strong President to rule the country, and strong elected opposition to harness the strong President. Based on this reality, the drafters of the current constitution, constitutional review commission, constitutional Loya Jirga, and the general Loya Jirga, all opted for a strong Presidential System. Creating the post of chief executive either permanently or temporarily will never work, and as confessed by Abdullah, will cause only problems for the country, and badly affect the separation of power.

However, using both doctrinal and non-doctrinal legal research methodology, the author interviewed many Afghans and found also a small group of Afghans, who preferred either the French semi-presidential System; or the Turkish Parliamentary System [prior to the 2018 constitutional amendment]; or the Lebanon Confessional system. Reasoning that historically Afghan constitution was molded based on French and Turkish constitutions. About Lebanon, they argue that the Lebanese political situation and cultural structure are the same as that of Afghanistan. Therefore, they believe any system of these three countries which have prime minister will work in Afghanistan; but anyway, the study of the constitutions and governing systems of these three countries, shows that none of these systems can work in Afghanistan, because they have been designed for a different culture, religious structure, and historical background. For example:

France is a secular democratic state.[52] Its sovereignty is coming from the people, and under the current constitution follows the semi-presidential system of government.[53]  The executive power is shared between the President and the prime minister. President is directly elected by the French people for five years.[54]  The French Constitution declares his head of state and gives him control over foreign policy and defense policy.

The prime minister is appointed by the President; and the prime minister does not need to be from the leading party or coalition in parliament—these are generally called (the presidential prerogatives), but the appointment of a prime minister requires the approval of parliament, so the prime minister almost always comes from the party that has a majority in parliament.

The prime minister serves as head of government and is in charge of domestic policy, economic policy, and other day-to-day governing (In this case, the division of responsibilities between the prime minister and the president is not explicitly stated in the constitution, but has evolved as a political convention).

Unlike many other European presidents; the French President is quite powerful, holds the nation’s most senior office, and outranks all other politicians. The President’s greatest power is his/her ability to choose the prime minister, but he may not de jure dismiss him once elected. Instead, the President can dissolve the National Assembly in a result the prime minister is obliged to step down. However, the power of dissolution is limited to the consultation of the prime minister and the presidents of both houses of parliament.[55]  The government, including the prime minister, can be revoked by the national assembly (the lower house of parliament).

French constitution also likes the Afghan constitution of 2004 gives too much power to the President, but sometimes more than what is given by the Afghan constitution. For example Articles 5, 8-16 and 49 of the French constitution grants the President beside other the Powers, the power to dissolve the French National Assembly; can nominate the prime minister; can grant pardon but not amnesty[56]  to convicted criminals [the Afghan constitution gives President only the right of pardon], and he can also lessen or suppress criminal sentence.

Analyzing the French semi-Presidential system makes it clear that this system cannot work in Afghanistan because it is secular, the power comes from the people, and most importantly the President is more powerful than the Afghan President which is the main concern of some minority groups. Moreover, when the parliament is either completely controlled by the opposite parties or equally controlled by both President’s and the opposites’ parties the power-sharing arrangement is known as cohabitation.[57]  Many times, it has been proven that in Afghanistan the power-sharing is a failed experience.

Turkey’s government is secular, and until 24th June 2018, it was a Parliamentary representative democratic republic where the President was the head of state;[58]  and was elected by the legislature (the Grand National Assembly of Turkey).[59]  If the President elected was a member of a party, his/her relationship with his party had to be detached and his/her membership of the Grand National Assembly of Turkey had to end.[60]  The prime minister was the head of government;[61]  and he was supervising the implementation of government policy, and managing different divisions of government.[62]  

The Assembly had the power to amend the constitution and could also impeach the President on the grounds of treason.

However the referendum of 16 April 2017 decided that besides other changes to the constitution, the existing Parliamentary System of government has to be abolished and be replaced with an Executive Presidency and a Presidential System.[63]

During the referendum, those in favor of a ‘YES’ vote argued that the changes were necessary for a strong and stable Turkey, reasoning that an Executive Presidency would bring about an end to unstable coalition governments that had dominated Turkish politics since the 1960s. The ‘NO’ campaign has argued that the proposals would concentrate too much power in the hands of the President, effectively demolish the separation of powers and taking legislative authority away from Parliament.

The ‘YES’ vote received majority and brought amongst others the following constitutional changes.

1. President will be elected directly by the people having all executive powers.[64]  

2. The post of prime minister to be abolished and instead new post of vice president, possibly two or three, will be created.[65]  

3. President becomes the head of the executive, as well as the head of state, and maintains a connection with his political party.[66]  

4. The President will have the power to appoint ministers, prepare the budget, choose the majority of senior judges and enact certain laws by presidential decree.[67]  

5. The President alone will be able to announce a state of emergency and dismiss parliament.

6. Parliament will lose its right to examine and check ministers or propose an inquiry. However, it will be able to begin impeachment proceedings or investigate the President with a majority vote by MPs. Putting the President on trial would require a two-thirds majority.

7. Presidential and parliamentary elections will be held on the same day every five years.[68]  

8. The president will be limited to two terms of five years each[69]  [this condition was the same even before the referendum of 16th April 2017—Articles 102 & 109 Turkish constitutions [70]].

The obvious changes to the constitution are the president’s power to dismiss parliament and the prevention of parliament from investigating and enquiring ministers. These powers may be regarded as undermining the right to check and balance one organ over another. Erdogan’s (President of Turkey) reason for preventing parliament from having the power of checking and investigation was that both President and parliament will be directly elected by the people, and unlike before the President does not need to satisfy elected leaders (parliament) to enact laws.

Thus the referendum of 16 April 2017, replaced the previous Parliamentary System with the Executive Presidential System, significantly increased the President’s powers, and the President became Head of the Executive as well as Head of State.

Analyzing the Turkish system makes it clear that the previous Turkish Parliamentary system which was favored by some minority groups cannot work in Afghanistan because it is firstly secular, secondly, it was not properly working even in Turkey, and from 2007 until 2017 the government was trying to change it to a better system. Finally, they chose the Afghan style of Presidency. Even their President has more constitutional powers than that of the Afghan.

Lebanon is considered by some writers to be a multicultural, multiethnic (pluralistic) country in the Arab world. Currently, Lebanon is a semi-presidential unicameral parliamentary democracy in which the prime minister leads the executive branch of the government. The government of Lebanon is based on a confessional framework.[71]  It means the highest offices are proportionately reserved for representatives of certain religious groups. The confessional system came into existence in 1943 in the result of a National Pact, and that was an unwritten agreement which established the political foundations of modern Lebanon. Seats in parliament were divided on a 6 to 5 ratio of Christian to Muslim, based on the 1932 census. This proportion continued until 1990 when the ratio changed to half, half. Positions in the government bureaucracy are allocated on a similar basis.[72]  Since the Pact of 1943 until today, the top three positions are distributed as follows:

a. The President to be a Maronite Christian;

b. The Prime Minister has to be a Sunni Muslim; and

c. The Speaker of the Parliament (also referred to as President of the National Assembly or President of the Chamber of Deputies) has to be a Shi’a Muslim.

This division of power gave a strong sectarian appearance to Lebanese politics and caused the continuation of civil conflicts and ethnic differences in the country, even sometimes to arm clashes.[73]  

The constitution gives the President vast authority. He is commander in chief of the army and security forces; he promulgates laws passed by the Chamber of Deputies and may also propose laws, enact “urgent” legislation by decree, and veto bills; and he exercises considerable influence throughout the government.

The power of the prime minister varies according to his personality, his base of support, and the desire and wishes of the president he serves. A distinguished prime minister can enhance the prestige of the president.

However, for decades, the Lebanese politicians are divided about their confessional system. Those who are politically strong, but see themselves at a disadvantage, are struggling either to revise the system or abolish it entirely. While those politically weak but depending on foreign support (especially shia’) and have been benefitted from the 1943 formula, are struggling to preserve this system.  

Summarizing and analyzing the Lebanese confessional system, the study found the Lebanese system a strange module of governance. The politic is frequently treated like a family business. For example, almost one-fourth of the members of the 1960 parliament were the descendants of men who had been appointed to the legislative assemblies. Furthermore, it was not uncommon for more than one member of the same family to hold the high offices in the same or different governments.[74] 

Electing of the President is one of the most important responsibilities of the parliament beside many other responsibilities. However, despite the legislative role of parliament, it has been rarely involved in law making or policy preparation and the parliament generally has been ineffective, and plays an unimportant part in Lebanese politics. It has simply been an extension of the executive, rather than a separate, co-equal branch of government.[75]  

The political parties are allowed to be established; but are generally based on sectarian benefits. It has to be noted that party politics have played almost no part in Lebanon. In other words most members of parliament do not represent political parties as they are known in the West. Candidate campaign for Parliament is sponsored by a local zaim (clan leader), meaning that competition within districts is intra-sectarian.

The system was designed to minimize inter-sectarian competition and maximize cross-confessional cooperation; but in reality it divided the country more even among the co-religionists and cultures what about other religions and cultures. There is no security and stability in the country, which is the mother of all other disasters.

Analyzing the finding of this study shows that none of the systems of these three countries can work in Afghanistan; because each of the mentioned systems is designed for them as the possessors of different cultures, historical backgrounds, and even of different religious compositions. More importantly Turkey recently (in 2017) changed their long practicing parliamentary system to a presidential system like that of Afghanistan. The French system was already proven as a failed system during communists Taraki, Amin and Babrak. Lebanon is in the process of finding a better system because under the current system they cannot even agree on the contract of rubbish to which ethnic group it has to be given.

5. PROBLEMS IN RELATION TO THE POST OF PRIME MINISTER AND CHIEF EXECUTIVE: SUGGESTED SOLUTION

Our comprehensive study of the prime ministers, starting from the first one in 1923 up to Mujahideen time (1996), reveals that during all this time the prime ministers had limited power, and were more and less just symbolic. The compromise of 2014 gave a bit higher position to the chief executive, but the chief executive claimed equal power like that of the President and instead of serving the nation, he challenged the President and government. During five years (2014-2019) they were not able to make even only a proper cabinet of ministers.

Regrettably, in recent history, particularly since 1992 the reason and motivation behind the power struggle have been primarily ethnicity. One of the major parties, Jamiat-i-Islami which is dominated by ethnic Tajiks, the second majority ethnic group, has been in de facto power since 1992. Although the Taliban, the majority ethnic Pashtun, brought about 90% of Afghanistan under their control from 1996 to October 2001, the internationally recognized government remained in the hands of the Tajiks later known as Northern Alliance. Since the collapse of the Taliban nearly, all influential and powerful Ministries have been occupied by members of the Northern Alliance. The high-ranking police force, elite forces, and high-ranking army officers were appointed on the basis of their merit as resistance fighters against the Taliban. The end result is that Afghanistan is left with partisan security forces on the back of which Abdullah and his allies dared not only disputing 2014 election results but also threatened to declare a parallel government if their demands were not met. Their powerful presence was also felt in the National Assembly through a comfortable win of a confidence vote for their nominated ministers. It is also worth mentioning that neither Abdullah nor Ghani are heading political parties in parliament. They run for the presidency as independent and enjoyed alliances from other parties most formed along ethnic lines. In the status quo, creating the post of prime minister may equate to institutionalizing ethnic rifts. A further dangerous insight is the constitution’s inclination towards Lebanon, whereas Lebanese themselves are trying to change the system to a better one.

No doubt, in the context of Afghanistan if proceed with the amendment of the constitution in favor of the prime minister, it will force the President to transfer some of his powers to the prime minister in a result the executive branch will be immediate, more or less thrown into the French style of Semi Presidential government, and that style of government as discussed above was a failed system in Afghanistan during communist time. During communists time the power struggle between Amin and Tarakai is a vivid example of the failure of a French-style government in Afghanistan. Taraki was the strongest possible president that the French constitution could afoot. Afghanistan cannot be compared with France. Only strong armies can guarantee the legitimacy of government and rule of law. Afghanistan, unlike France, suffers from the lack of a professional and non-partisan army loyal to national interests.

A system, close to the French system was prescribed by Kerry to Asharaf Ghani and Abdullah Abdullah after the election of 2014. The president, as head of state, will become feeble, weak, and ineffective in a country like today’s Afghanistan which needs a strong president. Also, if the trend continues, the opposition or runner-up in the future elections will reserve the right to claim the post of prime minister hereditarily, regardless of democratic elections results. The constitutional change will provide unwanted consequences.

The author is aware that dispensing suggestions, he is obliged to accommodate the theory of those advocating for the post of prime minister. The bedrock of their point is the ‘Kerry deal’ in which the formation of the post was promised. If the objective of creating the office for the prime minister is to separate the leadership of the state from the leadership of government as a sensible way of appropriating the 50% of power, this objective is ill-thought of and misconceived. It will accelerate the power struggle between the offices of the prime minister and president. Such struggle will undermine the state, create a deadlock in resolution procedures, protract public services with the implementation of domestic policy in the heart of it, create an awful and incredible foreign policy and administratively governing will become problematic.

The tensions between the two heads of government will be counterproductive. The sense of accountability, transparency, and rule of law will be seriously undermined. The ministers due to their party loyalties will enjoy immunity from accountability. The conflicting objectives of the two executives will put national interest in jeopardy and empower the insurgency.

In addition to the above academic search, many Afghan politicians and academic figures also do not welcome the creation of the post of prime minister or chief executive.[76]  

The discussion above proves that creating the post of prime minister or chief executive, will bring more miseries and disturbances to the country instead of unity, stability and prosperity. During the five years of UG, there was no unity in the government. The Chief Executive who was claiming to be the head of government was also dealing as the head of the opposition. Once, the chief executive said that he has not spoken to the President for a long time because they are in a clash with each other. Until the end of their government, many ministers and governors of the provinces worked on an interim basis it was because the President wants one person and the chief executive another. There were too many allegations of corruption and nepotism against the governor of Mazari Sharif (‘Ata Noor). President Ashraf Ghani wanted to remove him, but could not remove and it took more than four years for the President to remove him, with a new governor still to be the choice of the ‘Ata Noor. International Treaties, Contracts and Projects although, signed by the President, could not be easily implemented as the chief executive and his supporters did not agree to them. Security was worsened; hundreds of innocent Afghan people were killed every week in terrorist attacks. President could not implement his plans as they were opposed by the chief executive.

The deep and detailed study of the prime minister and the then-created post the chief executive revealed that neither of these posts could work in Afghanistan because the majority of the problems were coming from the prime minister or the chief executive themselves. The author, therefore, suggests that the creation of the post of chief executive or prime minister is not for the national interest in Afghanistan, and would like to suggest further that a constitutionally strong president, elected directly in a general election by the people, directly responsible to the people is the only choice for Afghans. On one side he will have a direct mandate from the people and direct representative of the people, on the other, it is closer to the Islamic system. The people of Afghanistan will be ruled directly by their own choice. Most importantly, based on the author’s firsthand information and historical knowledge, two people of either equal power or sharing power cannot work in Afghanistan. It is very clear from the long history of Afghanistan that the struggle was and still is for power. There can be no better example than the current, more than forty-three years of civil war.

The author knows and believes that having the only solo strong head of state and head of government will 99.99% end with tyranny, dictatorship, cruelty, and corruption. To avoid this unpleasant prediction, the author would therefore like to suggest democratically elected strong opposition check every step of the executive for balancing the power.

6. CONCLUSION

The current (2004) constitution of Afghanistan is unique, but still many times its supremacy and integrity were attacked by parliament, judiciary, executive, warlords and many others. The violation of the 2014 and 2019 presidential elections, attracted serious national and international attention, because it happened by the two top runners of the presidential elections, and both times they compromised on the integrity of the constitution. However, under this article, we discuss only the unconstitutional compromise of 2014, because as the result of that compromise, the post of the chief executive was created; which seriously damaged the country, its people, their national, international, and historical prestige.

To understand if the post of chief executive as suggested by John Kerry was really important for the stability of the country, or its ignorance was better as purposely eliminated by the constitution drafting committee. The author, therefore, studied in detail the creation of the post of chief executive and position of prime minister from different angles in the legal and governing system of Afghanistan and found that the 2004 constitution of Afghanistan has opted purposely for a strong presidential system and has skipped from creating the post of chief executive or prime minister. This skip was intentional, because from one side the drafters of the constitution had interviewed many Afghans, and the majority of them were in favor of a strong presidential system without a prime minister. On another side, all members of the drafting commission, review commission, constitutional Loya Jirga, and normal Loya Jirga, had a good experience and deep study of the previous prime ministers in Afghanistan. Based on their expertise they chose the presidential system without any prime minister or chief executive. Additionally, it was found that even after the adoption of the first constitution in 1923 with the post of prime minister until 2004, the prime minister had an ‘on’ and ‘off’ position. The prime ministers were strong when they were coming from the royal family like Hashim Khan, Shahmahmood Khan and Daud Khan. When the post moved to commoners (general public) they became weak and only the bearer of the executive orders of the kings or the presidents. Daud Khan officially finished the post of prime minister. He was followed by the Taliban who also officially abolished the title of the prime minister; and. The current (2004) constitution skipped this position even from its drafting session.

Moreover, the study and analyses of the French, Turkish, and Lebanese systems of government, shoes that none of these systems can work in Afghanistan because they have been designed for different historical backgrounds, cultural and religious structures. A vivid example of the failure of the French semi-presidential system was tested during the communist period; Turkey itself, recently changed its parliamentary system to the Afghan style of the 2004 presidential system; and Lebanese are struggling to find a better way than the current confessional system.

Based on the finding and discussion above, the author of this article can never recommend the creation of the post of prime minister or chief executive; but instead will recommend only a constitutionally strong president, elected directly in a general election by the people, directly responsible to the people. However to avoid the occurrence of tyranny, dictatorship and cruelty of the executive; the study strongly suggests a democratically, elected strong opposition.


[1]  Stephanie Ahamad, Alexander Benard, An Introduction to the Law of Afghanistan, (Stanford Law School: Afghanistan Legal Education Project, 2011), 1.

[2]  Mohammad Hashim Kamali, Law in Afghanistan, (The Netherland: Leiden E. J. Brill, 1985), 1-2.

[3]  For detail in this regard, refer to: M. Tahir Nasiri, “Application of the Doctrine of SOPs in the current constitution of Afghanistan,” (Ph.D. thesis, International Islamic University Malaysia, Kuala Lumpur, 2021). Chapter 3.

[4]  Rainer Grote, “Separation of Powers in the New Afghan Constitution”, vol. 64, no. 4 (2004):  897-915, 897.

[5]  Asta Olesen, Islam and Politics in Afghanistan, (Richmond: Curzon Press Ltd, 1995), p 63-64.

[6]  Ibid., 64-68.

[7]  Hafizullah Rahimi, da Afghanistan Siasi Tarikh [Political History of Afghanistan], (Kabul: Kabul Press, 1976), 20.

[8]  Ibid.

[9]  Afghan Constitution of 1923, Articles 7, 25 and 28.

[10]  Afghan Constitution of 1964, Article 89.

[11]  Afghan Constitution of 1923, Articles 28 & 7.

[12]  Afghan Constitution of 1923, Article 25.

[13]  Afghan Constitution of 1923, Article 6.

[14]  Afghan Constitution of 1923, Article 29.

[15]  Afghan Constitution of 1931, Article 74.

[16]  Afghan Constitution of 1931, Article 73.

[17]  Afghan Constitution of 1931, Article 76.

[18]  Afghan Constitution of 1931, Article 7.

[19]  Afghan Constitution of 1931, Article 51.

[20]  Afghan Constitution of 1931, Article 78.

[21]  Afghan Constitution of 1931, Article 110.

[22]  Afghan Constitution of 1964, Article 24.

[23]  Afghan Constitution of 1964, Article 9 (11).

[24]  Afghan Constitution of 1964, Article 20.

[25]  It was just a draft constitution, not approved by Loya Jirga or any other legal and necessary procedures, (author).

[26]  Afghan Constitution of 1980, Article 36.

[27]  Afghan Constitution of 1980, Article 45.

[28]  First Constitutions of Dr Najib, 1987, Article 100.

Note: Dr Najib’s first constitution (1987) was also not ratified by the Wolesi Jirga, (author).

[29]  Both Constitutions of Dr Najib, 1987 &1990, Article 75 (3).

[30]  Both Constitutions of Dr Najib, 1987 & 1990, Article 75 (4).

[31]  Both, Burhanuddin Rabbani and Engineer Hikmatyar went to Northern Afghanistan for a short time as Taliban captured Kabul in 1996, and then, they crossed the borders to other countries. Burhanuddin was still claiming from Tajikistan to be the proper President of Afghanistan, but Hikmatyar rid himself of the name of the prime minister and thought to carry on, only the name with him without having a country or office is just a joke.

[32]  Dugger, Celia W, “Muhammad Rabbani, Advocate of Some moderation in Taliban,” The New York Times, <https://www.nytimes.com/2001/04/20/world/muhammad-rabbani-advocate-of-some-moderation-in-taliban.html> (accessed on 20 March, 2017).

[33]  Current Afghan Constitution (2004), Article 64 (11).

[34]  Current Afghan Constitution (2004), Article 60 paragraph 1.

[35]  Current Afghan Constitution (2004), Article 71.

[36]  Abdul Satar S’adat the Chairman of Independent Election Commission for Compliant, “Da Ijra yawi Riyasat Da Soki Najar Za Na Wam, John Kerry Wo”, (Satar confesses that there was rigging in the election, but it was not done by Election Commission, in fact it was done by the candidates themselves, using different tricks) <http://www.khabarial.com/?p=13048>. (accessed 25 September, 2016).

[37]  Abdul Satar S’adat the Chairman of Independent Election Commission for Compliant says: When we wanted to announce the final result of the election, the strongest people of the world told us, do not announce the result, before a political compromise. I said no to them, and told them the political compromise was illegal, and I want to obey the law, not the strong people. They told me: your honour and life is only guaranteed by us; I still didn’t accept their demand… but unfortunately the Election Commission could not dare to announce the final result.

[38]  from 2014-2019 and from 2019-prsent (today is 31 May 2021 and is supposed to complete his five years term, ‘author’)

[39]  May Jeong, “John Kerry tries to salvage deal in Afghan election dispute”, The Guardian UK, 8 August 2014, vai <http://www.theguardian.com/world/2014/aug/08/john-kerry-afghan-election-dispute>.

[40]  No example of such a system can be found in the world, (author).

[41]  For detail in this regard, refer to: M. Tahir Nasiri, n. 1. Chapter 5.2.B. P 254.

[42]  Anwarulhaq Ahadi, “La 11 Sanbuli la 1395, wrosta da mili yaw wali hakomt mashroiat nalary (after 21 August 2016 the UG does not have any legal status),” Tand.com, <http://www.taand.com/archives/74600> (accessed 03 May 2018).

[43]  Spant, “La Spanta sara da mili yaw wali hakomat pa ara’ maraka (interview with Spanta about National UG),” BBC Pashto, <http://www.bbc.co.uk/pashto/afghanistan/2014/07/140722_hh-spanta…>, (accessed 1 January, 2016).

[44]  Ashraf Ghani, “Ka Barialy Sham, Wak Na Wesham (I don’t Share Power, if I am succeeded),” BBC Pashto, <http://www.bbc.co.uk/pashto/afghanistan/2014/08/140812_hh-ashra…>, (accessed 20 February 2018).

[45]  William Hague, “Bartanya ao Pakistan da Mili Yaw wali da Hakomat Harkaly wakr (Britain and Pakistan welcomed the National UG),” BBC Pashto, <http://www.bbc.uk/pashto/afghanistan/2014/07/140713_ma_briti…>, (accessed 25 January 2016).

[46]  Abdul Bari ‘Aridh, “Itilafi, Mushrakati, Sahami aw Da Mili Yaw wali Hokmat (Coalition, Participatory, Dividend and the National UG),” Taand.com, <http://www.taand.com/archives/28481>, (accessed 2 February, 2017).

[47]  Abdul Manan Arghand, “Da Nomandano Tar Manz Sawya Mawafiqa Da Asasi Qanoon Khilaf Da (The Agreement between the Candidate is Against Constitutional Law),” Khabarial.com, <http://www.khabarial.com/2014/08/10> (accessed 02 February, 2016).

[48]  “Na‘ry Wali Rasany: Pa Yawa Watan Ki Dwa Pachahan (World Wide Media: Two Kings in one Country),” Khabarial.com, <http://www.khabarial.com/2014/09/21/> (accessed 02 February, 2017).

[49]  “John Kerry, Da Nomandano da hok’ry pa a’ra malomat wark’ral (John Kerry Gave Information about the Agreement of Two Candidates),” BBC Pashto, <https://www.bbc.com/pashto/afghanistan/2014/07/140730_bm_john_kerry_letter_afghan_election> (accessed 23 March, 2016).

[50]  “John Kerry, in a meeting of announcement of compromise on the UG,” <http://www.bbc.co.uk/pashto/afghanistan/2014/08/140808_as_afgha…> (accessed on 23 March, 2016).

[51]  “Abdullah Wa e Chi Pa Hokmat Ki Ikhtilafat Da Di Sabab Shawy Chi Khalq Na Hili Shi (Abullah says the disunity in government is the reason for people to be disappointed),” Khabarial.com, <http://www.khabarial.com/?p=141793> (accessed 10 February, 2016).

[52]  French Constitution of 1958, Article 1.

[53]  Semi-Presidential System is also called dual executive system. Or in other words, it is a system of government in which both popularly elected fixed-term president and prime minister exist, and both of them are collectively responsible to the legislature.

[54]  French Constitution of 1958, Article 6 (1).

[55]  French Constitution of 1958, Article 12.

[56]  The difference between an amnesty and a presidential pardon is that the amnesty clears all subsequent effects of the sentencing, as though the crime had not been committed, while pardon simply relieves the sentenced individual from part or all of the remainder of the sentence.

[57]  For detail about cohabitation, refer to the French Constitution and Governing System.

[58]  Turkish Constitution of 1982, Article 104 (paragraph 1).

[59]  Turkish Constitution of 1982, Article 101 (paragraph 1), (As amended on October 21, 2007; Act No. 5678).

[60]  Turkish Constitution of 1982, Article 101 (paragraph 4).

[61]  Turkish Constitution of 1982, Article 112.

[62]  Turkish Constitution of 1982, Article 112.

[63]  Turkish Referendum of 16 April 2017.

[64]  The referendum of 3rd October 2007 has already amended Article 101 of the 1982 Constitution, and empowered the public to directly elect their President. The 2014 Presidential election was held according to the referendum of 2007; but that referendum did not change the system of government from Parliamentary to the Presidential, therefore the President was still a nominal, and had no executive power. The executive power was with prime minister only. The system changed during the referendum of 2017.  

[65]  This change is in line with the Afghan constitution of 2004, (author).

[66]  It is Similar to the model of the USA, and current (2004) Afghan Constitution. The Afghan constitution does not prevent the President to be member of any political party. Article 66 paragraph 2 of the Afghan constitution only says that, “…during the term of office, the Presidential position shall not be used for linguistic, sectarian, tribal, and religious as well as party consideration”, and Article 153 mentions all those official who cannot become members of political parties during the term of office, but does not say [does not prevent] anything about the President and ministers, (author).

[67]  This change also resembles to the constitution of USA and Afghanistan, (author).

[68]  It is not like the Afghan constitution. In Afghanistan the election for parliament and President are held on two different occasions, (author).

[69]  This proviso echoes only the USA constitutions. In Afghanistan the President can re-contest for any number, only with a pause of a term after two terms, (for detail, refer M. Tahir Nasiri, n. 3.

[70]  Turkish Constitution of 1982, Article 101 paragraph 2 and Article 109 paragraph 2.

[71]  According to Collins dictionary ‘confessionalism’ is generally a religious belief, especially in Christianity that every religion should have a set of essential doctrines, and the followers of that religion should strictly follow them. However, in Lebanon confessionalism is a system of government which proportionally distributes political power between religious and ethnic groups-Christian and Muslims (Muslims further divided to Shi’a and Sunni).

[72]  Under the national reconciliation agreement reached in Taif, Saudi Arabia, in October 1989, members of parliament agreed to alter the National Pact and create a fifty-fifty Christian-Muslim balance in the parliament and reorder the powers of the different branches of government.

Tristan Dunning, “Lebanese-style power-sharing isn’t the solution to the Syrian impasse,” The Conversation, <Lebanese-style%20power-sharing%20isn’t%20the%20solution%20to20the%20Syrian%20impasse.html> (1st June, 2018).

[73]  The adoption of confessional system changed Lebanese to a paralyses politics state. The parliament has extended its term without elections few times. For a long period of time it was unable to agree on the appointment of a president. The parliament could not even agree on a contract for garbage collection. As a result, rubbish and waste were piled up and rotted on the streets of Beirut. The confessional system caused of civil unrest, (author).

[74]  Ayman Ghazi, “Politics in Lebanon,” <http://www.ghazi.de/governm.html> (accessed 30 May, 2018)

Note: In the 1970s and 1980s, Amin Jumayyil (the Phalange Party), Dani Shamun (the National Liberal Party), and Walid Jumblatt (the Progressive Socialist Party) inherited their fathers’ political cloaks.

[75]  Ibid.

[76]  For detail in this regard, refer to: M. Tahir Nasiri, n. 3. Chapter 5.2.B.4. P 270.

Author


  • Mohamad Tahir Khan Nasiri is a P.h.D student at International Islamic University Malaysia (IIUM). Nasiri has a master's degree in comparative laws and a bachelor's LLB (Honors) degree in Shariah from International Islamic University Malaysia (IIUM).