‘Electoral reform decree doesn’t need parliament approval’
KABUL (Pajhwok): Legal experts consider as essential holding elections to the Wolesi Jirga and district councils and ask President Ghani to implement his legislative decree on electoral reform without waiting for the parliament to reject or approve it.
Reforming the electoral regime is a key part of the unity government deal reached between then presidential candidates Ashraf Ghani and Abdullah after the 2014 disputed election.
President Ghani in July, 2015, when the National Assembly was on summer recess, issued his first decree on electoral reform, but the parliament after returning from the break rejected the decree.
However, again in March, 2016, the president issued a second decree when the parliament had risen for winter recess.
At Saturday’s (yesterday) session, Wolesi Jirga members were divided over whether to vote on the decree or not.
Commissions of the house had discussed the decree, with some opposing and others supporting it. The lower house on Saturday postponed voting on the presidential decree.
According to Article 79 of the Constitution, the president can issue legislative decrees, except regarding budget and financial matters, when the parliament is on recess. But the decrees need to be approved by the parliament within 30 days of returning from vacation.
Speaking at today’s session, lawmaker Sharifa Balkhabi said the house panels in their joint first and second meetings had discussed the decree.
She said some commissions rejected the decree, others proposed recommendations and some approved it, but there was only one controversial clause in the third meeting of the commissions.
However, Shehla Farid, law and political sciences professor at Kabul University, said Wolesi Jirga members were in their sixth year and were acting members.
“They don’t have the authority now to reject or approve a presidential decree because they are illegally sitting on their seats.”
The parliament five-year term ended on June 22, 2015 under Article 83 of the Afghanistan Constitution and new elections were supposed to take place within 30 or 60 days.
But the elections could not be held, though the Independent Election Commission (IEC) has set an Oct 15, 2016 date for the polls.
Similarly, Article 109 of the Constitution says “Proposals for amendments to the electoral law cannot be included in the working agenda of the assembly during the last year of the legislative period.”
Shehla Farid says the 109 makes president free to implement his legislative decree on electoral reforms.
While article 79 says “in cases of recess of the House of Representatives [Wolesi Jirga], the government can adopt legislation in an emergency situation on matters other than related to budget and financial affairs.”
The legislative decrees become laws after they are signed by the President. The legislative decrees should be submitted to the National Assembly in the course of thirty days beginning from the first session of the National Assembly.
In case of rejection by the National Assembly, the legislations become void.”
Professor Shehla confirmed under Article 79 of the Constitution, legislative decrees should be sent to the Wolesi Jirga for approval but the current parliament was not legitimate because its working tenure had ended.
However, the president has extended the parliament mandate through a decree until fresh elections are held.
Shehla said the extension in the parliament mandate by the president was also totally illegal because there was no nothing in the Constitution under which the president could extend the Wolesi Jirga tenure.
She termed electoral reform and implementation of the decree as crucial at this stage and said the decree should be sent to newly elected Wolesi Jirga members after elections for approval.
Shehla believed many lawmakers feared they would be unable to be elected if the decree aimed at bringing reforms to the electoral system was approved.
However, Abdul Karim Ranjbar, head of Afghanistan’s Democratic Lawyers Association, says the extension of the parliament mandate by the president was legal.
He said many lawmakers did not want the decree to be executed and reforms brought to the electoral system.
He termed electoral reform as important and said the president should dissolve the assembly and hold fresh parliamentary elections and send the decree on electoral reform to a new parliament.
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