The Honorable Don Ritter, Sc. D.

Reflections and Recommendations on the Draft Constitution of Afghanistan

Taken from the Dari and Pashto originals and the Human Rights Watch English translation

Presented by
The

The Afghan-American Chamber of Commerce (AACC)*, individual businessmen and women, professionals and other citizens in the U.S. and Afghanistan concerned about the Economic Future of Afghanistan

November 27, 2002

REFLECTION AND RECOMMENDATIONS ON THE PROPOSED
CONSTITUTION OF AFGHANISTAN
(Economic Aspects)

The constitution of Afghanistan should be an historic and visionary document that could become a good vehicle to take Afghanistan from the old ways of monarchy, tyranny and anarchy to democracy and a limited form of government that is elected by the people every five years.
All those who participated in the drafting process and the members of the commission, in particular, deserve the commendation of all Afghans and all others around the world who support a democratic future for Afghanistan. This process depicted the emerging Afghan democracy at work. Those involved are now part of Afghan history, and we the undersigned admire and commend them.

While this Constitution recognizes the importance of the separation of powers and checks and balances among the three branches of government and so much more, it fails to remedy the collectivist and socialist theories which dominate the economic and political thought of so many in the governing classes and intelligentsia of this generation. It holds on to incompatible economic principles of past unsuccessful governments and thus falls short in ways described below to establish the necessary principles and directions for the success of the Afghan nation.

* It doesn’t recognize the essential role of the individual for the economic, political and social progress of the Afghan nation.

* The language of this draft Constitution is not very clear in many cases. The confusion could become fruitful topics for the adversaries of political and economic freedom.

* This Constitution in one part explicitly adopts a market economy as the official economic policy of the government, but the rest of the constitution affirms a centrally-directed economic order and seems unaware of the intimate tie between free markets and freedom…..between a “market economy and democracy”. It must be perfectly clear to all concerned that there is no record in history of democracy developing without a “market economy”.

We the undersigned hold that if a “market economy” which is a phrase interchangeable in the realm of economic policy with a “free market economy” is to be real in Afghanistan, then it must realistically conform to certain world standards that define what a market economy is and how a market economy works. Essentially this means free and open markets for capital, labor, trade and ideas. Constraints in those crucial ingredients will constrain the ability of the economy and the government to produce for the people and thus be successful in the eyes of the nation and the world.

We the undersigned who support this petition offer eight basic “reflections” on crucial articles and provide “recommendations” to make those articles more consistent with the Constitution’s own call for a “market economy” for the country. We feel they are vital to the prosperity and long-term national security of the Afghan people.

Our reflections and recommendations are evidenced in the specific articles reviewed below.

Page 4
Article Nine
Mines, underground resources are properties of the state.
Protection, use, management, and mode of utilization of the public properties shall be regulated by law.

Reflection
If the above is not changed it will have a devastating effect on economic and political progress in Afghanistan. All natural resources are the properties of the people of Afghanistan and government is elected and hired by the people to manage and regulate the use and the utilization of these resources by the private sector. Again it is the job of the individual or the private sector or the people of Afghanistan to utilize the underground resources in Afghanistan not that of the government. According to this article as it stands, the people of Afghanistan cannot even keep what they find underground on their own properties. The government will confiscate it as was done by all previous governments under the pretence of the public interest.

• Suggested Article Nine
All natural resources are the properties of the people of Afghanistan. The government is elected and hired by the people to regulate the use of natural resources, in order to ensure that they are properly utilized by the private sector.

Page 4
Article Eleven
Affairs related to the domestic and external trade shall be regulated by law in accordance with the needs of the national economy and public interests.

Reflection
This article has the feel of economic protectionism and could be easily interpreted as economic nationalism. At this historic juncture, we must not be preoccupied with such failed antiquated ideas and sentiments; it is time for Afghanistan to emerge from the abyss and embrace the global economy.

• Suggested Article Eleven
Regulations regarding domestic and foreign trade and all other economic activities should be tailored to position Afghanistan in the global economy in a manner that brings maximum return on capital and labor to the people of Afghanistan.

Page 5
Article Thirteen
The state shall formulate and implement effective programs for development of industries, growth of production, increasing of public living standards and support to craftsmanship.

Reflection,
The above article shows that old habits are difficult to overcome. The language of the article portends a centrally directed economy under which the people of Afghanistan suffered for generations. Ironically, in an article devoted to industry and production, the private sector is not even mentioned. Government is once again assumed to be the engine for economic growth and wealth creation and thus the article is contrary to the principles of a market economy. In order for article thirteen to be in line with article ten, which adopts a “market economy” as the official economic policy of the government, the whole perspective of the article needs to change. Also, the Constitution, to be most broad and inclusive should not give focus to any one specific skill, for example, “craftsmanship” or industry by name.

• Suggested Article Thirteen
The government must create an environment in Afghanistan for the private sector to develop business and industry, initiate and increase production so as to increase the wealth and standard of living of the people.

Page 5
Article Fourteen
The state shall design and implement within its financial resources effective programs for development of agriculture and animal husbandry, improving the economic, social and living conditions of farmers, herders, settlement and living conditions of nomads. The state adopts necessary measures for housing and distribution of public estates to deserving citizens in accordance within its financial resources and the law.

Reflection,
Here again, government is assumed to do everything for the people. Don’t we know by now that governments are wasteful and inefficient when comes to design and implementation of programs? Don’t we know by now that it is the initiative of the individual and indeed of all mankind that is responsible for the economic development and growth around the world? It is not the government but it is the private sector that best designs and implements projects for economic growth.

• Suggested Article Fourteen
The government shall provide support for the private sector cross a range of economic areas. Design and implementation of specific programs are best left to the private sector. It is the responsibility of the government to aid in connecting the private sector with capital, in addition to locating markets around the world for the national output.

Page 11
Article Forty-one
Foreign individuals don’t have the right to own immovable property in Afghanistan.

Reflection,
This is an old way of thinking regarding economics. To believe that this is a good economic policy is to believe that economic nationalism or protectionism is a sound economic policy for Afghanistan. This kind of thinking will get us nowhere. The biggest economic problem in Afghanistan is the deficiency of capital and investment. We must allow citizens of the world to have the right of ownership of land and real property. By real property we mean for example buildings that house factories and other businesses that employ our citizens. If a foreigner could buy land or real property in New York, he should be able to buy it in Kabul. One of the most important issues for the government is the economy of the people; politicians must stand in the shoes of an ordinary citizen. Just as it is more advantageous and just for a citizen to receive higher rent, it is equally more gainful and just for him to receive a higher price for his land. Let us consider this article from the prospective of moral principle and natural law; If god made man to be citizen of the world, and it is permissible by god for a man or a women to own land anywhere on earth who are the politicians to deny him or her this right? Let us not hold to the unjust and unprofitable laws of the past. Let us pass laws in accordance with the standards of the world economy and not deprive the Afghan people one more time of the economic rewards of the global marketplace.

• Suggested Article Forty-one
Citizens of the world have the right to own immovable property in Afghanistan.

• Second Suggestion for Article Forty-one for the more traditional citizenry.
Citizens of those nations that allow Afghan nationals to have the right to own immovable property should have the same right in Afghanistan.

Page 13
Article forty-Eight
Work is the right of every Afghan.
Working hours, paid holidays, right of employment and employee, and other related affairs are regulated by law.

Reflection,
If we say that work is the right of every Afghan, who ensures such a right? Is it the government? What happens when the government is not able to fulfill this right? Do the unemployed citizens sue the government for failing to provide them with jobs? The answer is no, it is not the government but the productivity of the market that sets the level of employment and all other parameters including wages and benefits of employment in a free market economy. Government guaranteed employment was communist dogma that considered unemployment to be an anti- worker evil of market economies.

This article is too ambitious considering the current level of unemployment and the condition of the economy in general in Afghanistan. The government can’t even pay subsistence wages to its employees. Is the economy so productive that the government is concerned that the labor force is overworked? Are we thinking about maximum hours of work in a week? Are we trying to enact a minimum wage and over time wage control law? If these are the intended purposes of this article then we do not know the economic problems of our nation. For the sake of economic progress we must not interfere with the process of the free market. We must let the law of supply and demand do its work. Let the market determine the hours and the various levels of wages. We must not enforce wage control and paid holidays on the private sector; this will make the cost of production higher. Thus Afghan citizens will lose their competitive edge in relation to other nations in the global markets. Paid holidays are not even enforced by law on the private sector in the USA. We must create an economic environment where the cost of production is low. We must enact laws to promote production. More production of goods and services in Afghanistan means higher demand for labor, higher demand for labor translates into higher wages for workers. That is the realty of true “market economies” and attempts to do otherwise in Afghanistan would lead to economic ruin.
Countries like Sweden and Germany that regulate work rules and benefits were already rich when they adopted such policies. Poor countries in the third and fourth world that adopted such policies at their birth became poorer. For a nation like Afghanistan, the choice is between creating wealth and prolonging poverty.

• Suggested Article forty-Eight
Government must not hinder a worker from employing his stock and labor in the ways that he judges most advantageous to himself without injury to his neighbor. Government must not regulate the liberty both of workingmen or workingwomen and those who are disposed to employ them. The market sets the level of employment and the price of labor in a market economy.

Page 18
Article Sixty Four (the power and duties of the president)
Power #2 - Determining the fundamental policies of the state.

Reflection,
The above Power #2, while favorable in our eyes, is an inaccurate translation from the Dari text. Below is a more accurate translation of the Dari language text.
Power #2 - Determining the fundamental political policy of the nation.

The first or English translation version is much better than the original Dari because it can include economics. It is not clear, what the political policy of the nation refers to? For example foreign, national security, economic and social policies are the generally accepted functions of a president in a modern democracy. Political policy would refer to actions of candidates and their political parties to win elections and gain power or to win political support for their national security, economic and other policies. Most importantly, this draft Constitution doesn’t seem to recognize the essential role of an economic policy which is fundamental to the survival and rebuilding of the Afghan nation. As we can see, out of the 22 duties of the President, not even one is dedicated to economics.

• Suggested Article Sixty Four (the power and duties of the president)
Power #2- Determining the fundamental policies of the nation including but not limited to budgetary, fiscal, monetary, foreign, social and national security policies.

Page 41
Article One Hundred and fifty one
The president, Vice president, Ministers, Head and members of the Supreme Court, cannot engage in any profitable business contracts with the government or individuals during their term of office.
Contracts for the purpose of fulfilling personal needs are exception to this provision.

Reflection,
First, who can define what is “profitable” or not? There could be many definitions. Second, this article is self-defeating. All profits could be described as meeting “personal needs” because there are no agreed upon limits to personal needs. This exception could also provide back door access for government officials to compromise fairness, competition and the transparency of the business relationship between government and the private sector.

• Suggested Article One Hundred and fifty one,
The president, Vice president, Ministers, Head and members of the Supreme Court, cannot engage in any business contracts with the government, individuals and any other entity during their term in office. Similarly no officials of government can engage in person or by association with others in any business activities with government that can be construed as conflict of interest with his/her job.

Conclusions
Great opportunities await Afghanistan and its people if it acts decisively and moves towards a market economy. For example, the government’s vision of a “land bridge” nation as opposed to a land-locked one offers the prospect of new wealth for the people of Afghanistan. But that would only be a first step. The goal would be to have those companies who are using Afghanistan as a highway to somewhere else consider putting down roots and building factories and facilities that would employ Afghans and build the economy in Afghanistan. For that to happen, the investment climate and the ability to make profits would need to be better than where these companies are already producing.

The final Constitution will have a lot to do with whether companies build, invest and employ in Afghanistan or elsewhere. Restrictive regulations, interventions and restraints laid down by government will keep them away. The people will be the biggest losers if that happens.

In closing, we the undersigned, want to again congratulate the Commission, all those in the government, cooperating NGOs and citizenry who contributed to the historic process of drafting a Constitution for the people of Afghanistan. Their efforts will always be remembered in the hearts of the nation and all those around the world who wish us well. We hope that these “reflections’ and “recommendations” will find a receptive audience among the citizens, the government, the Commission members, and those in the Loya Jiga whose responsibility it is to refine and finalize this perhaps most important document in the history of Afghanistan.

We stand ready to assist in any way that we can.

*About the AACC: The AACC is a private organization of Afghan-American and indigenous Afghan businessmen and women who seek to stimulate investment and business in Afghanistan. This includes working with business, government, financial and NGO communities to develop both the capital and the climate to attract such capital to Afghanistan and thus help to rebuild the country.

AACC is working with a wide-ranging group of Afghans in business and government in Afghanistan to strengthen the private sector institutionally by engaging in a broad discussion of the economic issues facing the nation, enhancing advocacy of the private sector, offering business training and education, doing surveys, studies and research and promoting investment worldwide in Afghanistan.

* Perhaps the most fundamental concern with this Constitution from an economic point of view is a moral one. This constitution however unintentionally treats the people simply as a means to an end. That end, again however unintentionally is inevitably the wealth and power of the government.