2009 AFGHAN PARLIAMENTARY REVIEW

C O N F I D E N T I A L SECTION 01 OF 03 KABUL 000540

SIPDIS

E.O. 12958: DECL: 02/11/2020
TAGS: PGOV PREL AF
SUBJECT: 2009 AFGHAN PARLIAMENTARY REVIEW

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Classified By: Acting Deputy Ambassador Joseph A. Mussomeli; reasons 1.
4 (b) and (d).


1. (C) Summary: Parliament struggled to find relevance in
2009 to both serve as a springboard for legislative activity
and as a counterweight to the Palace. Chronic absenteeism
among Lower House MPs during the latter half of the year
further limited Parliament's legislative effectiveness.
Similarly, President Karzai's dismissive attitude toward
Parliament promoted an already existing adversarial
relationship between the Palace and Parliament; only 12 out
of 28 laws approved by Parliament were gazetted and passed
into law. The continuing absence of meaningful POLITICAL
parties also made marshaling legislative efforts in either
the Upper or Lower houses difficult. Parliament's Lower
House showed a surprising burst of POLITICAL will at the end
of the 2009 legislative session by refusing to confirm 17 of
Karzai's initial slate of 24 Cabinet nominees and then again
by rejecting 10 of the 17 names the President nominated two
weeks later. End Summary.

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The ABCs of Afghanistan's Legislative Process
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2. (U) In Afghanistan, legislation can originate in the
Executive Branch (when Parliament is in recess, the President
can issue a Presidential Decree),or in the Legislative
Branch (bills may be introduced in either the Upper or Lower
House, or Meshrano Jerga and Wolesi Jerga, respectively). In
the former instance, after the President issues a
Presidential decree, the law is subject to Parliamentary
review. Bills introduced by either the Upper or Lower House
follow the familiar path of passing from one House to the
other upon receiving a majority vote by MPs. Once the bill
passes both Houses, it goes to the President, who has 15 days
to approve or veto the bill. If the President approves the
bill, it is submitted to the Ministry of Justice and becomes
an enforceable law after being published in the Gazette. If
the President vetoes the bill, the draft legislation returns
to the House originating the bill for further deliberation.
If the bill is subsequently modified, it re-enters the cycle
described above. The Lower House also has the ability to
override a Presidential veto by a 2/3 vote. Additionally, a
bill is considered approved and enforceable if the President
takes no action on the bill within 15 days of his receipt of
the bill.

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The Lower House's Legislative Prominence
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3. (C) The Lower House is the more meaningful of the two
Houses in terms of legislative initiatives. Lower House
Speaker Qanooni is a very effective legislator, skillfully
herding the notoriously fractious MPs along whichever path he
chooses to pursue. Qanooni sets the agenda for the Lower
House's proceedings and uses that authority to effectively
move, or stall, legislation. For example, he tabled debate
on the Private Security Companies Bill and referred it to the
Commission on the Implementation and Oversight of the
Constitution. Inasmuch as this Commission does not yet
exist, Qanooni's action effectively killed parliamentary
action on it.

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Strained Parliament-Palace Relationship Stymies Legislation
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4. (C) The relationship between Karzai and the Parliament
continued to be as strained in 2009 as in previous years.
MPs regularly complain to us that the President rides
roughshod over Parliament, including in ways that contravene
the Constitution. MPs cite Karzai's handling of the Media
Law as representative of his willingness to act in a
high-handed manner that ignores Parliament's prerogatives as
well as the Constitution. Both houses of Parliament passed
the Media Law in 2007. Karzai opposed provisions of the law
that weakened his control of the media and vetoed it. In
September 2008 the Lower House overrode the President's veto.
According to the Constitution, the Lower House's veto
override vote paved the way for enactment of the Media Law
and it should have been published in the Gazette. However,
the Ministry of Justice (presumably on orders from Karzai)
did not gazette the law until July 2009. In the interim,
Karzai obtained from the Supreme Court a favorable ruling
declaring the "undesirable provisions of the law"
unconstitutional. As a result, the version of the law
gazetted was precisely what Karzai wanted.


5. (C) Karzai often employs this tactic to block

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legislation from passing into law. Article 94 of the
Constitution stipulates that legislation passed by both
Houses and passed to the President is considered "approved
and enforceable" if the President takes no action within 15
days of receipt of the legislation. Despite Article 94, the
President routinely receives legislation passed by Parliament
and takes no action; until the law is gazetted, it is not
considered an enforceable law. In 2009, Parliament passed 28
laws, of which nine were signed by Karzai, gazetted and
passed into law. Two other laws were passed by both houses,
were not acted on by Karzai, but were subsequently gazetted
and passed into law. Yet another bill passed into law after
the Lower House overrode a presidential veto. The fate of
the remaining 16 laws is unclear. We find that some laws,
after a period of months, appear in the Gazette; others do
not and remain in a legislative "twilight zone" and are not
considered "approved and enforceable".
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The Scorecard
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6. (U) The following laws were passed by both houses of
Parliament and signed into law by the President in 2009:

- Mining Materials Law. Regulates mine ownership and other
aspects related to mining.

- Law on Water. Establishes protections for water sources.

- Income Tax Law. Sets tax rates and tax procedures.

- Law on Foreign Citizens, Travel, Work and Stay. Regulates
issues related to foreign citizens' entry, work and stay in
Afghanistan.

- Law on Certified Documents Issued in Embassies and
Consulates of Afghanistan. Regulates fees for certification
of legal documents.

- Law on Mortgage of Immovable Assets in Banking
Transactions. Law aims to secure debt and contracts using
immovable property.

- Law on Movable Assets in Banking Transactions. Outlines
rights and responsibilities of the parties to a transaction.

- Law on Customs Duties. Details not available.

- Law on Transit. Regulates transport affairs.


7. (U) Additionally, two laws were passed by the Upper and
Lower houses, were not acted on by Karzai, but were passed
into law after being published in the Gazette. A third law
was enacted subsequent to a Lower House override of a Karzai
veto:

- Transit Law. Regulates transport affairs.

- Police Law. Regulates the structure, responsibilities, and
duties of the police.

- POLITICAL Parties Law. Sets forth law on the
establishment, functions and rights of POLITICAL parties.
This law was initially vetoed by Karzai, then passed after
the Lower House overrode his veto.

Two laws enacted in 2009 that garnered much attention
(Elimination of Violence Against Women Law and the Shia
Family Law) began as Parliamentary initiatives. Both under
debate when Parliament went on summer recess, at which time
Karzai stepped in and enacted both through Presidential
Decree, circumventing Parliament's deliberations.

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Parliament Its Own Worst Enemy
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8. (C) Despite Karzai's machinations, Parliament is often
its own worst enemy. Effective POLITICAL parties (or,
effective POLITICAL leaders) would ideally drive legislative
agendas in Parliament. The absence of either (excepting
Speaker Qanooni) in either the Upper or Lower House makes
marshaling support for any legislative agenda difficult. The
tendency of MPs to vote along ethnic, linguistic, or
geographic lines, rather than according to a belief in the
e The Embassy plans to augment its support to civil
society and POLITICAL parties holding democratic ideals to
help empower them and lend them a more prominent voice.
Currently, these groups have little POLITICAL influence.
However, if they eventually gain a stronger voice in
Parliament, the law could someday be amended. End Summary.

-------------- ia Article 94 of the Afghan Constitution, which
many interpret to provide for automatic passage in the
absence of presidential action. While the publication of the
law is only now coming to the attention of the public, it
appears it has been technically, though not practically,
enforceable for nearly three years.

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New Law, Old Policy
--------------


4. (U) The law grants "general amnesty for purpose of
reconciliation" to all parties involved in hostile conflict
before the establishment of the interim government. It
promises the benefits of the law, including freedom from
prosecution, to current armed opposition groups and
individuals if they join the reconciliation process.
However, the law still permits individual victims or their
families to bring cases to trial in accordance with Sharia
law. (Comment: Many human rights activists argue that
individual victims could not successfully argue their cases
in Afghanistan's fragile court system and the ongoing
presence of warlords in the Afghan government will prevent
individuals from taking their cases to court.)


5. (SBU) The law's blanket amnesty may conflict with a
number of international treaties to which Afghanistan is a
signatory, including the International Bill of Human Rights
and the International Treaty on War Crimes and Crimes Against
Humanity, Genocide, and Terrorism. The law also contradicts
Afghanistan's own Action Plan for Peace, Justice, and
Reconciliation (announced by Karzai in December 2006),which
states that the Government of Afghanistan "is committed to
establishing accountability institutions and to taking the
necessary accountability measure in accordance with the
nationally and internationally accepted norms on war crimes,
crimes against humanity and obvious violations of human
rights."


6. (C) Considering the current weak state of Afghanistan's
judicial system, the Amnesty Law is likely to supersede
international treaties and national policies for one key
reason: it involves doing nothing. The Afghan government has
not prosecuted individuals for committing war crimes in the
past, and had no plans to begin trials before the publication
of the Amnesty Law. How international treaties and national

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legislators receive payments from, variously, the Pakistanis,
the Iranians, the Russians, and Karzai in return for their
votes on issues.


9. (C) Parliament's inability to enact legislation is also
rooted in Lower House MPs' dismal attendance record,
particularly during the latter half of 2009. No official
record is kept of MPs' attendance record, but we note that by
November 2009 the inability of the Lower House to muster a
quorum became so routine that Speaker Qanooni resorted to
shaming truant MPs by announcing their names at the beginning
of each Parliamentary session (absent a quorum, Parliament
may debate but may not vote on legislation).


10. (C) Comment: Parliament is largely ignored by the
Palace, rendered impotent by an inability to effect
legislation, and fractured by ethnic, linguistic, and
regional loyalties. The only bright spot can be seen in the
Lower House's very surprising activism at year's end during
confirmation hearings for Karzai's Cabinet (Cabinet nominees
must be confirmed by the Lower House). Most observers
predicted that Karzai would push through his list of Cabinet
nominees with little opposition. Instead, Karzai faced an
energized Lower House who faced him down on issues such as
timing of sending the names of Cabinet nominees to the Lower
House and naming his candidate for Foreign Minister. The
most surprising show of Parliament's independence was their
unexpected refusal to confirm 17 of Karzai's 24 Cabinet
nominees on 2 January and 10 of the second tranche of 17
nominees on January 16. We can expect at least some of
Parliament's year-end surge of independence and activism will
continue in the lead up to the September 18, 2010,
Parliamentary elections. End Comment.

Eikenberry