Two fundamental features of the draft constitution of Afghanistan have become targets of criticism. They are the choice of a presidential form of government and the declaration of Afghanistan as an Islamic Republic. Both seek to prioritize security and stability of the country over other issues by even postponing the preferred forms of democracy.

Can democracy be guaranteed in the absence of security? Will security lead to enhanced democracy in the long run? This is an unseemly juxtaposition that could not be evaded by the Constitution Review Commission. The draft constitution embodies this tension between democracy and security. The issue is not that the two are conflicting but that a model was required so that a choice between them did not arise. In brief, the successful working of the constitution should see these issues reverting to a normal, complimentary mode. This has been sought by prioritizing security in the draft constitution.

The proposed constitution opts for a presidential form of government that empowers the president to appoint one-third of the members of the Meshrano Jirga (the Upper House of the Parliament). Besides being the commander-in-chief of the armed forces who is responsible for declaring war and ceasefires, the President can also enact temporary laws by decree when the - National Assembly is not in session. The Presidential powers extend to appointing and dismissing of lower-level judges, military and national-security officers. He or she can declare a state of emergency for up to two months during which some functions of the National Assembly can be transferred to the government. Such enormous powers have drawn criticism on the ground that it paves the way for a dictatorial state. The abolition of the post of Prime Minister, present in earlier drafts, has strengthened this argument. The absence of an effective system of checks and balances arouses such a fear since these presidential powers far exceeds even that of the French and American Presidents. Another argument against the presidential form is that it will not allow the diverse constituents of society to be represented in the decision making processes. Considering the scope of the presidential authority provided, these criticisms proceed beyond the conventional presidential vs. parliamentary debate.

The second focus of criticism is the first article of the draft constitution which declares Afghanistan to be an "Islamic Republic". Article 3 states that "no law can be contrary to the sacred religion of Islam". Despite the foregoing article assuring that "other religions are free to perform their religious rites", the proposed constitution is inadequate to provide religious freedom as it will be subject to "the limits of the provisions of law". It leaves room for regulating the freedom of expression by law according to the understanding of Islam of the judges. What is worrying is that the language is ambiguous as to how Islam will be interpreted. The lawyers will have to work with unclear doctrines: whereas the draft disallows any law contrary to the basic tenets of Islam, it does not mention the Sharia as a basis for the administration of justice. The draft also prescribes that the members of the Supreme Court shall be educated in either civil law or Islamic law which creates space for conflicts of interpretation. The fear of an official sanction to religious orthodoxy arises with the Islamic law being recognized as a guide for the courts. Even the recognition of political parties will be determined by whether they conform to Islamic principles or not.

What however needs to be underscored, despite all its flaws, is that the proposed constitution displays understanding of the violent past of Afghanistan. It arises from the desire to escape the recurring cycle of civil wars and ethnically consolidated warlordism. The declaration of an Islamic Republic can be seen as an overwhelming desire of the Afghan people to unite under the banner of Islam. It may also be considered a strategic ploy to delegitimise elements of the fundamentalist Taliban: a radical break from Islamic traditions may not be a wise proposition under the present circumstances.

Likewise, the choice of the presidential form requires an appreciation of the insecurity of the people as well as the fractured political landscape. Lack of strong political parties and parliamentary traditions does not augur well for a parliamentary democracy. Moreover, the country does not need a cohabitation problem between a President and a Prime Minister which Afghanistan witnessed in the 1990s. A strong presidency is the need of the hour to bring about reforms and to prevent ethnic aspirations from threatening national security.