Who has the power in Afghanistan?

That question is key to promoting unity and ending the insurgency.

Afghanistan is facing yet another rocky year ahead. Increased international troop levels here will probably mean more fighting – and more civilian and military casualties. A very mild Afghan winter portends a poor harvest, exacerbating an already serious food crisis in this impoverished country. And national elections are due to be held despite widespread insecurity.

Add to that a constitutional crisis that is paralyzing governance at a time when strong leadership is needed to promote unity and end the insurgency.

At the center of the debate is that the country's five-year-old Constitution states that the president's term ends on May 22, 2009. Elections are to be held 30 to 60 days prior to that. But Afghanistan's Independent Election Commission has called for more time to allow for the preparation of the polls so that voters can safely and fairly cast their ballots.

While most accept the delay of the vote, leading Afghan politicians – including the speaker of the Parliament's lower house and President Karzai's own vice president – say that Mr. Karzai's term as president cannot be extended beyond the Constitutional deadline and that he should step down in May. After arguing for months that delayed elections and the extension of his term would comport with the spirit of the Constitution (the last elections were delayed as well), Karzai reversed his position Saturday, calling for snap elections.

However, the Independent Election Commission and the international community, which is financing the polls, agree that spring elections are simply not possible. Thus the crisis over the election date and extension of Karzai's term continues.

In Afghanistan's past, such disagreements have been settled violently, as in 1992, with the prime minister rocketing the presidential palace. But this time could be different: The president and his opponents are attempting to use the Constitution as both sword and shield. Each contends that the Constitution supports its position, but both agree that the rule of law, rather than the rule of the gun, should prevail.

Like many young democracies, however, Afghanistan's system of checks and balances remains fragile. In order for these types of disputes to be resolved within the Constitution, all parties must agree on the mechanism to address them, and therein lies the rub: There is a lack of consensus among Afghanistan's three coequal branches of government as to who should resolve constitutional disputes.

In the past, Karzai has turned to the country's Supreme Court for guidance, but parliament rejects the court's jurisdiction over these questions. Instead, parliamentarians contend that a separate commission – akin to a constitutional court – should be established to rule on constitutional matters, leaving ordinary legal cases to the Supreme Court. The Court and the president disagree, arguing that this power is firmly lodged in the Supreme Court. Unfortunately, the Constitution, an imperfect document (like most constitutions) is unclear on the question.

Of course, Afghanistan's experience with constitutional democracy is young, and these complicated questions take time to settle. So how critical is this? Without agreement on how to settle the most fundamental disputes concerning the separation of powers, the entire constitutional system is falling apart.

Consider a 2007 case: Parliament acted to dismiss Afghan Foreign Minister Rangin Spanta through a no-confidence vote, but the president disputed the legality of the vote and asked the Supreme Court to rule.

When the court sided with Karzai, Parliament balked, saying that the Court had no jurisdiction in the matter. Karzai ignored Parliament's objections and kept Mr. Spanta, who continues as Afghanistan's top diplomat and often executes agreements on behalf of the country.

But Parliament views Spanta as illegitimate and refuses to be bound by agreements he signs. Last week it reiterated this position, just as Spanta headed to Washington for top-level strategic reviews of the war in Afghanistan. As a result of the Spanta dispute, relations among the three branches have deteriorated to a state of near-paralysis.

The current crisis may be resolved through political compromise, but that won't address the underlying issue. There may, however, be a way to address these two problems with a single solution. Karzai, the chief justice, and parliamentary leaders should begin intensive discussions to hammer out a compromise.

An agreement could provide a way through the electoral crisis as well as settling the larger question of which body, the Supreme Court or a new Commission on Constitutional Implementation, will have the authority to interpret the Constitution and in what circumstances. Exactly how the power is divided is not the crucial issue. What really matters is that the three branches reach agreement on who has the power to issue binding constitutional decisions and that they accept those decisions.

The ability to channel conflict into the political process, rather than through war, is the test of any constitutional system. In Afghanistan the stakes are especially high, as the stability and legitimacy of the Afghan government is ultimately the greatest weapon against the insurgency.

John Dempsey is director of the Kabul office of the US Institute of Peace. J Alexander Thier is senior rule of law adviser at the US Institute of Peace and editor of the book, "The Future of Afghanistan."

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