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DE RUEHBUL #1684/01 1800410
ZNR UUUUU ZZH
P 290410Z JUN 09 ZDK
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC PRIORITY 9749
INFO RUCNAFG/AFGHANISTAN COLLECTIVE PRIORITY
RUEHBU/AMEMBASSY BUENOS AIRES PRIORITY 0120

UNCLAS SECTION 01 OF 02 KABUL 001684 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PREL AF
SUBJECT: UPPER HOUSE IN QUANDRY OVER FATE OF PROVINCIAL 
COUNCIL-ELECTED MEMBERS 
 
REF: KABUL 1350 
 
¶1. (SBU)  SUMMARY.  Parliament's Upper House faces a 
potential crisis this fall when new provincial councils will 
select replacements for two-thirds of the chamber.  If the 
councils follow the Constitution, they will elect their 
representatives to the Upper House around Oct. 1, mid-way 
through a legislative session.  Many incumbent MPs intend to 
serve the duration of their four-year terms, however, through 
the end of this year.  Other MPs and parliamentary staff 
expect the new MPs to take their seats immediately after 
being chosen by the councils.  Few have noticed the 
contradiction, leading us to predict the possibility that yet 
another political headache may sideline Parliament's 
legislative work.  We are urging MPs to reach a political 
consensus that would solve the problem before the Aug. 20 
presidential and provincial council elections.  End Summary. 
 
A Complicated Conundrum 
---------- 
 
¶2. (SBU)  Parliament's Upper House consists of 34 MPs 
appointed by the president to five-year terms, 34 chosen by 
provincial councils (PCs) to four-year terms, and 34 
designated to be appointed by district councils (DCs) to 
three-year terms.  Because the government has not yet held 
elections for district councils, PCs each appointed an extra 
MP in 2005 to facilitate the opening of the new government's 
first Parliament.   Last January, President Karzai extended 
the DC-designated MPs' terms by an extra year.  Some 
opposition MPs in the Lower House initially criticized 
Karzai's extra-constitutional executive order, but dropped 
their complaints when they realized that without the 34 
DC-designated MPs, the Upper House Q) and by extension the 
entire bicameral legislature Q) would become illegitimate. 
 
¶3. (SBU)  The Constitution requires PCs to select their Upper 
House representation within two weeks of their formation, 
after the certification of election results.  We expect 
certification of the Aug. 20 elections to take place around 
mid-September, meaning the new PCs would select their Upper 
House delegate around Oct. 1.  Parliament's fall legislative 
session will last until early December.  Following a delay in 
the 2005 Parliamentary and provincial council elections, MPs 
did not take office until December 2005, several months later 
than planned.  Many of those MPs with four-year terms expect 
to serve through December 2009.  However, other MPs (usually 
those with five-year terms unaffected by this year's 
confusion) Q) and the Upper House's professional staff Q) say 
the new MPs should take their seats immediately and any 
incumbents not re-elected by their PCs should leave office. 
Staff admit there is no precedent or procedure in place to 
inform MPs when to relinquish their status and privileges, 
and do not know how to handle the expected dual claims to up 
to two-thirds of the Upper House's seats. 
 
A Few Early Thinkers Propose Solutions 
---------- 
 
¶4. (SBU)  MP Mahbooba Hoqquqmal, a legal scholar and 
chairwoman of the Upper House Legislation Committee, told 
PolOff she hoped the Independent Election Commission (IEC) 
would delay the certification of results of the PC elections 
until later in the fall.  Another option would be to ask the 
PCs to refrain from selecting their Upper House replacements 
until the current Parliament finished its session, though she 
admitted some would view that move as a violation of the 
Constitution's requirement that PCs name their 
representatives within two weeks of their formation. 
Hoqquqmal promised to discuss options and solicit advice from 
IEC officials soon after Parliament reconvened on July 20. 
One Upper House senior staffer proposed that the Upper House 
issue a decision to seat the new MPs upon their elections. 
 
¶5. (SBU)  Incumbent MPs wishing to fill out their terms can 
file complaints with the Supreme Court, which would almost 
surely let the case sit until after the incumbents' terms 
naturally expire.  Neither Hoqquqmal nor the staffer thought 
seating freshmen MPs mid-way through a legislative session 
would have negative consequences for the chamber's handling 
of ongoing legislative matters.  Few incumbent MPs and 
professional staff had a deep grasp of legislative issues 
anyway, Hoqquqmal said, so new MPs would not be out of place. 
 Still, it's doubtful new MPs assigned to committees that 
have been studying legislation for months would be able to 
constructively add to the review process. 
 
Battle Over Seats Would Deadlock Parliament 
--------- 
 
 
KABUL 00001684  002 OF 002 
 
 
¶6. (SBU)  The Upper House's leadership Q) both professional 
and elected Q) is ill prepared to handle a dispute over its 
own members' legitimacy.  Discussions with advisors to 
Speaker Sebghatullah Mojaddedi (who was away from the country 
for much of the past few months), Deputy Speaker Hamed 
Gailani, and other key MPs show none has been thinking 
seriously about the issue.  When told of the potential 
conflict, Gailani seemed surprised, but promised he would 
consider solutions.  The Upper House's top legal staffer said 
all she could hope for was that the PCs would re-elect the 
incumbents in order to avoid a potential crisis. 
 
¶7. (SBU)  Given that other seemingly minor legal disputes 
have resulted in lengthy delays in Parliament's work 
schedule, this potential dispute could bring Parliament to a 
halt at a time when the next administration will be taking 
office and several bills of top priority to the government 
and international community await action.  The Embassy will 
continue to raise the issue with leading MPs, professional 
staff, and legislative mentors at the USAID-funded 
Afghanistan Parliamentary Assistance Program. 
 
Ongoing Issues With Parliament's Functionality 
---------- 
 
¶8. (SBU)  The disagreement over the legality of PC-appointed 
MPs' terms will likely end with a political consensus of 
least resistance, as have numerous disputes over Parliament's 
status and powers in the past.   Any disruption to 
Parliament's existing functionality should be minor. 
However, the unsynchronized timing of current MPs' terms and 
the elections for their replacements is yet another reminder 
of unintended inconsistencies in this Constitution.  Lower 
House MPs are likewise unprepared to resolve constitutional 
discrepancies for their own elections next year (reftel). 
 
¶9. (SBU)  Without a dedicated effort to correct these 
constitutional inconsistencies, Parliament will face these 
challenges every year, given the late start in 2005 that 
forced both houses off the electoral schedule laid out in the 
Constitution.   Such political disagreements repeatedly 
interfere in Parliament's lawmaking responsibilities and 
weaken its influence vis-Q-vis the much-stronger executive 
branch.  Extra-constitutional political fixes solve problems 
in the short term, but erode politicians' respect for the 
Constitution and rule of law. 
 
¶10. (SBU)  The Constitution mandates 19 elections for 
president, Parliament, provincial councils, and district 
councils over the next 17 years.  Afghan authorities and the 
international community face a challenge in improving the 
effectiveness of Afghanistan's elected institutions, more 
broadly, and solving the anomolies in the Afghan Constitution 
and law specifically before these annual constitutional 
crises become the norm.  One option will be comprehensive 
constitutional reform. 
EIKENBERRY