Efforts By Ghani to Change the Structure of The Diplomatic Apparatus; Parliament Demands Legal Action

According to the decision of the cabinet, the organizational structure of the Ministry of Foreign Affairs as the country’s diplomatic apparatus is to be changed. One effort is to reduce embassy staff by 30% and reduce the duration of diplomats’ terms. In addition, the government expects to use these institutions as revenue-generating institutions. The reason for this action is also called the economic problems that the government is facing. This action has encountered a barrier called law. Legal experts say the presidency will not be able to deprive diplomats and consular staff of their privileges until the law is amended and their working hours reduced. According to them, even the President’s legislative decrees cannot negate the provisions of the law because the conditions are not met at the moment. The Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) also states that the government, as a republican system, must abide by the “rule of law” and take any legal action after amending the provisions of the law. Meanwhile, members of parliament, for their part, have called for the rule of law to be taken into account in these amendments because the actions against the law under the name of reforms are not logical, and the government should take these actions on the basis of a reasonable plan and in agreement with the parliament.

During the cabinet meeting on June 7, the Presidential Palace ordered that the process of reducing 30% of diplomatic staff begin with the reduction of the three-year term. In addition to this, some other shortcomings in political representation have also been addressed. In the third part of the Cabinet resolution, which is entitled “Miscellaneous Decisions” and a copy of which reached 8 Subh, the Ministry of Foreign Affairs is obliged to base its “organizational reform package” on the “principle of need, effectiveness and economy”, implement it in three months and report its progress to the presidential palace.

The third paragraph of this section states: “The Ministry of Foreign Affairs is obliged to implement the reform package of that ministry. Specifically, reduce 30% of diplomatic staff abroad by reducing the three-year service period and the number of political missions based on the necessity and priorities of the country and the standard of international relations within three months, and report it to the cabinet.” Ghani said the Foreign Ministry, in co-operation with the Administrative Reform and Civil Service Commission, would assign diplomats who have been appointed in recent years “without considering legal conditions” or who are not fluent in one of the internationally recognized languages to other government offices.

According to the presidential palace, instead of these diplomats, “qualified candidates should be recruited through a free competitive process.” In addition, the Ministry of Finance, in cooperation with the Ministry of Foreign Affairs and the Central Bank, is required to include all revenues of political missions residing in foreign countries, as well as the revenues of other budget units under the proposed plan, including the “Treasury Unit” account. The cabinet’s decision stipulates that the Ministry of Finance will assure Mohammad Ashraf Ghani in this regard.

In this way, the presidential palace wants to receive revenues from embassies and then add these revenues to the state treasury. In addition, sources say that economic problems are the main reason for the government’s decision to reduce diplomatic staff. However, an attempt was made to provide the Ministry of Foreign Affairs with details about the presidential palace decision and the reasons for it but the ministry officials declined to discuss the matter.

Ghani Guising His Actions

Simultaneously with this cabinet decision, the debate on the term of office of diplomats in the Law on Diplomatic Staff and Consular Services has become more explicit. However, the Presidential Palace has the authority to change staff. However, this institution cannot reduce the working hours of diplomats and cut their privileges without amending the provisions of the law. Article 6 of the Law on Diplomatic Staff and Consular Services states: “Diplomatic and consular staff members shall be transferred from their existing duties to the country after three years of active service abroad.” Thus, the term of office of diplomats in foreign political missions is three years.

Legal experts also say that the president needs to amend the law to reduce the term of office of diplomats. Wahid Farzahi, a legal expert, told 8 Subh on Friday, June 18, that if a privilege is provided in the law for civil servants, no one can take that privilege from the employee until the relevant provisions of the law are amended. Thus, he clarified that until the amendment of the Law on Diplomatic Staff and Consular Services, the service time of the diplomatic staff will not be limited. Farzahi added that the president has the authority to change and reduce staff under the Civil Service Law but the law must be amended.

Thus, Wahid Farzahi said that other than that, the Law on Diplomatic Staff and Consular Services has not changed the conditions provided by the Civil Service Law, and according to it, no change can be made under the direction of the President and its decree. He said even a presidential decree could not implement the changes unless it met the requirements of Article 79 of the constitution. According to Wahid Farzahi, so far “no presidential decree” has met these conditions.

In addition to legal experts, members of ICOIC also emphasize the “principle of the rule of law” in regards to reform. Abdullah Shafayi, a member of the commission, said on Friday that one of the aspects of a democratic government and a constitutional republic is the principle of the rule of law, which is enshrined in the constitution. According to him, the principle of the rule of law is that law enforcers are subject to it and act within the framework of the law, and not against it. According to Mr. Shafayi, there may be people in dictatorial regimes who act illegally but in a republican government, he said, the rule of law matters.

Abdullah Shafayi stated that extrajudicial actions by rulers are a “violation of the rule of law.” He added that the law should be amended and then implemented. The member of ICOIC clarified that the president’s authority in the country is “law enforcement”, not “legislation”. According to Shafayi, the president can take such actions based on a legislative decree, however, this decree must be implemented in accordance with Article 79 of the Constitution. And, according to him, the conditions of the legislative decree do not exist at the moment.

Article 79 of the Constitution states that the government may issue legislative decrees in the event of the closure of the House of Representatives and, in case of “urgent necessity”, with the exception of matters relating to budget and finance. However, it is said that this decree must be presented to the general assembly within 30 days from the beginning of the first session of the National Assembly and will be invalidated if it is rejected.

Parliament’s Insistence on Rational Reform and a Legal Approach

For their part, members of the House of Representatives say they are aware of the government’s efforts to reduce the country’s diplomatic staff. However, they added that the issue of reducing the term of office of diplomats has not yet been raised by the Ministry of Foreign Affairs. Hamiduddin Yuldash, International Affairs Committee Deputy of the House of Representative, told 8 Subh on Friday that the matter had been discussed three times with Foreign Ministry officials. According to him, the last time members of the commission and ministry officials met was on Tuesday, June 15. Yuldash added that according to statistics, there are currently 460 diplomats in Afghanistan’s diplomatic missions in 45 countries, which he said “50%” are expected to return home. He added that a number of ministry employees would also be fired.

Yuldash clarified that in the talks, this issue was mentioned by members of parliament as unfair and illegal. According to him, after meeting with President Ghani, the delegation returned with several conditions, including “bachelor’s degree”, “mastery of a foreign language” and “access to modern technology”. Under the circumstances, 10 percent of Foreign Ministry staffers inside and outside the country are currently being fired. According to this member of parliament, the Ministry of Foreign Affairs has said that it will give these employees the opportunity to prove that they have these conditions. However, members of the International Affairs Committee have suggested that the agreement should be sent to the Committee by the Foreign Ministry and then submitted to parliament. According to him, the next meeting between the two sides is scheduled for Tuesday of this week.

Hamiduddin Yuldash said the president wanted to these staff to return as soon as possible but the members of parliament said it was “illegal” because the three-year period must be completed, otherwise, the amendment of the article of the law must be submitted for approval. Thus, the Ministry of Foreign Affairs has stated that upon the completion of three years of diplomatic term, this number of diplomats will return to the country. The decision has not yet been implemented, he said, and parliament is still monitoring the case to defend the rights of diplomats. However, Yuldash said the criteria are being taken seriously.

Other members of parliament also emphasize the principle of rule of law. Abdul Qayum Sajadi, ‌ Ghazni representative in the parliament and member of the International Affairs Committee, said the reforms should have a legal basis because any action against the laws of the country under the name of reforms is not logical. Instead of helping the existing political system, he said, it would damage it. According to Sajadi, if the reforms are to be in conflict with the Law on Diplomatic Staff and Consular Services, it is “illegal” and the presidency or the Ministry of Foreign Affairs are obliged to propose an amendment to the House of Representatives first.

Abdul Qayyum Sajjadi said reforms should be done from top to bottom because downsizing employees is the “easiest thing to do.” Thus, he said, in the first step of the reform, high-ranking ambassadors and diplomatic staff should be called in who have no legal qualifications and have been selected on the basis of relations. Sajadi added that these cases have been discussed with the Ministry of Foreign Affairs, and members of parliament expect the government to refrain from illegal actions and bypassing parliament. He said, however, that the Foreign Ministry had not said anything about reducing the time of the diplomatic mission. However, Sajadi stressed that the government’s move requires a rational action plan that must be reached in agreement with parliament.

It should be said that the issue of reforms in the country’s diplomatic apparatus has been controversial for a long time. Although the presidential palace says diplomats have been appointed in the past, some former foreign ministers have accused the presidential palace of politicizing the apparatus. In an interview with 8 Subh, Salahuddin Rabbani, the Foreign Minister of the National Unity Government, said that President Ghani had repeatedly made political appearances in embassies.