Afghanistan Analysts Network – English

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Judicial Independence in Afghanistan: Legal Framework and Practical Challenge

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AREU, February 2021

A new paper authored by Shoaib Timory.

In a government with a separation of powers, independence is an indispensable feature of the judiciary. In Afghanistan, this was recognised only in the Constitution of 1964 and the Constitution of 1987 before the current Constitution mapped out a range of measures necessary to keep the judiciary and judges independent. (…) Despite these measures, some of the constitutional and provisions of ordinary legislations that should have protected the independence of the judiciary and the judges are unfortunately flawed and have not been able to transform the judiciary into a credible institution able to conduct its duties with  independence. As a result, the judiciary is still dependent on the executive branch on budgetary,  financial and administrative affairs, along with appointment and transfer of judges, and it has repeatedly sided with the executive in cases of political importance. (…) Besides, the reporting obligation of the Head of the Supreme Court to the President and his engagement in political discussions are perceived as a close association of the judiciary with the executive branch. (…) The Supreme  Court has also tried to ensure impartiality of judges in court proceedings by introducing limitations on engagement in certain activities and introducing a code of conduct. However, some of these limitations have been extreme and undermined the fundamental rights of the judges. The objective of this paper is to map out the existing legal framework that ensures the independence of the judicial branch in Afghanistan and the reasons why it has not been able to best use this feature and act as an essential pillar of power in Afghanistan.