One of the many ambiguities in the Afghan Constitution is on who has the authority to interpret the Constitution. For no obvious reason a mix of both judicial and legislative oversight was smuggled into the Constitution when it was adopted in 2004. Six years later, the Independent Commission for the Supervision of the Implementation of the Constitution (Komisiun-e Mostaqel-e Nezarat bar Tatbiq-e Qanun-e Asasi), as called for under article 157 of the Constitution, has been established. Although it is a step in the right direction towards constitutional compliance, it remains to be seen whether the Commission will solve some of the underlying problems of Afghanistan’s politicized justice system.
The main problem is that two different articles in the constitution call for two different oversight mechanisms. Article 121 reads: “At the request of the Government, or courts, the Supreme Court shall review the laws, legislative decrees, international treaties as well as international covenants for their compliance with the Constitution and interpretation in accordance with the law.” The authority – some explicit and some presumed – of the Supreme Court to provide opinions has been used by the government on several occasions. For example, after the Wolesi Jirga’s no-confidence vote for then Foreign Minister Rangin Dadfar Spanta in 2007, President Hamed Karzai turned to the Supreme Court to enable Minister Spanta to stay on. The Supreme Court sided with the President, but the Wolesi Jirga did not accept the Supreme Court’s ruling (for more details see here and here).
It was the controversy surrounding this no-confidence vote which pushed the Wolesi Jirga to finally draft a law to establish the commission called for in article 157 of the Consitution. Article 57 reads: “The Independent Commission for the Supervision of the Implementation of the Constitution will be established by law. Members of this Commission will be appointed by the President”. The Wolesi Jirga drafted a law (nr 986, dated 31 August 2008) that provided the Commission with a clear authority to interpret the Constitution, but before the law was finally approved, the authority of the Commission was watered down by the President’s Office, based on an opinion by the Supreme Court.
The authority provided for the Commission, according to article 8 of the law establishing the Commission, is now to:
• supervise the observance and application of the Constitution by the President, Government, National Assembly and other state and non-state organizations;
• provide legal advice on Constitutional matters to the President and National Assembly;
• make suggestions to the President and legislator on laws that, according to the Constitution, would be needed;
• report to the President any violations of the Constitution.
On 9 June 2010, the Wolesi Jirga broke its “silent sessions”, discussed in Martine’s earlier blog, to discuss five of the Presidential nominees to the Commission. (The Commission will have seven members, the President nominated six, but one of the nominees pulled out and the last member is yet to be nominated. Kabul rumors has it that the current Chief Justice Abdul Salam Azemi may be nominated, but this might be just because his term is coming to an end later this year).
When approving the President’s nominees to the Commission, the Wolesi Jirga specifically asked the nominees whether they thought the authority to interpret the Constitution did lie with them. After some back and forth, the nominees stated that, as long as the Wolesi Jirga supported them, they would make use of their right to interpret the Constitution (see, Legislative Newsletter of the Afghan Parliamentary Assistance Project, Vol. 3, No. 16, 14 June 2010). It is possible that it was this answer that led the Wolesi Jirga to approve the nominees. The nominees were:
• Gul Rahman Qazi ;
• Sayyed Omar Munib;
• Muhammad Amin Ahmadi;
• Abdul Qadir Adalatkhwah;
• Mahbuba Huquqmal (the only woman).
All five are known within the legal community and have combined positions in the academic world with government appointments. In other words, they appear to fulfill the formal qualifications as outlined in article 5 of the new law: Afghan citizenship, a Masters degree in legal sciences or Islamic jurisprudence, over five years work experience, more than 35 years of age, not having been convicted of a crime, not being a member of a political party or organization during the time they are members of the Commission and having a good reputation.
Having adopted the law and nominated almost all the members of the Commission is, however, only one step towards actually settling the question about whose authority it actually is to interpret the Constitution. It might have taken some courage for the nominees to stress that it is their role to interpret the Constitution when their nominations were being approved by the Wolesi Jirga. It will take much more courage to actually interpret the Constitution (rather than only interpret the dominant political currents) when a contentious issue is referred to the Commission.
It would be a pity – but not unexpected – if the Commission spent its first year bickering about internal rules of procedure or arguing with the government and donors about their need for an office, assistants and cars. These issues need to be settled – and the Commission does need a secretariat – but the real test will be to see if the Commission will show independence when analyzing issues referred to it, or if they will seek to protect their backs by carefully navigating between the will of he who nominated them and those who accepted their nomination.
This article was last updated on 9 Mar 2020