The Afghan government has found itself in a complicated legal tangle again. After the Independent Commission for Overseeing the Implementation of the Constitution (hereafter, Constitutional Oversight Commission) dismissed its chair, the president ordered an evaluation of the Commission’s performance in a move that looks designed to curtail its independence. Although the legal basis for the Commission’s dismissal decision does look shaky, there are concerns that the president’s move might have been prompted by the Commission’s critical stance on, inter alia, the constitutionality of the peace deal with Hekmatyar, and a report it prepared on cases of violation of the Constitution. AAN’s Ali Adili and Ehsan Qaane (with input from Sari Kouvo) look at the details and find that it is another example of the confusion on who has the legal last say in the Afghan state, and of how that can be used politically. Cover of a collection of legal interpretations, comments and consultation published by the Constitutional Oversight Commission.
Why did the president decide to evaluate the Constitutional Oversight Commission and what are the pitfalls?
On 16 May 2017, President Muhammad Ashraf Ghani issued decree number 747 (a copy of which has been obtained by AAN) establishing a government committee to evaluate the work of the Constitutional Oversight Commission and to examine “existing problems” for the period that it had been operating in its current composition, 1394 to 1396 (2015-2017). The government committee is led by Nasrullah Stanakzai, head of the Presidential Advisory Board for Judicial and Legal Affairs and includes members from the High Office of Oversight and Anti-corruption (HOOAC), National Directorate of Security (NDS), Attorney General’s Office, the Independent Joint Anti-corruption Monitoring and Evaluation Committee (MEC) and the Administrative Office of the President (AOP).
The evaluation was prompted by the decision of the Constitutional Oversight Commission (a copy of which was obtained by AAN) to remove Mohammad Qasem Hashemzai from the chairmanship of the commission and to deprive him of its membership. The decision was taken by the other six members in a meeting on 16 April 2017; Hashemzai himself was not present. (1) The decision was submitted to the president’s office, the office of the chief executive and both houses of the Parliament, for their information. In the decision the commissioners alleged that Hashemzai had failed to ensure the independence of the commission, had not upheld its good reputation, had lacked in leadership, and moreover for health reasons (old age and weak memory) was no longer fit to head the commission.
President Ghani did not accept the decision and instead established a governmental committee to investigate both the decision and the work of the commission. On 20 May 2017, the committee’s head Stanakzai sent a letter (a copy of which was obtained by AAN) to the Constitutional Oversight Commission asking it to send the evaluation committee all documents related to its “professional, administrative and financial performance” of the years 1394-1396 (2015-2017).
The remaining members of the commission perceived the intervention as a challenge to their independence, arguing that a governmental committee has no right to demand documents related to the professional performance of an independent commission. On 24 May 2017, they sent a response to Stanakzai’s letter and issued a recommendation (a copy of which was obtained by AAN), in which they welcomed a review of the commission’ financial and administrative affairs, but challenged the president’s order to evaluate its substantive work. They argued that the “holding to account (pasokh-gu) of the Commission’s members by any other body for its professional affairs (opinions and decisions) harms the principle of independence which is necessary for the proper fulfilling of their duties.” They also suggested that, should the president find it agreeable, he could appoint a higher-ranking committee to mediate between the six commissioners and their (former) chairperson. This committee could comprise of the Attorney General, two members of the National Assembly and the head of the High Office of Oversight and Anti-corruption, under the supervision of the second vice-president.
In discussion with AAN, one of the commissioners noted that the Constitutional Oversight Commission understands ‘independence’ in its professional affairs to mean that no outside institution has the right to probe or investigate their decisions, or how they decide. This relates to their legal opinions, advice and interpretations. Additionally, according to the Commission, neither the Constitution, nor the Commission’s law make the members responsible to the President or MPs. Based on this logic, the Commission also does not appear in the questioning sessions of the Wolesi Jirga (it, for instance, refused to show up in the Wolesi Jirga to answer questions on its 3 August 2016 legal opinion about the electoral law (see AAN’s reporting here, even though they were summoned by the MPs.)
With regard to the Commission’s seeming willingness to accept mediation and possibly walk back on their previous decision, a member of the Commission told AAN that “Legally we can change our previous decision [to deprive Hashemzai of his chairmanship and membership], if the President does not support Hashemzai and Hashemzai resigns from the Commission in light of article seven of the Commission law.” The commissioners then still seem set to make sure that Hashemzai does not continue, but they are providing other options for his removal. This may be because they do want to keep themselves on the right side of the president, but it also seems to indicate that they are no longer convinced about the legality of their own decision.
On the other hand, while the president does have reason to be concerned about the Commission’s move to go beyond their mandate by removing Hashemzai (more on that below), establishing a government committee to evaluate the work of an independent commission does raise important questions. The unresolved question of who has the last say when it comes to reviewing the constitutionality of laws and interpreting the Constitution has been a point of contention since the Constitutional Loya Jirga and the subsequent adoption of the Constitution in 2004. The ensuing legal ambiguity has provided ample room for political manoeuvring (in disputes with the parliament, for instance, previous president Karzai tended to count on the Supreme Court for rulings in his favour, while the Wolesi Jirga often looked to the Constitutional Oversight Commission).
There is also a view that the current president holds a grudge against the Constitutional Oversight Commission and that the broad mandate he has given to the government’s evaluation is aimed at discrediting the Commission and undermining its decisions – or at least bringing it back into line. In the recent past the Commission has in particular angered the president with its opinions on the peace agreement with Hekmatyar and a report it prepared on violations of the Constitution (more on that below). A source within the Commission told AAN that it seemed that the president wanted to ensure an “obedient commission.”
Why was the chairperson of the Constitutional Oversight Commission removed in the first place?
As discussed above, the commission members in their decision claimed that, among other problems, Hashemzai was suffering from old age and weak memory which rendered him unable to lead the commission. They argued based on paragraph one of article six of the Commission’s law – which states that an incurable disease preventing the performance of duty can lead to the depriving of membership – that “old age and the [ensuing] inability to perform duty is a disease that cannot be cured” and should therefore cause the loss of membership. They also argued that, since based on paragraph three of article four of the Commission’s law, the deputy chairperson and the secretary can be dismissed in circumstances of incompetence and inability to perform their duty or to perform their duty on a timely basis, “it can be inferred that this is [also] applicable to the inability of the chairman in performing their duties, as these are more important.”
The commission members in their decision also accused Hashemzai of the failure to observe “the principle of impartiality and independence of the commission” (more on this below).
Privately, a commission member talking to AAN accused Hashemzai of corruption, including selling the Haj quota and doling out the scholarships allocated to the commission to his relatives, and that when it was disclosed, Hashemzai had claimed that his signature had been fabricated.
Hashemzai responded to these allegations by accusing the other members of corruption. On 17 April 2017, he told the BBC that he considered the decision by the commission members illegal, arguing that article six of the Commission’s law stipulated the conditions under which members could lose their membership and that none of these conditions applied to him. In an interview with Kabul News television on 20 April 2017, Hashemzai claimed that the six members had formed an “unholy alliance” and had launched an “internal coup.” He provided a detailed account of the disputes that had arisen between him and the other members, for instance due to his strict attitude with regard to attendance. He noted that some of the commission members, due to conflicting engagements, rarely showed up to the meetings – for example, his deputy (now the acting chairman), he said, was a PhD student in Germany and taught in several universities in Afghanistan and rarely came to the commission. He had also, he said, rejected demands from the commission members that he considered excessive, for instance to receive rent allowances of one hundred thousand Afghanis (around fifteen hundred dollars) per member on top of the high salaries they already received, the appointment of their relatives to well-paid jobs, and the provision of armoured vehicles and police escorts (which were unnecessary, he said, since they rarely came to work). He concluded by saying that the members had acted against him because he had stood against corruption: “It is corruption. When you stand against corruption, you face a coup. This is the reason for it.”
How did the Parliament respond to the Commission’s decision?
The decision to remove Hashemzai from his chairmanship and membership of the Constitutional Oversight Commission was submitted to the Wolesi Jirga (Lower House) and Meshrano Jirga (Upper House) on the same day as it was sent to the president’s office. The Houses did not discuss the decision in their plenary sessions, but their administrative boards both sent letters to the Commission separately. In the letters, they made a distinction between the commission’s decision to dismiss Hashemzai from the chairmanship and its decision to expel him from the Commission. They approved the former, but called for “legal processing” of the latter.
On 23 Saur 1396 (13 May 2017), Muhammad Alam Ezadyar, first deputy chairman of the Meshrano Jirga, in a letter (451/25) (a copy of which was obtained by AAN) wrote to the State Ministry for Parliamentary Affairs, that the Meshrano Jirga considered the commission’s decision to dismiss Hashemzai from his position as the head of the commission to be “within the Commission’s authority.” However, it said that the commission’s decision to deprive him of his membership of that commission altogether needed to be processed according to legal provisions. The Meshrano Jirga, in its letter, also mentioned an analytical opinion submitted by its Commission for Legislative and Judicial Affairs on 12 Saur 1396 (2 May 2017), saying that this was not the official view and position of the Meshrano Jirga and that any official position of this house had to be issued through the administrative board (AAN was unable to obtain a copy of the analysis, but the mention suggests a difference of opinion within the Meshrano Jirga).
Similarly, on 22 Jauza 1396 (12 June 2017), Abdul Qader Zazai, the secretary of the Wolesi Jirga, in a letter (493/466) (a copy of which was obtained by AAN) to the State Ministry for Parliamentary Affairs said that the Wolesi Jirga’s Commission for Legislative Affairs had discussed the issue (based on the instruction of the administrative board of the Wolesi Jirga) and was of the opinion that the dismissal of Mr Hashemzai as head of the commission was “within the internal authorities of that commission” and that this decision of the commission members was considered “plausible and legal.” He added that “regardless of the reasons provided by the commission members for their decision, the chairmanship of one member without consultation with other members disrupts and even renders impossible the operation of the bodies where decisions are taken collectively and based on the principle of equality (every member has one vote).” This seems to refer to complaints by the commission members that Hashemzai did not believe in teamwork and tried to impose his views on others and that he controlled all six specialised departments of the commission, each of which, according to the rule of procedure, should have been led by one of the members.
Regarding depriving Hashemzai of his commission’s membership altogether, the Wolesi Jirga’s secretary also stated that this required that the “clarity of laws be taken into consideration” and that the issue should be processed based on that (without clarifying who should do this ). It also recommended that the Commission prepare draft amendments to its law to clarify the issues relating to the suspension of membership and to propose them as the government’s draft law to the National Assembly.
What about the commissioners’ claim that the president’s move was driven by a grudge?
There have been a few moves by the Constitutional Oversight Commission that have angered the president. The first one was on 29 May 2016 (9 Jauza 1395), when the Commission issued a legal opinion about the final draft peace agreement between the Afghan government and Gulbuddin Hekmatyar’s Hezb-e Islami Afghanistan (see an AAN’s previous reporting about the draft agreement here). The peace agreement was signed on 29 September 2016 (see AAN reporting here and Hekmatyar returned to Kabul on 4 May 2017. In its legal opinion, the Commission argued that articles eight (last line) and eleven (part 1) of the agreement were against the Constitution. The last line of article eight stipulated that the presence of Hezb-e Islami would be ensured in the electoral structures in accordance with the law. The commission argued that the paragraph was against article 156 of the Constitution and was “invalid” because based on the Constitution the electoral bodies should be “impartial and not be traded off in political bargaining.”
The Commission was also critical of the government’s commitment to guarantee the judicial immunity of Hezb-e Islami’s leader and members (article 11) and said that this guarantee should not include Haq-ul Abd (the victim’s right to pursue a case – see AAN discussion here). Finally, the Commission called for clear mechanisms under the agreement “to demilitarise and stop the military and paramilitary activities of Hezb-e Islami, including the collecting of weapons and the disarming of the party’s forces, so that article 35 of the constitution is respected.”
Later, a member of the evaluation committee told the remaining Constitutional Oversight Commission that the president had been furious about their opinion regarding Hezb-e Islami and that they would be made to pay for it.
A member of the commission also told AAN that the president had also been angered by a report (a copy of was been obtained by AAN) that the commission had prepared on cases of violation against the Constitution that it had meant to publish during Constitution Week (from 21 to 27 January 2017):
We had prepared a report on cases of violation of the Constitution. We held a meeting with the president. He told us to send him the report so he could read it. The report also includes cases of violation of the Constitution by the president. After that, the president summoned the chairman of the commission. The chairman told the president that the deputy chairman and members had prepared the report. The president then reprimanded the deputy chairman in the presence of second Vice-President Muhammad Sarwar Danesh. We said that we had not [yet] published the report. Danesh then intervened and asked us not to publish the report. After the Constitution Week, Hashemzai refused to issue approvals.
The member mentioned this incident as an example of Hashemzai’s failure to observe the impartiality and independence of the Commission, saying, “When President Ghani critically asked Hashemzai about the report, instead of defending the work of the commission he told the president that he [Hashemzai] was not involved in the preparation of the report.”
The report in question documents fourteen cases in which the Commission believes certain articles of the Constitution have been violated. For instance, in case study three, the report says that the delay in holding the Wolesi Jirga elections in accordance with the calendar specified in article 83 of the Constitution, and the failure to hold district council and village council elections according to article 140, and municipal and municipal assembly in accordance with article 141, not only violates the abovementioned articles of the Constitution, but also harms the future of the political system based on the people’s vote and undermines the legitimacy of the system. It also described the failure to complete the quorum of the Meshrano Jirga, as enshrined in article 84 of the Constitution (which stipulates that one third of the Meshrano Jirga should be elected from amongst the district councils – which do not yet exist; instead these members have been elected from the provincial councils), and to convene the Loya Jirgas according to article 110, as obvious violations. The report lists the government, the Independent Election Commission (IEC) and other relevant agencies as violators.
In case study four, the report states that the failure to specify the fundamental lines of the country’s policy violates paragraph two of article 64 of the Constitution which lists the president’s authorities (including: “determine the fundamental lines of the policy of the country with the approval of the National Assembly”). The report then notes that “the failure to specify the fundamental lines of the policy of the country by the president and to have them approved by the National Assembly not only is a violation of the provision of paragraph 2 of article 64 of the Constitution, but is also a failure to ensure people’s participation through their representatives in specifying fundamental policies of the country.” It lists the former president and current president, and the National Assembly as violators.
In case study 13, the report lists articles one, two, six and eight of the October 2015 Dand-e Ghori Memorandum of Understanding – an agreement between the government and local elders, assuring them that no military operation would be conducted without prior consultation with the elders in that district of Baghlan province – as violating the Constitution. It says that these articles first of all “restrict and undermine the sovereignty of the government of Afghanistan in Dand-e Ghori area, which is part of the territory of Afghanistan. In addition, it can pave the ground for the disintegration of the territory and the division of the sovereignty of the state of Afghanistan. In this case, it is considered a violation of article one of the Constitution of Afghanistan.” (For more background on the events in Dand-e Ghori, see here).
What are the legal complications of the case?
Afghanistan’s Constitution was drafted in the Constitutional Loya Jirga (CLJ) over several days in late 2003 and early 2004. In the last days of the CLJ, a possible source of conflict was introduced into the Constitution. Article 121 already provided the Supreme Court with the task to, at the request of the Government or the courts, “review the laws, legislative decrees, international treaties and international covenants for their compliance with the Constitution and their interpretation in accordance with the law.’ Article 157, which was later added (to placate opposition to the strong constitutional role of the president), called for the establishment of a Constitutional Oversight Commission, without specifying its tasks. (3) On 31 August 2008, more than four years later, the Parliament approved a law establishing the Commission, its mandate and rules of procedure. The new law, in article eight paragraph one, gave the Commission, among other tasks, the authority to “interpret the provisions of the Constitution” which up till then had been the mandate of the Supreme Court. (4)
President Hamed Karzai sent the law to the Supreme Court to review its compliance with the Constitution. On 14 April 2009, the Supreme Court issued a judicial decision, declaring that parts of the Commission mandate (the right to interpret the Constitution) conflicted with the Supreme Court’s mandate (art 121), and that the mechanism for removing members from the commission was inappropriate. From its argument it could be inferred that the Supreme Court considered the Commission part of the executive branch and that its members could be dismissed only by the president. (5) When the Commission’s law was finally gazetted in July 2009, it was published together with the Supreme Court’s opinion, without clarification as to whether or not the judicial decision now superseded the law.
As a result of the history of the Commission’s law, there is now a legal gap on how its members can be dismissed. Although the commission members accept that the Supreme Court’s 2008 judicial decision overrides some articles of the law, they also believe that the part of the Supreme Court’s judicial decision that implies that it is the president’s authority to remove members of the commission does not have legal weight. And indeed, the Supreme Court can issue its opinion about the compliance of laws with the Constitution, but it cannot act as a legislator and give authority to the president when the Constitution is silent about it.
What is the relevance of these legal conflicts?
On 30 April 2017, the six commission members issued “justifying reasons” for their decision to deprive Hashemzai of his membership (AAN has obtained a copy). In these justifying reasons, they argued that they could not invoke article seven of the Commission’s law, because of the Supreme Court’s 2008 judicial decision, but they could also not invoke the reasoning of the Supreme Court’s decision, as the Supreme Court’s opinion was issued solely to provide an explanation for the cancellation of article seven in this case, but had no legal weight of its own.
The six commission members acknowledged that as a result the Commission “faced a legal silence and gap in implementing articles six and seven of its law.” They then argued that in their decision to oust Hashemzai as a member they had followed a practice established by the Supreme Court, namely that in the absence of a relevant law guiding its work, the Supreme Court still compared laws with the Constitution and solved conflicting issues through judicial decisions. The Commission could have questioned the jurisdiction of the Supreme Court to, at the time, review the compliance of the Commission’s law with the Constitution, which might have been an easier path. Article 121 of the Constitution states that Supreme Court’s reviewing of laws for their compliance with the Constitution has to be based on a law, but that law did not exist at the time (and still does not exist). But instead of rejecting the Supreme Court’s legal decision, the Commission chose to argue that if the Supreme Court can issue legal decisions based on no law, the Commission can do the same.
Hashemzai, on the other hand, unsurprisingly, believes that the Supreme Court’s judicial decision overrides article seven and that the authority to dismiss a commission member rests with the president. For instance, in his interview with Kabul News following his dismissal by the members, he said:
We have a law called the law of the Commission for Overseeing the Implementation of the Constitution, which is effective since six years ago. There was one article in this law, article seven. Article seven stated that under certain circumstances – the circumstances were also specified – members, the majority of the members, can together oust [a member]. When the law went to the Supreme Court, the Supreme Court provided a special explanation about this and rejected three articles of the law. You understand that the Supreme Court is the final authority for disputes and conflicts. No one can say anything after it. The Supreme Court said that instead of giving the members a chance to oust each other, it is not a business corporation to grant some members a right to remove each other, that is why it [the Supreme Court] rejected it [article seven]. This also casts shadow over article six. Article seven was never included into the law.
He called the decision to dismiss him an infringement on the president’s authority and provided an analogy saying that just like the speaker of the Wolesi Jirga cannot be dismissed [from parliament] by the members after he/she is elected, the head of the commission also cannot be dismissed by the members. He argued that giving such authority to the members could cause hostilities and disputes, which in turn could lead to “an internal coup.” (6)
What might happen now?
The lack of a specific provision on who has the power to remove or approve the dismissal of a commission member has created a space for the President to stand against the decision of an independent commission. On the other hand, although the decision was unanimous, the commission members are now struggling to find a legal basis to back up the decision to both depose Hashemzai as chairman and to divest him of his membership of the commission altogether.
The president tasked the review committee he established to submit its findings within one month, but they have been unable to do so, largely because of the Commission’s refusal to accept the evaluation, especially of its substantive decisions.
Meanwhile, the commission members have been meeting the second Vice-President Danesh to discuss the proposal of an internal reconciliation, as well as Chief Executive Abdullah. One member, in conversation with AAN, claimed that they had not been able to meet the president, despite their repeated requests for a meeting.
So far, the commission members have agreed to a ‘reconciliation’ on the condition that Hashemzai, after he is reinstated as member and head of the commission, would within two weeks resign from his position as the head of the commission (privately, a commission member told AAN that they hoped that his resignation as chair would lead him to leave the commission altogether).
Two things seem to have prompted the commission’s members to accept this compromise. First of all, although they have put forward a legal basis for their decision to deprive Hashemzai of his membership, it does not seem to have been very convincing. Even the two houses of parliament, who are usually more on the side of the Commission, issued letters affirming the Commission’s internal authority to dismiss the head of the commission, but questioning its decision to also deprive him of his membership.
Second, after the intervention by the president and the decision to launch a review, the members seem concerned about possible actions that could be taken against them personally. One member expressed suspicion to AAN that the real objective behind the review committee could be to compile dossiers against the six members of the commission. They also fear that the legal gap could be exploited to further undermine the Commission’s authority. Hashemzai, in the meantime, seems to be counting on the president. In his earlier interview, he said that whatever the president or the law said, he would obey.
Edited by Martine van Bijlert
(1) According to Article 10 of the Commission’s Law the quorum for the commission’s meetings is complete with presence of five of the commission members; decisions shall be taken by majority votes of the present members. The commission’s normal meetings shall be held once a week.
(2) Theoretically it could be argued that this line of article eight does not violate the Constitution as it also contains the provision “in accordance with the laws” as a condition, which precludes the implementation of anything that goes against the Constitution or any other law. Incidentally, the new election law, as a presidential decree issued on 1 August 2016 (a month and half before the signature of the peace agreement), banned members of the electoral commissions from being a member of any political party while serving in the electoral commissions. It is possible that the President Ghani included this article as a tactical move – to promise a privilege that the applicable laws prevent him from providing. It is also possible that he intended to find ways to fulfil his promise. Either way, the whether the article itself violates the Constitution or not, its implementation probably would.
(3) Article 15 of the Constitution reads:
The Independent Commission for supervision of the implementation of the Constitution shall be established in accordance with the provisions of the law. Members of this Commission shall be appointed by the President with the endorsement of the House of People.
(4) The Commission’s law, as approved by the Wolesi Jirga, in article eight, gave the Constitutional Oversight Commission the authority to:
- Interpret the provisions of the Constitution based on the request of the President, the National Assembly, the Supreme Court and the Government [ this never came into force, as the Supreme Court determined it against article 121 of the Constitution];
- 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 the National Assembly;
- Review the effective laws to find contradictions with the Constitution and submit them to the President and the National Assembly to adopt measures to address them [this never came in force as the Supreme Court determined it against article 121 of the Constitution];
- Make suggestions to the President and the Legislative on laws that, according to the Constitution, would be needed;
- Report to the President any violations of the Constitution;
- Approve procedures and regulations.
(5) The mechanism in article seven of the Commission’s law to remove commissioners and deprive them of their membership was that the proposal should come from at least five members of the commission and should be approved by the Wolesi Jirga; the president would then appoint a new member within one month after the resignation or dismissal date. This mechanism was considered “inappropriate” by the Supreme Court.The Supreme Court argued that:
The Commission is not a business corporation or organisation so that one member can be dismissed by a majority of the members. The Wolesi Jirga is not the executive branch to approve the dismissal of members of a commission that is part of the executive branch. The constitutional method is clear even about the dismissal of ministers; despite the fact that their appointment is endorsed by the Wolesi Jirga, the authority to dismiss them directly rests with the president. The mechanism, based on which members of the Commission [can] propose depriving a member of membership and the Wolesi Jirga approves it, is a strong blow to the independence of the Commission and it is feared that the Commission will be strongly influenced by the Wolesi Jirga.
(6) Article 2 of the Commission’s law foresees it as an independent body. With regard to the possible authority of the president to dismiss members of independent bodies, it is useful to look at similar institutions. The Constitution contains two more independent commissions: the Independent Election Commission (IEC) and the Afghanistan Independent Human Rights Commission (AIHRC). While the president has a greater say in the appointment of the members of the IEC and AIHRC – they are appointed by the president, while the members of the Constitutional Oversight Commission are introduced by the president to the Wolesi Jirga for a vote of confidence – the laws governing the AIHRC and the IEC do not allow the president to evaluate their professional work or to remove members of these commissions by his own initiative. Moreover, comparing the Constitutional Oversight Commission with these two other independent commissions, the Constitution predicts a greater limitation to the president’s authority in the appointment of its members. With regard to the review of the Commission, if the president cannot intervene in the professional work of the IEC and the AIRHC, it will also not be easy to convince the members of the Constitutional Oversight Commission to be evaluated by a governmental committee.
This article was last updated on 9 Mar 2020
Constitutional Oversight Commission