It is essential for political and legal stability in Afghanistan that the current inter-branch stalemate over constitutional dispute resolution be resolved. Any solution must include a determination of which entity will have jurisdiction to undertake constitutional interpretation and in which circumstances. Most importantly, the solution must be achieved through an Afghan-owned process of dialogue and compromise; otherwise the outcome is unlikely to be implemented.
The debate over where to locate the power to issue constitutional interpretations that would bind the branches of the government began during the constitutional drafting process in 2003. Initially, the draft constitution submitted to President Karzai by the Constitutional Drafting Commission contained provisions for a Constitutional Court, distinct from the Supreme Court. It stated as follows:
- Draft Article 146
The Constitutional High Court has the following authorities:
- Examining the conformity of laws, legislative decrees and international agreements and covenants with the Constitution.
- Interpretation of the Constitution, laws and legislative decrees.
Like many modern Constitutional Courts, this entity would have had clear jurisdiction to issue binding decisions that interpret the constitution. Its limitations would have been in its independence and in enforcement of decisions against powerful actors, but its jurisdiction to resolve disagreements over the meaning of the constitution would have been relatively clear. However, the plans for a Constitutional Court were removed from the draft constitution prior to the Loya Jirga, in part due to concerns that the Constitutional Court would become like Iran’s Council of Guardians, using the provisions of the constitution, especially those having to do with Islam, to trump the political system. Instead, some of the basic competencies of the Constitutional Court were folded into the Supreme Court:
- Article 121 (2004 Constitution)
The Supreme Court on the request of the Government or the Courts shall review the laws, legislative decrees, international treaties and international covenants for their compliance with the Constitution and provide their interpretation in accordance with the law.
The inclusion of Article 121 marked a historic shift for the judiciary in Afghanistan, as prior to 2004, the Afghan Supreme Court never explicitly had the power, as an independent branch of the government, to interpret the constitution. In order to fulfill its obligations under Article 121, the Supreme Court would need to interpret the language of the constitution in order to determine whether laws, legislative decrees, international treaties and international covenants comply with the meaning of the constitution.
However, the language of Article 121 does not include the broad grant of power to interpret the constitution contained in the draft Constitutional Court articles, including instead only that language allowing the Court to judge the compatibility of laws, decrees and international agreements with the constitution.
During the Constitutional Loya Jirga, the language of Article 157 was placed into the constitution without significant debate by some of the same actors who had argued for the establishment of a Constitutional Court. The jurisdiction of the Article 157 Commission is completely undefined within the constitution itself:
- Article 157 (2004 Constitution)
The Independent Commission for the Supervision of the Implementation of the Constitution shall be established by the provisions of the law.
Members of this Commission shall be appointed by the President with the confirmation of the Wolesi Jirga [lower house of Parliament].
From 2004 to 2007, it appears as though the Supreme Court and the Executive assumed (or at least acted as if) the Supreme Court had been granted the same broad jurisdiction to interpret the constitution as had been envisioned for the Constitutional Court. For example, in 2005 when it became clear that district elections would not be held as envisioned in Article 140 of the Constitution, there was a question over how to properly constitute the Upper House of the parliament (Meshrano Jirga), as one-third of its members were to be district council members as per Article 84 of the Constitution. President Karzai referred this issue to the Supreme Court, which advised that Provincial Councils could send two members each to the Meshrano Jirga instead of only one member, thereby filling seats in the Meshrano Jirga allocated to the District Councils (until District Councils had been duly elected). Similarly, in 2006, there was a dispute between the executive and the new legislature over the meaning of the word “majority” in a vote to approve government ministers and Supreme Court justices that was referred to the Supreme Court for adjudication.
It was not until the dispute over the case of Foreign Minister Spanta, in 2007, that a strong dispute emerged over the Supreme Court’s constitutional jurisdiction. In taking a vote of no confidence against Minister Spanta, the parliament acted according to powers it possesses under Article 92 of the constitution, which allows the Wolesi Jirga to take a no-confidence vote on a government minister based on well-founded reasons. Following the vote against the Foreign Minister, President Karzai asked the Supreme Court to review whether the act of the Wolesi Jirga was constitutional. The court found that the vote in this case was both unconstitutional, as the basis for the vote was not something within the rational control of the Foreign Minister, and improper, as the vote violated established parliamentary procedure. Angered, several members of parliament stated that the Supreme Court did not have jurisdiction to hear this case, as it was not related to the consistency of a law or other legal document with the constitution as allowed under Article 121, and therefore Parliamentarians stated that they did not recognize the decision.
In response, the executive and the Supreme Court each proposed legislation that would resolve the jurisdictional questions. The Supreme Court attempted to clarify its jurisdiction through a proposed amendment to the Law on the Organization and Jurisdiction of the Courts (2005), revising the previous Article 24 to read:
- The Supreme Court High Council shall have the following jurisdiction within the scope of drafting, organizing, proposing and interpreting laws:
- Assess the conformity of laws, legislative decrees, international treaties and conventions with the Constitution upon a request from the government or courts and issue the necessary decisions.
- Interpret the Constitution, laws and legislative decrees upon request from the government or courts.
- Resolve disputes stemming from the implementation of law and exercise of legal authority between the National Assembly and the Government.
At the same time, the executive drafted a law on the Article 157 Commission that would have allowed the Commission to review draft legislation “prior to the endorsement of the President” and express an opinion on the constitutionality of the draft (before it became law). The 157 Commission was also empowered to provide legal advice on “issues arising from the Constitution” and “[study] previous laws for their inconsistency” for the President. In this draft, the 157 Commission was empowered to provide advice, not to issue binding decisions on any subject, or to interpret the constitution outside the bounds of the issues prescribed.
The parliament then amended the draft legislation on the 157 Commission to remove the explicit but limited power to provide an opinion on legislation prior to endorsement by the President. Instead, parliament inserted language that gave the 157 Commission the expansive power of “Interpretation of the Constitution on the request of the President, the National Assembly, the Supreme Court, and the Executive.”
President Karzai then vetoed this legislation, on the grounds that this language violated articles 121, 122, and 157 of the constitution. The primary argument of the President’s veto message is that 1) Article 121 of the constitution implies broad constitutional interpretation powers for the Supreme Court, which has historically had this power, and 2) the Article 157 Commission was meant to be a supervisory body for the implementation of the constitution, not a body for interpretation.
In September 2008, the Parliament overrode Karzai’s veto of the 157 Commission legislation by a two-thirds majority, making it enforceable law (see Article 94 of the Constitution). However, since this is a “law”, the President could refer it for review to the Supreme Court under its Article 121 powers, which would likely again result in a decision that the legislation is unconstitutional based on the grounds stated in the President’s veto message.
About the Author
This USIPeace Briefing was written by J Alexander Thier and John Dempsey of the Rule of Law Center of Innovation. The views expressed here are not necessarily those of USIP, which does not advocate specific policies.
The United States Institute of Peace is an independent, nonpartisan institution established and funded by Congress. Its goals are to help prevent and resolve violent international conflicts, promote post-conflict stability and development, and increase conflict management capacity, tools, and intellectual capital worldwide. The Institute does this by empowering others with knowledge, skills, and resources, as well as by directly engaging in peacebuilding efforts around the globe.