Back to the Future: Why and How is Afghanistan Moving Towards a Constitutional Court?

Shamshad Pasarlay

Herat University

The Afghanistan Constitutional Studies Institute (ACSI) recently published a paper which proposed a constitutional court for Afghanistan. ACSI conducted numerous interviews and held focused group discussions with a broad cross-section of Afghanistan’s political elites including members of the parliament, representatives of the executive branch, justices of the Supreme Curt and members of the civil society. The results showed an overwhelming support for a constitutional court in Afghanistan. In this piece, I explore why Afghanistan is moving towards a constitutional court and highlight a couple of caveats as the country prepares to revisit the choice of a constitutional court initially not adopted during the drafting of the 2004 constitution.

Afghanistan has had ten different constitutions over the past century. However, it was only the 1987 constitution that formally adopted judicial review; it created a French style constitutional council and authorized it to exercise a pre-promulgation abstract review of governmental bills. Judicial review became a central question of constitutional design when Afghanistan’s post-Taliban democratic transition began in late 2001. The drafters of the 2004 constitution believed that a constitutional court equipped with the power of strong-form judicial review might play a key role in safeguarding the constitution and steering Afghanistan’s post-Taliban political transition.

The makers of the 2004 constitution thus designed a constitutional court and equipped it with the power of strong-form review. However, President Hamid Karzai (2001–2014) opposed the constitutional court fearing that it would serve as an important check on presidential powers. Karzai’s political opponents, who feared to lose the 2004 presidential elections to Karzai, favored the proposed constitutional court. They saw the constitutional court as a venue where they could challenge Karzai and insure their political future. Ultimately, Karzai exercised his influence on the drafting commissions to remove the constitutional court and vest the power of judicial review in a relatively weaker Supreme Court.

At the same time, the drafters inserted in the constitution another institution, the Independent Commission for Overseeing the Implementation of the Constitution (the Commission), which would supervise the implementation of the constitution. However, the constitution provided no guidance about what powers this Commission should exercise. The question of the powers of this Commission was settled through the ordinary political process after the constitution was adopted. In 2010, the parliament adopted a law defining the jurisdiction of the Commission and authorizing it to interpret the constitution and exercise pre-promulgation abstract review.

The Performance of the Court and the Commission: 2004–2019

There are basically two bodies, the Court and the Commission, which exercise judicial review and interpret the constitution. Ironically, the executive treats the Court as the body to interpret the constitution and exercise judicial review while the legislature regards the Commission as the only body authorized to perform these tasks. As a result of this dual institutional structure, there have been severe political crises every time a dispute emerged between the legislature and the executive. In cases where the Court tried to rule and expand its jurisdiction, the parliament retaliated by threatening the justices of the Court and working to thwart the Court’s jurisdiction. Over time, the Court began to strategically avoid ruling in cases that might outrun “the tolerance interval” of the political branches and instigate political attacks on judicial independence.

The Commission has also seen political backlash that has threatened its independence and powers. Every time the Commission began to consider an issue that was threatening to the holders of political power, the political branches acted in a way that undermined the Commission’s independence. For example, in 2017, the Commission prepared its first annual report on constitutional implementation. The report included instances where it alleged that both former president Hamid Karzai and the current president Mohammad Ashraf Ghani had violated the constitution. President Ashraf Ghani reacted by establishing a committee to assess the work of the Commission and review “existing problems” related to the Commission. The Commission considered the President’s move a direct attack on its independence, and it ultimately decided not to publicize the report to avoid direct confrontation with the executive.

In short, the Afghan judicial review tribunals struggled to establish their power and independence vis-à-vis the political branches. Both bodies have faced political backlash that has negatively affected their abilities to safeguard the constitution. On certain occasions, the executive has sent the same constitutional question to both bodies “as a means of hedging bets in case one institution offers a more favorable opinion.” This fragmented system of judicial review has thus undermined the rule of law and, on certain occasions, constitutional violations have either remained unaddressed or addressed through the political process to the politician’s satisfaction rather than judicial intervention.

The Search for a Constitutional Court

The dispute over the results of the 2014 presidential elections in Afghanistan led to a political crisis that almost divided the country. The crisis was resolved by a special power sharing agreement between Ashraf Ghani and Abdullah Abdullah, the two leading candidates. The Agreement provided that the 2004 constitution should be amended to include a post for a prime minster and reform the country’s flawed electoral system. The Agreement opened the door for possible amendments to other areas of the constitution. One key area that attracted the greatest attention was the institutions empowered to exercise judicial review. It gave the country’s political elites another chance to revisit the initial option, the constitutional court, rejected during the drafting of the 2004 constitution.

There is considerable support for a constitutional court in Afghanistan among the legislature, the civil society and the political parties. Even the Taliban insurgents who have been fighting the post-2001 political order and rejecting the 2004 constitution favor a constitutional court if a peace agreement is reached between them and the Afghan government. There are various reasons that could possibly explain this support in favor of a constitutional court in Afghanistan.

First, the existing constitutional review bodies, the Court and the Commission, have performed very poorly in upholding the most important aspects of the constitution. The Court has been accused of allying with the president of the state to sideline the president’s political opponents and rubber-stamping the government’s anti-democratic political changes. The Commission has also been ineffective in safeguarding the constitution because its judicial review opinions are advisory and the political branches do not obey them. These two bodies currently lack capacity and their independence and impartiality may be in doubt.

Second, the successful experience of constitutional courts in countries like Germany and South Africa has apparently inspired the move towards a constitutional court in Afghanistan. Although this provides evidence to support the diffusion theory of constitutional review, Afghanistan’s political elites apparently overlook the favorable conditions for democratization that existed in these countries – conditions that are completely missing in Afghanistan. The supporters of the constitutional court have argued, however, that they do not expect the constitutional court to resolve all of Afghanistan’s problems – that is to turn Afghanistan into a consolidated democracy overnight – it is expected that the constitutional court will resolve the problem of constitutional interpretation and review in Afghanistan. They argue that there should be a single, specialized, legitimate and final authority when it comes to constitutional questions.

Another reason for support for a constitutional court is grasped well by Tom Ginsburg’s political insurance theory. The strongest support for a constitutional court in Afghanistan exists among politicians who have run in and lost presidential elections. While completely distrusting the Court, which currently exercises judicial review, the leaders of most political parties who have consistently lost presidential elections seem to insure their future by vesting the power of strong-form judicial review in a constitutional court. They believe that a constitutional court will be more independent and impartial than the Court currently is.

The Taliban’s support for a constitutional court is a completely different story. The Taliban’s version of the constitutional court is unlike a classic constitutional court, and there seems to be very significant tensions between the organ envisaged by the Taliban and a classical constitutional court. The Taliban are looking for a constitutional court with somehow different powers and composition. They apparently prefer to include the ulama – a class of people versed in classical Islamic scriptures and theology – in the constitutional court. The Taliban want this body to be vested with the power of constitutional review, authorized to protect the legitimacy of the entire political system and serve as the guardian of the type of Islam the Taliban like to promote. They further argue that the constitutional court should be the only body to remove high-ranking state officials including the head of the state if they act in a way that contradicts Islamic principles. With this type of a design, it seems that a constitutional court is not want the Taliban envisage; what they have in mind resembles a council of guardians of the type found in the Iranian constitution.

Concluding Remarks

Constitutional courts with the power of strong-form review continue to assume prominence in constitution-making and unmaking processes in countries like Afghanistan. In fact, there seems to be a new trend towards constitutional courts in societies that transition from civil war or authoritarianism. However, as Tom Daly reminds us, we should not expect apex constitutional courts to resolve all of the pathologies of a transitioning society. The designers of the constitutional court in Afghanistan are apparently aware of Daly’s claim. They have argued repeatedly that a constitutional court might not cure all problems of the rule of law and political transition in Afghanistan. They expect that the constitutional court will be able to resolve the current crisis over constitutional interpretation and constitutional review. They hope to create a uniform and final legitimate authority that can speak for the constitution.

Only time will tell us whether a constitutional court will succeed or fail in Afghanistan. Afghanistan does not have a tradition of judicial independence, and the political branches have regularly disregarded apex court decision that they dislike. In these situations, expecting too much of the proposed court might disappoint us at the end of the day. However, if the proposed court is vested with its classical powers (constitutional review and interpretation), it might be hoped that the court might find time and space to incrementally help solve Afghanistan’s constitutional review problems. Because the constitutional court enjoys support within the Afghan society at large, it is likely that the political branches might respect this court’s decision when it comes to constitutional interpretation and review.

Shamshad Pasarlay is Assistant Professor at the Herat University School of Law and Political Science, Afghanistan.

Suggested citation: Shamshad Pasarlay, ‘Back to the Future: Why and How Afghanistan is Moving Towards a Constitutional Court?’ IACL-IADC Blog (7 March 2020) https://blog-iacl-aidc.org/2020-posts/2020/4/7/back-to-the-future-why-and-how-afghanistan-is-moving-towards-a-constitutional-court