Along with its myriad other problems, Afghanistan finds itself in a continuing state of constitutional confusion as to what body has the authority to interpret the constitution. Given the total stalemate between President Karzai and the parliament, this is a grave state of affairs that threatens to exacerbate the political gridlock.
The problem began with last-minute changes introduced during the constitutional drafting process, in which the constitutional court initally included in draft Article 146 was removed and its powers only partially assigned to the Supreme Court. Article 121 of the Constitution says that the government or courts can request the Supreme Court to review laws and treaties for compatibility with the constitution. It does not, however, explicitly give the Court the general power to “interpret” the constitution outside of this context. Thus, if there is a dispute over the constitutional assignment of power to one body or another, there is no mechanism for resolving it.
The system functioned without controversy from 2004-2007, with the Supreme Court acting as if it had a general power of interpretation. After a dispute in 2007 over whether parliament could impeach a government minister, the parliament amended the draft law on the Commission for Supervision of the Implementation of the Constitution, (ICSIC), which is described vaguely in Article 157 of the Constitution, to grant that body the power to interpret the Constitution. This statute passed over President Karzai’s veto, but the Supreme Court, exercising its authority to review laws for conformity with the Constitution, struck the provisions allowing the ICSIC to interpret the Constitution.
ICSIC still claims the power of interpretation. And the ICSIC retains the power to “supervise the observance and application of the Constitution” by government and non-government actors, including the judiciary. This last provision makes it look like an appellate body of some kind, to which one might imagine that Supreme Court cases might be appealed if they do not interpret the constitution in the same way as the ICSIC. Even if the provision refers to lower judges only, it means that the ICSIC might be able to say that lower court rulings that misapplied the constitution were not binding. This would mean that lower courts had, in effect, two supervisory organs.
All this puts Afghanistan in the difficult position of having multiple bodies claiming some power of constitutional interpretation. The Supreme Court says that the ICSIC does not have the power, which of course is a statement that itself interprets the constitution. The ICSIC contests this position because of the lack explicit assignment to the Supreme Court. There is no clear hierarchy among the two bodies. It goes without saying that this is a risky situation given the other challenges facing Afghanistan today. And it also lies at the heart of many of the major political disputes in the country, including controversies over ministerial appointments, the special election tribunal, and impeachment.
A logical way to resolve this situation would be to pass a constitutional amendment to clarify the authority of the Supreme Court, and to adopt a clear division of labor between the two bodies. Even if there were agreement between the various bodies on the need for an amendment, however, the ICSIC has argued that the amendment process cannot proceed. Amendment requires the convening of a constitutional Loya Jirga, whose membership is to include both houses of parliament, as well as the chairmen of provincial and district councils. The Loya Jirga can convene with a quorum of 50% of its members. Given the situation of war in the country, it has been impossible to hold district level elections, meaning that there are only 385 of 789 authorized members holding office at the moment.
A natural way to interpret the Constitution in this situation would be to say that the denominator for purposes of the quorum requirement is the number of officers actually elected. Thus a quorum would be 193 of 385 total members, rather than 395 of 789 total members. The ICSIC, however, has argued otherwise, and so takes the position that no amendment of the constitution is possible until district elections are held. This is surely an uncompromising and impractical position, essentially saying that no amendments are possible until the war is won. It is also self-defeating: it is plausible that the various unresolved constitutional crises in Afghanistan are reducing the possibility of stabilizing the country so that it could hold district-level elections.
All this adds up to a real mess. The assassination this week of former President Rabbani, which dimmed the prospects for peace, puts renewed pressure on Afghan authorities to compromise and produce a working governmental structure. A functioning system of constitutional review would be a major step forward.