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Constitutional Interpretation and Constitutional Review in Afghanistan: Is There Still a Crisis?

Shamshad Pasarlay, University of Washington School of Law

Constitutional interpretation—specifically, the question over where to locate the power to issue constitutional interpretations that would bind the branches of the government—was a controversial issue during the drafting of the 2004 Constitution of Afghanistan. The drafters of the Constitution (members of the Constitutional Drafting Commission and Constitutional Review Commission) recommended an independent constitutional court to interpret the Constitution and conduct constitutional review of laws. But the then President, Hamid Karzai, and his cabinet removed the draft constitutional court before the convention of the Constitutional Loya Jirga (the popular body that adopted the 2004 Constitution). President Karzai and his supporters argued that the constitutional court would become like Iran’s Council of Guardians, using constitutional provisions, especially those having to do with Islam, to trump the political system. The removal of the constitutional court from the draft constitution beget confusion over constitutional interpretation, especially given the haphazard inclusion of article 121, empowering the Afghan Supreme Court to conduct judicial review, and article 157, requiring the establishment of an independent commission to supervise the implementation of the Constitution. These changes did not clearly authorize either the Commission or the Supreme Court to interpret the Constitution.

It has been almost five years since the establishment of the Independent Commission for the Supervision of the Implementation of the Constitution (The Constitutional Supervision Commission). Shortly after a presidential veto in 2009, the Afghan Parliament passed the Law of the Constitutional Supervision Commission by a two-thirds majority. This Law authorized the Commission to interpret the Constitution at the request of the government, the National Assembly and the Supreme Court. However, the Afghan Supreme Court and President, Hamid Karzai, challenged the power of the Commission, maintaining that constitutional interpretation is the power of the Supreme Court under article 121 of the Constitution. But, strongly backed by the Parliament, the Commission continued interpreting the Constitution notwithstanding the opposition of the President and the Supreme Court.

Thus, a crisis over constitutional interpretation emerged. This short piece explores whether this crisis still remains and highlights how constitutional interpretation and constitutional review is conducted in Afghanistan—identifying which institution does what today.

Constitutional interpretation, once in crisis, does not seem to be in such a state anymore in Afghanistan. The work and data of the Constitutional Supervision Commission reveal that a consensus, though implicit, has been emerging vesting the two institutions with different kinds of constitutional review power. Since its establishment in 2010, the Constitutional Supervision Commission has interpreted the Constitution on many occasions. The Commission’s interpretations were disputed at the beginning, but not anymore. The Afghan Parliament has requested most of these interpretations, and more importantly, today the government also sends interpretive questions to the Commission. In addition, the Afghan Supreme Court, which invalidated those provisions of the Law of the Commission that authorized the Commission to interpret the Constitution in a judicial review opinion in 2009, no longer seems to challenge the authority of the Constitutional Supervision Commission to interpret the Constitution. It seems that a political practice has emerged which shows that a pattern of acceptance has surfaced, at least for now. While the government was the first to challenge the authority of the Commission over constitutional interpretation, today the government sends requests to the Commission seeking interpretive opinions. It seems that this practice has not only ended the crisis over constitutional interpretation but has also clarified, to some extent, the role of the Commission and its power over constitutional interpretation and constitutional review.

Moreover, it appears that this political practice has vested constitutional review functions in two separate institutions, which is somewhat unusual by comparative standards. Today, both the Constitutional Supervision Commission and the Supreme Court share constitutional review powers.  Nevertheless, there seems to be a clear line between the Commission and the Court regarding constitutional review and constitutional interpretation. The data obtained from the Constitutional Supervision Commission shows that the Commission does three things as part of its authorities to oversee the implementation of the Constitution.

First, the Constitutional Supervision Commission interprets the Constitution, and as such, offers interpretive opinions to the National Assembly, the Supreme Court (which has not yet requested an opinion) and the government. Article 8 (1) of the Law of the Commission states that upon the request of the National Assembly, the Supreme Court, and the government; the Commission can interpret the Constitution. The Supreme Court had determined that this provision of the Law of the Commission is unconstitutional because the Supreme Court is the only institution that has the power to interpret the Constitution. Nevertheless, it seems that this opinion of the Supreme Court did not make any difference and the Commission has continued interpreting the Constitution to this day. While at the beginning of the Commission’s functioning, only the National Assembly referred matters to the Commission for constitutional interpretation; today many constitutional interpretation requests come from the government too. It appears that the government no longer contests the Commission’s power to interpret the Constitution.

Second, and perhaps most interestingly, the Commission conducts a pre-promulgation abstract review of legislation – reviewing laws before they go into effect. The Commission does not, however, have any statutory power to conduct pre-promulgation abstract review. It performs this review in the form of offering legal advice, mostly to the National Assembly and to the government. For example, in July 2012, the Minister of the government on Parliamentary Affairs asked the Commission to review the constitutionality of the proposed Law on Combating Administrative Corruption. Likewise, in September 2012, the Commission reviewed the proposed law of elections and sent its opinion to the Independent Electoral Commission stating that some of the law’s provisions were contrary to the Constitution. The National Assembly sends most of these requests to the Commission, more than any other institution.

Third, the Commission offers legal advice to the President and the National Assembly on issues arising from the implementation of the Constitution. Article 8 (3) of the Law of the Commission states that the Commission has the duty to offer legal advice to the president and the National Assembly. Offering legal advice to the president and the National Assembly comprises a major part of the workload of the Constitutional Supervision Commission. The National Assembly has been an active participant in this respect, with more references to the Commission than the president or his cabinet for legal advice on constitutional matters. With these three kinds of functions, it appears that the Constitutional Supervision Commission almost acts as the proposed constitutional court would have done under the earlier drafts of the Constitution.

In contrast, the Supreme Court performs concrete review of laws and post-promulgation abstract review. Practice shows that the Court’s constitutional review power includes conducting these two types of review. While there is no recorded case in which the Court has conducted concrete review, it has been active in conducting post-promulgation abstract review. It seems that the Supreme Court can also interpret the Constitution, as it often does while reviewing laws for constitutionality. However, since the establishment of the Constitutional Supervision Commission, the Supreme Court has hardly ever issued an interpretive opinion. Today, it would not be an overstatement to claim that almost all constitutional interpretation matters get referred to the Constitutional Supervision Commission rather than the Supreme Court. The data on the work of the Commission shows that the Commission is far more active in dealing with constitutional matters than the Supreme Court.

It appears that the institutions settled on this practice because of the Parliament’s strong backing of the Commission to interpret the Constitution. Under article 121 of the Constitution, only the government and courts can petition the Supreme Court on matters of constitutional review. Adopting the law of the Commission gave the Parliament the ability to ask for constitutional review and interpretation. To elites, this was a better formulation than article 121 of the Constitution. Additionally, President Karzai was also playing a strategic role and sent questions on constitutional matters to both institutions depending on which best secured his interests.

In short, constitutional interpretation, which once was a crisis between the Supreme Court and the Constitutional Supervision Commission, now seems to have been settled. It seems that a consensus, though implicit, has emerged among the different branches of the government on which of these institutions does what. Politicians and courts alike started to treat a vaguely described commission as a de-facto constitutional court with the power of pre-promulgation abstract review and constitutional interpretation, while treating Afghanistan’s Supreme Court as a body empowered to carry out post-promulgation abstract review and concrete review.

Suggested citation: Shamshad Pasarlay, Constitutional Interpretation and Constitutional Review in Afghanistan: Is There Still a Crisis?, Int’l J. Const. L. Blog, Mar. 18, 2015, at: http://www.iconnectblog.com/2015/03/constitutional-interpretation-and-constitutional-review-in-afghanistan-is-there-still-a-crisis/

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Published on March 18, 2015
Author:          Filed under: Analysis
 

5 Responses

  1. Tom Ginsburg

    This is quite an important update, given how contentious this issue was in Afghanistan some years ago. It seems to Commission has become a real institution with some capacity, which was beyond what one would have expected given its complicated birth.

  2. Clark Lombardi

    Thank you for this really cogent discussion. It provides important information about an institution that was once much discussed among students of constitutional design and then seemed to be forgotten. As Tom Ginsburg notes in the comment above, when formed, the commission was highly controversial largely because its powers were ambiguous and seemed to overlap with those of a new Supreme Court that wielded, for the first time in Afghanistan’s history, a constitutional right to exercise judicial review. As this piece, shows, the commission has reached a rather interesting modus vivendi with a Supreme Court and that modus vivendi has to date been ratified by the governing elites of Afghanistan who appear to use the two institutions to do different things. It seems to me, the facts presented here raise some interesting questions both for comparative constitutional studies and for Afghan political studies.

    (1) Among the broader questions is how to conceptualize the Commission as it functions today. Like Japan’s Cabinet Legislation Bureau, it seems to have acquired significant, if apparently informal, interpretive authority through a practice of “advising” coupled with executive and legislative respect or at least lack of non-respect for its opinions. Perhaps it is time to look comparatively at institutions such as these and try to understand both how they work and their significance.

    (2) Another broader question involves the question of how and why this particular modus vivendi appeared and what it might tell students of comparative constitutional evolution. Does the behavior of institutions with claims to constitutional interpretive authority always involve a practice of navigating around the claims of competing institutions with overlapping claims to interpretive authority. Surely the answer is “Yes.” But I wonder whether our understanding of the process has grappled with the range of institutional contests that might appear or, therefore, is sufficiently theorized.

    Is our understanding of the nature of the challenge and the techniques employed by the contestants overly shaped by the American story in which courts asserted a contestable claim to the power of judicial review (and ultimately to a quite strong form of judicial review) but tended to behave prudentially in some cases where it could expect significant pushback from other branches and could not count on public support? I am not aware of aa broader comparative study that would explore how the contest plays out differently in different institutional and politico-cultural contexts. If there is one, could you recommend one?

    (3) Finally, turning more specifically to the question of Afghanistan, one interesting question is whether the current modus vivendi can survive the pressures of Afghanistan’s peculiar current situation–with the formation of an informal but defacto semi-presidential system to divide power among disputed claimants to a controversial election and the prospect of a significant set of constitutional amendments. In this situation, Do you see any possibility that one two rival claimants to interpretive authority over the constitution will align themselves with the President and the other with the defacto prime-minister?

    • Shamshad Pasarlay

      Thank you very much Professor Lombardi and Professor Ginsburg for your comments.
      Professor Lombardi with respect to your final question, I think that this practice will survive the current situation. My intuition for now, based on my conversations with the members of the Commission and other interested individuals, is that not only the current modus vivendi will survive the current situation, but it will also become more clear on what these institutions do. For instance, in the draft of the new law on the basic Structure of State Institutions, the Constitutional Commission is given the power to review draft laws before they go to the legislature for approval. If adopted, this law will give the Commission a statutory basis for pre-adoption (promulgation) abstract review, which the Commission lacks till date. Furthermore, in the new 2013 Law on the Organization and Jurisdiction of the Courts of Afghanistan, the Supreme Court did not bother to list constitutional interpretation in its powers and authorities. Although it is early to say it, I do not see the possibility that one two rival claimants to interpretive authority over the constitution will align themselves with the President and the other with the CEO. It seems that the elites no longer tolerate this dual and vague framework over constitutional review and constitutional interpretation functions. But given the current situations in the country, I must admit that anything can happen.
      Last week, President Ghani issued a decree appointing the electoral reform commission as provided for in the power-sharing agreement between the President and the CEO. Currently, there are heated discussions on the authorities of the Reform Commission and whether it can amend the electoral laws. The President and the CEO as well as the parliament are deeply divided on this question. The Parliament had asked the Constitutional Commission to decide whether the Reform Commission can amend electoral law or not. It will be quite interesting to see what the Commission decides and what broader constitutional interpretation implications its decision will have.

  3. I believe this is a wonderful articulation and understanding of patchy legal framework suggested in the Afghan Constitution and contentious creation of the Constitutional Commission. But the question remains: How is it possible for the Supreme Court to interpret or review the compatibility of new laws if it does not have the authority to interpret the Constitution?

    • Shamshad Pasarlay

      Mr. Timory,
      You are right. It will be impossible for the Supreme Court to perform judicial review if it does not have the power to interpret the Constitution. Nevertheless, I believe that the Supreme Court interprets the Constitution when it performs judicial review of laws, as it has done this on a number of occasions. The problem, however, is the Court’s power to interpret the Constitution in isolation, meaning when the Court is not performing judicial review. This, I believe, has not been resolved, as some recent examples had indicated.

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