–Shamshad Pasarlay, Herat University School of Law and Political Sciences
On November 12, 2016, the Wolesi Jirga, the Afghan parliament’s lower house, began a process of impeaching cabinet ministers who had not been able to spend more than 70 percent of their ministry development budget for the financial year of 2015. As part of this process, the parliament voted seven key ministers out of office. The executive, however, strongly objected to the parliament’s decision to remove these ministers. President Ashraf Ghani instructed the dismissed ministers to remain in office, and asked the Supreme Court to reverse the parliament’s decision. However, as of March 20, 2017 (more than four months since the parliament’s decision), the Court is yet to decide on the constitutionality of the parliament’s decision to remove these ministers. During this time, the parliament several times asked the executive to introduce new candidates to fill the position of the dismissed ministers. The executive, however, is waiting for the final decision of the Court before taking further actions in this regard.
The current political controversy between the executive and the legislature presents the most serious situation facing the Afghan Supreme Court. The parliament has rejected the Court’s jurisdiction in this matter, and has made it clear that it would not accept the Court’s final decision. The parliament maintains that while Article 121 of the Constitution gives the Court the power to review the constitutionality of laws, it does not authorize the Court to decide on the constitutionality of the parliament’s appointment and removal powers. Thus, sensing a possible political backlash from its decision on the constitutionality of the parliament’s power to remove cabinet ministers, the Court has apparently employed strategic avoidance – to date, the Court has decided not to decide this time-sensitive political controversy.
By engaging in strategic judicial avoidance, apex courts occasionally avoid ruling on sensitive political disputes that might threaten their independence, legitimacy and institutional security. Erin Delaney has noted that strategic judicial avoidance might enable courts to steer constructive political dialogue over politically controversial cases that might ultimately result in their political resolution rather than judicial intervention. Strategic judicial avoidance thus allows courts not to decide a contentious political dispute that may potentially trigger severe political backlash – backlash that might undermine the judiciary’s independence and powers.
The Reluctance of the Supreme Court to Resolve Political Controversies
Equipped for the first time in Afghan history with the power of judicial review under the 2004 Constitution, the Afghan Supreme Court was expected to perform a very significant political role in safeguarding the Constitution. Initially the Court tried to establish final authority to invalidate legislation and resolve political controversies between the legislature and the executive. However, the Court’s activism and decisions in sensitive political controversies triggered severe political backlashes that undermined its legitimacy, independence, and power. As a result, the Court over time has opted to play a quieter role in politically sensitive disputes. On certain occasions, the Court resorted to rigid requirements (such as the standing doctrine) to avoid politically controversial cases that might threaten its institutional security.
For instance, in May 2007, the parliament voted to strip then Foreign Minister Rangin Dadfar Spanta of his ministerial post over his apparent failure to prevent the forceful deportation of Afghan refugees from Iran. President Karzai, however, refused to recognize the legitimacy of parliament’s vote and questioned parliament’s removal powers before the Supreme Court. Although the 2004 Constitution states in Article 71 that the parliament’s lower house must confirm ministerial appointments, it is silent on removal of a sitting minister by the parliament. The Court ruled that the parliament does have an implied constitutional right to remove a minister but in Minister Spanta’s case, it did not follow appropriate voting procedures. The parliament flatly rejected the Court’s decision, arguing that Article 121 of the Constitution only gave the Court the power to review the constitutionality of laws, but not legislative actions such as appointment or removal powers.
In response, the Court attempted to clarify its jurisdiction through a proposed amendment to the Law on the Organization and Jurisdiction of the Courts (2005) that would explicitly allow the Court to interpret the Constitution and resolve disputes stemming from the implementation of law and exercise of legal authority between the legislature and the executive. The parliament rejected the Court’s amendment proposal, stating that the Court did not have the power to interpret the Constitution. The parliament also adopted retaliatory measures that further undermined the powers of the Court. Specifically, the parliament moved to authorize a newly established commission for the supervision of the implementation of the Constitution (the Commission) to interpret the Constitution under Article 157. Since then, the parliament has always challenged the Court’s power to interpret the Constitution and treats the Commission as the only constitutional interpretation body.
As a result of this backlash from the Court’s Spanta decision, the Court has avoided stepping into resolving sensitive political controversies by insisting on rigid threshold requirements. For instance, in February 2013, the parliament voted to remove then Interior Minister, Mujtaba Patang, from office over his apparent incompetence in face of worsening security situation in the country and the appointment of unproductive officials to sensitive security posts. Patang brought the case to the Supreme Court to determine whether the vote was based on convincing reasons as described in Article 92 of the Constitution. Reluctant to hear the case, the Court declined Patang’s request on the ground that such requests had to be made by the president himself, not by an individual minister.
In an important recent work, Stephen Gardbaum has noted that the most important goal for apex courts in new democracies is not establishing the power to invalidate legislation, but establishing and maintaining their independence and institutional viability. Judicial attempts to establish the final authority to invalidate legislation and resolve sensitive political controversies in new and fragile democracies often instigate political backlashes that undermine the independence of the judiciary – which is the most essential goal for courts in new democracies. In the current political controversy in Afghanistan, Gardbaum’s argument clearly plays out. To preserve its independence and legitimacy, the Afghan Supreme Court is apparently not willing to establish final authority to invalidate parliament’s appointment and removal powers. The Court is exercising great caution in this dispute, because it is concerned that its decision might cause a political backlash that may threaten the Court’s legitimacy and institutional viability. The central challenge is that the Court’s decision in this dispute carries the risk of creating powerful opponents (especially if it decides against the parliament) with the capacity to oppose the Court’s decision that could threaten its institutional legitimacy and limit its powers. The Court is fully aware of the political dynamic in which it operates – it understands the potential threats that its decision might cause.
For all these reasons, as of today, the Court has decided not to decide the time-sensitive case of the dismissed governmental ministers. Deciding the current political controversy carries a real and substantial source of political tension between the Court and elected political institutions (particularly the parliament) in which the institutional viability of the Court is very much at stake. As happened on previous occasions, the Court has no power and means to resist the political backlashes that reduce its powers and threaten its independence. Therefore, the Court has consciously engaged in strategic avoidance – by delaying decision on the fate of the dismissed cabinet ministers.
In sum, by engaging in strategic avoidance, the Afghan Supreme Court has tried to steer dialogue between the political branches over this sensitive political dispute, allowing resolution through the political branches rather than through judicial intervention. Political realities thus far suggest that it is likely that the current dispute might ultimately be resolved through political dialogue rather than judicial intervention. Will this enhance the legitimacy and institutional security of the Court? I am not arguing here that avoidance will actually protect the Court’s legitimacy or its institutional viability. Rather the central goal of this short piece is to show that the assumption of strategic avoidance appears to have influenced the behavior of the Afghan Supreme Court, like those of many apex courts around the world.
Suggested citation: Shamshad Pasarlay, When Courts Decide not to Decide: Understanding the Afghan Supreme Court’s Struggle to Decide the Fate of the Dismissed Ministers, Int’l J. Const. L. Blog, Mar. 22, 2017, at: http://www.iconnectblog.com/2017/03/when-courts-decide-not-to-decide-understanding-the-afghan-supreme-courts-struggle-to-decide-the-fate-of-the-dismissed-ministers/