ACADEMIA Letters

Judicial Review and Constitutional Disputes in

Afghanistan - A Brief Discussion
Zulfia Abawe

The Supreme Court (hereafter called “the Court”) is vested with the power of judicial review
to resolve constitutional disputes in accordance with Article 121 of the Afghan Constitution.
“Heading the judicial power”1 of the country, the Supreme Court has de jure full authority
to review and interpret any law including the constitution provided that the constitution in
itself is a form of law, legislative decrees, international treaties and covenants for their com-
pliance with the Constitution. The strong form of judicial review vested in the Supreme Court
should not be delegated to any other authority under any circumstance,2 and any branches
of the government or the national assembly may not override the Court’s judgements. The
Supreme Court has de jure the final word regarding constitutional disputes with binding ef-
fects. However, the de facto practices tell a different story. Due to its “spontaneous and
collective retaliation against the executive and the judiciary,”3 the parliament has challenged
the power of the Court on many occasions. For example, the parliament has argued against
the Court’s power to resolve constitutional disputes, which is inherent to the power of judicial
review,4 on the grounds of the Court not having the power to interpret the Constitution (this
argument was prevalent in Foreign Minister Spanta’s case). This controversy gave rise to an-
other competing institution, the Independent Commission to Supervise the Implementation of
1
Article 116 of the Constitution of Afghanistan [2004]
2
Article 122 of the Constitution of Afghanistan [2004]
3
Farid Hamidi and Aruni Jayakody, “Separation of Powers under the Afghan Constitution: A Case Study,”
Afghanistan Research and Evaluation Unit, (March 2015), accessed at
https://www.baag.org.uk/sites/www.baag.org.uk/files/resources/attachments/AREU%20Seperation%20of%20Powers%20Under%20the%20
%20Mar2015.pdf
4
“An Introduction to the Constitutional Law of Afghanistan,” Afghanistan Legal Education Project, Stanford
School of Law (2015).

Academia Letters, April 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Zulfia Abawe, Zulfia.abawe1@gmail.com

Citation: Abawe, Z. (2021). Judicial Review and Constitutional Disputes in Afghanistan - A Brief Discussion.
Academia Letters, Article 693. https://doi.org/10.20935/AL693.

1
the Constitution (hereafter called “the Commission”), which shares overlapping jurisdiction
with the Court.
In the Afghan context, a different trend rooted in Foreign Minister Spanta’s case emerged
to resolve constitutional disputes, which I will call “weak commission-judicial review”. In
2007, three years after the adoption of the current Constitution of Afghanistan in 2004, the
parliament, pursuant to Article 92 of the Constitution, removed Foreign Minister Spanta by a
vote of no-confidence. President Karzai did not believe that the parliament had the power to
do this, so he requested the Court to adjudicate the issue under Article 121 of the Constitu-
tion. The Court interpreted Article 92 of the Constitution and decided that the parliament did
not fully adhere to the requirements of the provision. In turn, the parliament challenged the
Court’s authority to interpret the Constitution and resolve political disputes between the leg-
islative and the executive branches. The parliament brought the issue before the Commission
under Article 157 of the Constitution, which gives the Commission the power to supervise
the implementation of the constitution – a very ambiguous provision, especially in relation to
exercising judicial review. At the time when the parliament invoked Article 157 of the Con-
stitution, neither the Commission nor any law on the Commission to describe its scope and
power in relation to interpreting the Constitution was established. Interestingly, the parliament
relied solely on Article 157 of the Constitution.
In response to this crisis, the executive branch drafted a law on the Commission. The
parliament enacted the law while incorporating some amendments that empowered the Com-
mission to interpret the Constitution and “supervise the observance and application of the
Constitution by the government and non-government actors including the judiciary.”5 These
provisions were invalidated by the Court by rightly positing that under Article 121 of the
Constitution, “only the Supreme Court has the power to interpret the Constitution, [and] it
continued that the interpretation of the Constitution would require power of issuing binding
verdicts or adjudication and that power is only vested by the Constitution to Supreme Court.”6
Interestingly, this time the parliament did not question the Court’s power to interpret the Con-
stitution but rather claimed that the Court “faced a conflict of interest in making its decisions”7
and therefore refused to accept the Court’s decision.
The ongoing battle between the parliament, the judiciary, and the executive gave birth to
a new unconstitutional, ambiguous and ineffective era with various implications for creating a
5
Farid Hamidi and Aruni Jayakody, “Separation of Powers under the Afghan Con-
stitution: A Case Study,” Afghanistan Research and Evaluation Unit, (March 2015),
accessed at https://www.baag.org.uk/sites/www.baag.org.uk/files/resources/attachments/
AREU%20Seperation%20of%20Powers%20Under%20the%20Afghan%20Constitution-%20Mar2015.pdf
6
Ibid.
7
Ibid.

Academia Letters, April 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Zulfia Abawe, Zulfia.abawe1@gmail.com

Citation: Abawe, Z. (2021). Judicial Review and Constitutional Disputes in Afghanistan - A Brief Discussion.
Academia Letters, Article 693. https://doi.org/10.20935/AL693.

2
culture of constitutionalism and ensuring the rule of law in the country. Both the Commission
and the Court have de facto been transformed to consultative bodies, each issuing non-binding
legal advisory opinions to the political bodies of the government including the executive and
the parliament at their requests. The executive and the parliament use the Court and the Com-
mission interchangeably “depending which institution is more likely to provide a decision in
their favour.”8 This has led to the emergence of further inconsistencies in the practice and
application of legal principles of the Court. As demonstrated by Haress, in pursuit of advanc-
ing the executive’s policy and political interests against the parliament the court became more
inclined toward political rather than legal reasoning and diverted from applying independent
legal principles. For instance, the Court refused to hear cases on the grounds of not having
standing before the Court (evidenced in Minister Patang’s case), unlike Spanta’s case which
had relevant aspects.9
At this juncture, Afghanistan is facing two major and critical barriers in resolving its con-
stitutional disputes: 1) The contemporary trajectory of resolving constitutional disputes is
marked by inconsistencies and the evolution of redundant institutions such as the Commis-
sion as barriers to realizing the full potential of judicial review by an independent judiciary,
which can have long-term implications on a society’s ability to understand and embrace the
culture of constitutionalism and the diffusion of constitutional norms, and 2) Afghanistan has
a fragile judiciary, deeply rooted in a legacy of political interference and executive dominance,
and weak human and capital resources. A potential transitional path for Afghanistan in resolv-
ing constitutional disputes lies in strengthening the judiciary by ensuring its independence and
improving its competence. More specifically, for resolving constitutional disputes, a strong
judiciary with a clear and transparent institution of judicial review should be laid out in statu-
tory law and the practices should stem and develop accordingly. This would be a significant
movement for Afghanistan with its little or no experience of judicial review. As documented
by Parslay, “except for the 1977 Constitution, which authorized the Supreme Court to interpret
the Constitution, none of the Afghan constitutions adopted judicial review or authorized the
judiciary to interpret the Constitution”10 Institutions such as the Commission can contribute
to resolving constitutional disputes by providing legal advice and opinions at the request of
any authority including the courts. However, the power of enforceable judgements should be
fully and only vested in the judiciary.
The above suggestions of having a strong independent judiciary with a strong form of ju-
8
Ghizaal Haress, “Judicial Review in Afghanistan: A Flawed Practice,” Afghanistan Research and Evaluation
Unit, (August 2001) 17.
9
Ibid. 20-23
10
Shamshad Parslay, “Restraining Judicial Power: The Fragmented System of Judicial Review and Constitu-
tional Interpretation in Afghanistan,” 26 Michigan State International Law Review, 251 (2018)

Academia Letters, April 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Zulfia Abawe, Zulfia.abawe1@gmail.com

Citation: Abawe, Z. (2021). Judicial Review and Constitutional Disputes in Afghanistan - A Brief Discussion.
Academia Letters, Article 693. https://doi.org/10.20935/AL693.

3
dicial review resemble the judicial system of the United States. This approach is more useful
in the context of Afghanistan with a nascent constitutional order and not having a strong con-
stitutional consciousness in its society. The elements of the judicial review, such as priori and
posteriori review of legislation and issuing enforceable verdicts based on appropriate, equal
and fair legal reasoning, can be useful in eliminating arbitrariness and promoting procedural
and legal transparency. Afghanistan does not have a deep history of regular constitutional
practices. The center has hardly established positive state practices including constitutional
norms in the periphery, which is documented by a number of scholars. It does not have
alternative spaces, such as those in China,11 for resolving constitutional disputes involving
citizens and the state. The Afghan context, therefore, does not lend itself to discussions of
alternative (informal) constitutional dispute resolution mechanisms. The practice of resolv-
ing constitutional disputes, albeit involving unconstitutional elements, is so far consolidated
within the political branches of the State (mostly the executive and the parliament) and the
Supreme Court. There is a need to diffuse constitutional norms and to raise the constitu-
tional consciousness of the public, who should be able to bring claims of violations of their
constitutional rights before the courts.
Even though the Constitution vests the Supreme Court with a strong form of judicial re-
view, it does limit the Court in its referral mechanism. The Court can initiate judicial review
at the request of the courts and the government. Provided that constitutional disputes can be
manifested in different forms across a range of both intra-state and citizen-state issues, in-
cluding the violation of the fundamental human rights of individuals by state institutions or
officials, political party disputes, elections, the separation of powers, and others, the referral
mechanism limits other emerging authorities such as the Afghanistan Independent Human
Rights Commission and civil society organizations that play a critical and significant role
in identifying violations of the fundamental human rights of citizens. These organs cannot
request the Court to review the constitutionality of laws or their relevant provisions. As a
comparative framework, Afghanistan can learn a lot from a strong-judicial review mecha-
nism such as the United States’ which lends the Supreme Court the power to issue binding
verdicts and employ both concrete and abstract review.

Bibliography
“An Introduction to the Constitutional Law of Afghanistan,” Afghanistan Legal Education
Project, Stanford School of Law (2015).
11
Keith Hand, “Resolving Constitutional Disputes in Contemporary China,” 7 U. Pa. E. Asia L. Rev. 51 (2011)

Academia Letters, April 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Zulfia Abawe, Zulfia.abawe1@gmail.com

Citation: Abawe, Z. (2021). Judicial Review and Constitutional Disputes in Afghanistan - A Brief Discussion.
Academia Letters, Article 693. https://doi.org/10.20935/AL693.

4
Hamid, Farid, Aruni Jayakody, “Separation of Powers under the Afghan Constitution: A Case
Study,” Afghanistan Research and Evaluation Unit, (March 2015), accessed at https://
www.baag.org.uk/sites/www.baag.org.uk/files/resources/attachments/AREU%20Seperation%20of%20Powers%2
%20Mar2015.pdf

Haress, Ghizaal, “Judicial Review in Afghanistan: A Flawed Practice,” Afghanistan Research

and Evaluation Unit, (August 2001) 17.

Hand, Keith, “Resolving Constitutional Disputes in Contemporary China,” 7 U. Pa. E. Asia

L. Rev. 51 (2011)

Parslay, Shamshad Parslay, “Restraining Judicial Power: The Fragmented System of Judicial
Review and Constitutional Interpretation in Afghanistan,” 26 Michigan State International
Law Review, 251 (2018)

The Constitution of Afghanistan [2004]

Academia Letters, April 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Zulfia Abawe, Zulfia.abawe1@gmail.com

Citation: Abawe, Z. (2021). Judicial Review and Constitutional Disputes in Afghanistan - A Brief Discussion.
Academia Letters, Article 693. https://doi.org/10.20935/AL693.