Restraining Judicial Power: The Fragmented System of Judicial Review and Constitutional Interpretation in Afghanistan

Michigan State International Law Review, Vol. 26.2:245-294, 2018

50 Pages Posted: 13 Apr 2020

See all articles by Shamshad Pasarlay

Shamshad Pasarlay

Herat University School of Law and Political Science

Date Written: April 10, 2018

Abstract

The 2004 Constitution of Afghanistan vaguely describes the powers of the Supreme Court (the Court) to interpret the constitution and exercise judicial review. It also describes an independent commission for the supervision of the implementation of the constitution (the Commission), whose powers are ambiguous and seem to overlap with those of the Court. The political branches of the government have taken advantage of these constitutional ambiguities and adopted legislation that vested judicial review and constitutional interpretation powers in two rival institutions, the Court and the Commission, thereby containing the power of the regular judiciary. This Article explores the implications of this fragmented system of judicial review in Afghanistan. It argues that this fractured system of judicial review has severely undermined the powers of the Court, and it has impeded the ability of both the Court and the Commission to issue binding judicial review opinions. Both entities have instead developed a practice of advising the political branches of the government, and, in the process, they have issued a large number of advisory opinions, letting the executive and the legislature treat the Court and the Commission as consultative bodies rather than co-equal and independent branches of the government. This Article offers the first detailed examination of Afghanistan’s judicial review system. In addition, it adds a critical and timely case study to the scholarship on the politics of courts in authoritarian regimes. Specifically, this history and analysis provide evidence to support claims made by Tom Ginsburg and Tamir Moustafa that authoritarian presidents try to restrain the power and authority of the regular judiciary by setting up competing institutions with overlapping jurisdiction over constitutional matters instead of creating a unified hierarchical institutional mechanism. This Article further illustrates that Ginsburg and Moustafa’s theory might be extended to powerful, not necessarily authoritarian, executives who may also contain the power of the regular judiciary by intentionally engineering competing institutions to resolve constitutional disputes.

Keywords: Afghanistan, Constitutionalism, Judicial Review, Judicial Independence

Suggested Citation

Pasarlay, Shamshad, Restraining Judicial Power: The Fragmented System of Judicial Review and Constitutional Interpretation in Afghanistan (April 10, 2018). Michigan State International Law Review, Vol. 26.2:245-294, 2018, Available at SSRN: https://ssrn.com/abstract=3555946

Shamshad Pasarlay (Contact Author)

Herat University School of Law and Political Science ( email )

Herat University Main Complex
School of Law and Political Science
Herat, WA Herat
Afghanistan

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