The Judiciary and the Rule of Law in Afghanistan

Abstract

The sine qua non of the rule of law is the enforcement of legal constraints on government power. Absent such constraints, the rule of law will devolve into “rule by law” or “rule of man.” Separation of powers is an important mechanism in checking unbridled government authority. An independent and competent judiciary, in particular, is indispensable to a robust checks and balances system and thus often viewed as the lynchpin of a rule of law society.

This Article examines the nexus between the judiciary and the rule of law in Afghanistan. First, it will provide an overview of the separation of powers under the 2004 Constitution, which so many hoped would herald a new era. Next, it will show how institutional design flaws, primarily in the constitutional architecture, curtailed the judiciary’s capacity to act as a check on the other branches, particularly vis-à-vis the executive. Finally, it will argue that a widening gap between the de jure rules on paper and the de facto practice of contempt for judicial independence further undermined the rule of law in Afghanistan — long before the Taliban again seized power in August 2021.

Keywords: Afghanistan, Rule of Law, Constitutional Law, Separation of Powers, Judiciary, Judicial Independence, Executive Overreach, Comparative Law, Legal Reform, Law and Development