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© USIP 2011 • All rights reserved.

“With each branch of 

government attempting to 

impeach the other’s credibility, 

each party has developed 

its own politically expedient 

interpretation of the Constitution. This raises one of the 

most fundamental questions 

of Afghan governance: 

Who has the authority to 

interpret the Constitution?”

November 7, 2011

Constitutional Interpretation and the 

Continuing Crisis in Afghanistan

Summary

•	 The recent controversy in Afghanistan over the outcome of the 2010 parliamentary elections 

ultimately resolved the question of who sits in Parliament, but left a more fundamental question unanswered: “Who has the power to interpret the Afghan Constitution?”

•	 Ambiguities in the language of the Constitution make it difficult to determine who has the 

legal authority to interpret it. The Supreme Court maintains that the Constitution gives it the 

power of judicial review, but the Constitution also calls for the Independent Commission 

on the Supervision of Implementation of the Constitution (ICSIC), which the Parliament has 

mandated to decide constitutional issues instead. 

•	 Without political and legal consensus over who has final authority to decide different types of 

constitutional claims, Afghanistan cannot achieve a rule of law where government activities 

are subject to consistent and transparent rules.

•	 Afghanistan must establish clear and unambiguous rules for constitutional interpretation to 

avoid damaging crises about political leadership and the separation of powers as the security 

transition and Presidential election approach in 2014.

Introduction

In July 2011, more than six months after a new Afghan Parliament was sworn into office, a Special 

Elections Tribunal created by President Hamid Karzai ordered the replacement of 62 of the 249 

sitting members of Parliament elected in the 2010 vote. The tribunal claimed a mandate to identify 

perpetrators of election fraud that was denounced by candidates and the international community alike as more of a political ploy than a legal process. 

The debate over the tribunal’s mandate, and the validity of the election results more generally, 

prompted a series of legal challenges that ultimately called into question the legitimacy of all 

three branches of government. The Supreme Court ruled that Parliament could not pass laws until 

those accused of fraud were replaced. Parliament retaliated by threatening to impeach six of nine 

Supreme Court justices and declared the Special Tribunal to be illegal. Meanwhile, President Karzai 

refused to work with Parliament and through his attorney general, Mohammad Ishaq Aloko, pressured the Independent Election Commission (IEC) to retract its final election results. This prompted 

Parliament’s no-confidence vote on Aloko.

With each branch of government attempting to impeach the other’s credibility, each party 

has developed its own politically expedient interpretation of the Constitution. This raises one of 

Scott Worden

E-mail: sworden@usip.org

Phone: 202.429.3811

Sylvana Q. Sinha

E-mail: ssinha@usip.org

Phone: 202.429.4000

peaceBrieF113
© USIP 2011 • All rights reserved.

Constitutional Interpretation and the Continuing Crisis in Afghanistan

page 2 • PB 113 • November 7, 2011

the most fundamental questions of Afghan governance: Who has the authority to interpret the 

Constitution? 

A Constitution itself should, ideally, provide an unequivocal answer to this question. It should 

also delineate the separation of government powers. But ambiguities in the 2004 Constitution 

have created a legal fog around these questions. As difficult as the discussion may be, the Afghan 

government must find a way to debate and decide who has the ultimate power to decide constitutional questions. 

The Struggle for Power to Interpret the Constitution

The current constitutional crisis reflects a quiet but longstanding tension over rights of Constitutional interpretation. During the 2003 Constitutional Loya Jirga, the draft provisions of the Constitution 

relating to the Judiciary called for an independent, unitary judiciary led by a Supreme Court. Article 

121 of the current Constitution (ratified in 2004) specifically states the Supreme Court may “upon 

request of the courts or the government review compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them, in accordance 

with the law.” Such language appears to give the Supreme Court the power of judicial review.

A new provision was also inserted in the Constitution creating a constitutional oversight role 

to counterweight a Supreme Court allied to the presidency. Article 157 designates an “Independent Commission for the Supervision of the Implementation of the Constitution” (ICSIC), to 

be “established by law” and whose members would be “appointed by the President.” However, 

the Constitution remains silent about both the ICSIC’s specific duties and its relationship to 

the Supreme Court. It dedicates 20 separate articles to matters related to the Judiciary and 

the Supreme Court, and one article—Article 121—specifically addresses the Supreme Court’s 

relationship to the Constitution. 

It was four years before the law on the duties and functions of the ICSIC was finally passed in 

November 2008. In the meantime, the Supreme Court handled all questions regarding Constitutional interpretation, including an advisory opinion declaring that, in the absence of district 

council elections, the one-third of the membership of the upper house of Parliament left vacant by 

local elections could still be formed with two-thirds of its members chosen by Provincial Councils. 

This decision was accepted and appeared to demonstrate the Supreme Court possessed final 

authority to interpret the Constitution.

This tacit understanding was challenged in May 2007, when the lower house voted to strip thenForeign Minister Rangin Dadfar Spanta of his ministerial post. President Karzai refused to recognize 

the legitimacy of Parliament’s vote and questioned Parliament’s removal powers before the 

Supreme Court. Although the 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 Parliament. 

The Supreme Court ruled that Parliament does have an implied constitutional right to remove a 

minister but in Minister Spanta’s case, it did not follow appropriate voting procedures. Parliament 

flatly rejected the Supreme Court’s decision, arguing that Article 121 gave the Supreme Court the 

power to interpret laws, but not legislative actions such as appointment powers. 

ICSIC’s Ambiguous Legal Mandate

The controversy over ministerial appointments spurred the Parliament to finally enact legislation 

formally establishing the ICSIC called for by Article 157 (Law Nr. 986, Aug. 31, 2008). The ICSIC Law 

requires seven members to be nominated by the President and approved by the lower house for 
© USIP 2011 • All rights reserved.

Constitutional Interpretation and the Continuing Crisis in Afghanistan

page 3 • PB 113 • November 7, 2011

four-year terms with the same privileges as ministers.1 Only five of the seven have been appointed 

thus far, although in October, President Karzai finally proposed two additional names that were 

rejected by Parliament. The Commission members reflect a range of legal qualifications, having 

served as judges, professors and judicial officials in past Afghan governments. 

The law defines the ICSIC’s primary mandate to inform the public about the provisions of 

the Constitution and to monitor the extent to which the people and the government abide 

by it. However, Article 8 of the law conveys powers of interpretation of the Constitution “at the 

request of the President, Parliament, and the Supreme Court.”2 Initially, President Karzai vetoed 

this legislation, arguing that the ICSIC was meant only to supervise the implementation of the 

Constitution. Parliament overrode Karzai’s veto by a two-thirds majority. The ICSIC law was 

passed, but it includes footnotes noting the Supreme Court’s objections to articles relating to 

constitutional interpretation.3

During the June 2010 confirmation hearings before Parliament, Commission nominees openly 

declared they would exercise the ICSIC’s authority to interpret the Constitution, so long as the 

ICSIC maintained the Parliament’s support.This sets up the fundamental contradiction in Constitutional powers between the Supreme Court and the ICSIC and raises questions about the binding 

effect of an ICSIC opinion over the President or the Parliament if the Supreme Court disagrees with 

an ICSIC opinion. 

Thus far, the ICSIC has been engaged with the executive branch to review and vet proposed 

laws or policies for constitutional validity. Responding to a request by the ICSIC for constitutional 

review of draft legislation, Presidential Decree No. 11371, dated November 14, 2010, “instructed 

that draft of laws after decision of the cabinet and prior of sending to National Assembly shall be 

sent to the [ICSIC].” However, the ICSIC faces a conflict of interest if either the Courts or the Parliament ask it to rule on the constitutionality of legislation it helped to write. 

Despite the passage of the ICSIC law, the approach to solving constitutional questions has been 

increasingly ad hoc and politicized. During the most recent parliamentary elections, Parliament 

sent letters to both the Supreme Court and the ICSIC asking their interpretation of the electoral law 

concerning how fraudulent votes might be disqualified. The IEC also reportedly requested both 

bodies to opine on the validity of the President Karzai’s Special Electoral Tribunal. The Supreme 

Court and ICSIC were also consulted on how the Speaker of Parliament should be elected. It is clear 

that simultaneous requests are being submitted to both the Supreme Court and ICSIC as a means 

of hedging bets in case one institution offers a more favorable opinion or ultimately emerges with 

superior authority.

An Uncertain Constitutional Future

Having two legal institutions with overlapping mandates in a highly politicized environment is a 

recipe for instability and fundamentally undermines the rule of law. The recent election dispute 

was ultimately resolved through politics, without either the Supreme Court or the ICSIC: President 

Karzai disbanded his Special Election Tribunal and simultaneously defended its legality and ceded 

authority to the IEC to issue the final decisions about the Parliamentary election results. (The IEC 

agreed to remove only nine of the 62 members the Special Election Tribunal said were wrongly 

seated in Parliament.) Therefore, it remains an open question as to who has the ultimate authority 

to interpret Afghan laws affecting political power and succession. That uncertainty will engender 

costly political crises every time an election or appointment of senior government officials occurs.

Moreover, the crisis over constitutional interpretation continues to escalate and deadlock the 

government in subtle ways. Parliament increasingly uses constitutional arguments to oppose 
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About This Brief

This PeaceBrief reports on 

controversies surrounding interpretation of the 2004 Afghanistan 

Constitution, which have created 

a crisis of confidence in the rule of 

law that the authors argue must be 

resolved for national reconciliation 

to occur. The research in this 

report reflects USIP’s ongoing work 

from its office in Kabul on Afghan 

constitutional law and rule of law 

reform. Scott Worden is a senior 

rule of law adviser for USIP in 

Washington, DC with responsibility for the Institute’s rule of law 

programs. Sylvana Sinha is 

a rule of law advisor in USIP’s 

Kabul Office.

President Karzai’s actions. In June, Parliament’s nearly unanimous vote of no confidence against 

Attorney General Aloko reprised the question of Parliament’s authority to remove Presidential appointees. Throughout the summer, the last item on the Parliament’s agenda was a “silent session” 

protesting the President’s failure to appoint new cabinet members. In July, the Parliament voted 

to impeach the Chief Justice and five members of the Supreme Court over their support for the 

Special Elections Tribunal; and in October, the Parliament maintained that it had already dismissed 

the Supreme Court justices and Aloko. 

The three branches of government must work together to address the issue of the separation 

of powers and agree to principles of constitutional interpretation that are legally consistent and 

unambiguous. In particular, the following fundamental questions require resolution to avoid 

escalating political confrontations:

•	 Can the Constitution be amended by a Loya Jirga without the delegates required by the 

Constitution from the district councils, which have yet to be formed? If not, district council 

elections must be held before any amendments that may be required for a political reconciliation process can be adopted.

•	 Does the Supreme Court have the sole power of judicial review of the Constitution? If so, 

the ICSIC statute should be revised to remove its interpretive powers under Article 8, and 

the respective roles of the Supreme Court and ICSIC should be made clear.

•	 Does Afghanistan want an independent Constitutional Court where all matters of constitutional interpretation are ultimately decided? If so, the ICSIC law must be redrafted to clarify 

lines of jurisdiction in accordance with international standards on the duties and rules for 

similar courts established in continental jurisdictions. 

Differences of opinion on the interpretation of the Constitution threaten a political and legal 

crisis every time a constitutional challenge is made, particularly as political transition and reconciliation increase the pressure on the outcome of legal disputes. The current impasse demands a 

political solution if the 2004 Constitution is to remain relevant. Clarifying the role of the ICSIC and 

the Supreme Court is a good place to start.

Endnotes

1. The first five members, who were not approved until June 2010, include Chairman Gul 

Rahman Qazi, Deputy Chairman Abdul Qadir Adalatkhwah, and members Sayyed Omar Munib, 

Muhammad Amin Ahmadi, and Mahbuba Huquqmal—the only woman. Despite calls for the 

President to nominate the two remaining members, those positions remain vacant.

2. Article 8(1) and Article 9.

3. See http://www.mpil.de/shared/data/pdf/law_on_art_157_commission_english.pdf for the 

unofficial Max Planck English translation.

Constitutional Interpretation and the Continuing Crisis in Afghanistan

page 4 • PB 113 • November 7, 2011