The Government of Afghanistan’s legitimacy and its three fundamental branches is dependent on the people’s role through their voting representation.
As members of Parliament are being elected by the people, the head of the judicial branch and members of the Supreme Court are appointed by the President and required to receive a vote of confidence by the Parliament. The constitution of Afghanistan clearly addresses the procedures for selection and approval of Supreme Court members. Violation of constitutional articles regarding the structure and composition of any branch of the Government will put in question the legitimacy of the Government.
According to Article 117 of the Afghan constitution, it has been three years since the legal constitutional terms of the Chief Justice and another leading member of the Supreme Court has expired. Recently, the constitutional terms of three additional members (Justices) of the Supreme Court has expired. With this development, now five of the nine justices that are on the Court are serving beyond the end of their constitutional term limits. As such, any decisions that are made by the Court, as one of the fundamental branches of the Islamic Republic of Afghanistan, are being considered as not-binding and illegal.
Lack of action by the President in introducing a new Chief Justice and additional members for the Supreme Court to the Lower House of Parliament, is not only a violation of Article 117 of the Constitution, but is also paving the way for the President to influence and manipulate the Supreme Court in their decisions for political purposes. Recently, the President ordered the Supreme Court to make a ruling about the dismissal of the Interior Minister, who received a no-vote of confidence by members of the Lower House of Parliament, through a democratic procedure.
Afghanistan will witness its 3rd Presidential elections in 2014. The National Coalition of Afghanistan (NCA) is concerned that the Supreme Court may play a major role during the elections, and may even favor either delaying or suspending the elections based on the President’s instruction. And by doing so, this will bring the country back to chaos, having a Government that lacks legitimacy.
The National Coalition of Afghanistan demands from the President to finally stop violating the country’s constitution and immediately introduce new members for the Supreme Court, in place of those whose terms have expired, in order to prevent a legal vacuum in this very important institution. The NCA considers the continuation of service of the Chief Justice of the Supreme Court and additional members whose terms have expired as illegal, and any decisions made by them lacking legal basis.
The NCA also requests from the Parliament of Afghanistan to increase legal pressure on the President so that he introduces a new Chief Justice and leading members to the Supreme Court.
We believe that the foundation for a stable and prosperous Afghanistan is strict adherence to the rule of law, including the provisions of our Constitution. Having a credible and legitimate Supreme Court will help us in our efforts in ensuring credible Presidential elections next year.
August 23, 2013 – Kabul, Afghanistan