constitutional law of afghanistan

280 Pages·2015·4.06 MB·English

A N I N T R O D U C T I O N T O T H E
C O N S T I T U T I O N A L
L A W O F A F G H A N I S T A N
An Introduction to the

Constitutional Law

of Afghanistan

Afghanistan Legal Education Project (ALEP)
at Stanford Law School
alep.stanford.edu
[email protected]

Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610
www.law.stanford.edu

ALEP – STANFORD LAW SCHOOL

Authors
Rose Leda Ehler (Student Co-Director, 2011-12)
Daniel Lewis (Student Co-Director, 2011-12)
Elizabeth Espinosa
Jane Farrington
Gabe Ledeen

Editors
Stephanie Ahmad (Rule of Law Fellow, 2011-12)
Ingrid Price (Student Co-Director, 2012-13)
Sam Jacobson (Student Co-Director, 2013-14)
Catherine Baylin
Jane Farrington
Jay Minga
Jason Fischbein

Faculty Director
Erik Jensen

Rule of Law Program Executive Director
Megan Karsh

Advisors
Rolando Garcia Miron
Rohullah Azizi

Visual Designers
Daniel McLaughlin
Paula Airth

AMERICAN UNIVERSITY OF AFGHANISTAN

Contributing Faculty Editors
Ghizaal Haress
Jenn Round
Mohammad Isaqzadeh
Nafay Choudhury

Chair of the Department of Law
Taylor Strickling, 2012-13
Hadley Rose, 2013-14
Mehdi Hakimi, 2014-

TABLE OF CONTENTS

Chapter 1: An Introduction to Constitutionalism……………………………………………. 1

Chapter 2: The Separation of Powers………………………………………………………...36

Chapter 3: The Executive…………………………………………………………………….. 91

Chapter 4: Government & Administration…………………………………………………112

Chapter 5: The Legislature………………………………………………………………......135

Chapter 6: The Judiciary……………………………………………………………………. 151

Chapter 7: Fundamental Rights of Citizens
Civil & Political Rights and Economic, Social, & Cultural Rights………………………..179

Chapter 8: Fundamental Rights of Citizens
Rights of Criminal Defendants……………………………………………………………… 243

Glossary……………………………………………………………………………………..... 265

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PREFACE & ACKNOWLEDGMENTS

Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007 as
a student-initiated program dedicated to helping Afghan universities train the next generation of
Afghan lawyers. ALEP’s mandate and goals are to research, write, and publish high-quality,
original legal textbooks, and to build an equally high-quality law curriculum at the American
University of Afghanistan (AUAF).
An Introduction to the Constitutional Law of Afghanistan is ALEP’s fifth textbook. ALEP has
previously published: An Introduction to the Law of Afghanistan (3rd Edition); Commercial Law
of Afghanistan (2nd Edition); Criminal Law of Afghanistan (2nd Edition); and International Law
from an Afghan Perspective (1st Edition). ALEP’s sixth and seventh textbooks—Professional
Responsibility and Civil Obligations—are forthcoming. ALEP and AUAF are currently
implementing a full, five-year integrated Bachelor of Arts and Laws degree program at AUAF
with an energetic and capable Afghan and international faculty in AUAF’s recently established
Department of Law, as well as AUAF students eager to learn. The objective of the new B.A.-
LL.B. degree program is to train Afghan students to think, write, speak and act as professional
lawyers who can provide much-needed legal services and training, and become leaders who will
help realize the aspirations of the next generation of Afghans.
The ALEP team would like to acknowledge those individuals and institutions that have made this
project possible. ALEP has obtained generous and dynamic support from the Bureau of
International Narcotics and Law Enforcement (INL) at the U.S. Department of State. Current
Stanford Law School Dean Elizabeth Magill, former Dean Larry Kramer, and Deborah Zumwalt,
General Counsel of Stanford University and member of AUAF’s Board of Trustees, were
instrumental in helping to establish the project in its early years and have provided continuing
support. ALEP’s partnership has deepened over the last six years with the AUAF law faculty,
affiliated members of the political science faculty, and with the strong collaboration of AUAF’s
leadership: Dr. Sharif Fayez (Founder), Dr. Michael Smith (President), and Dr. Dawn Dekle,
(Provost). I, in turn, would like to thank all of the extraordinary students of ALEP who
contributed to this volume, including Jane Farrington, who worked tirelessly to finalize the book
for publication.
Specifically for the Constitutional Law of Afghanistan textbook, ALEP would like to thank
AUAF Professor Mohammad Isaqzadeh, who provided extensive chapter-by-chapter critical
comments on an earlier draft of the manuscript. ALEP would also like to thank Stanford
Professor Gerhard Casper for his insightful comments on teaching comparative constitutional
law. Additionally, ALEP would like to thank Mr. Yama Keshawerz of Al-Biruni University, Mr.
Naqib Ahmad Khpulwak of Nangarhar University, and Mr. Fahim Barmaki of Kabul University,
all visiting scholars at Stanford Law School, for sharing their expertise on issues of Afghan law,
Islamic law, and translation. Finally, ALEP would like to acknowledge Professors Nader Nadery,
Ghizaal Haress, and Rohullah Azizi for bringing the book to life in the classroom.
Erik Jensen, Faculty Advisor, ALEP
Palo Alto, California, April 2013

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ALEP: Constitutional Law of Afghanistan

CHAPTER 1: AN INTRODUCTION TO CONSTITUTIONALISM

I. CONSTITUTIONALISM

“Over the past two centuries, we have moved from a situation where almost no country had a
written constitution to one where almost every country has one.”1

Why does almost every country have a constitution? Is it because constitutions guarantee
democracy, peace, and economic prosperity? Surely not. Many unsuccessful nations have
constitutions. Indeed, the world is “full of written constitutions, many of which do not mean
what they say, while others do not accomplish what they mean.”2 It seems more accurate to say
that constitutions have become a sort of credential for countries, both domestically and
internationally, that may or may not have effect in practice.3 This gap between what a
constitution says and how a country actually operates illustrates that there is a difference between
having a constitution and constitutionalism.

This chapter will explore that gap and more. In Part I we examine the historical origins of
modern constitutional theory and its reflection in the Constitution of Afghanistan. Part II looks at
the functions that constitutions serve, both generally and in Afghanistan specifically. In Part III,
we review Afghanistan’s constitutional history, up through adoption of the 2004 Constitution. In
Part IV, we present several methods of constitutional interpretation, providing you with
analytical frameworks to use as you study the Constitution. Finally, we review the process of
how to amend the Constitution.

A. Defining Constitutionalism

We begin this chapter by defining what we mean by “constitutionalism.” At the most general
level, constitutionalism can be defined as “limited government.”4 Put differently,
constitutionalism is the concept of limiting the arbitrariness of political power,5 of having “a
government of laws and not men.”6 This notion of limited government has evolved over the
centuries, and it is useful to consider how scholars have come to today’s understanding.

Why Government?

One of the most influential thinkers about the limits of state power and the purpose of
government is John Locke, the 17th century English philosopher. Locke’s political theory is

1 Donald S. Lutz, Principles of Constitutional Design 4 (2006).
2 Gerhard Casper, Constitutionalism in Vol. 2 Encyclopedia of the American Constitution 479 (Leonard W. Levy et
al. eds., 1986).
3 William G. Andrews, Constitutions and Constitutionalism 24 (William Andrews ed., D. Van Nostrand Company
1968).
4 Id. at 13.
5 B.O. Nwabueze, Constitutionalism in the Emergent States 1 (Farleigh Dickinson University Press 1973).
6 Mark Tushnet, Constitutionalism and Critical Legal Studies, in Constitutionalism: The Philosophical Dimension
150 (Alan S. Rosenbaum editor, 1988). Tushnet argues, in fact, that “rules of law constrain only when, and to the
extent that, they are implemented by a group of people who share certain values – that is, the rule of law must be the
rule of men,” which leads to his conclusion that “constitutionalism, though necessary, is impossible.”
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Chapter 1: An Introduction to Constitutionalism

founded on the idea that there is a “social contract” between individuals and government. In his
famous Second Treatise, Locke explains why he believes people unite in society and form
governments:

§4 To properly understand political power and trace its origins, we must consider
the state that all people are in naturally.

That is a state of perfect freedom of acting and disposing of their own possessions
and persons as they think fit within the bounds of the law of nature. People in this
state do not have to ask permission to act or depend on the will of others to
arrange matters on their behalf. The natural state is also one of equality in which
all power and jurisdiction is reciprocal and no one has more than another. . . .7

§123 If man in the state of nature is as free as I have said he is—if he is absolute
lord of his own person and possessions, equal to the greatest and subject to
nobody—why will he part with his freedom? Why will he give up this lordly
status and subject himself to the control of someone else’s power? The answer is
obvious:

Though in the state of nature he has an unrestricted right to his possessions, he is
far from assured that he will be able to get the use of them, because they are
constantly exposed to invasion by others. . . . This makes him willing to leave a
state in which he is very free, but which is full of fears and continual dangers; and
not unreasonably he looks for others with whom he can enter into a society for the
mutual preservation of their lives, liberties and estates . . . .8

§131 But though men who enter into society give up the equality, liberty, and
executive power they had in the state of nature . . . each of them does this only
with the intention of better preserving himself, his liberty and property (for no
rational creature can be thought to change his condition intending to make it
worse). So the power of the society or legislature that they create can never be
supposed to extend further than the common good.9

Individuals enter into this “social contract” through mutual consent, agreeing to give up
sovereignty and abide by certain rules for the good of themselves and others.

Later thinkers, such as the 18th century philosopher Jean-Jaques Rousseau, built on Locke’s
work to elaborate how government could best protect individuals’ rights and interests. As
Rousseau wrote in The Social Contract, “[t]he problem is to find a form of association which
will defend and protect with the whole common force the person and goods of each associate,
and in which each, while uniting himself with all, may still obey himself alone, and remain as

7 John Locke, Two Treatises on Government: A Translation Into Modern English 70 (Industrial Systems Research
2009) (1690).
8 Id.
9 Id.
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ALEP: Constitutional Law of Afghanistan

free as before.”10 Because people do not intend to surrender all freedom when they enter a social
contract, the only legitimate form of government is one in which the legislative power belongs to
the people alone (not to a monarch or dictator). Finally, while the concept of a social contract is
distinct from that of a constitution, constitutions logically follow from the social contract.
Constitutions are a means of anchoring the organization of government and protecting
individuals’ rights and privileges.11

The Historical Context12

You may have heard of another English philosopher, Thomas Hobbes, also famous for his ideas
about the “social contract.” Hobbes, who lived from 1588-1679, believed that life in the “state of
nature” was “solitary, poor, nasty, brutish and short.” As a result, people would enter into a
social contract and cede some of their rights so as to be more secure. In contrast to Locke and
Rousseau, however (and earlier in time than them), Hobbes argued that it was necessary to have
a near-absolute ruler to prevent discord and civil war. Importantly, Hobbes lived and wrote
during the brutal English Civil War (1642-1651), a turbulent and particularly deadly period. The
war certainly influenced Hobbes’s theories about the role of central authority in securing peace.
Is this analogous to how the unstable environment in Afghanistan influenced the form of
government articulated in the 2004 Constitution?

Locke’s views, in contrast, were formed after the civil war had ended but during the rule of King
James II, whose efforts to secure absolute power as monarch became a source of new insecurities
for the general populace. It was within this context that Locke questioned the theory of absolute
rule and instead theorized a more limited form of government.

Why Constitutional Government?

With this understanding of why government legitimacy is tied to popular consent and limited
government, we can return to the task of defining constitutionalism. Expanding on the definition
of constitutionalism as “limited government,” we can say that “under constitutionalism, two
types of limitations impinge on government. [1] Power is proscribed and [2] procedures are
prescribed.”13

Constitutionalism refers to structural and substantive limitations on government.14 In practice, a
constitution that reflects constitutionalism forbids (proscribes) state action in certain areas (such
as various individual freedoms), and sets forth (prescribes) rules for how policies will be made,
implemented, and challenged. By contrast, a dictator with unlimited power can act without
restraint (no proscription of his unlimited power) and on a whim (no prescription for how he
must act); thus a dictatorship, no matter how benevolent, is not a constitutional government.15

10 Jean-Jaques Rousseau, The Social Contract §6 (1762).
http://ebooks.adelaide.edu.au/r/rousseau/jean_jacques/r864s/book1.html#section7
11 Casper, supra note 2, at 476.
12 Thanks to Professor Mohammad Isaqzadeh for his comments on this passage.
13 Andrews, supra note 3, at 13.
14 Casper, supra note 2, at 479.
15 Nwabueze, supra note 5, at 1.
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