How Afghanistan’s Judiciary Lost Its Independence

Continuing its tendency to make salient entrances into Afghan politics, the Afghan Supreme Court has pushed Afghanistan into a new political quagmire by making another controversial decision: extending the term of President Ashraf Ghani.

Based on the Afghan constitution, the president’s term should have ended at the end of Jawza in his fifth year — May 22, 2019. Yet as the presidential elections have been repeatedly rescheduled, they are now overdue and no new president has been elected. As expected, Ghani asked the Supreme Court for its interpretation of the constitution. The court, following a long precedent of siding with the executive, promptly passed a verdict in Ghani’s favor and extended his term “until a new president is elected.” Yet, a coalition of Ghani’s electoral rivals have slammed the court’s decision and argued for a transitional or caretaker government instead.

Although the court’s decision does have a legal basis, its repetitive attitude of bowing to the president, now a longstanding pattern, has lowered its status to a de facto ally of the president. Indeed, pleasing the president by passing verdicts in his favor has become a custom of the court, and that has extensively degraded the Supreme Court’s reputation.

There are a number of examples, under both Ghani and his predecessor, President Hamid Karzai (in office from 2001 t0 2014). In 2007, after a no-confidence vote by the parliament targeting then-Foreign Minister Rangin Dadfar Spanta, Karzai asked the Supreme Court for its opinion. The court immediately nullified parliament’s decision, calling it unconstitutional. However, many lawyers questioned the credibility of the court’s decision as it seemed the political considerations weighed heavier than legal reasoning. Then in 2009, when Karzai’s term was running out the judiciary intervened in his favor and extended his term – just as they did for Ghani this year.

Likewise, the Mass Media Law of 2009, the Law on Independent Commission for Overseeing the Implementation of the Constitution (the ICOIC Law) of 2009, and the Law on Diplomatic and Consular Employees of 2013 were all approved by the parliament, vetoed by the president, and then reapproved by a two-thirds parliamentary majority. According to the constitution, the second round of approval by the parliament is the last say on a law and cannot be changed. Yet the president sent the three laws to the Supreme Court for an evaluation of their constitutionality. To no one’s surprise, the court rejected the disputed articles of all three laws.

These examples clearly show that – in the words of Ghizaal Haris, a distinguished Afghan lawyer — the Supreme Court’s approach to judicial review has “made it a dangerous tool for advancing executive interests.”

But how did the Afghan judiciary undergo such a marvelous metamorphosis from an institution that was supposed to be independent to a de facto ally of the president? Political maneuvering by Karzai, coupled with structural flaws, account for this.

In 2001, the judiciary was gambled in a power struggle between Karzai and the Northern Alliance over the political system of Afghanistan. Back then, Karzai had two potential rivals for power and fought tooth and nail to curb each of them: the Former King Zahir Shah, who sought the presidency, and the Northern Alliance, which advocated for a parliamentary system. The former was out of the picture as of 2001, thanks to then-U.S. Ambassador Zalmay Khalilzad’s “arm-twisting” and “manipulation.” The latter, however, was still fiercely opposing Karzai.

To crack the Northern Alliance from inside, Karzai and Khalilzad struck a deal with Abdul Rab Rasool Sayaf, a Northern Alliance leader and a fundamentalist Mujahideen. According to the deal, later leaked by European diplomats, Sayaf would throw his weight behind the presidentialist bloc at the Constitutional Loya Jirga (Constitutional Convention) plus some concessions “now on other fronts” in exchange for the “power to nominate judges to the Supreme Court” later on.

As a result of the deal, in 2001, Fazl Hadi Shinwari, an Islamist and former madrassa head, was appointed chief justice of the Supreme Court — only to be rejected by the parliament for “his lack of secular professional education” four years later. This was the first body blow to the judiciary. Shinwari stacked the lower courts with conservative mullahs who had “little or no legal training, including Islamic legal training” while strictly having an eye on their “patronage networks” to secure “ethnic inclusiveness.” Their appointment roundly undermined the judiciary. They — the first judges of post-Taliban Afghanistan – were responsible for shaping the courts’ modus operandi. These early days should have set a precedent of independence from the executive. Instead, these mullah-judges valued their patronage ties more than judicial independence, and thus heavily politicized the judiciary.

Structural flaws are another part of the problem. Based on the Afghan Constitution, the president nominates the nine members of the Supreme Court before the parliament gives a confidence vote. Though this is a common practice for appointing justices around the world, it does not fit the Afghan political ecosystem. In a government widely known to be run by a patron-client system, where appointments have taken the shape of an implicit quid pro quo, appointees easily turn into allies as they feel pressure to “give” something to their appointer. This tendency was made worse by two other facts. First, Afghanistan lacks a precedent of an independent judiciary, which could have bound the current one to act otherwise — the last time the country experienced such a judiciary was from 1964-1973. Second, this unique ecosystem of patron-client governance tempts the presidents to exploit their authority over nominations.

Afghan presidents have tried to influence the judiciary by nominating their aides or subservient judges, who would take their side in a conflict, rather than qualified, independent ones, who might look the president in the eyes. This practice extends beyond the judiciary into other institutions with a role in overseeing the president’s actions and decisions.

To give one example: In 2006, Karzai appointed his close aide and legal adviser as the head of the Supreme Court of Afghanistan. When his term ended, Karzai — in clear violation of the constitution — appointed him as “acting chief justice,” a position that the president invented. In 2010, the Afghanistan Analysts Network reported that Karzai wanted to nominate the same person as the head of the newly established Independent Commission for Overseeing the Implementation of Constitution (ICOIC), a clear move to influence a body mandated to check the constitutionality of the president’s decisions and actions. Likewise, to ensure “an obedient commission,” in the words of an ICOIC member, current President Ghani has fiercely resisted the commission’s decision to dismiss its chair, who is oriented toward Ghani and does not seem to accompany the ICOIC in questioning the constitutionality of the president’s decisions.

All these examples clearly show that Afghan presidents have sought to subdue the Supreme Court by appointing their aides and allies as justices. That trend has dramatically eroded the separation of powers in Afghanistan. For much of its history, modern Afghanistan has been ruled by tyranny, yet, ironically, the turn to democracy did not make a break from this past. The president was given the right to nominate the very people who were supposed to take him on.

The experience of the past 15 years shows that Afghanistan, to borrow Thomas Barfield’s lexicon, suffers from “a badly designed government in the hands of poor leaders.” The judiciary has barely blocked successive presidents’ autocratic tendencies, a clear symptom that change is imperative.