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Constitutional Crisis in Afghanistan

Kabul: Afghanistan is experiencing a complex constitutional crisis concerning the delay of Presidential elections this year, and a fundamental disagreement over what body, if any, has the authority to interpret the post-Taliban constitution ratified in 2004, available here.

The immediate crisis is due to the fact that Article 61 of the 2004 Constitution states that "the presidential term shall expire on the 1st of Jawza [May 22] of the fifth year after elections" and that "elections for the new President shall be held within thirty to sixty days prior to the end of the presidential term." That would mean, according to this article, that elections must be held by April 22, 2009. However, Afghanistan's Independent Electoral Commission has recently announced August 20, 2009, as the date for elections, stating that a delay is required due to weather, logistical, and security concerns. Furthermore, due to run-off provisions if no candidate receives a majority of votes in the first round (a likely scenario this year), the final election results may not be available until September or October. This would result in an extension of President Karzai's term by up to five months beyond what the constitution allows. This situation has led many political figures to demand that President Karzai either hold elections on time or step down on May 22nd in favor of a caretaker government.

Afghanistan's young constitution provides no clear guidance as to what should be done in this situation, and there is a lack of fundamental agreement on how to resolve such disputes, which brings us to the second, longer term crisis.

Article 121 of the 2004 Constitution gives the Supreme Court the power to "review the laws, legislative decrees, international treaties and covenants for their compliance with the Constitution." But members of Parliament say that this grant of jurisdiction does not give the Supreme Court the power to adjudicate cases that require direct interpretation of the constitution. In other words, a case brought to the court asking whether, according to the provisions of Article 61, among others, Karzai must step down on May 22nd, would be outside the jurisdiction of the court.

The President and the Supreme Court disagree with Parliament's assessment and have been dead-locked with the Parliament for the last two years. In 2007, the Parliament took a vote of no confidence against Karzai's Foreign Minister. President Karzai then sent the case to the Supreme Court, which ruled that the vote of no-confidence in the Parliament was not valid according to the standards laid out in Article 92 of the 2004 Constitution. The Parliament then declared that is did not recognize the power of the Court to have made this decision, and stood by its vote. Karzai stood by the Foreign Minister, who remains in office, although deemed illegitimate by the Parliament.

In response, the Parliament passed a law establishing a Commission on the Supervision of the Implementation of the Constitution, envisioned in Article 157 of the 2004 Constitution, imbuing that Commission with the power to interpret the constitution. The Supreme Court deemed the law unconstitutional in an advisory opinion, and President Karzai vetoed it. In September 2008, the Parliament overrode the veto by a 2/3 majority. But the President, who is to appoint the members of the Commission, has refused to do so, and is considering referring the law to the Supreme Court under its Article 121 jurisdiction, which is certain to result in a Court decision declaring the law unconstitutional.

Thus, complete inter-branch deadlock. Without any agreed upon mechanism for resolving constitutional disputes, the current crisis is worsening in a tense political climate. At this point, only an extra-constitutional political compromise will yield a solution. So far the key players, in an election year, don't seem to be in a compromising mood. Stay tuned.

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