AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF AFGHANISTAN 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 i 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 ii 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.” 1 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