Afghanistan

Afghanistan: Parliamentary Manual - Legal and Institutional Principles

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Introduction: The Main Features of the Constitution
The constitution is a social contract. It is Social because it is made by society/people, represented by the drafters of the constitution. And it is a Contract because it is a legal document (the highest legal document in a state) binding to the people and the state. The purpose of the constitution is to define the state’s relation to the people and basic relations among people themselves.

In many ways the constitution and the state are primarily legal structures. In fact, the concept of the modern state that emerged in the 17th century, building on the heritage of humanity, is all about the definition of the state’s three authorities (Legislative, Judicial and Executive) and their relation to the effect of law.

The basic principle in justice and government that evolved then, was that whoever legislates (makes Law) should be different from whoever judges (applies the Law) and different from whoever executes (enforces the Law). This is supposed to guarantee justice and preclude prejudice in the legal process and enable these separate three authorities to monitor each other.

Any constitution in a democracy is supposed to guarantee the separation, independence and balance between the three authorities of the state.

The Constitution

The constitution is the physical and legal structure of the state. It defines the state’s:

1. Authorities and institutions

(Executive, Legislative and Judicial authorities and institutions as well as other independent institutions)

2. Legal system

(How laws are made, by which authorities, according to which principles, how and by which authorities they are applied and how and by which authority they are enforced)

3. Citizen human rights

(Civil, political, economic, social and cultural rights as well as state guarantees of these rights)

It represents the highest will of the people of the state. The Afghan Constitution based on long tradition considers this highest will to be represented by the Loya Jirga, higher than the rest of the authorities of the state and the normal will of the people. This is why both the President and National Assembly, representing the will of the people who elected them, can not amend the Constitution. Only the Loya Jirga can (Articles 110, 111).

As a most important state authority and institution, the National Assembly and particularly the Wolesi Jirga, have two main tasks and duties:

1. To legislate (make law) and,

2. To monitor Government performance (Articles 90, 91, 92, 93, 94).

Both these tasks must be carried out in ways that respect and apply the laws laid down in the Constitution (Articles 5, 162).

For a Wolesi Jirga member -- and for the state and nation as a whole -- the Constitution is the mandatory manual. It decides why and how. The Assembly can only decide when and what.

Constitutionalism

“Constitutionalism” (Conformity with Constitution) is the corner stone principle for the legitimacy of parliament actions on political, institutional and legal bases.

Politically:

The Constitution is the higher guarantor of democracy in a state; it defines the rules of democracy:

1. The rights of the majority to lead/decide.

2. The right of minorities to participate/be respected.

So a majority in a parliament has the legitimate right to legislate and monitor the government, as long as it does so according to the rules of the Constitution and respects rights stated in the Constitution.

Institutionally:

As a state institution and authority the National Assembly has the most interaction with the Constitution even on a day-today work basis, as defined by rules and regulations on session’s procedures, political monitoring rules and legislation principles, and methods of enactment. A mistake

made by the National Assembly is mostly a Constitutional mistake. These mistakes are much more serious then mistakes in regulation making and Law enforcement (Executive power) or Law application (Judiciary Power). They are hard to fix and their occurrence weakens the institution’s credibility and authority.

Legally:

The National Assembly is the legislative authority. It has the primary (original) authority to legislate laws (Articles 81, 90).

The executive authority (the President and government) have secondary (partial) authority to legislate: they can issue regulations (Article 76) at the administrative level and they can issue decrees (Article 79). These are temporary rules having the force of Law only when the National Assembly (the primary authority) is not in session. These decrees must be put before the first National Assembly session to be held. The National Assembly after review either confirms them as laws or rejects and abrogates them.

For Law making, the National Assembly is the highest authority. This concept is known in political science and Constitutional Law as “sovereignty of parliament.” The only limitation to this sovereignty is the Constitution, because as we said it represents the highest will of the people (Article 110).

A Law passed in good procedure by the National Assembly would not be legitimate if it violates the Constitution; this rule is known as the Constitutionality or the legitimacy rule in Constitutional Law.

It simply provides that Laws should obey the Constitution, and regulations should obey the constitution and the Laws.

This figure explains the hierarchy and status of Constitution, Laws and Regulations:



If a Law violating the Constitution is enacted by the National Assembly, it will be invalid (Article 162).

It is within the authority of the Supreme Court (Head of the Judicial authority) to declare the Law as non-constitutional and invalidate it when such Law is referred to the Court. This is called the authority of “Judicial Constitutional Review” (Article 121).

The National Assembly has the power to abrogate a Law as well, if it later sees the Law as non-constitutional (Article 90/1). As the National Assembly has the primary authority of legislation it can make and unmake Laws.

Chapter I Legal Principles

1. The Constitutional State Structure

The constitution of Afghanistan established an “Islamic” “Democratic” “Republic” (Articles 1, 2, 3, 4, 5, and 6).

- “Islamic,” as the religion of the state is Islam (Article 2) and laws of the state should be in conformity with Islam (Article 3).

- “Democratic,” as power is held by elected representatives (Articles 4, 6).

- “Republic,” as sovereignty lies in citizens forming the nation, with the will of the citizens manifested directly by their elected representatives (Article 4/1).

In addition to these three basic principles of the state, the Constitution established a structure of a presidential system mixed with very strong parliamentary powers.

Among the most important features of the presidential systems are:

- state authorities (Executive, Legislative and Judicial) are clearly separated.

- the head of state is the head of Government at the same time.

- The President is directly elected by the people.

We shall see these features below.

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