Fayeq Sakhi Zada (3 February 2020)
Which administration has the authority to interpret the constitution?
Constitution as the highest legal-political document, organize all affairs and determine the relationship between leaders and followers in the community. Basic laws are shaped and mentioned by the constitution as well as the constitution introduces the structure of the government. A constitution defines the rights and freedoms of people, provides the list of goals of state and methods for reaching those goals. The practical performance of this important law closes the despotism doors, guarantees the freedom and humanity values and causes the efforts for political and social justice. Past experiences showed that a legislator is unable to predict all circumstances and conditions related to the legal subjects and is unable to make a complete and common law. Even in the case of making a law, from one side the characteristics of general law and from another side the habit of making mistake by mankind cause ambiguity, brevity and conflict between rules. In addition, legislating limitations and the inability of the legislator in covering all social affairs causes silence of the law in many issues. Even though, lawgiver in the time of organizing and codification of a law tries to mention his aim clearly by using explicit and clear terms and statements in order to jibe its benefit to all subjects that are considered. Sometimes the law is not obvious or conclusive and is organized in an incomplete, inconclusive and imprecise way. As a result, sometimes the law cannot predict all issues and in some other the law is silent. Subsequently, lawyers start to explicate the law. Civilization and political circumstances may create new issues every day that did not exist in the time of lawmaking. In this regard, making new rules is not suitable for solving problems because the house of representatives is unable to make rules for every single relationship between people and legislating for every matter will make other problems instead of solving issues. Therefore, the lawyer starts to explicate the law that it is one meaning is finding the verdict of every legal subject from the view of the lawgiver. The constitution is not an exception as well and in case of being inconclusive or ambiguous, it is needed to be explicated. According to article 122 of Afghanistan’s constitution: The Supreme Court has the authority to explicate the constitution. Regarding the opponents’ views that think the constitution commission has this authority, in this passage, I try to find the right administration which has this authority through assertions.
The Constitution as a fundamental law and the symbol of volition is so important. Therefore, its explication is essential too because it is the highest document of general law. The constitution determines the basics of the political system and due to this exceptional significance, the house of representatives is not allowed to change or even explicate the constitution. Searching for institutions that are not political such as the State Court or selecting the politicians, elections and the required majority must be in the pattern that is close to the public votes and the origins of the sovereign. Explication of the constitution is different from the renewal of the constitution. Whenever the society has new necessities that the constitution cannot respond, the rules should be changed and matches the new desires, which is called the renewal of the constitution. On the other hand, explication is whenever the constitution is not clear; for example, the terms and statements have more than one meaning. In this case, we have to find what the real intent of the legislator is? And what meaning and action should be performed? The term “Explicit” in Arab Literature derived from (Fasir) that means discovering and making something obvious that is hidden. Regarding this meaning, we can say that the explication of law is finding and explaining the intent of the legislator. Nasir KATOZIYAN says: “Law Explication is determining the exact meaning and showing the wide area of a principle.”
The Constitution of Afghanistan in article 64 states that surveillance on performing the rules is one of the first responsibilities of the president. The article 121 states: “Evaluating the conformity of laws, legal instructions, treaties between governments and international promises in accommodation with constitution and explication of them, is the authority of the Supreme Court. The Supreme Court will perform these two authorities when the government or courts request from the Supreme Court to solve the proposed issues. Also, this article states that a separate law should be prepared to explain this authority more clearly but unfortunately such law is not organized till now. Accordingly, there were great misunderstandings even some members of the parliament argued that the explication of the constitution is the authority of the Constitution Commission which is stated in article 157 of the constitution even though it was not correct.
The reason for this misunderstanding is that some of the experts allude the word “Those” in article 121 of the constitution to the rules and legislated decrees. In fact, handling the accommodation of the ordinary laws with the constitution and interpretation of ordinary laws is the authority of the Supreme Court not the interpretation of the constitution itself. However, these arguments are not true at all. Albeit it is possible that the word “Those” is ambiguous from the view of belletristic sequence but in recognizing and interpretation of an article, it is important to be familiar and know the situations and conditions that a law adopted as well as it is essential to recognize the main aim of the legislator. The main target of the constitution commission in Loya Jirga about this article was to give all the authorities to the Supreme Court. It is not reasonable to cite the constitution accommodations with ordinary laws to one organization and the interpretation of the constitution to another. Such a policy is aberrant and no country uses such a system. On the other hand, after adding article 157 to the constitution, article 121 was kept without any change. Thus, if article 157 was not added, which administration would have the authority of interpretation?
On the other hand, if this article was added to make the constitutional court or constitution commission so they had to make changes to article 121. In Loya Jirga without altering article 121, they added article 157 and this issue made the current misunderstanding. If article 121 is not obvious so how we can assert that article 157 refers the authority of explication to the constitution commission. In that article, the administration is known as “the independent commission on supervision of constitution” and from what point of this name, we can conclude interpretation. If the aim is to refer the authority to a powerful and independent administration so the Supreme Court at a high level owns this feature than a commission. The constitution commission is a political organization than being a legal administration. They are selected by the parliament but this cannot guarantee their independence. Members of the Supreme Court also introduces by the President and selected by the parliament.
Another reason is that in the very first documents of the constitution, the constitutional court was suggested but later on they choose the Supreme Court instead of constitution court. Due to this, all affairs related to the constitutional court was briefly added in article 121. This summary may make ambiguity in meaning. To sum up, we can strongly say that after the deletion of the constitutional court the Supreme Court has the authority to interpret the constitution.
Finally, stating these arguments does not mean that the best approach is to give the explication authority to the Supreme Court. My purpose from the arguments is that according to the constitution and regarding the issue background, we can recognize that the Supreme Court possesses the authority, not constitution commission. Consequently, we should say that the current constitution follows the ordinary court method (Interpretation refers to the Supreme Court). Even though it was better to consider a special court like the constitution court for this important task. Unfortunately, with this reason that constitution court need a lot of budgets and enlarged structure and for a poor country like Afghanistan it is not necessary or it might make executive problems and disagreements between parliament and president, they removed the court and commit this responsibility to the Supreme Court and but it made even more problems between three forces of the government.
(Fayeq Sakhi Zada is a student at the Faculty of Law and Political Science, Kabul University, and a volunteer with ACKU. Views expressed are personal.)
