The Supreme Court (SC) of Afghanistan on Sunday ruled that President Ashraf Ghani shall stay in office until a new president is inaugurated. The verdict, which according to the country’s high court has been issued in line with the spirit of the law as well as in the light of the country’s security and political situation and rules of fiqh or the Islamic jurisprudence, extends the terms of the president and his vice presidents until the presidential election currently slated for September 28 is held and the new president is sworn in.
How much legal is the Supreme Court’s decision and what will be its upshots?
The first issue is that the Supreme Court is not the authority to interpret the Constitution. Article 121 of the Constitution states: “At the request of the Government, or courts, the Supreme Court shall review the laws, legislative decrees, international treaties as well as international covenants for their compliance with the Constitution and their interpretation in accordance with the law.” This article outlines the powers of the Supreme Court, and doesn’t say that it is the entity to interpret the Constitution. Therefore, the Supreme Court’s decision is unconstitutional.
By the same token, Article 61 of the Constitution says that: “…The presidential term shall expire on 1st of Jawza of the fifth year after election.” It clearly states that the presidential election shall be held within thirty to sixty days prior the 1st of Jawza or the end of the presidential term. Now that the law is clear about the expiry date of the presidential term, and that the government has not held the election on time, not only its term should not be extended but it should also provide explanation for the nonfeasance, and be held accountable by legal and judicial organizations. The presidential poll has not been delayed for any issue with a legal justification, but the government’s negligence, corruption, incompetence, and political deals, something that cannot justify the extension of the presidential term.
The court’s ruling also says that the move has been taken on the basis of jurisprudential rules. People have elected the president for a specific period of time, which means that it is a contract between the electors and the elected. When the duration of the contract ends, no one, including the court, can extend the contract with the elected on behalf of the electors or constituents. The Islamic jurisprudence and the country’s applicable laws are quite clear on the matter. The Supreme Court’s ruling is also brazenly in conflict with the jurisprudential rules.
According to the Supreme Court, the verdict has been handed down considering “the situation of the country.” The chief justices also unfortunately don’t realize the situation of the country. It is evident that the presidential election will not be held as scheduled, will they again further extend the presidential tenure? On the other hand, peace talks are ongoing and the president has adopted an anti-peace stance. There needs to be a change in political leadership in order to help the peace process. Thus, the Supreme Court’s decision has not been made in the light of the situation of the country as it has overlooked the country’s situation, needs and best interests.
Based on the above reasons, the Supreme Court’s ruling is against the Constitution, peace and the country’s future, which will contribute to the protraction of war and political instability.