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Constitution of Afghanistan – 7: The Judiciary

Chapter Seven: The Judiciary

Article 116
The judiciary shall be an independent organ of the state of the Islamic Republic of Afghanistan. The judiciary shall be comprised of one Supreme Court, Courts of Appeal as well as Primary Courts whose organization and authority shall be regulated by law. The Supreme Court shall be the highest judicial organ, heading the judicial power of the Islamic Republic of Afghanistan.

Article 117
The Supreme Court shall be comprised of nine members, appointed by the President and with the endorsement of the House of People, and in observance of the provisions of clause three of Article Fifty as well as Article One Hundred Eighteen of this Constitution, shall be initially appointed in the following manner:

Three members for a period of four years, three members for seven years, and three members for ten years. Later appointments shall be for period of ten years. Appointment of members for a second term shall not be permitted.

The President shall appoint one of its members as Chief Justice of the Supreme Court. Members of the Supreme Court, except under circumstances stated in Article One Hundred Twenty Seven of this Constitution, shall not be dismissed till the end of their term.

Article 118
Supreme Court members shall have the following qualifications:

  • At time of appointment the age of the Chief Justice of the Supreme Court and its members shall not be less than forty year.
  • Shall be a citizen of Afghanistan.
  • Shall have higher education in legal studies or Islamic jurisprudence as well as expertise and adequate experience in the judicial system of Afghanistan.
  • Shall have good character as well as good reputation.
  • Shall not have been convicted, by a court, for crimes against humanity, crimes, or deprivation of civil rights.
  • Shall not be a member of any political party during his term of duty.

Article 119
Members of the Supreme Court shall take the following oath of office in the presence of the President:

“In the of God, Most Gracious, Most Merciful, I swear in the name of God Almighty to attain justice and righteousness in accordance with tenets of the Holy religion of Islam, provisions of this Constitution as well as other laws of Afghanistan, and to execute the judicial duty with utmost honesty, righteousness and impartiality.”

Article 120
The authority of the judicial organ shall include consideration of all cases filed by real or incorporeal persons, including the state, as plaintiffs or defendants, before the court in accordance with the provisions of the law.

Article 121
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.

Article 122
No law shall, under any circumstances, exclude any case or area from the jurisdiction of the judicial organ as defined in this chapter and submit it to another authority. This provision shall not prevent formation of special courts stipulated in Articles Sixty- Nine, Seventy-Eight and One Hundred Twenty Seven of this Constitution, as well as cases related to military courts. The organization and authority of these courts shall be regulated by law.

Article 123
With respect to the provisions of this Constitution, statutes related to the formation, authority, as well as proceedings of courts and matters related to judges, shall be regulated by law.

Article 124
Provision of Laws related to civil servants as well as other administrative staff of the state shall also apply to the officials and the administrative personnel of the judiciary; but the Supreme Court in accordance with the law shall regulate their appointment, dismissal, promotion, retirement, rewards and punishments.

Article 125
The budget of the judiciary shall be prepared by the Supreme Court in consultation with the Government, and shall be presented to the National Assembly as part of the national budget. The Supreme Court shall implement the budget of the judiciary.

Article 126
Supreme Court judges shall receive lifetime pensions at the end of their term of service provided they do not hold state and political offices.

Article 127
If more than one third of the members of the House of People demand the trial of the Chief Justice of the Supreme Court or any of its members accused of a crime related to job performance or committing a crime, and, the House of People approves this demand by two thirds majority of all members, the accused shall be dismissed and the issue referred to a special court. The formation of the court and procedure of the trial shall be regulated by law.

Article 128
In the courts in Afghanistan, trials shall be held openly and every individual shall have the right to attend in accordance with the law. In situations clarified by law, the court shall hold secret trials when it considers necessary, but pronouncement of its decision shall be open in all cases.

Article 129
In issuing decision, the court is obligated to state the reason for its verdict. All final decisions of the courts shall be enforced, except for capital punishment, which shall require Presidential approval.

Article 130
In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.

Article 131
The courts shall apply the Shia jurisprudence in cases involving personal matters of followers of the Shia sect in accordance with the provisions of the law. In other cases, if no clarification in this Constitution and other laws exist, the courts shall rule according to laws of this sect.

Article 132
Judges are appointed at the proposal of the Supreme Court and approval of the President.

Appointment, transfer, promotion, punishment and proposals for retirement of judges, carried out according to provisions of the laws, shall be within the authority of the Supreme Court. To better regulate judicial as well as judicial administrative matters and attain necessary reforms, the Supreme Court shall establish the Office of General Administration of the Judiciary.

Article 133
When a judge is accused of a crime, the Supreme Court shall, in accordance with the provisions of the law, consider the case. After hearing the defense, if the Supreme Court considers the accusation valid, it shall present a proposal to the President for dismissal of the judge. After Presidential approval, the accused judge shall be dismissed and punished according to the provisions of the law.

Article 134
Discovery of crimes shall be the duty of police, and investigation and filing the case against the accused in the court shall be the responsibility of the Attorney’s Office, in accordance with the provisions of the law. The Attorney’s Office shall be part of the Executive organ and shall be independent in its performance. The organization, authority as well as method of work of the Attorney’s Office shall be regulated by law. Special law shall regulate discovery and investigation of crimes of duty by the armed forces, police and officials of national security.

Article 135
If a party in lawsuit does not know the language, the right to know the materials and documents of the case as well as conversation in the court, shall be provided in the party’s mother tongue through a translator appointed by the court.

Next: Chapter 8- Administration

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