Judicial Review in Afghanistan: A Flawed Practice

Abstract

Judicial review is the authority of a court or similar body to determine theconstitutionality of laws and public actions. Originating with Marbury v. Madison in theUnited States, the concept expanded globally after the Second World War and is now acentral element of constitutionalism and the rule of law. Afghanistan’s constitutions haveintermittently referred to judicial review, but only the 1987 Constitution explicitlyincorporated it. The 2004 Constitution empowered both the Supreme Court and theIndependent Commission for Overseeing the Implementation of the Constitution (ICOIC)to ensure constitutional compliance. Initially praised as a safeguard of checks andbalances, ambiguities in Articles 121 and 157 soon rendered judicial review contentious.The Supreme Court’s inconsistent and politically influenced interpretations underminedits credibility and limited its protection of citizens’ rights. Similarly, the ICOIC failed toassert its oversight role, becoming entangled in institutional rivalries and focusing onconstitutional interpretation rather than promoting constitutionalism and the rule of law