Judicial Review in Afghanistan

A Flawed Practice

Abstract

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