Summary of Papers on Constitutional Courts and Judicial Review

Aziz Huq, Postgraduate Fellow, Columbia Law School
For the Center on International Cooperation, New York University


I. Definition of judicial review

Judicial review is a court’s power to review, and possibly nullify, laws and
governmental acts that violate the constitution and higher norms. It is a way to assure
that governmental actors respect the constitution and do not use powers granted to them
by the constitution to seize illegitimate power. Judicial review is generally the final word
by a governmental institution on a law’s validity.

II. Should Afghan courts have judicial review power?

Some argue against judicial review in Afghanistan on the following grounds:
• Courts with judicial review authority can nullify the preferences of
democratically elected legislatures. There is a risk in concentrating power
in courts’ hands, especially when it is not clear that Afghan judges are
sufficiently professional, and when some judges have been willing to
impose their ideology regardless of provisions of the constitution,
statutory law, or popular beliefs.

• Courts’ authority rests largely on public support. In its early days,
however, an Afghan constitutional court is unlikely to have much public
support, so other government institutions may reject or ignore its rulings,
undermining its long-term credibility. Thus, judicial review might either
be irrelevant or undermine democracy.

Against these risks others argue that one must balance the protection of human
rights and impartial resolution of jurisdictional and other intra-governmental questions
that judicial review can provide.

One can find a compromise between these two positions by carefully limiting the
institutions that can undertake judicial review (section III) and limiting the scope of
judicial review (section IV).

III. Structure and composition of court with judicial review power

The power of judicial review can be given to all courts or to a single tribunal
known as a constitutional court. The first option requires that the entire judiciary be well
educated, professional, and well versed in constitutional issues. It is therefore not
suitable for contemporary Afghanistan.

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A special court can be a chamber of the Supreme Court or a separate
constitutional court. One point of view argues that, given the shortage of trained judges
in Afghanistan, one should not seclude the best judges in a specialized body. Instead, a
special chamber within the Supreme Court including five to fifteen judges should carry
out judicial review.

Others argue that specialized constitutional courts, composed of individuals
known for their probity and their support for the rule of law and democratic principles,
have helped stabilize many new democracies. In making this decision one might want to
take into consideration the character of the current Supreme Court of Afghanistan.

Whatever court has judicial review power should be independent of other
governmental actors. Its members should have fixed salaries, immunity from
prosecution, and authority to control court budgets and staffing. Judges should not be
members of political parties.

Appointments to the court could be made by the executive alone; by the executive
based on recommendations by the legislature or the judiciary; or by the agreement of the
executive and the legislature, preferably requiring a significant super-majority for
approval (two thirds or three quarters). Judges should serve lengthy non-renewable terms
(perhaps between nine and twelve years). The possibility of a second term can
undermine a judge’s independence in the first term. Life terms create problems of
superannuation and stagnation. Appointees should be lawyers of repute, including legal
scholars.

IV. Timing and scope of judicial review

A court can exercise judicial review either immediately after a law is passed, at
the request of a group of legislators, or once the law has gone into effect, also at the
request of someone affected by the law. The first system is flawed because some laws
show their unconstitutional aspect only when they are implemented.

Some nations require that another actor, like a lower court, refer cases to the
court. Without this “filter,” a constitutional court may be overwhelmed by thousands of
complaints. But a filter may screen out valid cases in a society where people have long
suffered for lack of means to seek redress of grievances. The court could retain for itself
the power to select which cases to hear and employ clerks to help identify such cases.
Certain independent statutory bodies (see summary paper on government structure) such
as the ombudsman, human rights commission, or electoral commission, if they exist,
should have the power to bring cases to the court.

In judicial review, a court should be able to decide disputes within the
government, including disputes within or between different branches (legislative and
executive) or levels (central and provincial) of government, and also whether individual
rights protected by the constitution have been violated. This court could also deal with

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electoral disputes, impeachment, and declarations of states of emergency. But since its
legitimacy is likely to be fragile, other specialized bodies might better handle these
disputes.

The constitutions of states where Islam is the official religion usually cite Islam as
a source of legislation or of principles that law must not contradict. Should conformity to
Islam be justiciable? Islamic nations like Pakistan and Egypt have encountered great
difficulties with courts that can strike down statutes as incompatible with shari’a. In
1992 in Pakistan, courts thereby invalidated a large part of the statutory law. This power
denies the community the right to express ijma’ (consensus) and risks empowering one
particular group of Muslims to define Islam. Furthermore, since shari’a is not codified,
judicial review for conformity with shari’a can mean many different things. A law could
be found invalid if: (a) it deals with matters on which detailed furu’ already exists; (b) it
deals with matters on which it would be possible to develop a rule through ijtihad; or (c)
it contradicts maqasid al-shari’a or qawa’id al-fiqh. Because of this uncertainty, allowing
courts to decide whether laws are compatible with shari’a gives those courts vast
discretionary power and creates excessive uncertainty. This undermines the legislature
and allows the courts to favor political factions and ideologies.

Under previous Afghan constitution, courts did not possess the power to
determine the compatibility of laws with shari’a. Under Article 7 of the 1964
Constitution, the King was “the protector of the basic principles of the sacred religion of
Islam,” in part through his power to sign or reject bills passed by parliament. Nor is there
a need for such a judicial power. More of Afghanistan’s statutory law follows fiqh than
any other country, except perhaps Yemen.

If Afghans judge it desirable to create judicial review for certain purposes, the
constitution can limit its application to certain articles in the constitution. In Malaysia,
where shari’a is also part of the legal system, judicial review is limited to those articles
dealing with individual rights and the delimitation of the powers of the branches and
levels of government. The power to determine whether a law is in conformity with Islam
could be explicitly granted to the legislature alone, which will be made up almost
completely of Muslims, or to the lawmaking process, including both legislature and
executive.

Some argue that the court should issue only one opinion, without dissents,
because this forces the court to deliberate more and reach consensus. This view holds
that unanimity will be important to establishing the legitimacy of this new institution.
Others hold that tolerating dissent will contribute to the effectiveness of the court and
promote transparency and democratization.

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Document Outline

• Summary of Papers on Constitutional Courts and Judicial Review
• IV. Timing and scope of judicial review

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