Title VII. The Judiciary
Article 97
The Judiciary is an independent organ of the State and discharges its duties side by side with the Legislative and Executive Organs.
Article 98
The Judiciary consists of a Supreme Court and other courts, the number of which shall be determined by law.
It is within the jurisdiction of the judiciary to adjudicate in all litigation brought before it according to the rules of law, in which real or legal persons, including the State, are involved either as plaintiff or defendant.
Under no circumstances shall a law exclude from the jurisdiction of the judiciary, as defined in this Title, a case or sphere, and assign it to other authorities. This provision does not prevent the establishment of military courts; but the jurisdiction of these courts is confined to offences related to the armed forces of Afghanistan. The organization and jurisdiction of the military courts shall be determined by law.
Article 99
The judges are appointed by the King on the recommendation of the Chief Justice. Whenever a judge commits an offence, the Supreme Court considers the case of the judge, and after hearing the defence of the judge can recommend his dismissal to the King. In case the recommendation is approved by the King, the judge is dismissed from office. Transfers, promotions, calling to account, and recommendations for retirement of the judges are within the competence of the Supreme Court, in accordance with the provisions of the law.
Suitable salaries for the judges are fixed by law.
Judges cannot engage in other occupations during their tenure of office.
Article 100
In the courts of Afghanistan trials are held openly and everyone may attend in accordance with the provisions of the law. The court may in exceptional cases specified in the law hold closed trials. However, the judgement shall always be openly proclaimed. The Courts are bound to state in their judgements the reasons for their verdicts.
Article 101
The enforcement of all final judgements of the courts is obligatory except in the case of a death sentence where the execution of the court decision is subject to the King’s signature.
Article 102
The courts in the cases under their consideration shall apply the provisions of this Constitution and the laws of the State. Whenever no provision exists in the Constitution or the laws for a case under consideration, the courts shall, by following the basic principles of the Hanafi Jurisprudence of the Shariaat of Islam and within the limitations set forth in this Constitution, render a decision that in their opinion secures justice in the best possible way.
Article 103
Investigation of crimes shall be conducted, in accordance with the provisions of the law, by the Attorney-General, who is a part of the Executive organ of the State.
Article 104
Subject to the provisions of this Constitution, rules relating to the organization and the function of the courts, and matters concerning judges shall be regulated by law.
The principle aim of these laws shall be the establishment of uniformity in judicial practice, organization, jurisdiction, and procedures of the courts.
Article 105
The Supreme Court consists of nine Judges appointed by the King. The King shall appoint the members of the Supreme Court from amongst persons who shall:
- Have completed 35 years.
- Be eligible for election to the Shura (Parliament), in accordance with the provisions of Article 46.
- Have sufficient knowledge of jurisprudence, the national objectives and the laws and legal system in Afghanistan.
The King appoints one of the Judges of the Supreme Court, whose age is not less than 40 and not over 60 years, as the Chief Justice.
The King can review the appointment of the Chief Justice and the Judges of the Supreme Court after the lapse of ten years from the date of their appointment to the said offices. Subject to the provisions of this Article and of Article 106, the Chief Justice and the Judges of the Supreme Court shall not be removed from their offices by any other means.
Except in the case mentioned in Article 106, the Chief Justice and Judges of the Supreme Court shall, after their tenure in office, enjoy for the rest of their lives all the financial privileges pertaining to the term of their services.
The Chief Justice and judges of the Supreme Court shall not, after the termination of their services, become Prime Minister or members of the Government, members of the Shura (Parliament) or Government officials.
The Chief Justice and members of the Supreme Court shall not participate in political parties during or after their tenure of office.
Article 106
Should more than one-third of the members of the Wolesi Jirgah (House of the People) demand the impeachment of the Chief Justice or one or more Judges of the Supreme Court on a charge of a crime stemming from the performance of their duties, and the Wolesi Jirgah (House of the People) approve this demand by a majority of two-thirds of its members, the accused is suspended from office and a meeting of the Loya Jirgah (Great Council) is called to appoint a Commission of Enquiry.
If the Loya Jirgah (Great Council), after studying the report of the Commission, decides by a two-thirds majority of its members that the prosecution of the accused is necessary, it shall appoint one of its members to file a suit and shall appoint a panel of eight persons to act as a tribunal. The tribunal, presided over by the President of the Meshrano Jirgah (House of Elders), shall try the accused in accordance with the criminal procedures of the Supreme Court. The accused, if proved guilty, shall be dismissed from office and punished.
Article 107
The Supreme Court is the highest judicial authority in Afghanistan. The Supreme Court regulates the organization and functions of the Courts and the judicial affairs of the State in accordance with the provisions of this Constitution and the law.
The Supreme Court adopts necessary measures to organize the administrative affairs of the courts.
The budget of the Judiciary is prepared by the Chief Justice in consultation with the Government and, after the approval of the Supreme Court, is presented by the government to the Shura (Parliament) as a part of the State budget.
The Supreme Court administers the budget of the Judiciary.
The provisions of the law relating to civil servants and other administrative employees of the State are applicable to the civil servants and other administrative employees of the Judiciary. However, their appointment, promotion, dismissal, retirement, and calling to account shall be within the competence of the Supreme Court, in accordance with the law.
