The Supreme Court has ruled that President Muhammad Ashraf Ghani and his vice-presidents shall continue to serve until the election of a new president. This ruling comes in the wake of mounting pressure by a number of presidential candidates and their political backers, who have called on the government leaders to step down after 22 May, when their constitutional term ends. The ruling also comes after the Independent Election Commission (IEC) announced yet another delay in the holding of the presidential elections. These are now scheduled for 28 September 2019, more than four months after the president’s five-year constitutional term ends on 22 May, sparking political debate over whether the current president should remain in office thereafter. AAN’s researcher Ali Yawar Adili looks at the continuing constitutional crisis. He notes that while delays in elections and the extension of the presidential tenure beyond its constitutional timeframe are nothing new, there are differences this time that could lead to political deadlock.

The Supreme Court’s decision on the presidential tenure

The repeated delays to the 2019 presidential elections have sparked a debate as to who should run Afghanistan after the end of the presidential term on the first of Jawza of the fifth year (22 May 2019). The new IEC made an announcement on 20 March, the eve of Nawruz (the Afghan New Year), that the presidential elections would be delayed . The IEC said that elections could not be held as planned on 20 July 2019, which was already two months after the constitutional end of the president’s term in office. The reasons provided by the IEC were that the amended electoral law contained new obligations that could not be met in time, most notably the use of technology in all phases of the elections (see AAN’s previous reporting about the amendments here ). The IEC also noted that it needed time to address some of the challenges and problems of the 2018 Wolesi Jirga elections and that reforms should be carried out before the next elections. The IEC also said that there had been general delays in the preparations for the elections that necessitated rescheduling them. The IEC announced 6 Mizan 1398 (28 September 2019) as the new date for the presidential elections, provincial elections, Wolesi Jirga elections in Ghazni.

The constitution is clear that the elections should be held 30 to 60 days before the end of the presidential term, but omits to mention what should happen if elections are not held. That is, the constitution does not mention whether the sitting president’s term should be extended until elections are held or whether transitional governance arrangements should be put in place for the interim period. While President Ghani and the National Unity Government are keen to hold onto power during the interim period, other presidential candidates have been calling on the leaders of the National Unity Government to step down after 22 May. However, they have also been struggling to come to an agreement about an alternative that could be both constitutional and acceptable to the people and supported by Afghanistan’s international partners. Therefore, if they continue to put pressure on the government to step down, a deadlock might ensue given the lack of any clear constitutional alternative.

Due to mounting pressure from presidential candidates and their backers, the deputy for policy, monitoring and review in the presidential palace’s legal department sent a letter earlier this month (1) to the Supreme Court (letter number 529 dated 28/1/1398 (17 April 2019), informing the court that the IEC had postponed the presidential elections until 28 September 2019. The letter stated that this had resulted in a gap of more than four months between the end of the president’s term on 22 May and the new elections (the gap would be even more until the completion of elections, especially if they go to a second round or results drag on). The president’s office asked the Supreme Court to review article 61 of the constitution and provide its legal opinion on governance arrangements between the end of the president’s constitutional term and the conclusion of the elections. Article 61 refers to the election of the president and his/her term. It says that the presidential term expires on the first of Jawza (22 May 2019 in the case of the current president) of the fifth year following elections and that elections for a new president should be held within 30 to 60 days prior to the end of the presidential term.

In response to the letter sent by the president’s office, the Supreme Court issued (media reports here and here ) a ruling on 20 April 2019 extending the president and vice-presidents’ terms until a new president is elected. The High Council of the Supreme Court in its approval (decision) number 100 dated 31/01/1398 (20 April 2019) cited the full text of a similar ruling issued by the High Council of the Supreme Court in 2009. The 2009 ruling concerned who should govern the country after the end of the presidential term, as the elections had not been held well in advance. The Supreme Court ruled that the then-president should continue to serve until the election of a new president.

The 2009 ruling, as cited by the Supreme Court in its 20 April 2019 approval, was based on two arguments:

• Indivisibility of the different provisions in the article of the constitution that deals with the election and term of the president. The Supreme Court had argued that paragraphs two and three of article 61 of the constitution stating that “the presidential term shall expire on 1st of Jawza of the fifth year after elections” and that “elections for the new President shall be held within thirty to sixty days prior to the end of the presidential term” were complementary. Therefore, because the elections had been postponed, so the whole provision should be delayed. This, in practice, meant that the presidential term, which, according to the second paragraph, would have ended on 22 May (2009) had elections been held 30 to 60 days before that, would be extended. (2)
• Qa’ida-e fiqhi (jurisprudential rule, an Islamic Fiqh/jurisprudence term) is baqa ma kana ala ma kana(continuing the status quo ante), ie continuing previously existing affairs means that the term of the president and his vice-presidents as the status quo ante should continue until the elections.

After citing this 2009 ruling, the Supreme Court in its 20 April 2019 ruling, concluded that since the queries made by the president’s office in 2009 and in 2019 had been the same, the Supreme Court’s decision would also be the same. (3) This, in practice, means that the incumbent president and his vice-presidents should continue to rule the country until the election of a new president.

Earlier precedents of extensions to the presidential term

This is not the first time that the presidential term in Afghanistan has been extended. As noted above, the presidential term expires on first of Jawza of the fifth year after his/her election (22 May 2019 in the case of the current president), and elections for the new president should be held within 30 to 60 days prior to that. However, to date, no elections have adhered to this rule as they have either been delayed or dragged on beyond this timeframe and consequently the presidential term has always been extended beyond the 1^stof Jawza.

The 2009 presidential elections were held on 20 August 2009, almost three months after the end of the president’s constitutional term. Some candidates, including the current president, Ashraf Ghani, called for the end of Karzai’s term after 22 May 2009. Karzai’s office sought a ruling from the Supreme Court, which (as described above) said that the continuation of his term was in the interests of the country (see AAN’s previous reporting here and here ).

The first round of the 2014 presidential elections was held on 5 April 2014 within the constitutional timeframe (30-60 days before the end of the presidential term, ie 22 May 2014). However, the tabulation and announcement of results took more time. Moreover, the elections went to a second round, which, however, was not held within the legal timeframe, ie within two weeks after the announcement of the results of the first round. Therefore, former President Karzai’s office of administrative affairs and the secretariat of the Council of Ministers had asked, in letter number 1186 dated 22/2/1393 (12 May 2014), that the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) provide legal advice on paragraph two of article 61 of the constitution, which stipulated that his term would end on 22 May. (4) It is unclear why the former president’s office, unlike in 2009, sought a ruling from the ICOIC in 2014. There has also been some debate as to whether the Supreme Court or ICOIC should be the authority to interpret the constitution (see AAN’s previous reporting here and here ).

Abdullah Shafayi, a member of the ICOIC, told AAN on 25 April 2019 that the government would usually seek a ruling from an authority (such as the Supreme Court or the ICOIC) that was more “aligned” with the government. He claimed that the government had rarely referred constitutional issues to the ICOIC since the president (Ghani) had opposed its members’ decision to dismiss the chairman of the commission in 2017 (see AAN’s background here ).

The ICOIC’s decision (made on 28/2/1393 (18 May 2014)) in response to the presidential palace’s 12 May 2014 request to interpret article 61 of the constitution was in line with the Supreme Court’s 2009 ruling in that it approved the continuation of the presidential term after 22 May 2014. The ICOIC’s decision ( available here in Dari) contained two parts: First, the ICOIC noted that the IEC needed to provide an explanation to the ICOIC as to why the results of the first round and the whole of the second round of the elections had been delayed. Requesting the IEC to explain the delays was most likely the ICOIC’s way of ensuring that it could check whether the delays were constitutionally justifiable. Second, the ICOIC said that if the first of Jawza (22 May 2014) fell while the final results of the runoff had not yet been announced due to justified reasons compatible with the principles of the constitution, the continuation of the president and his vice-presidents after the first Jawza until the announcement of the final results within the period specified by the IEC would not be considered as being in breach of the constitution. (5)

Delays to the 2019 presidential elections

The date for the upcoming presidential elections was announced by the IEC on 1 August 2018 as being scheduled for 20 April 2019 (see AAN’s previous reporting here and here ). Since then, the elections have been delayed twice, both times being pushed back beyond the president’s constitutional term.

On 30 December 2018 the former members of the IEC, after weeks of speculation, formally delayed the presidential elections until 20 July 2019. Reasons for the delay included: the need for reform, especially after the mismanagement of the 2018 parliamentary elections; winter weather conditions; and possible pressure due to peace talks, or even a negotiated agreement before the polls (see AAN’s report here ).

On 20 March, on the eve of Nawruz, the Afghan New Year, the new members of the IEC said in a statement that it would not be possible to hold the elections on the specified date of20 July 2019 and instead announced 28 September as the new date. The IEC still left a caveat – that the elections could be held on the above-mentioned date, 28 September, only if relevant stakeholders, especially the government and the international community, were able to provide the required budget to the IEC and fulfil their obligations. In its operational plan, the IEC has an estimated budget of 207 million dollars for holding three sets of elections: presidential, provincial council and Wolesi Jirga elections in Ghazni (see media report here ). It has dropped the district council elections once again.

Mounting pressure for a new arrangement after 22 May

The first delay (moving the election date from 20 April to 20 July) had already provoked a debate in political circles concerning the end of the presidential term. For instance, former national security adviser and presidential candidate, Hanif Atmar, called on the leadership of the current government to step down after their legal term had expired. At the time, Nur Rahman Akhlaqi of Jamiat-e Islami told AAN that since the constitution did not specify whether the current government could continue after 22 May, it only stipulated that the government would no longer be legitimate, they would call for a grand political national consensus among political parties and civil society, supported by the international community, to decide on an alternative. According to him, this could be: 1) a continuation of the government but with a reduction in the president’s authorities; 2) an interim government; or, 3) the president stepping down and, as an example, the chief justice taking over the affairs of the state (see here ).

However, following the second delay and as 22 May approached, 11 out of 18 presidential tickets (read AAN’s previous report about these 18 presidential tickets here ) coalesced around a call for the government to be dissolved after 22 May. These candidates included Ahmad Wali Massud, Rahmatullah Nabil, Enayatullah Hafiz, Ghulam Faruq Najrabi, Faramarz Tamana, Muhammad Ibrahim Alekozai, Muhammad Hakim Tursan, Muhammad Hanif Atmar, Muhmmad Shahab Hakimi, Nur Rahman Liwal and Nurul Haq Olomi. They issued a statement on 26 Hamal 1398 (15 April 2019) saying “We categorically announce that the term of the government ends on 1st Jawza 1398 (22 May 2019), [and] consider use of any political trick for continuation as unjustified and in conflict with the national stability of the country.” They also said they would finalise an alternative plan for the government in light of the laws and in accordance with lawyers, politicians, civil society and other segments of society at the very earliest possibility, which, they said, would be announced in a press conference.

Perhaps in an attempt to head off the Supreme Court’s ruling in favour of the continuation of the presidential term, on 20 April 2019 they issued a second statement saying that “the leaders of the national unity government are duty bound to hand over the government after 1st Jawza (22 May).” They claimed that, based on the information and documents that they had received, the presidential palace was trying to put pressure on the Supreme Court to issue an interpretation in favour of a continuation of the presidential term until elections were held. They said this was an “obvious violation and harming the reputation and independence of the judiciary.” The Supreme Court did issue its ruling in favour of the continuation of the current president until the election of a new president, which is an unspecified timeframe, given that elections could be delayed again or might go to a second round, or the tabulation and announcement of the results might drag on.

Conclusion: reactions and scenarios

The 11 presidential candidates mentioned above (see here ) issued a joint statement on 21 April in reaction to the ruling by the Supreme Court. They argued that the Supreme Court did not, following the adoption of the law on the establishment and authority of the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC), have the authority to interpret the constitution given that the authority tasked with interpreting the constitution had been shifted from the Supreme Court to the ICOIC. (At the time, the Supreme Court had commented that this law had introduced a conflict between its mandate and that of the ICOIC. When the ICOIC’s law was finally published in the official gazette in July 2009, it appeared together with the Supreme Court’s opinion without clarification as to what this opinion meant for the interpretation of the law – see AAN’s background here ).

Neither did the 11 presidential candidates agree that the extension approved by the Supreme Court in 2009 was comparable to the one they approved in 2019. They questioned the Supreme Court’s reference that in 2009 the political elites had agreed to the extension, saying that, even if such an agreement had existed in 2009, currently both political parties and élites agreed that the presidential term should end. Whether such a consensus does exist is debatable. Some of the presidential candidates have issued separate statements damning the court’s decision. For instance, the Security and Justice team led by former NDS chief Rahmatullah Nabil said in a statement on 22 April that the Supreme Court’s interpretation of article 61 of the constitution in favour of the continuation of the government after 22 May was in conflict with this important article within the law. It said that no interpretation of the constitution could push back the end of the presidential term to an unknown time, that is to say, until presidential elections are held, the date of which is not yet clear (this is perhaps doubting that elections can even be held on 28 September, and even if they are held on schedule, it is unclear when they might be concluded). Nabil’s Security and Justice team said that it considered it its duty and responsibility to put an end to this illegal issue after 22 May by using all legal channels and civil protests. The National Accord team led by Ahmad Wali Massud called the Supreme Court’s ruling “made to order” and the extension “illegal.”

The government has not officially commented on the Supreme Court’s ruling. President Ashraf Ghani, in an introductory meeting with MPs on 23 April 2019, said (here and here ) :

“Our objective is stability, not the stability that comes from the bayonet of a gun, force or gold (money), [but] stability that is the result of the implementation of the constitution. Whatever puts aside the constitution is, in fact, a coup d’état, and this nation does not accept coups d’ états. We want implementation.” He repeated this statement in his address at the inauguration of the new MPs on 26 April, saying that “those who seek to undermine the national document, namely the constitution, by spreading ambiguity, doubt and distrust are close to coup plotters, I tell them that the age of the coup d’états is over.” He said , “I am the president until completion of transparent and general elections in the country.” During the ceremony commemorating 8 Saur on 28 April 2019, Ghani’s second Vice-President Sarwar Danesh added that “the proposals such as a caretaker or interim government do not have any legal reason and basis and, therefore, the Supreme Court, as the authority for interpreting the constitution, has endorsed this view.”

Meanwhile, while the Supreme Court’s ruling makes no mention of the National Unity Government or the Chief Executive’s office, the Chief Executive’s office has welcomed the ruling, saying that the National Unity Government would continue to serve until the election of a new president (media report here ). (6)

In both 2009 and 2014, the president served beyond the constitutional expiry date, either because of the postponement of the elections (2009) or the drawn-out election process (2014). The then-president’s office sought a ruling from the Supreme Court in 2009 and from the ICOIC in 2014 for a continuation, both times arguing that the continuation of the incumbent president and government was more compatible with the spirit of the constitution.

In practical terms, however, there are some differences to the current situation: 1) there is a longer delay in the elections this time around and there may even be further delays given that certain basic but important issues, such as the use of technology and the budget have not yet been resolved. 2) There has been a serious debate both among national and international circles about the sequencing of elections and a peace process (see AAN’s reports here and here ). Any significant progress in the ongoing peace talks and efforts might delay the elections. 3) The current government is a national unity government based on a political deal (see this AAN’s previous report “Elections 2014 (51): Finally, a deal, but not yet democracy” here ), an improvised solution after a contentious presidential election, the mandate of which has been a topic for discussion before, see AAN’s previous report “When The Political Agreement Runs Out: On the future of Afghanistan’s National Unity Government” here ). Whether or not the Supreme Court’s ruling will withstand the political pressure if maintained, or which of the scenarios will prevail, remains to be seen in the weeks and months ahead.

Edited by Sari Kouvo

(1) The full text of the 17 April letter by the legal department of the presidential palace (AAN has not seen a copy of it but it is cited in the Supreme Court’s ruling, see below AAN’s working translation of it):

Earlier in 1388 (2009), based on the request of the office of the administrative affairs and the secretariat of the Council of the Ministers, the high council of the Supreme Court, through approval number (169)dated 18/1/1388, provided its legal opinion about the term of the president due to the postponement of the elections.

Now also the Independent Elections Commission has postponed the presidential elections till 6 Mizan 1398 (28 September 2019) for better implementation of the provisions of the electoral law, especially provisions of article 19 of the amendment to the electoral law, ensuring transparency and implementing voter registration and identification in a safe way, while the term of the president, according to article 61 of the constitution, ends on the 1st Jawza of the fifth year after elections and elections for a new president should be held 30 to 60 days before the end of the term of the president. But the decision of the Independent Election Commission leads to more than four months of gap between the end of the president’s term and the new elections.

Therefore, considering the political and security situation and the decision of the Election Commission andin order to prevent power vacuum, disruption in government’s duties and carrying out the affairs of the presidency of the Islamic Republic of Afghanistan, it requires that the Supreme Court of I.R.A once again review the implementation of article 61 of the constitution and provide its legal opinion [so it can] be shared with the president of the Islamic Republic of Afghanistan.

(2) Article 61 of the constitution reads:

The President shall be elected by receiving more than fifty percent of votes cast by voters through free, general, secret and direct voting.

The presidential term shall expire on 1st of Jawza of the fifth year after elections.

Elections for the new President shall be held within thirty to sixty days prior to the end of the presidential term.

If in the first round none of the candidates gets more than fifty percent of the votes, elections for the second round shall be held within two weeks from the date election results are proclaimed, and, in this round, only two candidates who have received the highest number of votes in the first round shall participate.

In case one of the presidential candidates dies during the first or second round of voting or after elections, but prior to the declaration of results, re-election shall be held according to provisions of the law.

(3) The full text of the Supreme Court’s 20 April 2019 response to the 17 April 2019 letter by the legal department of the presidential palaces published by Ariana News (An AAN working translation):

The high council of the Supreme Court of the Islamic Republic of Afghanistan, after a comprehensive review of the text of the letter by the office of deputy for policy, monitoring and review of the legal department of the presidential palace, opines as follow:

The current issue has a precedent, as in the previous elections, when the Election Commission announced the date for the 2009 elections with some months of delay, due to technical reasons, the then-government requested the Supreme Court for a legal explanation for the issue whereupon the high council of the Supreme Court, at the time, about the delay in the election date, had opined as below in view of the provisions of the law:”

1. The Supreme Court of the Islamic Republic of Afghanistan as an independent and impartial institution, like the two other branches of the state, considers the postponement of the elections as against the provision of article 61 of the constitution
2. The Supreme Court understands the problems and challenges with all their dimensions that the Independent Election Commission faces in financial, security and logistical areas.
3. The Supreme Court is also aware of and respects the viewpoint of a group of commentators and presidential candidates who have recognised the postponement of sound, democratic, general and fair election process as justified.
4. Therefore, the Supreme Court in view of the above issues, reviewed and analysed the query as referred from the text and spirit of article 61 of the constitution andpresents its opinion as bellow considering the objective situation and the supreme interests of the country and in light of legal muyyeds:

As it is clear, paragraph two of article 61 of the constitution stipulates the end of presidential term on first Jawza of the fifth year after the elections but meanwhile the constitution ties the above paragraph to the next paragraphs which says: “elections to determine a new president shall be held 30 to 60 days before the end of the presidential term.”

As we see, both in terms of the spirit and logic of the law and in terms of the phrasing, these two paragraphs are complimentary to each other which means that after the end of the presidential elections [to be held] within 30 to 60 days to the first Jawza of the fifth year, the president term ends and this clearly indicates that before the end of the presidential term, the presidential elections should have been conducted and completed and the person to whom the presidency should be handed as a result of the elections should have been elected, while the current [2009] situation is against it. So the only scientific and logical solution, [which is] in consonance with the supreme interests of the country and based on a jurisprudential rule (baqa ma kana ala ma kana, observing the status quo ante), is the continuation of the term of the president and his vice-presidents till elections, because with the postponement of the elections in fact the provision of article 61 of the constitution has been delayed as a whole, because the provision for an issue in one article of the law cannot be divisible, in a way [to say that] delay is allowed in one paragraph [in elections] but not in another paragraph [end of the presidential term] despite the fact that they are complimentary to each other. This analysis in addition to the fact that it is compatible with the wording of the constitution as well as with its spirit and logic and with jurisprudential rule can contribute to ensuring national unity, stability in the country. Therefore, the Supreme Court of the Islamic Republic of Afghanistan expresses its views in this regard:

1. Observing the text and spirit of the constitution mentioned above
2. Realising the problems and excuses that the Election Commission faces
3. In order to further ensure stability and protect the supreme interests of the country
4. And respecting the expectations and wishes of the noble and Muslim people of Afghanistan in paving the ground for holding general, fair, sound and democratic election

Considers the continuation of the term of the president and his vice-presidents until the election of a new president in the interests of the people and the system and in accordance with the spirit and analysis of the constitution and expresses its legal and positive opinion while approving and supporting it.”

Now considering that the current president’s query is the same query made by the then-president to the Supreme Court in the 2009 presidential elections. Since the issue in question has legal and executive precedent and this ruling has been acted upon, the legal opinion of the Supreme Court in view of the provisions of the law and given the excuses that the Election Commission of Afghanistan face is the same opinion that had been provided by the high council of the then-Supreme Court as a legal principle in 2009. Therefore, the previous opinion of the high council of the Supreme Court about the issue, [and] considering the provision of paragraph six of article 104 of the electoral law published in the official gazette 1226 dated 4/7/1395 (25 September 2016), was exactly approved by the Supreme Court of the Islamic Republic of Afghanistan.

(4) The office of the administrative affairs under former President Karzai had written that (as cited by the ICOIC in its 18 May 2014 (available here in Dari) that (AAN’s working translation):

Paragraph two of article 61 says that the presidential term ends on the first Jawza of the fifth year. As it is clear, the results of the 1393 (2014) elections have not been clarified yet and, on the other hand, a few days are left to the first Jawza of the fifth year after the elections as enshrined in article 61 of the constitution. On the other hand, if the elections go to a second round, more time will be needed to hold the runoff and until the announcement of the results and election of a new president. So in order to prevent the violation of the constitution and find a reasonable solution to the issue, the issue is referred to you so you review it and provide legal advice to the president.

(5) The OICIC provided the following reasons for its decision: First, the continuation of the then-incumbent president’s term prevents a power vacuum. Second, there is no better alternative to the continuation of the then-president’s term within the constitutional framework. Third, because continuation of the then-incumbent president’s term is the continuation of an elected power, which is more democratic than any other method (that might have been adopted to replace it); fourth, this (the delay in completing the elections within the constitutional timeframe) is the closest to a state of emergency in terms of similarity, during which elections are delayed and the presidential term is extended (this is perhaps referring to article 147, which sets forth that if the presidential or parliamentary term expires during the state of emergency, new general elections shall be postponed and their terms will be extended for up to four months. However, the state of emergency, according to article 143 and declared by the president, should be endorsed by the National Assembly).

Article 147 of the constitution reads:

If the presidential term or the legislative term of the National Assembly expires during the state of emergency, the new general elections shall be postponed, and the presidential, as well as parliamentary terms, shall extend up to 4 months.

If the state of emergency continues for more than four months, the President shall call the Loya Jirga.

Within 2 months after the termination of the state of emergency, elections shall be held.

(6) This led to speculation on the social media that the Supreme Court might have intentionally omitted to make any mention of the office of the chief executive to allow the president to dissolve it(see for example, Abdul Ali Muhammadi, a former legal adviser to President Ghani, commenting that “with the approval of the high council of the Supreme Court, the office of the chief executive will be closed after 22 May”). A day after the Supreme Court’s ruling was published by the media, on 22 April, a fake decree (as though issued by President Ghani) as though leaked to the Pajhwok News Agency was circulated on social media indicating that the office of the chief executive had been dissolved by the president and a team had been appointed to transfer its properties to the presidential palace. The office of second Vice-President Danesh wrote : “Today the text of a presidential decree about dissolution of the office of the chief executive of the National Unity Government, citing some news agency, was published on the social media and caused a concern for the public opinion. This news is totally fake and baseless and denied.”