Constitution of Afghanistan: Chapters 5-8

Continued from Constitution of Afghanistan
Unnofficial translation: Please consult Official Dari or Pashtu texts for accuracy.
Useful vocabulary words: Wolesi Jirga (the House of People) and Meshrano Jirga (House of Elders).

Chapter Five: The National Assembly

Article Eighty one Ch. 5. Art. 1
The National Assembly of the Islamic Republic of Afghanistan as the highest legislative organ is the manifestation of the will of its people and represents the whole nation. Every member of the National Assembly takes into judgment the general welfare and supreme interests of all people of Afghanistan at the time of casting their vote.

Article Eighty-two Ch. 5, Art. 2
The National Assembly consists of two houses: Wolesi Jirga (the House of People) and Meshrano Jirga. (House of Elders). No one can become member of both houses simultaneously.

Article Eighty-three Ch. 5, Art. 3
Members of the Wolesi Jirga (House of the People) are elected by the people through free, general, secret, and direct elections. Their mandate ends on the 1st of Saratan of the fifth year after the elections, and the new assembly starts its work. The election of the members of the Wolesi Jirga shall be held within 30 to 60 days before the expiry of the term of the Wolesi Jirga. The number of members of the Wolesi Jirga, proportionate to the population of each region, shall be between two hundred and twenty, and two hundred and fifty. Electoral constituency and other related issues shall be determined by election laws. In the election law measures should be adopted for so the election system shall provide general and just representation for all the people of the country, and at least one female delegate should be elected from each province.

Article Eighty-four Ch. 5, Art. 4
Members of the Meshrano Jirga (House of Elders) are elected and appointed as follows:

From among the members of each provincial council, the respective council elects one person for a period of four years.
From among the district councils of each province, the respective councils elect one person for a period of three years.
The President from among experts and experienced personalities appoints the remaining one-third of the members for a period of five years.

The president appoints 50% of these people from among women. A person, who is appointed as a member of the Meshrano Jirga, shall relinquish his membership in the respective council, and another person replaces him in accordance with the law.

Article Eighty-five Ch. 5, Art. 5
A person who is nominated or appointed as a member of the National Assembly should have the following qualifications in addition to those considered by voters.

Should be the citizen of Afghanistan, or has obtained the citizenship of the state of Afghanistan at least ten years before becoming a candidate.
Should not have been convicted by a court for committing a crime against humanity, a crime, or sentenced of deprivation of his civil rights.
Members of Wolesi Jirga should be Twenty Five years old at the date of candidacy, and members of the Meshrano Jirga should be Thirty Five years old at the date of candidacy or appointment.

Article Eighty-six Ch. 5, Art. 6
Credentials of members of the National Assembly are reviewed by independent commission for supervision of the elections in accordance with law.

Article Eighty-seven Ch. 5. Art.7
In the beginning of the legislative period, each one of the two houses elects one of its members as the Chairperson, and two people as the first and second Vice Chairperson, and two people as the secretary and assistant secretary for a period of one year. These individuals constitute the administrative board in their respective houses. The duties of the administrative boards are determined in the regulations pertaining to the internal duties of each house.

Article Eighty-eight Ch. 5. Art. 8
Each house of the National Assembly sets up commissions to study the topics under discussion in accordance with its internal regulations.

Article Eighty-nine Ch. 5, Art. 9
The Wolesi Jirga has the authority to set up a special commission if one-third of its members put forward a proposal to inquire about and study government actions.
The composition and procedure of this commission is specified in the internal regulations of Wolesi Jirga.

Article Ninety Ch. 5, Art. 10
The National Assembly has the following authorities:

Ratification, modification, or abrogation of laws and or legislative decrees.
Approval of plans for economic, social, cultural, and technological development.
Approval of state budget, permission for obtaining, and granting loans.
Creation, modification of administrative units.
Ratification of international treaties and agreements, or abrogation of the membership of Afghanistan to them.
Other authorities specified in this Constitution.

Article Ninety-one Ch. 5, Art. 11
Wolesi Jirga has the following special authorities:

Deciding on interpellation of each of the ministers in accordance with the provisions of article 92 of this constitution.
Taking the final decision about the state’s development programs and state budget, in case of a disagreement between the Wolesi Jirga and the Meshrano Jirga.
Approval of the appointments according to the provisions of this constitution.

Article Ninety- two Ch. 5, Art. 12
Wolesi Jirga, based on a proposal by one-tenth of all members, can interpellate each of the Ministers. If the responses given are not satisfactory, Wolesi Jirga shall consider the issue of vote of no confidence. Vote of no confidence on a Minister should be explicit, direct, and on the basis of well founded reasons. This vote should be approved by a majority of all members of the Wolesi Jirga.

Article Ninety-three Ch. 5. Art. 13
Any commission of both Houses of the National Assembly can question each of the Ministers about specific topics.
The person questioned can provide verbal or written response.

Article Ninety-four Ch. 5. Art. 14
Law is what both Houses of the National Assembly approve and the President endorses unless this Constitution states otherwise. In case the President does not agree to what the National Assembly approves, he can send the document back with justifiable reasons to the Wolesi Jirga within fifteen days of its submission. With the passage of this period or in case the Wolesi Jirga approves a particular case again with a majority of two-thirds votes, the bill is considered endorsed and enforced.

Article Ninety-five Ch. 5. Art. 15
Proposal for the promulgation of a law can be initiated by the government, or members of the National Assembly, and in the domain of regulating the judicial affairs through the Supreme Court by the government.

Article Ninety-six Ch. 5 Art. 16
Proposal for budget and financial affairs are initiated only by the government.

Article Ninety-seven Ch. 5, Art. 17
Proposals for promulgation of law initiated by the government are submitted first to the Wolesi Jirga.
If a proposal for the promulgation of law includes imposition of new taxes or reduction in state incomes, it is included in the working agenda on condition that an alternative source is also envisioned. The Wolesi Jirga approves or rejects the proposal of the promulgation of law including budget and financial affairs and the proposal of taking or giving loan after discussion as a whole. The Wolesi Jirga cannot delay the proposal more than one month. The proposed draft of law is submitted to the Meshrano Jirga, after its approval by the Wolesi Jirga. The Meshrano Jirga decides on the draft within a period of fifteen days. The National Assembly shall give priority to the promulgation of laws, treaties, and development plans of the government that require argent consideration and decision as per the request of the government. If a proposal for promulgation of law is initiated by ten members of one of the two Houses and then approved by one fifth members of the respective houses, it can be admitted to the agenda of the respective houses.

Article Ninety-eight Ch. 5, Art. 18
The state budget and development plan of the government is submitted through the Meshrano Jirga along with an advisory comments to the Wolesi Jirga. The decision of the Wolesi Jirga, irrespective of the consent of the Meshrano Jirga, is enforceable after it is signed by the President. If for some reasons the budget is not approved before the beginning of the new fiscal year, the budget of the year before is applied until the approval of the new budget. The government is obligated to give to the Wolesi Jirga the budget of the new fiscal year and a brief account of the current year’s budget within the forth quarter of the fiscal year. The definite account of the previous fiscal year shall be submitted by the government to the Wolesi Jirga within six months of the new year, in accordance with the provisions of law. Wolesi Jirga cannot delay the approval of the budget for more than one month or permission to give or take loan for more than a 15 days. If during this period Wolesi Jirga does not take any decision with regards to taking or giving loan, the proposal will be considered as approved.

Article Ninety-nine Ch. 5, Art. 19
If, during a session of the National Assembly, the annual budget or a developmental plan or an issue related to public security, territorial integrity, and the country’s independence is under discussion, the session of the assembly cannot end before the approval of the matter.

Article One hundred Ch. 5, Art. 20
In case the decision of one house is rejected by another house, a combined committee composed of equal members of each house is formed to resolve the disagreement.
The decision of the committee is enforced after its approval by the President.
In case the combined committee cannot solve the disagreement, the defeated resolution is considered void. And, if the resolution is approved by the Wolesi Jirga, it can be approved in the next session of the Wolesi Jirga by the majority of its members.
This approval is assumed as enforceable, after it is signed by the President, without submission to the Meshrano Jirga.
In case the disagreement between the two houses is over legislations involving financial affairs, and the combined committee is not able to resolve it, the Wolesi Jirga can approve the draft by the majority vote of its members.
This draft is assumed as enforceable without submission to the Meshrano Jirga after it is signed by the President.

Article One hundred-one Ch. 5, Art. 21
No member of the National Assembly is legally prosecuted due to expressing his views while performing his duty.

Article One hundred-two Ch. 5, Art. 22
When a member of the National Assembly is accused of a crime, the law enforcement authority informs the house, of which the accused is member, about the case, and the accused member can be prosecuted.
In case of an evident crime, the law enforcement authority can legally pursue and arrest the accused without the permission of the house, which the accused is a member of. In both cases, when legal prosecution requires detention of the accused, law enforcement authorities are obligated to inform the respective house, about the case immediately.
If the accusation takes place when the assembly is in recess, the permission of arrest is obtained from the administrative board of the respective house and the decision of this board is presented to the first session of the aforementioned house for a decision.

Article One Hundred three Ch. 5, Art. 23
The ministers can participate in the sessions of each one of the two houses of the National Assembly.
Each house of the National Assembly can demand the participation of Ministers to take part in its session.

Article One Hundred and four Ch. 5, Art. 24
Both houses of the National Assembly hold their sessions separately at the same time. Under the following circumstances, both houses can hold joint sessions:

When the legislative session, or the annual session is inaugurated by the President.
When it is deemed necessary by the President.

In this case the head of the Wolesi Jirga, chairs the joint session of the National Assembly.

Article One Hundred and five Ch. 5, Art. 25
The sessions of the National Assembly are open unless the Chairman of the assembly, or at least ten members of the National Assembly request their secrecy and the assembly accepts this request.
No one shall enter the building of the National Assembly by force.

Article One Hundred and six Ch. 5, Art. 26
The quorum of the sessions of each house of the National Assembly for voting is complete with the presence of the majority of the members, and its decisions are taken with the majority of the members present, unless this Constitution states otherwise.

Article One Hundred and seven Ch. 5, Art. 27
The National Assembly convenes two ordinary sessions each year.
The term of the National Assembly in each year is nine months.
When necessary, the assembly can extend this period.
Extraordinary sessions of the assembly during recess can take place by the order of the President.

Article One Hundred and eight Ch. 5, Art. 28
In cases of death, resignation and dismissal of a member of the Wolesi Jirga, and/or disability or handicap, which prevents performance of duties permanently, election in the related constituency is held for a new representative for the rest of the legislative period, in accordance with the law.
In the above-mentioned situations, a new member of the Meshrano Jirga shall be appointed in accordance with Article 87 of this Constitution.
Matters involving the presence or absence of members of the National Assembly are regulated according to internal rules.

Article One Hundred and nine Ch. 5, Art. 29
Proposals for amendments of the electoral law cannot be included in the working agenda of the assembly during the last year of the legislative period.

Chapter Six: Loya Jirga

Article One Hundred and ten Ch. 6. Art. 1
Loya Jirga is the highest manifestation of the people of Afghanistan.
Loya Jirga consists of the following:

Members of the National Assembly.
Chairpersons of the provincial, and district councils.

The Ministers, Chief Justice and members of the Supreme Court, can participate in the sessions of the Loya Jirga without the right to vote.
Article One Hundred and eleven Ch. 6. Art. 2
Loya Jirga is convened in the following situations:

To take decision on the issues related to independence, national sovereignty, territorial integrity, and supreme interests of the country.
To amend the provisions of this Constitution.
To prosecute the President in accordance with the provisions of Article 69 of this Constitution.

Article One Hundred and twelve Ch. 6. Art. 3
The Loya Jirga in its first session elects from among its members a chairperson, a deputy chair, and a secretary and an assistant secretary.

Article One Hundred and thirteen Ch. 6. Art. 4
The quorum of the Loya Jirga for voting is completed by the majority of members.
The decisions of the Loya Jirga are taken by a majority of the present members except in cases as explicitly stated in this Constitution.

Article One Hundred and fourteen Ch. 6. Art.56
Discussions of the Loya Jirga are open except when one –fourth of its members demand their secrecy, and the Loya Jirga accepts this demand.

Article One Hundred and fifteen Ch. 6. Art. 7
During the session of a Loya Jirga, the provision of Articles 101 and 102 of this Constitution are applied on its members.

Chapter Seven: The Judiciary

Article One Hundred and sixteen Ch. 7. Art. 1
The judicial branch is an independent organ of the state of the Islamic Republic of Afghanistan.
The judicial branch consists of the Supreme Court (Stera Mahkama), High Courts, Appeal Courts. Structure of authorities of which are determined by law.
The Supreme Court as the highest judicial organ, heads the judiciary organ of the Islamic Republic of Afghanistan.

Article One Hundred and seventeen Ch. 7. Art. 2
The Supreme Court is composed of nine members who are appointed by the President for a period of ten years with the approval of the Wolesi Jirga with observance of the provisions of last paragraph of the Article 50 and article 118 of this Constitution. The appointment of the members for the second term is not permissible.
The President appoints one of its members as the Head of the Supreme Court. Members in no way can be dismissed from their service until the end of their term, except circumstances stated in Article 127 of this Constitution.

Article One Hundred and eighteen Ch. 7. Art. 3
A member of the Supreme Court should have the following qualifications:

The age of the Head of the Supreme Court and its members should not be lower than forty at the time of appointment.
Should be citizen of Afghanistan.
Should have higher education in law or in Islamic jurisprudence, and should have enough expertise and experience in the judicial system of Afghanistan.
Should enjoy high ethics and reputation of good deeds.
Should not have been convicted of crimes against humanity, crimes, and sentenced of deprivation of his civil rights by a court.
Should not be a member of any political party during the term of official duty.

Article One Hundred and nineteen Ch. 7. Art. 4
Members of the Supreme Court take the following oath in the presence of the President before occupying the post:

“In the name Allah, the Merciful and the Compassionate I swear in the name of God Almighty to support justice and righteousness in accord with the provisions of the sacred religion of Islam and the provisions of this Constitution and other laws of Afghanistan, and to execute the duty of being a judge with utmost honesty, righteousness and nonpartisanship.”

Article One Hundred and twenty Ch. 7. Art. 5
The authority of the judicial organ is to attend to all lawsuits in which real individuals or incorporeal including the state stand before it as plaintiff or defendant and in its presence is expressed in accord with provisions of the law.

Article One Hundred and twenty one Ch. 7. Art. 6
The Supreme Court on only by request of the Government and or the Courts can review the laws, legislative decrees, international treaties, and international conventions, for their compliance with the Constitution.
The Supreme Court shall have the authority of the interpretation of the Constitution, laws, and legislative decrees.

Article One Hundred and twenty two Ch. 7. Art. 7
No law, under any circumstance, can transfer a case from the jurisdiction of the judicial branch to another organ as has been determined in this Constitution.
This provision does not apply to establishing special Courts stated in Articles 69 and 78 and 127 of this Constitution and military courts.
The structure and authority of these courts are regulated by law.

Article One Hundred twenty three Ch. 7. Art. 8
With observance of the provisions of this Constitution, the rules related to the structure, authority, and performances of the courts, and the duties of judges are regulated by law.

Article One Hundred and twenty four Ch. 7. Art. 9
Other officials and administrative personnel of the judicial branch are subject to the provisions of the laws related to the officials and other administrative personnel of the state, but their appointment, dismissal, promotion, pension, rewards and punishments are regulated by the Supreme Court in accordance with the law.

Article One Hundred and twenty five Ch. 7, Art. 10
The budget of the judicial branch is arranged in consultation with the government by the Supreme Court and presented to the National Assembly by the government as part of the state budget.
Implementation of the budget of the judicial branch is the authority of the Supreme Court.

Article One Hundred and twenty six Ch. 7. Art. 11
Members of the Supreme Court enjoy official financial benefits for the rest of their lives provided they do not occupy state and political positions.

Article One Hundred and twenty seven Ch. 7. Art. 12
When more than one - third of the members of the Wolesi Jirga demand the trial of the Chief Justice, or a member of the Supreme Court due to a crime committed during the performance of duty, and the Wolesi Jirga approves of this demand by a majority of two-thirds votes, the accused is dismissed from his post and the case is referred to a special court.
The setting up of the court and the procedures of trial are regulated by law.

Article One Hundred and twenty eight Ch. 7. Art. 13
In the courts of Afghanistan, trials are open and everyone is entitled to attend trials within the bounds of law.
The court, in situations which are stated in the law or in situations in which the secrecy of the trial is deemed necessary, can conduct the trial behind closed doors, but the announcement of the court decision should be open in all instances.

Article One Hundred and twenty nine Ch. 7. Art. 14
The court is obliged to state the reasons for the decision it issues.
All specific decisions of the courts are enforceable, except for capital punishment, which is conditional upon approval of the President.

Article One Hundred and thirty Ch. 7. Art. 15
While processing the cases, the courts apply the provisions of this Constitution and other laws.
When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts’ decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence and in a way to serve justice in the best possible manner.

Article One Hundred and thirty one Ch. 7. Art. 16
Courts will apply Shia school of law in cases dealing with personal matters involving the followers of Shia Sect in accordance with the provisions of law.
In other cases if no clarification by this constitution and other laws exist and both sides of the case are followers of the Shia Sect, courts will resolve the matter according to laws of this Sect.

Article One Hundred and thirty two Ch. 7. Art. 17
Judges are appointed with the recommendation of the Supreme Court and approval of the President.
The appointment, transfer, promotion, punishment, and proposals to retire judges are within the authority of the Supreme Court in accordance with the law.
The Supreme Court shall establish the General Administration Office of the Judicial Power for the purpose of better arrangement of the administration and judicial affairs and insuring the required improvements.

Article One Hundred and thirty three Ch. 7. Art. 18
When a judge is accused of having committed a crime, the Supreme Court shall inquire about the case involving the judge in accordance with the law.
After listening to his defense, when the Supreme Court regards the accusation to be valid, it shall present a proposal about the judge’s dismissal to the President.
After the Presidential approval, the accused judge is dismissed from duty, and punished in accordance with the provisions of the law.

Article One Hundred and thirty four Ch. 7. Art. 19
Discovery of crimes is the duty of the police and investigation and prosecution are conducted by the Attorney’s Office in accordance with the provisions of the law. The Attorney’s Office is part the Executive branch, and is independent in its performances.
The structure, authority, and activities of the Attorney’s Office are regulated by law. Discovery and investigation of crimes related to the armed forces are regulated by a special law.

Article One Hundred and thirty five Ch. 7. Art. 20
If parties involved in a case do not know the language in which the trial is conducted, they have the right to understand the material and documents related to the case through an interpreter and the right to speak in their mother language in the court.

Chapter Eight: The Administration

Article One Hundred and thirty six Ch. 8. Art. 1
The Administration of Islamic Republic of Afghanistan shall be based on central and local administrative units in accordance with the law.
The central administration is divided into a number of administrative units, each of which shall be headed by a minister.
The local administrative unit is a province.
The number, area, parts, and structures of the provinces and the related administrations are regulated by law on the basis of population, social and economic conditions, and geographic location.

Article One Hundred and thirty seven Ch. 8. Art. 2
The government, while preserving the principle of centralism, shall delegate certain authorities to local administration units for the purpose of expediting and promoting economic, social, and cultural affairs, and increasing the participation of people in the development of the nation.

Article One Hundred and thirty eight Ch. 8. Art. 3
In every province a provincial council is to be formed.
Members of the provincial council are elected in proportion to the population by free, direct, secret ballot, and general elections by the residents of the province for a period of four years in accordance with the law.
The provincial council elects one of its members as Chairman.

Article One Hundred and thirty nine Ch. 8. Art. 4
The provincial council takes part in securing the developmental targets of the state and improving its affairs in a way stated in the law, and gives advice on important issues falling within the domain of the province.
Provincial councils perform their duties in cooperation with the provincial administration.

Article One Hundred and forty Ch. 8. Art. 5
In order to organize activities involving people and provide them with the opportunity to actively participate in the local administration, councils are set up in districts and villages in accordance with the provisions of the law.
Members of these councils are elected by the local people through, free, general, secret and direct elections for a period of three years.
The participation of nomads in these councils is regulated by law.

Article One Hundred and forty one Ch. 8. Art. 6
Municipalities shall be set up in order to administer city affairs.
The mayor and members of the municipal councils are elected by free, general, secret, and direct elections.
The affairs related to municipalities are regulated by law.

Article One Hundred forty two Ch. 8. Art. 7
For the purpose of the implementation of the provisions, and ensuring the values of this constitution, the state shall establish the required departments.

Continued at Constitution of Afghanistan: Chapters 9-12 (or my scratchpad for now)