Unofficial Translation of the Supreme Court Letter Addressed to the Office of Administrative Affairs and the Council of Ministers Secretariat
In response to your official letter No. 25 dated 2/1/1388, to implement the directive of H.E. the President, and following a comprehensive round of discussions on the provisions of the above-mentioned letter at the emergency meeting held on 8/1/1388, the Supreme Court of Islamic Republic of Afghanistan declares its legal opinion as follows:
1. As one of the three independent branches of the government, the Supreme Court of Islamic Republic of Afghanistan deems the postponement of the presidential elections against the provisions of the article No. 61 of the Constitution.
2. The Supreme Court acknowledges the financial, security and logistical challenges faced by the Independent Elections Commission.
3. The Supreme Court is aware of and understands the viewpoints of some of intellectuals and presidential candidates who believe that the postponement of the elections is in the interest of Afghans as it paves the way for a fair, democratic, legitimate, and general elections process.
Consequently, analyzing the question in line with the letter and spirit of the article No. 61, and based on national interests of Afghanistan, the realties on the ground, and in light of the legal opinions supreme court expresses its view as follows:
Article No. 61 of the Constitution clearly states that the presidential term shall expire on 1st of Jawza of the fifth year after elections, but at the same time the Constitution links this paragraph to the subsequent paragraphs of the article No. 61 outlining as follows: “Elections for the new President shall be held within thirty to sixty days prior to the end of the presidential term.”
As observed, based on the logic and spirit of law and the formulation of the phrases, these two paragraphs complement each other. It means that the presidential term expires following the completion of the elections process within 30-60 days before 1ST of Jawza of the fifth year, clearly indicating that the presidential elections must have been held and a new President must have been chosen before the expiration of the presidential term.
Since the current circumstances are opposite to what is said in Article No. 61, and by taking into consideration of the national interests of the country, the only scientific and logical solution is the continuation of the term of the President and Vice-Presidents. For, the postponement of the elections means the postponement of all the provisions of the Article No. 61 of the Constitution. Since the paragraphs of the Article No. 61 complement one another, it cannot be allowed for only one of them to be postponed.
In addition to its consistency with the provisions of the Constitution and its spirit and logic, and its consistency with the Feq principles, this analysis can ensure national consensus and stability in the country.
Therefore, the Supreme Court of the Islamic Republic of Afghanistan:
• Considering the provisions and spirit of the Constitution
• Acknowledging the challenges faced by the Independent Elections Commission
• Insuring stability in the country and considering the national interest of the country
• And considering the aspirations of the noble people of Afghanistan for free, legitimate, fair, general and democratic elections
believes that the continuation of the term of the President and Vice-Presidents is in the interest of the Afghan people and state and it is also consistent with the spirit and interpretation of the Constitution; and the Supreme Court declares its positive view in favor of the continuation of the President’s term until the next president is inaugurated.
US welcomes Afghan extension of Karzai’s term
WASHINGTON (AFP) – The United States on Monday welcomed an Afghan Supreme Court ruling that President Hamid Karzai should stay in power beyond the constitutional end of his term in May and until elections in August.
“The United States strongly supports and welcomes this ruling,” said Gordon Duguid, a State Department spokesman, following Sunday’s ruling by the Supreme Court that said it acted in the interests of national stability.
“We believe that continuity of government in the critical period before elections is vital and contributes to creating stability,” Duguid said in a statement.
The court’s decision ended weeks of uncertainty about a potential power vacuum caused by the constitution’ s stipulation that the presidential term ends May 21, although elections were postponed until August 20.
But it is likely to meet with objections from Karzai’s political opponents who want him to end the term as scheduled and a caretaker appointed until the vote, saying his chances at the polls would be boosted if he is in power.
Duguid added: “We urge all Afghans to support this ruling by the Supreme Court and to focus on the elections to be held on August 22, rather than continuing to question the status of their government.
“The United States calls on the government of Afghanistan, joined by its international partners, to make every effort to ensure that the conditions are created for genuinely free and fair elections that will reflect the will of the Afghan people,” he said.
“For its part, the United States neither supports nor opposes any legitimate candidate and will concentrate its efforts on helping to create a level playing field for all candidates,” Duguid added.