Chapter VII The Judiciary
Article 116 [Indpendence]
(1) The judicial branch is an independent organ of the state of the Islamic Republic of Afghanistan.
(2) The judicial branch consists of the Supreme Court (Stera Mahkama), High Courts, Appeal Courts. Structure of authorities of which are determined by law.
(3) The Supreme Court as the highest judicial organ, heads the judiciary organ of the Islamic Republic of Afghanistan.
Article 117 [Supreme Court]
(1) 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 House of Representatives [Wolesi Jirga] with observance of the provisions of last paragraph of the Article 50 and Article 118 of this Constitution. In the beginning the appointment will be as such:
(2) Three members are appointed for a period of four years, three members for seven years and three members for ten years. Later appointments will be for a period of ten years.
(3) The appointment of the members for the second term is not permissible.
(4) The President appoints one of its members as the Head of the Supreme Court.
(5) 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 118 [Qualifications for the Supreme Court]
A member of the Supreme Court shall 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
— Shall be a citizen of Afghanistan.
— Shall have a higher education in law or in Islamic jurisprudence, and shall have sufficient expertise and experience in the judicial system of Afghanistan.
— Shall have high ethical standards and a reputation of good deeds.
— Shall not have been convicted of crimes against humanity, crimes, and sentenced of deprivation of his civil rights by a court.
— Shall not be a member of any political party during the term of official duty.
Article 119 [Oath of Office for the Supreme Court]
Members of the Supreme Court take the following oath in the presence of the President before occupying the post:
“In the name of 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 120 [Duty to Decide]
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 121 [Judicial Review]
The Supreme Court upon request of the Government or the Courts can review compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them, in accordance with the law.
Article 122 [Guaranteed Jurisdiction]
(1) 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.
(2) This provision does not apply to establishing special Courts stated in Articles 69, 78 and 127 of this Constitution and military courts in matters relating to them.
(3) The structure and authority of these courts are regulated by law.
Article 123 [Judiciary]
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 124 [Judicial Administration]
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 125 [Judicial Budget]
(1) 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.
(2) Implementation of the budget of the judicial branch is the authority of the Supreme Court.
Article 126 [Remuneration of the Supreme Court]
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 127 [Judicial Impeachment]
(1) When more than one-third of the members of the House of Representatives [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 House of Representatives [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.
(2) The setting up of the court and the procedures of trial are regulated by law.
Article 128 [Publicity of Courts]
(1) In the courts of Afghanistan, trials are open and everyone is entitled to attend trials within the bounds of law.
(2) 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 129 [Legal Reasoning, Capital Punishment]
(1) The court is obliged to state the reasons for the decision it issues.
(2) All specific decisions of the courts are enforceable, except for capital punishment, which is conditional upon approval of the President.
Article 130 [Judicial Discretion]
(1) While processing the cases, the courts apply the provisions of this Constitution and other laws.
(2) 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 131 [Shia Law for Shia Followers]
(1) Courts shall apply Shia school of law in cases dealing with personal matters involving the followers of Shia Sect in accordance with the provisions of law.
(2) 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 132 [Appointment of Judges]
(1) Judges are appointed with the recommendation of the Supreme Court and approval of the President.
(2) The appointment, transfer, promotion, punishment, and proposals to retire judges are within the authority of the Supreme Court in accordance with the law.
(3) 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 133 [Prosecution of Judges]
(1) 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.
(2) 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.
(3) After the Presidential approval, the accused judge is dismissed from duty, and punished in accordance with the provisions of the law.
Article 134 [Attorney’s Office]
(1) 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.
(2) The Attorney’s Office is part the Executive branch, and is independent in its performances.
(3) The structure, authority, and activities of the Attorney’s Office are regulated by law.
(4) Discovery and investigation of crimes related to the armed forces are regulated by a special law.
Article 135 [Trial Language]
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.