
Contents
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I. Historical Introduction I. Historical Introduction
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A. The Constitutional History of Afghanistan (1923–2001) A. The Constitutional History of Afghanistan (1923–2001)
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B. The Creation of the New Constitution (2001–2004) B. The Creation of the New Constitution (2001–2004)
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II. The Separation of Powers in the Afghan Constitution II. The Separation of Powers in the Afghan Constitution
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A. Presidential Authority A. Presidential Authority
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B. Parliamentary Authority B. Parliamentary Authority
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C. The Judicial Branch C. The Judicial Branch
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III. Other Important Features of the Constitution of 2004 III. Other Important Features of the Constitution of 2004
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A. Sources of Law in the Afghan Constitution A. Sources of Law in the Afghan Constitution
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B. Human Rights and the Role of International Conventions B. Human Rights and the Role of International Conventions
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1. Rights of Women 1. Rights of Women
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2. Rights of Religious Minorities 2. Rights of Religious Minorities
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IV. The Problem of Constitutional Interpretation IV. The Problem of Constitutional Interpretation
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A. Competence to Interpret the Constitution A. Competence to Interpret the Constitution
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1. Historical Role of the Supreme Court and other Interpretive Bodies 1. Historical Role of the Supreme Court and other Interpretive Bodies
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2. The Role of the Supreme Court under the 2004 Constitution 2. The Role of the Supreme Court under the 2004 Constitution
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3. The Possible Role of the Supervisory Commission (Art. 157) 3. The Possible Role of the Supervisory Commission (Art. 157)
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B. Recent Constitutional Law Decisions by the Supreme Court B. Recent Constitutional Law Decisions by the Supreme Court
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1. Appointment of the Members of the First Meshranō Jirga 1. Appointment of the Members of the First Meshranō Jirga
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2. Approval of Ministers under Art. 106 2. Approval of Ministers under Art. 106
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3. The Case of Foreign Minister Spanta 3. The Case of Foreign Minister Spanta
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V. Conclusions V. Conclusions
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5.9 The Separation of Powers and the Problem of Constitutional Interpretation in Afghanistan
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Published:February 2012
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Abstract
This chapter examines constitution-building in Afghanistan. It discusses the constitutional history of Afghanistan (1923–2001); the creation of the New Constitution (2001–2004); the separation of powers in the Afghan Constitution; other important features of the constitution of 2004; and the problem of constitutional interpretation. It concludes that while the Afghan Constitution of 2004 is among the most progressive and modern in the Islamic world, the interpretation of the constitution poses considerable difficulties. Apparent contradictions between Islamic and secular laws must be resolved, and the separation of powers between the government, the National Assembly, and the Supreme Court must be clarified.
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