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Paper abstract:

Note: I am re-submitting my paper because I could not attend the 2022 conference in Bloomington, Indiana. I was also awarded a travel grant but I was not able to use it last year.

Abstract

Although the Taliban return to power has effectively invalidated the 2004 Constitution of Afghanistan, it is important to reflect upon the implementation and performance of the Constitution and the extent to which it shaped political actions and legal order during its lifetime (2004-2021). One of the critical areas the 2004 Constitution regulated was the law-making process in Afghanistan. Article 94 of the Constitution defines “law” as “what both houses of the National Assembly approve and the President endorses” unless it is proclaimed otherwise by the Constitution. Elsewhere, the Constitution expressly allows the executive branch to issue legislative decrees if urgently needed while the House of Representatives is in recess. According to the Constitution, legislative decrees would become law after the President’s endorsement. However, the Constitution also required the executive branch to present legislative decrees to the National Assembly within thirty days of holding its first session. The Constitution further indicated that legislative decrees would be invalidated if refuted by the National Assembly. These provisions of the Constitution had become a battleground between the executive branch and the National Assembly for interpreting and establishing each branch’s legislative power. The executive branch was accused of misusing its narrow legislative power to issue an excessive number of legislative decrees, thus overstepping its authority, and undermining the National Assembly’s legislative powers. In all President Ghani’s administration enacted approximately 233 works of legislation.

This paper will examine those legislative acts within the parameters of the above constitutional provisions, assessing the constitutionality and unconstitutionality of the statutes via the lens of the standards, limits, and procedures set out in the 2004 Constitution. The paper will also explore and analyze the possible reasons for and circumstances when the executive branch would use legislative decrees in one area but allow the normal legislative process to run its course in another. The findings of the research will contribute to the study of constitutional law, expand the understanding of the fall of a (nominally) constitutional democracy, and explicate the politics of law-making in Afghanistan over the last two decades.