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Afghanistan: President Ghani Nominates First Female Supreme Court Justice

(June 26, 2015) Afghanistan’s President Mohammad Ashraf Ghani nominated the country’s first female justice to the Afghan Supreme Court in mid-June 2015. Anisa Rasouli, currently the head of the Juvenile Appeals Court, will become the first female Supreme Court justice in Afghanistan if she receives a vote of confidence from the lower house of the Parliament, the House of Representatives. (Afghanistan Appoints First Female Supreme Court Judge, EURONEWS (June 16, 2015).)

While women’s rights activists have welcomed Ghani’s decision, Shurai Ulema (the Council of Afghan Clerics), a governmental institution that gives non-binding opinions on sharia [Islamic] law issues to interested agencies, and a number of conservative MPs oppose this decision on the basis of sharia law. (Mirwais Harooni, Afghan Clerics Protest Nomination of First Woman to Supreme Court, REUTERS (June 18, 2015).)

Constitutional Provisions on Justices

Article 118 of the Constitution of Afghanistan stipulates the qualifications for members of the Supreme Court. A member of the Supreme Court should:

  • be at least 40 years of age;
  • be a citizen of Afghanistan;
  • hold an advanced degree in law or sharialaw and have extensive knowledge of and experience in the judicial system of Afghanistan;
  • have high ethics and a good reputation;
  • have not been convicted of crimes against humanity or felonies or deprived of civil rights by a court; and
  • not be a member of any political party during his or her tenure on the Court. (Qanuni Assasi Afghanistan [The Constitution of Afghanistan], art. 118 (Kabul 2004) [unofficial translation], AFGHANISTAN INDEPENDENT HUMAN RIGHTS COMMISSION.)

Members of the Supreme Court must be nominated by the President of Afghanistan and receive a vote of confidence from the majority of the members of the House of Representatives that are present for the vote. (Id. arts. 117 & 106.) It is worth noting that article 117 of the Constitution provides that the third clause of article 50 of the Constitution will also apply to the appointment of members of the Supreme Court. (Id.) That clause asserts that employment in to any government services is open to all Afghan citizens “on the basis of qualification and without any kind discrimination.” (Id. art. 50.) Thus, on the basis of this article, it appears that the Constitution bars discrimination on the basis of sex.

Legal Qualifications for Judges

The Law on the Organization and Authorities of the Judiciary of the Islamic Republic of Afghanistan does not set forth any additional qualifications for Supreme Court judges beyond the ones set out in the Constitution. Article 81 of that law only asserts the general qualifications for becoming a judge; namely, a person should:

  • have held Afghan citizenship for at least ten years;
  • have not been convicted of a felony or intentional misdemeanor by any authorized court;
  • hold a bachelors’ or higher degree in law or sharia law or hold an educational degree from an official Islamic school (a darul ulom) or its equivalent;
  • not suffer from any infectious disease or disability that will prevent him or her from working;
  • have reached the age of 23 years; and
  • have successfully completed the Judicial Stage, a two-year judicial training program that accepts law, sharia law, and official Islamic school graduates through an entrance exam. (Women Judges Rise from Taliban Terror to Top of the Class, USAID website (June 20, 2012); Qanuni Tashkil wa Salahiat Qowayi Qazayahi Jumhuri Islami Afghanistan [Law on the Organization and Authorities of the Judiciary of Islamic Republic of Afghanistan] (2013), art. 81, Ministry of Justice of the Islamic Republic of Afghanistan website (in Dari).)

Prepared by Nasiruddin Nezaami, Law Library Intern, under the supervision of Tariq Ahmad, Senior Legal Research Analyst.