Eliminating the Power of the No-Confidence Vote from Wolesi Jirga (the House of People): How Comparison of Approaches in South Africa and the United States could Inform Changes to Afghanistan's Law on Removal of Government Officers

Author:Fazal K. Lalamwal
Position:Kandahar University, Pakistan
Pages:473-509
SUMMARY

Afghanistan has a presidential system of government, in which the President exercises his or her powers as head of the state over all three branches. Consistent with this structure, the Constitution grants the authority to the Lower House of the Afghan National Council (Parliament) to use no-confidence votes against key officials and ministers. This power of the no-confidence vote of the House of ... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2018 e Institute for Migrant Rights Press
EliMinating thE powEr of thE no-
ConfidEnCE VotE froM thE wolEsi
Jirga (housE of pEoplE):
HoW coMparison of approacHEs in soutH
africa and tHE u.s. could inforM cHangEs to
afgHanistans laW on rEMoVal of goVErnMEnt
officErs
Fazal Khaliq Lalamwal
Kandahar University, Pakistan
E-mail: l@uw.edu
Afghanistan has a presidential system of government, in which the President ex-
ercises his or her powers as head of the state over all three branches. Consistent
with this structure, the Constitution grants the authority to the Lower House of
the Afghan National Council (Parliament) to use no-condence votes against
key ocials and ministers. is power of the no-condence vote of the House
of People create a political crisis for the executive branch, and it limits the gov-
ernment’s ability to address the country’s issues. is creates diculties for key
agencies of the government, the ministries, and their ability to properly apply
their strategic plans.
is paper argues that Afghanistan should consider adopting a new pro-
cess aer a hybrid of the approaches used in the U.S and South Africa. With
this new approach, Afghanistan could preserve the National Council’s power to
impeach the ministers and other key ocials in cases or allegations of bribery,
treason, and other major crimes. To support this claim, this paper begins by
briey discussing the Constitution to explain the parallel power of President
and the House of People relevant to the Condence and no-condence votes for
the key ocials and ministers. en, it compares to the governmental systems
of the United States and South Africa, examining the Presidential Power versus
V Indonesian Journal of International & Comparative Law 473-509 (July 2018)
474
Khaliq Lalmawal
the power of the Parliament or Congress in removing or impeaching the govern-
mental ocials. Finally, the paper suggests the amendment and reform of the
Afghan Constitution to eliminate the no-condence vote while preserving both
the advice and consent upon appointment, and the impeachment power, for the
House of People.
Keywords: Parliamentarism, Constitutional Democracy, Law Reform, the Rule of
Law, Islam.
475
Eliminitang the Power of the No-Condence from the Wolesi Jirga (House of People)
Khaliq Lalmawal
I. INTRODUCTION
Historically, Afghanistan has never had a truly centralized government
to bring stability in entire country: it is home to many distinct ethnic
groups, some of which have long histories of conict or tension among
them, and, as a landlocked country, it has six neighboring countries
aecting both its cultural ties and its security. Now an Islamic Repub-
lic, today’s Afghan government is designed to be a presidential system,
with the President as the most powerful government gure exercising
authority over all three branches: executive, legislative and judicial. e
President of Afghanistan is also the chairperson of the cabinet and the
head of the state.
Aer the elimination of the Taliban regime, the United Nations
hosted a major conference in Bonn, Germany in 2001, with leaders
representing several Afghan parties. e Bonn Conference represented
a new start for the political renovation of Afghanistan, providing the
means for a transitional government. Aer, the Bonn Conference
decided to invite members of various ethnicities to the Loya Jirga
[Afghan grand council of ethnic leaders]. During transitional
government period, the political and jihadi parties established a new
constitution for the country.
When the new Constitution had ratied in January 2004, it
established a Presidential System and a Bi-Cameral National Council
(Parliament). Under that Constitution, the President of the Islamic
Republic of Afghanistan has the authority to appoint the key ocials
and ministers. Once appointed, the ocials are required to have the
approval of the House of People of National Council [Parliament] to
take their appointed positions. e Walesi Jirga [House of People] has
the power of the No-condence vote, which enables them to remove
key ocials from their positions.
is power of the No-condence vote of the House of people
has created a political crisis for the executive branch, limiting the
government’s ability to address the country’s issues. Specically, the No-
condence vote creates diculties for key agencies of the government,
such as the various ministries, to properly apply their strategic plans.
Specically, when the House of people eliminates ocials from their
positions, but the President keeps them as acting ministers, then they

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