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 |
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
afgHanistan’s 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-condence votes against
key ocials and ministers. is power of the no-condence 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 diculties 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 aer 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 ocials in cases or allegations of bribery,
treason, and other major crimes. To support this claim, this paper begins by
briey discussing the Constitution to explain the parallel power of President
and the House of People relevant to the Condence and no-condence votes for
the key ocials 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 ocials. Finally, the paper suggests the amendment and reform of the
Afghan Constitution to eliminate the no-condence 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-Condence 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 conict or tension among
them, and, as a landlocked country, it has six neighboring countries
aecting 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.
Aer 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. Aer, 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 ratied 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 ocials
and ministers. Once appointed, the ocials 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-condence vote, which enables them to remove
key ocials from their positions.
is power of the No-condence 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. Specically, the No-
condence vote creates diculties for key agencies of the government,
such as the various ministries, to properly apply their strategic plans.
Specically, when the House of people eliminates ocials from their
positions, but the President keeps them as acting ministers, then they
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