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04:04:2009

In response to your official letter No. 25 dated 2/1/1388, to implement the directive of H.E. the President, and following a comprehensive round of discussions on the provisions of the above-mentioned letter at the emergency meeting held on 8/1/1388, the Supreme Court of Islamic Republic of Afghanistan declares its legal opinion as follows:

•  As one of the three independent branches of the government, the Supreme Court of Islamic Republic of Afghanistan deems the postponement of the presidential elections against the provisions of the article No. 61 of the Constitution.

•  The Supreme Court acknowledges the financial, security and logistical challenges faced by the Independent Elections Commission.

•  The Supreme Court is aware of and understands the viewpoints of some of intellectuals and presidential candidates who believe that the postponement of the elections is in the interest of Afghans as it paves the way for a fair, democratic, legitimate, and general elections process.

Consequently, analyzing the question in line with the letter and spirit of the article No. 61, and based on national interests of Afghanistan , the realties on the ground, and in light of the legal opinions Supreme Court express its view as follows:

Article No. 61 of the Constitution clearly states that the presidential term shall expire on 1 st of Jawza of the fifth year after elections, but at the same time the Constitution links this paragraph to the subsequent paragraphs of the article No. 61 outlining as follows: “Elections for the new President shall be held within thirty to sixty days prior to the end of the presidential term.”

As observed, based on the logic and spirit of law and the formulation of the phrases, these two paragraphs complement each other. It means that the presidential term expires following the completion of the elections process within 30-60 days before 1 ST of Jawza of the fifth year, clearly indicating that the presidential elections must have been held and a new President must have been chosen before the expiration of the presidential term.

Since the current circumstances are opposite to what is said in Article No. 61, and by taking into consideration of the national interests of the country, the only scientific and logical solution is the continuation of the term of the President and Vice-Presidents. For, the postponement of the elections means the postponement of all the provisions of the Article No. 61 of the Constitution. Since the paragraphs of the Article No. 61 complement one another, it cannot be allowed for only one of them to be postponed.

In addition to its consistency with the provisions of the Constitution and its spirit and logic, and its consistency with the Feq principles, this analysis can ensure national consensus and stability in the country.

Therefore, the Supreme Court of the Islamic Republic of Afghanistan :

•  Considering the provisions and spirit of the Constitution

•  Acknowledging the challenges faced by the Independent Elections Commission

•  Insuring stability in the country and considering the national interest of the country

•  And considering the aspirations of the noble people of Afghanistan for free, legitimate, fair, general and democratic elections

believes that the continuation of the term of the President and Vice-Presidents is in the interest of the Afghan people and state and it is also consistent with the spirit and interpretation of the Constitution; and the Supreme Court declares its positive view in favor of the continuation of the President's term until the next president is inaugurated.