AFGHAN SUPREME COURT

A few things about the design of new Afghan Supreme Court are worth noting. I'm using the draft constitution available here (pdf file); not sure if there have been any changes in these aspects of the draft, however.

First, the Justices serve limited terms (ten years, no repeats); they must be at least 40 years old; they are nominated by the President and approved by one of the bodies of the legislature (the Wolesi Jirga, sort of like the House of Representatives), but the President has sole authority to pick the Chief Justice. Thus, partisan entrenchment over the long term will be relatively difficult to obtain but possible over the short term, depending on what norms develop for approval in the Wolesi Jirga (looks like simple majority vote, if I'm not mistaken). The limits on Supreme Court terms put the Afghan Supreme Court well within world norms; the terms are shorter than in the U.S. (life) but longer than is typical in India (only a few years). Generally, as I've noted before (see, for example, here), it seems to me that such limits are a good idea.

The Wolesi Jirga can impeach Supreme Court Justices by a 2/3 vote, after 1/3 agree to put the impeachment vote on the agenda, but the impeachment procedure is a matter of statute rather than constitutional law (see Article 127). This could mean a Court on a shorter leash than in the U.S. and reminds me of Philippine procedures.

But the Supreme Court is compensated, so to speak, for its relative institutional weakness, by being made very powerful in matters of lower court administration. Article 132 reads:

Judges are appointed at the recommendation of the Supreme Court and approval of the President.
The appointment, transfer, promotion, punishment, and proposal for retirement of the judges are within the authority of the Supreme Court in accordance with law.
The Supreme Court shall in order to improve the administrative and judicial affairs establish the General Administration Office of the Judiciary.

And Article 133 reads:

Whenever a judge is accused of having committed a crime, the Supreme Court shall investigate the case involving the judge in accordance with law.
After hearing his defense, if the Supreme Court regards the accusation to be valid, it shall propose the dismissal of the judges to the President.
Subject to Presidential approval, the accused judge shall be dismissed from duty, and punished in accordance with the provisions of law.

Thus, the Supreme Court has significant oversight functions with regard to the judiciary as a whole; the appointment power is likely to be especially important here. Is the idea to insulate lower judges from political considerations by making them accountable to (hopefully) relatively non-partisan Supreme Court members? Interesting.