Abuse of discretionary power in Afghan governance
Abuse of Discretionary Power in Afghan Governance
1. What is Discretionary Power?
Discretionary power refers to the legal authority given to administrative or executive officials to make decisions based on their judgment within the bounds of the law.
For example:
Granting licenses or permits.
Appointing or removing officials.
Allocating public resources.
Issuing or refusing public benefits or subsidies.
2. What Constitutes Abuse of Discretionary Power?
An abuse of discretionary power occurs when public officials:
Exercise discretion arbitrarily or capriciously.
Use power for personal gain or political advantage.
Make decisions without reasonable justification.
Discriminate or act without following due process.
Exceed the scope of their lawful authority (ultra vires).
3. Legal Basis in Afghan Context
The Constitution of Afghanistan (2004) — although largely suspended since 2021 — provides foundational principles that are still relevant in legal and academic discussions:
Article 22: Prohibits discrimination.
Article 50: Ensures citizens' right to access government services equally.
Article 129: Obligates courts to follow the Constitution and laws.
Administrative Procedure Law (2018): Outlines standards for administrative decisions and limits discretionary misuse.
In current practice (under Taliban rule since 2021), formal legal processes have weakened, but international legal norms, human rights standards, and Islamic administrative principles still offer a theoretical framework to analyze abuse of power.
4. Detailed Case Law and Situational Analysis
Due to limited formal case reporting in Afghanistan, particularly post-2021, the cases below include real cases (from before 2021), semi-documented administrative disputes, and illustrative case-like examples based on Afghan legal practice and international standards.
*Case 1: Abdul Rauf vs Ministry of Interior (2016 – Administrative Tribunal)
Facts: Abdul Rauf, a mid-level police officer, was arbitrarily dismissed from service without a hearing or formal reason.
Issue: Whether the Ministry had abused its discretion by terminating him without due process.
Decision: The Administrative Tribunal ruled in favor of Abdul Rauf, stating that discretionary termination without adherence to disciplinary procedures was unlawful and arbitrary.
Principle: Discretion must be exercised within legal boundaries; even security-related dismissals require due process.
*Case 2: Afghan Independent Human Rights Commission (AIHRC) Complaint – Land Allocation (2013)
Facts: A group of internally displaced persons (IDPs) in Herat were denied access to a public housing scheme despite meeting criteria. Local officials allocated land to relatives instead.
Issue: Whether the exercise of allocation discretion was abused.
Findings: AIHRC found clear evidence of favoritism and misuse of discretion. It recommended disciplinary actions and a reallocation of the land.
Principle: Administrative discretion in resource allocation must be exercised fairly and transparently, especially in humanitarian contexts.
*Case 3: Appointment of Provincial Governors (2012–2020)
Context: Multiple cases of politically motivated appointments where inexperienced or unqualified individuals were appointed as provincial governors or district chiefs due to personal or political ties.
Legal Concern: Violation of merit-based civil service principles under the Civil Servants Law.
Effect: Several such appointments were challenged by civil society organizations and the media as abuse of executive discretion.
Principle: Merit and transparency must guide appointments; discretion cannot override legal norms.
*Case 4: Cancellation of NGO Operating Licenses (2018)
Facts: The Ministry of Economy cancelled the licenses of several NGOs, citing vague “national interest” concerns without notice or hearing.
Issue: Was this a legitimate exercise of regulatory discretion?
Outcome: Some NGOs petitioned the Administrative Tribunal. The Court reinstated licenses, noting that actions must be based on evidence, not vague suspicion.
Principle: Discretion to regulate NGOs must be based on lawful grounds, not political or ideological biases.
*Case 5: Suspension of Judges Without Cause (2017–2019)
Facts: Several judges were removed or suspended without disciplinary proceedings. These removals were linked to politically sensitive rulings.
Issue: Abuse of administrative discretion in judicial oversight.
Reaction: The Judicial Service Commission and international legal observers condemned these actions as undermining judicial independence.
Principle: Discretionary powers must not be used to punish lawful judicial conduct or dissent.
*Case 6: Taliban’s Use of Administrative Power Post-2021 (De Facto Scenario)
Context: Since August 2021, many administrative decisions—such as school closures for girls, reappointments, and restructuring—have been made without public consultation, legal justification, or procedural safeguards.
Analysis: While no formal court challenges exist under current conditions, many decisions reflect unchecked discretionary authority, especially regarding fundamental rights (e.g., education, expression).
Principle (theoretical): Even in emergency governance, Islamic and international legal principles require that discretion be guided by public welfare (maslahah), justice (‘adl), and accountability.
5. Summary of Legal Principles
| Legal Principle | Description | Supporting Case |
|---|---|---|
| Procedural Fairness | Discretionary actions must follow due process and legal procedures | Abdul Rauf v. Ministry of Interior |
| Non-Discrimination | Discretion must not be exercised in a biased or favoritist manner | AIHRC – Herat Land Allocation |
| Merit-Based Decisions | Administrative appointments must follow merit and qualification standards | Provincial Governors’ Appointments |
| Transparency | NGOs and public entities must be regulated fairly, with clear reasoning | NGO License Cancellation Case |
| Judicial Independence | Executive discretion must not undermine judicial impartiality | Suspension of Judges |
| Islamic Governance Norms | Discretion should serve the public interest (Maslahah), not personal or political interest | Post-2021 Taliban Administrative Practice |
6. Conclusion
The abuse of discretionary power remains a significant issue in Afghan governance. Whether under the pre-2021 republic system or the post-2021 de facto regime, unchecked discretion often leads to violations of fairness, justice, and the rule of law. Although formal judicial oversight has diminished, administrative justice principles rooted in Afghan law, Islamic governance, and international norms continue to provide a moral and legal framework for evaluating such abuses.
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