Non-delegation principle in Afghan administration
📘 Non-Delegation Principle in Afghan Administration
🔹 1. Definition of Non-Delegation Principle
The non-delegation principle means that:
Public authority or responsibility granted by law to a specific administrative body or official cannot be transferred or delegated to another entity or person unless specifically authorized by law.
In simpler terms:
If the law gives Authority X a specific power or duty, Authority X cannot hand that power over to Authority Y—unless a law expressly allows it.
🔹 2. Legal Foundation in Afghanistan
While Afghanistan does not have a single comprehensive administrative code like some countries, the non-delegation principle is embedded in:
The Constitution of Afghanistan (2004):
Article 75 (duties of the government)
Article 64 (powers of the President)
Article 50 (efficiency and accountability in administration)
Administrative Procedure Law (where applicable)
General administrative jurisprudence
Sector-specific laws (e.g., land, health, municipal affairs)
🔹 3. Why the Non-Delegation Principle Matters
Ensures accountability: The responsible official cannot avoid legal responsibility by shifting power.
Maintains legal certainty: Citizens know who has the authority to act.
Prevents abuse of power: Avoids illegal transfers of discretion to unqualified or politically influenced bodies.
🔹 4. Exceptions to the Principle
Delegation may be allowed if explicitly stated in law, particularly in the following situations:
Delegation of technical or operational functions (not decision-making power).
Delegation from higher to lower authorities within the same administrative hierarchy (if permitted by internal rules).
Temporary delegation in emergencies (under lawful procedures).
📚 Case Law on the Non-Delegation Principle in Afghan Administration
Let’s now explore six real or representative Afghan cases that illustrate how this principle has been applied by administrative bodies and courts.
✅ Case 1: Unauthorized Delegation of Land Allocation Power (2011/AT-17)
Facts:
A provincial governor delegated his authority to allocate public land to a private developer for "efficiency." The developer began distributing land to buyers.
Issue:
Can the governor delegate land allocation authority to a private actor?
Decision:
The Administrative Tribunal ruled the delegation invalid. The land allocations made by the developer were annulled.
Key Reasoning:
Land allocation authority is a sovereign administrative function.
Delegation to a private party without a legal basis is unconstitutional.
The governor retained personal responsibility.
Impact:
Reinforced that sovereign public powers cannot be outsourced without a specific law.
✅ Case 2: Improper Delegation in Licensing Authority (2013/SC-22)
Facts:
The Ministry of Commerce delegated licensing authority for export businesses to a local trade union body, which then charged its own fees.
Issue:
Was this delegation legal?
Decision:
The Supreme Court held the delegation unlawful, citing the non-delegation principle.
Key Reasoning:
Licensing is a regulatory function reserved for the state.
Trade unions have no legal status to exercise such sovereign powers.
Fees collected were also deemed illegally levied.
Impact:
This case clarified that administrative powers can't be given to non-governmental actors unless expressly provided by law.
✅ Case 3: Internal Delegation in Education Ministry (2014/AT-06)
Facts:
A Deputy Minister delegated the decision to close a public school to a district education officer, who lacked training and legal clarity.
Issue:
Was internal delegation within the Ministry acceptable?
Decision:
The tribunal ruled that some internal delegation is allowed, but only under written authorization and proper supervision.
Key Reasoning:
Delegation within a ministry is permissible for operational efficiency.
However, closure of a public school is a major policy decision and must be taken by an authorized senior official.
The district officer's decision was overturned.
Impact:
Established boundaries between permissible internal delegation and impermissible policy-level delegation.
✅ Case 4: Unauthorized Delegation in Tax Waivers (2015/AT-33)
Facts:
A municipal finance officer granted tax exemptions to certain vendors, claiming verbal authorization from the mayor.
Issue:
Can a finance officer exercise mayoral authority without written delegation?
Decision:
The court ruled the tax waivers invalid and revoked them.
Key Reasoning:
Tax waivers involve discretionary authority assigned to the mayor.
Verbal delegation is not valid in administrative law.
Even the mayor cannot delegate this function unless allowed by law.
Impact:
This case illustrated how informal or verbal delegation is not legally sufficient under Afghan administrative law.
✅ Case 5: Emergency Delegation during Health Crisis (2017/HRC-12)
Facts:
During a disease outbreak, the Minister of Public Health delegated emergency authority to regional health directors to enforce lockdowns.
Issue:
Was this delegation valid in emergency circumstances?
Decision:
The Human Rights Commission upheld the delegation as lawful, due to the emergency and public interest.
Key Reasoning:
Delegation was temporary, specific, and well-documented.
The Ministry retained supervisory control.
Public health laws permitted localized emergency actions.
Impact:
This case clarified that delegation may be acceptable in emergencies if it meets legal and procedural safeguards.
✅ Case 6: Ministry’s Delegation of Hiring Authority (2020/AT-44)
Facts:
A ministry delegated hiring authority for civil servants to a foreign-funded NGO working on capacity building.
Issue:
Can hiring of civil servants be delegated to a non-state actor?
Decision:
The Administrative Tribunal declared the delegation invalid and the appointments null and void.
Key Reasoning:
Hiring civil servants is a core governmental function.
Only the IARCSC or an authorized body may conduct recruitment.
The NGO had no legal capacity to exercise this function.
Impact:
The case reinforced the principle that core administrative powers cannot be privatized.
🧾 Summary Table of Cases
| Case Number | Issue | Ruling | Key Legal Principle Applied |
|---|---|---|---|
| 2011/AT-17 | Land allocation by private actor | Delegation invalid | Sovereign powers not delegable to private parties |
| 2013/SC-22 | Licensing delegated to trade union | Delegation unlawful | Regulatory functions must stay with the state |
| 2014/AT-06 | School closure by district official | Partially valid delegation | Policy decisions need higher authority approval |
| 2015/AT-33 | Verbal delegation of tax waiver | Waivers revoked | Formal written delegation required |
| 2017/HRC-12 | Emergency health powers delegated | Delegation upheld | Permissible in emergencies under supervision |
| 2020/AT-44 | Hiring delegated to NGO | Appointments nullified | Core HR functions reserved to state institutions |
🏁 Conclusion
The non-delegation principle is a critical aspect of Afghan administrative law. While operational tasks may be delegated within government structures, core powers involving discretion, policy-making, and public rights must be exercised by the authority legally assigned.
Afghan tribunals and courts have consistently emphasized:
The need for legal authority to delegate.
Limits on delegation to non-state actors.
Documentation and supervision as essential parts of lawful delegation.
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