The Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) has long been ineffective. The term of office of the members of this commission ended two years ago, and its quorum for holding meetings is still incomplete. A source in the Commission said that despite repeated requests from the president to nominate new members to the Commission, the president did not comply. The source states that the president has crippled ICOIC by not introducing new members. According to the principles of the internal duties of this Commission, the quorum of the meetings of ICOIC is completed with the presence of its five members. The Commission currently has four members. A number of members of the House of Representatives have also criticized the continuation of such a situation, saying that the president has in fact “turned his back” on the law. Meanwhile, the Head of the Independent Commission for Overseeing the Implementation of the Constitution says that the president will soon select the new members of the commission and introduce them to the House of Representatives for a vote of confidence. The Presidential Palace, however, is silent on this issue and refuses to answer.
ICOIC seven members, who are nominated by the President for four years and nominated to the House of Representatives for a vote of confidence. According to the information, the term of office of the members of the commission ended in May 2019, but the members of this Commission have continued their activities in violation of the constitution, the law of the ICOIC, the Principles of Internal Duties and the Law of Administrative Execution. According to a source in the Commission, the President has not yet issued any decree or order to continue the duties of the members of this Commission. On the other hand, the quorum of this Commission is not complete for holding meetings. Pursuant to Article 11 of the Principles of Internal Duties of the Commission, the quorum of the meetings of the ICOIC shall be completed in the presence of five members. However, this Commission has been active for a long time with four members. Currently, Mohammad Qasem Hashimzai serves as the Head and Abdullah Shafayi, Abu Bakr Mottaqi and Mohammad Aref Hafez serve as members of the Commission. Two members of this Commission are not present due to completing their term of office, and another member of it has also died.
Meanwhile, another source in the ICOIC confirmed that the term of office of the members of the commission was completed about two years ago. The source, however, states that four months before the end of the Commission members’ term, they sent three letters to the president to introduce the new members or issue a decree to continue the current members. According to the source, the president, however, has not responded to these demands and has not yet introduced new members or issued any decree to continue the activities of the current members. He noted that the president has only instructed the Ministry of Finance to transfer the salaries and privileges of current members until new members are introduced.
The source, who did not want to be named, stated that the continuation of such a situation is not acceptable for this Commission. According to them, the absence of members of the Commission means the closure of the Commission because in the absence of its members, it cannot use its powers. However, the ICOIC has the authority to interpret the law, monitor and provide legal advice on constitutional issues to the President and the National Assembly. “The government has not been sending the referral (request for interpretation) for almost four years,” the source said. “It submits the referral to the Supreme Court for interpretation, while the commission has the power to interpret. This commission is paralyzed.” However, he stressed that the members of the commission sometimes appear in the media and do small tasks, but in general, the oversight aspect of this commission has become “weak”.
The source stressed that in the absence of a quorum, the remaining members will not be able to perform. He accused the government of breaking the law, saying it was possible that the government was looking for people who already agreed with the government’s views. The source added that the remaining members of the commission have continued their activities because the commission in not closed.
Mohammad Qasem Hashemzai, Head of ICOIC also said that the members of the commission were incomplete. According to him, one member of the commission is absent from the commission due to completing their term of office and another member due to joining the Ombudsperson’s Office. In addition, another member has died. He told 8 Subh that he had asked the president to nominate new members and send them to the House of Representatives for a vote of confidence. Although the new members of the commission have not been officially announced yet, the Head of the Commission emphasizes that based on the information, the president has nominated new members and may introduce them to the House of Representatives in the near future for a vote of confidence. At the same time, according to the law, in the absence of a quorum, this Commission cannot issue consultations and its meetings are not held. Hashemzai added, however, that the commission meets as usual on Sundays each week and issues decisions on matters referred to the Commission. He noted that any decision taken by the ICOIC would be accompanied by a note reminding how the decision was made.
The House of Representatives also criticizes the non-nomination of members of the ICOIC. Members of parliament have accused the government of breaking the law, saying it is not the only administration whose members have not been nominated. According to members of parliament, President Ghani has not nominated a number of candidates. Ghulam Faroq Nazari, a member of the House’s Legislative Affairs Committee, told 8 Subh that continuing the work of members of the ICOIC is against the law. He stressed that their work is not legitimate from the point of view of the law. On the other hand, he criticized the government for continuing to break the law. Nazari said the president not only broken the law by not nominating new members of the ICOIC, but also has not taken any steps in nominating in the first place. According to him, a number of key government ministries are managed by Acting Ministers (or caretakers). He stressed that the government has been repeatedly asked to nominate candidates, but so far these demands have not been heeded.
Currently, the Ministry of Defense, the Ministry of Interior, the Ministry of Finance, the Ministry of Public Health, the Ministry of Education, the Ministry of Information and Culture, the Ministry of Women’s Affairs, and the Ministry of Rural Rehabilitation and Development are governed by Acting Ministers. The central bank is also headed by a caretaker. Members of the House of Representatives have repeatedly argued that caretakers continuing to work is not in the government’s interest because caretakers are not accountable to the nation, especially to the House of Representatives, so they do not work effectively.
We also wanted to have the government’s point of view in this regard. Despite our repeated contacts with the Presidential Palace, this institution refused to respond.
It should be noted that the Independent Commission for Overseeing the Implementation of the Constitution has been created in accordance with Article 157 of the Constitution as the highest body to monitor the implementation and observance of the provisions of the Constitution, with the request of the President, Government, National Assembly, Judiciary, government agencies and non-governmental. This commission was already not favored by the government. The government had recently approved a bill that would give the Supreme Court the power to interpret the constitution.
