CHIEF JUSTICE AZIMI: TRANSITIONAL AUTHORITY IS A

C O N F I D E N T I A L SECTION 01 OF 02 KABUL 000414

SIPDIS

E.O. 12958: DECL: 02/25/2019
TAGS: PGOV AF
SUBJECT: CHIEF JUSTICE AZIMI: TRANSITIONAL AUTHORITY IS A
POLITICAL, NOT LEGAL, ISSUE

REF: 2/25 HOLBROOKE-DELL PHONE CALL

Classified By: CDA Christopher Dell, for reasons 1.4 (b) and (d).


1. (C) SUMMARY. Supreme Court Chief Justice Azimi told the
Charge on 2/25 that the election date and presidential
continuity issues were political and not legal disputes.
Constitutionally, the election had to be held before 5/22,
but Afghan political leaders have ignored the Constitution
numerous times to follow a course of action based on a
political consensus. Under Afghan law, the Supreme Court
does not judge the constitutionality of any issue unless it
is formally referred by either the leadership of the
executive or legislative branch. Karzai would have no
-interest in referring the question of post-5/22 executive
authority to the Court. The Parliament is on record as
refusing to acknowledge the right of the Court to interpret
the Constitution at all. It is unlikely therefore that the
Court will be called to judge on this issue.


Constitution Requires pre-5/22 Election, but Crisis is
Political, not Legal
--------------


2. (C) Azimi said the Constitution is clear: the election
must be held before 5/22. There is no other interpretation.
He detailed, however, numerous instances where political
leaders had achieved a consensus contradictory to the law.
For example, the Constitution contemplates district councils
and mandates that one-third of the National Assembly's Upper
House be elected representatives of district councils.
Because district councils do not exist, President Karzai
instead appointed those senators who should have come from
district councils.


3. (C) Azimi acknowledged that ensuring Afghanistan's
stability and security requires political leaders to resolve
the election date and presidential continuity issues. He
believed no one involved in the dispute was thinking about
the good of the country. He characterized extending Karzai's
term to 8/20 as a "small thing," compared to other past
examples of politicians reaching a decision by political
consensus that may have been inconsistent with the letter of
the law. However, he also showed no enthusiasm for going on
record with that view.

Equivocal on Election date
--------------


4. (C) Azimi viewed a pre-5/22 election date as the cleaner
and constitutional option. He warned that fighting could be
more intense in August than during the spring. Also, he
expressed concern the Afghan public could stage violent
demonstrations if Karzai stayed in office past 5/22. Azimi
did not, however, say he inherently opposed a potential
political consensus preserving the 8/20 election date. He
did not wish to make any public statement to that effect, nor
could the Court issue an advisory opinion.


5. (SBU) Charge outlined the U.S. position: the Afghan
political establishment must preserve the 8/20 presidential
election date and that while Karzai,s mandate ends on 5/22,
we believe he and the bulk of his government should assume
caretaker status until August elections. In the U.S. view,
it was imperative to maintain a strong central government
during the peak Taliban fighting season over the summer
months. The United States recognized Karzai,s executive
authority expired on 5/22. The most logical option would be
for Karzai to step down on 5/22, and then assume a position
as caretaker president until the inauguration. During that
period, he could exercise some diminished level of authority,
the exact limitations of which the Palace and opposition
groups would have to decide. This diminished authority would
address the suspicions of the opposition that Karzai would
use the power of incumbency to influence the outcome of the
election. The international community could serve as an
oversight body over Karzai,s actions in this capacity.


Ways Forward: State of Emergency More Likely than Loya
Jirga
--------------


6. (C) Under one scenario outlined by Azimi, shortly before
5/22 Karzai could ask the Independent Election Commission
(IEC) whether it was possible to hold a fair, free, and
secure election. When the IEC said it would be impossible,
Karzai could declare a state of emergency, which would
constitutionally
allow for an 8/20 election and presidential continuity. (The
Justice Ministry also views this as the best "legal" option).

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Responding to the Charge's inquiry about the prospects of a
Loya Jirga, Azimi said the President was much more likely to
call a state of emergency and hold an August election. He
also pointed out the Constitution required representatives
from the non-existent district councils to serve as Loya
Jirga representatives.

Role of the Supreme Court
--------------


7. (C) Responding to the Charge's inquiry, Azimi said he
would not speak publicly in regard to constitutionality of
the election date or his views on the presidential continuity
issue. The Supreme Court's duty was to respond to inquiries
channeled properly through the Government, not to speak to
the media. Clarifying a previous ambiguity in Article 121 of
the Constitution, Azimi declared that an official request via
Parliamentary channels (not from an individual MP) for a
Court interpretation could be construed as coming from the
"government." At the moment, however, Parliament refuses to
acknowledge the right of the Supreme Court to interpret the
Constitution at all. For his part, it would not be in
Karzai,s self-interest to ask the Court to interpret the
question of post-5/22 executive authority. It is unlikely
therefore that the Court will be called to judge on this
issue or play a constructive role in devising a solution.
DELL