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Islamic Republic of Afghanistan Legal System and Research

 

By Omar Sial

 

Omar Sial is a partner in the Karachi, Pakistan based law firm of Omar Sial & Associates.

 

Published December 2006
Read the Update!

 

Table of Contents

Government – The Executive Branch

Government – The Legislative Branch

Composition of the National Assembly

The Wolesi Jirga (House of People)

The Meshrano Jirga (House of Elders)

Sessions of the National Assembly

The Secretariat of the National Assembly

The Legislative Process

The Constitution

The Judiciary

The Supreme Court

The Court of Appeals

The Primary Courts

Juvenile court

The Commercial Court

District Primary Court Structure

Registration of documents and deeds branches

Registration of documents and trademarks

Conditions of being a judge

Oath taking

Research Links

 

Government – The Executive Branch

The Executive Branch of the Afghan government consists of a powerful and popularly elected President and two Vice Presidents.

 

President Hamid Karzai became the first democratically elected President of Afghanistan on December 7, 2004. Previously, Hamid Karzai had been Chairman of the Transitional Administration and Interim President from 2002.

 

The constitution involves a strong presidential system. The President of Afghanistan is elected directly by the Afghan people to a five-year term, and can be elected no more than twice.

 

The president must be Muslim, an Afghan citizen born of Afghan parents, and should not be guilty of war crimes. The president is the commander-in-chief of the armed forces.

 

Presidential responsibilities include:

  • Determining policies with the approval of the National Assembly.
  • Appointing the nation's ministers, the attorney general, the director of the central bank, and the justices of the Supreme Court with the approval of the main legislative body, the Wolesi Jirga.
  • Appointing the nation's first and second vice presidents.

 

Read more about the President at: http://www.president.gov.af/default.mspx

Government – The Legislative Branch

A National Assembly consisting of two Houses, the House of People (Wolesi Jirga) with 249 seats, and the House of Elders (Meshrano Jirga) with 102 seats, forms the Legislative Branch.

 

There is an independent Judiciary branch consisting of the Supreme Court (Stera Mahkama), High Courts and Appeal Courts. The President appoints the nine members of the Supreme Court with the approval of the Wolesi Jirga.

Composition of the National Assembly

“The National Assembly of the Islamic Republic of Afghanistan as the highest legislative organ is the manifestation of the will of its people and represents the whole nation. Every member of the National Assembly takes into judgment the general welfare and supreme interests of all people of Afghanistan at the time of casting their vote.” Constitution of the Islamic Republic of Afghanistan (Article Eighty-One)

 

The National Assembly, as envisaged in the Constitution, consists of two houses: the Wolesi Jirga (the House of the People) and the Meshrano Jirga (the House of Elders).

 

Article Ninety of the Afghan Constitution stipulates that the National Assembly shall have the following duties:

·       Ratification, modification or abrogation of laws or legislative decrees;

·       Approval of social, cultural, economic as well as technological development programs;

·       Approval of the state budget as well as permission to obtain or grant loans;

·       Creation, modification and or abrogation of administrative units;

·       Ratification of international treaties and agreements, or abrogation of membership of Afghanistan in them;

·       Other authorities enshrined in this Constitution.

The Wolesi Jirga (House of People)

The Wolesi Jirga has 249 seats with members directly elected by the people. 

 

Sixty-eight women were elected to the seats reserved under the Constitution, while 17 of them have been elected in their own rights.

 

Each province was given proportionate representation in the Wolesi Jirga according to its population.  Each member of the Wolesi Jirga will enjoy a five year term expiring on the twenty-first of June of the fifth year (June 21, 2010).

 

An aspiring candidate for the Wolesi Jirga must fulfil the following criteria:

  • Be at least 25 years of age
  • Be a citizen of Afghanistan
  • Be registered as a voter
  • Be running as a representative in only one province
  • Pay a registration fee of 15,000 Afghanis (approximately US$300) which will be refunded provided the candidate wins at least three percent (3%) of the vote
  • Submit a nomination form along with photocopies of 500 voter ID cards supporting the candidacy

 

In addition, no candidate can have been charged with crimes against humanity.

The Meshrano Jirga (House of Elders)

The Meshrano Jirga consists of a mixture of appointed and elected members (total 102 members).  Sixty-eight members were selected by 34 directly elected Provincial Councils, and 34 were appointed by the President.

 

President Karzai’s appointments were vetted by an independent UN sponsored election board and included 17 women (50 %), as required by the Constitution. 

 

Each provincial council has elected one council member to serve in the Jirga (34 members), also each district council (34 members).  Representatives of provincial councils will serve a term of four years, while representatives of district councils will serve a term of three years. Sebghatulla Mojadeddi was appointed President of Meshrano Jirga.

 

An aspiring candidate for the Meshrano Jirga must fulfil the following criteria:

  • Be at least 35 years of age
  • Be a citizen of Afghanistan

 

In addition, no potential member of the Meshrano Jirga can have been charged with crimes against humanity

Sessions of the National Assembly

Both Houses of the National Assembly will convene two regular sessions for the term of nine months annually. The sessions are held concurrently, but separately, unless:

·       The legislative term or annual sessions are inaugurated by the President;

·       It is deemed necessary by the President.

 

The speaker of the Lower House shall preside over the joint sessions of the National Assembly. The sessions are open, except when the Speaker of the National Assembly or ten members of the House request its secrecy and it is granted by the National Assembly.

 

The President can order extraordinary sessions of the National Assembly during recess.

The Secretariat of the National Assembly

Upon commencement of their work period, each of the two houses of the National Assembly elects one member as the Speaker for the term of the legislature, and two members as, first and second deputies, and two members as secretary and assistant secretary for a period of one year.

 

These individuals shall form the administrative teams of the Lower House as well as the Upper House.

 

The Lower House has the authority to establish a special commission on the proposal of one third of its members to review, as well as, investigate the actions of Government.

The Legislative Process

Any law has to be approved by both Houses of the National Assembly (NA) and endorsed by the President.

 

Proposal for drafting a law is made by the Government or members of the NA, or if related to regulating judiciary, by the Supreme Court through the Government. It is first submitted to the Wolesi Jirga (the Lower House), which has one month to either approve or reject it by two-third.

 

The proposal is then submitted to the Meshrano Jirga (the Upper House), which will decide its approval or rejection in fifteen days.

 

In case the President rejects what the National Assembly has approved, he/she shall send it back, within fifteen days from the date it was presented to the Lower House outlining the reasons for rejection and, expiration of the period. If the House of People re-approves it with two thirds of all the votes, the draft will be considered endorsed and enforceable.

 

Proposals for drafting the budget and financial affairs law shall be made only by the Government.

 

While deciding about the proposed laws, the National Assembly shall give priority to treaties and development programs if the government considers them to be urgent.

 

The state budget and development program of the government shall be submitted, through the Upper House to the Lower House. If it is approved by the Lower House, it will be implemented without being submitting to the Upper House, after endorsement by the President.

 

In case of discussing urgent matters such as the annual budget, or development program, or issues related to the national security, territorial integrity and independence of the country, the sessions of the Assembly shall not end until a decision is made.

 

If one House rejects decisions of the other, a joint commission comprised of an equal number of members from each House will be formed to solve the difference. The decision of the commission shall be enforced, after endorsement by the President. In case the joint commission can not solve the difference, the decision will be considered rejected. In such cases, the Lower House will pass it with two-thirds majority in its next session, and will have it endorsed by the President.

 

Read more at http://www.nationalassembly.af/

The Constitution

The present Constitution of the Islamic Republic of Afghanistan was agreed upon by more than 500 delegates representing Afghan men and women from across the country at the Constitutional Loya Jirga (December 13, 2003 - January 4, 2004). The Constitution was formally ratified by President Hamid Karzai at a ceremony in Kabul on January 26, 2004.

 

The key points of the Constitution are as follows:

 

  • Afghanistan is an Islamic republic with Islam as its "sacred religion";
  • Followers of other religions are free to perform religious ceremonies in accordance with the provisions of the law;
  • No law shall be contrary to the beliefs and practices of Islam;
  • Men and women have equal rights and duties before the law;
  • Afghanistan will have a presidential system of government;
  • The president is responsible to the nation and the lower house, or Wolesi Jirga;
  • The president will be directly elected by the Afghan people with two vice-presidents, who are nominated by presidential candidates when standing for election;
  • A national assembly will consist of two houses: a Wolesi Jirga or "house of people" and a Meshrano Jirga or "house of elders";
  • The Wolesi Jirga will be directly elected by the Afghan people;
  • The Wolesi Jirga has the authority to impeach ministers;
  • The president will appoint ministers, the attorney general and central bank governor with the approval of the Wolesi Jirga;
  • Ministers should not hold foreign passports but the Wolesi Jirga should vote whether to approve appointments of ministers holding dual nationality;
  • Former king Mohammad Zahir Shah is to be accorded the title "Father of the Nation" for his lifetime ;
  • Pashto and Dari are the official languages with other minority languages to be considered official languages in the areas in which they are spoken.

 

The full text of the Constitution may be found online.  Read more about the Constitution here, here or here.  The Constitution-making process in Afghanistan can also be found online.

The Judiciary

The Judiciary in Afghanistan is composed of the Supreme Court, Courts of Appeal and Primary Courts. Travelling courts may be established when needed, on recommendation by the Supreme Court and approval of the President.

 

The Judiciary is empowered to resolve disputes between and among individuals, legal entities including the state in accordance with law.

 

Cases are resolved in courts taking into consideration the quality and nature of the case in two stages, primary and appeal. The Supreme Court deals with the referred cases of Courts of Appeal only in terms of accurate application of law(to see if any provision of law is breached or accurately applied), unless it has been authorized by law to resolve a case taking into consideration the quality and nature of the case.

 

Cases in court are handled as follows:

  • At the primary stage, with participation of three judges. Except less than three judges may decide a case when they are not available.
  • At the appeal stage, three judges shall decide any case.
  • At the cessation stage, shall take place by two or more persons

 

The courts are required to resolve cases in accordance with the constitution and other laws of the Islamic Republic of Afghanistan. If there is no clear legal provision for the case, the case shall be handled in accordance with articles 130 and 131 of the constitution.

 

Trials in the Afghanistan courts happen in open procedure in which everybody may attend, subject to law. The court may convene the trials in a close procedure only if they are legally required or that it is deemed necessary. Making notice of the final decision shall always be open to public.

 

The courts shall be duty bound to rely on the reasons, grounds and legal provisions for a decision to issue.

The Supreme Court

The Supreme Court constitutes the highest authority of the judiciary of the Islamic Republic of Afghanistan.

 

The Supreme Court is composed of nine persons appointed by the president in an agreement with Wolusi Jirga (house of people) in accordance with article one hundred seventeen and one hundred eighteen of the Constitution. The president shall appoint one of the members as the chief of the Supreme Court.

 

Supreme Court Dewans

The Supreme Court consists of the following Dewans:

 

  • General Criminal Dewan
  • Public Security Dewan
  • Civil and Public Rights Dewan
  • Commercial Dewan

 

Each Dewan is headed by a member of the Supreme Court as selected on rotation basis by the chief justice for the period of one year.

 

Powers of heads of Dewans

Each head of the Supreme Court Dewans has the following powers and duties:

 

  • Leading relevant Dewan’s activities.
  • Holding and presiding over relevant Dewan’s sessions.
  • Arranging affairs, coordinating judicial experiences of the Dewans and submission of report to the Supreme Court.

 

Judicial advisors

The Supreme Court has judicial advisors and their total number is not to be more than thirty six persons. Their duties consist of analyzing and studying the cases filed and provide a report to the judicial meeting for decision to be made.

 

Judicial powers and duties of the Supreme Court

The Supreme Court has the following jurisdictions and duties within the scope of interpretation of laws and judicial issues:

 

  • Assessment on conformity of laws, decrees, legal documents, international contracts and conventions with the Constitution and their interpretation based on the government or courts demand in accordance with law.
  • Propose for draft law on regulating the judicial affairs to the national assembly through government.
  • Revising the rulings of courts due to presence of new reasons based on complaint by the AGO or by party to the claim according to the mentioned provisions and arrangement in the law.
  • Resolving Courts’ Conflict of Jurisdiction and submitting jurisdiction of resolving a case from one court to the other based on proposal by the AGO or party to the claim when reasonable grounds arise.
  • Studying reasons and making decision on extraditing criminals to foreign states in accordance with law.
  • Studying reasons of a charge made and making decision on submitting the Afghan citizen to the foreign state in the light of article 28 of the Constitution.
  • Ensuring uniformity in judicial treatment.
  • Taking measures on criminal and disciplinary offences by judges.
  • Evaluating the courts inquiries on judicial issues and providing responses accordingly.

 

Powers of the head of Supreme Court (chief justice)

The Chief Justice represents the Judicial Authority of Islamic Republic of Afghanistan and has the following jurisdiction and duties:

 

  • lead the judicial and administrative activities of the Supreme Court;
  • preside over the meetings of the Supreme Court;
  • chair the judicial sessions of the relevant Dewans of the Supreme Court as needed;
  • issue orders on the inspection of courts’ activities;
  • issue orders on resolving cases resulting from crimes and judicial and administrative
  • violation by judges;
  • monitor the implementation of courts final decisions;
  • monitor and control appropriate expenditure of the judicial budget;
  • delegate all or some of his/her powers to one of the members of the Supreme Court when sick, on leave, absence and other reasons;
  • monitor activities the General Administration Office of the judiciary;
  • provide reports on judicial and administrative activities of the judiciary to the president;
  • propose on pardoning, mitigation of imprisonment and other punishments of judges to the president’s office;
  • other assigned powers in accordance with the provisions of this and other laws.

 

The Court of Appeals

The Court of Appeals is established in all the provinces in accordance with this law. The Court of Appeals is composed of chief of the court, heads of Dewans and other judicial members. Head of the Court of Appeals shall be selected from among the judges who have enough qualification, experience and competency. Head of the General Criminal Dewan is the deputy head of court of appeals.

 

Structure of Dewans of Courts of Appeal

The Courts of Appeal contains the following Dewans:

 

  • General Criminal Dewan
  • Public Security Dewan
  • Civil and Family Dewan
  • Public Rights Dewan
  • Commercial Dewan
  • Juveniles Dewan

 

There can not be more than six judicial members within each Dewan of the Court of Appeals.

 

The Supreme Court may as needed establish other Dewans within the structure of the Court of Appeals with the approval of the President.

 

Powers of the Court of Appeals

  • The Court of Appeals oversees the rulings and decisions of the lower courts, in situations according to the provisions of the related laws.
  • The Court of Appeals while resolving cases reconsiders the whole legal process. It may correct, overturn, amend, confirm or repeal the rulings and decisions of the lower courts.

 

Duties and Powers of head of the Court of Appeals

The head of the Court of Appeals has the following responsibilities and powers:

 

  • lead and organize activities of the respective Dewans
  • preside over the judicial meetings of the Dewans, when necessary
  • assign member of one Dewan to another on temporary basis.
  • assign one of the judges of the court of appeals to the primary courts when necessary.
  • delegate the authority of resolving a certain case from one Dewan to another, when necessary.
  • coordinate judicial experiences of respective Dewans.
  • preparation of activity reports of Dewans and courts and delivery of the reports to the Supreme Court.

 

The Primary Courts

In the jurisdictional area of each Court of Appeals, there are these primary courts:

 

  • Central provincial primary court
  • Juveniles Court
  • Commercial Primary Court
  • District Primary Court
  • Family Issues primary court

 

The Supreme Court may establish more courts in the centres of provinces when required after approval of the president.

 

Primary Court Structure

A Central Primary Court comprises of the following Dewans:

 

  • General Criminal Dewan
  • Civil Dewan
  • Public Rights Dewan
  • Public Security Dewan
  • Traffic Criminal Dewan

 

The Dewans of Central Primary Court shall have one head and no more than four members.

 

Resolving cases by Dewans of primary courts

Central provincial primary courts have the relevant Dewans to resolve cases in primary level in accordance with law:

 

  • Resolving general criminal cases by General Criminal Dewan.
  • Resolving civil disputes between natural persons by Civil Dewan.
  • Resolving civil disputes between natural and legal individuals/entities or among legal entities by Public Rights Dewan.
  • Resolving criminal cases of public security and interest, drug trafficking and other crimes by Public Security Dewan in accordance with law.
  • Resolving traffic criminal cases by Traffic related Crimes Dewan.

 

Leading Court and Dewans

There is a head for the central provincial primary court to lead and manage the judicial and administrative activities of the Dewans and to attend their meetings when required.

 

Juvenile court

There is a juvenile primary court in the centre of every province. The juvenile primary court is made up of a head and four members. In case the head is absent due to any reason, his/her powers and duties shall be transferred to one of the judicially experienced judges. The method to resolve juveniles’ offences is to be determined by a special regulation.

 

The Commercial Court

A commercial court is to be established in centre of every province. This court shall have a chief and four other members. In provinces where commercial court is not available, dealing with commercial cases is the jurisdiction of the civil Dewan of the provincial central primary court.

 

Resolving special cases

Based on the case, the commercial, public rights and public security cases within the judicial jurisdiction of a Court of Appeals shall be initiated in the commercial court and in the relevant Dewans of the provincial central primary court.

 

District Primary Court Structure

The District primary court shall consist of a chief and two members. In the areas where there are no members available, the cases shall be decided by fewer than three. The chief of the district primary court shall lead the court. In his/her absence, the responsibilities and powers shall be transferred to the most judicially experienced judge on the court.

 

District Primary Court Jurisdiction

District Primary courts shall deal in primary stage with all ordinary criminal, civil and family cases which are legally presented to them.

 

Responsibility

The chief of each Primary Court, heads of Dewans and their judicial members shall be responsible for deciding cases in a timely manner according to the law, correct application of the law, and for explaining the ground for their decision.

 

Finality of Decision

The decisions of the primary courts are absolute and final in the following situations:

 

  • When both parties agree upon the issued decision of the court.
  • When the time for appealing has expired.
  • When the disputed property is worth up to 100,000 Afgs.
  • When the order for a cash fine of 50,000 Afgs is issued
  • Other situations set forth in law.

 

Registration of documents and deeds branches

In the structure of every Court of Appeals, there is a Directorate of Documents and Deeds Registration (DDDR). There shall be a head in charge of a directorate and shall lead and manage the activities of the directorate. In the districts where there is no such directorate for legal documents registration, the district courts shall have the authority to perform these duties. Duties and powers of the DDDR’s are regulated through special legislation.

 

Registration of documents and trademarks

Registration of commercial documents and trade marks shall be the jurisdiction of the commercial court.

 

Conditions of being a judge

On the recommendation of the Supreme Court and with approval of the president, any qualified person meeting following requirements shall be appointed as a judge:

 

  • Upon appointment as judge, hold the citizenship of Islamic Republic of Afghanistan for at least ten yeas.
  • Not be convicted of any crime or intentional misdemeanour by absolute and final decision of an authorized court.
  • Hold the BA degree from any faculties of law or Shari a or above it or holds diploma on Religious Studies from an officially recognized centre or equivalent.
  • Not have any illness or disability which impedes a judge performance of duties.
  • Has completed the age of 25 upon appointment.
  • Have passed the practical stage of judicial training course successfully.

 

Oath taking

Before occupying the position as judge, a person must swear in front of chief and members of Supreme Court as follow:

 

“I swear by the name of the Almighty Allah that I perform my duty with full trust and dignity and impartiality, respect and implement provision of Islamic shariah, constitution of Afghanistan and other laws of the country , respect confidentiality of my duty ,will not commit any crime , violation of other rights, injustice and bribery directly and in directly.”

 

This text must be written on a board and after signature of the judge is hung where the judge is employed.

 

Research Links

Afghanistan Gazette:  The Ministry of Justice is responsible for publishing the Official Gazette on a monthly basis, and extraordinary issues may be published if the Government deems necessary. The Official Gazette of Afghanistan includes official declarations of the Government that require public notice, including laws and other types of legal documents. All documents included in the Official Gazette must be published in both Dari and Pashto, the country’s two official languages. The Official Gazette is distributed to Government offices, courts, and universities throughout Afghanistan and is available for sale to the public. Official Gazette 787 of 1999 names the Ministry of Justice as the official licensee of the Official Gazette of Afghanistan. If you would like to learn more about the Official Gazette please email the ministry.

 

Click here for a list of documents that were published (and approved/signed documents still awaiting publication) in the Official Gazette by the interim and transitional governments, December 22, 2001—December 18, 2005. For more information on the Gazette, visit the Ministry of Justice website.  Also see the official Government of Afghanistan website.

 

Customary Laws of Afghanistan: The reconstruction of a legal system in any post-conflict country requires a certain understanding of the local customary laws. In Afghanistan, the need for such understanding is particularly acute because customary laws, de facto, govern the lives of a majority of the population.  Pursuant to the Bonn Agreement of December 2001, the existing laws and regulations of Afghanistan remain in effect to the extent that they are not inconsistent with the provisions of the 1964 Afghan Constitution – subject to some limitations – and the international legal obligations, or treaties, to which Afghanistan is a party.  The Transitional Government has the power to amend and repeal those laws and regulations.  A new Constitution was adopted in January, 2004, but its implementation will be difficult.  Read more at www.theilf.org/ILF_cust_law_afgh_10-15.doc.

 

Afghanistan Investment Support Agencies: The site contains texts of Banking Law, Domestic and Foreign Investment Law, (December 6, 2005), Income Tax Law and Minerals Law.

 

Ministry of Finance, Afghanistan: This site maintained by the Ministry of Finance in Afghanistan contains important information on the tax and insurance laws of the country.

 

Embassy of Afghanistan in the US: The Embassy of Afghanistan in the US maintains this site which has useful information on the government, immigration, inheritance and investment in Afghanistan.

 

Afghanistan Legal Documents Exchange Centre: This site, maintained by USAID, contains the texts of the Constitution of Afghanistan and texts of the following laws: Anti-bribery and Corruption Law, Civil Code 1976, Civil Procedure Code 1990, Civil Service Law, Commercial Code 1955, Law on Organization of the Courts of the Judiciary, Customs Law, Afghanistan Bank Law, Law on Organizing the Affairs of Defence Attorneys, Elections Law, Gatherings, Strikes and Demonstrations Law, Law on Preservation of the Historical and Cultural Heritage of Afghanistan, Income Tax Law 1965, Mass Media Law, Official Gazette No. 787, Political Parties Law, Law on Foreign and Domestic Private Investment, Provincial Councils Law, Public Finance and Expenditure Management Law, Social Organizations Law, Vehicular Traffic Law, Law on the Structure and Authority of the Attorney General’s Office, Code of Conduct for Civil Servants, Criminal Procedure Law 1965, as amended 1974, Law on Non-Governmental Organizations, Police Law, Penal Code 1976, State-Owned Enterprises Law OG 743 with Amendments OG 868, Procurement Law, Interim Criminal Procedure Code, Military Punitive Articles, Commercial Procedure Code 1965, Labour Law 1999, Hydrocarbons Law, Minerals Law