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
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:
Read more about the President at: http://www.president.gov.af/default.mspx
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.
“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)
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 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:
In addition, no candidate can have been charged with crimes against humanity.
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:
In addition, no potential member of the Meshrano Jirga can have been charged with crimes against humanity
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.
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.
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 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:
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:
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 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:
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:
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:
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:
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:
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
Duties and Powers of head of the Court of Appeals
The head of the Court of Appeals has the following responsibilities and powers:
In the jurisdictional area of each Court of Appeals, there are these primary courts:
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:
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:
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.
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.
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.
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.
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:
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 commercial documents and trade marks shall be the jurisdiction of the commercial court.
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:
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.
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