UPDATE: Islamic Republic of Afghanistan Legal System and Research

 

Update by Qasim Hashimzai

(Previously updated by Omar Sial and Md. Ershadul Karim in October 2010)



After living in England for over 20 years, Qasim Hashimzai , Ph.D (Sheffield), M.Litt (Oxford) returned to Afghanistan in March 2002, as an adviser to the Minister of Justice of the Transitional State of Afghanistan. Subsequently he was appointed as Deputy Minister of Justice for Legal Affairs. Meanwhile he was given another appointment as Director of the Secretariat for the Judicial Reform Commission. His role in Afghanistan has involved him in the reform of law and the legal system, liaising with foreign professional advisers and justice teams of participating countries. He was also Chairman of the Board for the Independent National Legal Training Centre and Chairman of the Citizenship Commission, a member of the Leadership Delegation of Afghan Red Crescent Society as well as member of the Supreme Council of the Afghanistan Bank. After accomplishing his job as Deputy Minister of Justice for ten years he was given another job as Senior Adviser to the Minister of Justice.  His background being in criminal law and law reform, he participates also, upon decrees issued by the Head of State, in investigations and official inquiries on cases of national importance including Kabul Bank and Sherpoor. In 2008 he was granted the highest grade of professionalism in law (Qanoon Pooh- Professorship) by the President of Afghanistan.

 

Omar Sial is a partner in the Karachi, Pakistan based law firm of Omar Sial & Associates. Md. Ershadul Karim  is a non-practicing lawyer of Bangladesh Supreme Court and currently the Editor of Chancery Law Chronicles , the first Bangladesh Online Case Law Database .

 

Published November/December 2014

See the Archive Version

 

Table of Contents

1. Background

2. Government — The Executive Branch

3. Government — The Legislative Branch

4. Composition of the National Assembly

4.1. The Wolesi Jirga (House of People)

4.2.   The Meshrano Jirga (House of Elders)

5. Sessions of the National Assembly

6. The Secretariat of the National Assembly

7. The Legislative Process

8. The Constitution

9. The Judiciary

9.1. The Supreme Court

9.1.1.       Supreme Court Dewans

9.1.2.      Powers of heads of Dewans

9.1.3.      Judicial advisors

9.1.4.      Judicial powers and duties of the Supreme Court

9.1.5.      Powers of the head of Supreme Court (chief justice)

9.2.   The Court of Appeals

9.2.1.      Structure of Dewans of Courts of Appeal

9.2.2.      Powers of the Court of Appeals

9.2.3.      Duties and Powers of head of the Court of Appeals

9.2.4.      Military Appeal Court

9.3.   The Primary Courts

9.3.1.      Primary Court Structure

9.3.2.      Resolving cases by Dewans of primary courts

9.3.3.      Leading Court and Dewans

9.4.   Juvenile court

9.5.   The Commercial Court

10. District Primary Court Structure

10.1.                 District Primary Court Jurisdiction

10.2.                 Responsibility

10.3.                 Finality of Decision

10.4.                 Juvenile Primary Court

10.5.                 Personal Affairs Primary Court ( family affairs)

11. Registration of documents and deeds branches

12. Registration of documents and trademarks

13. Conditions of being a judge

14. Oath taking

15. Research Links

16. Customary Laws of Afghanistan

 

1.      Background

Afghanistan, the land of Afghans, is a mountainous landlocked country of central Asia. The country has land borders with Turkmenistan, Uzbekistan, and Tajikistan to the north, Iran to the west, the People’s Republic of China to the northeast, and Pakistan to the east and south. With an area of 647,500 km 2 , the population of the country, an estimated 28 million is divided into a number of ethnic groups, the largest of which are Pashtun estimated (42%), Tajik (27%), Hazara (9%), and Uzbek (9%). Some eighty percent of the population is Sunni Muslim and most of the remainder is Shi’a Muslim. The official languages are Dari (Persian) and Pashto, but there are numerous other languages. [ [1] ]

 

Afghanistan has a history and culture that goes back over 5000 years. Throughout its long, splendid, and sometimes chaotic history, this area of the world has been known by various names. In ancient times, its inhabitants called the land Aryana. In the medieval era, it was called Khorasan, and in modern times, its people have decided to call it Afghanistan. The exact population of Afghanistan is unknown; however, it is estimated to be somewhere  over  to   28  million.

 

Afghanistan is a heterogeneous nation, in which there are four major ethnic groups: Pashtoons, Tajiks, Hazaras, and Uzbeks. Numerous other minor ethnic groups (Nuristanis, Baluchis, Turkmens, etc.) also call Afghanistan their home. While the majority of Afghans (99%) belong to the Islamic faith, there are also small pockets of Sikhs, Hindus and even some Jews. The official languages of the country are Pashto and Dari (Afghan Persian aka Farsi). The capital of Afghanistan is Kabul, which throughout history, was admired by many great figures, such as the great Central Asian conqueror, Zahirudeen Babur. [ [2] ]

 

The country is divided into the following 34 provinces ( the capital of the province is shown within the brackets ) Badakhshan (Faizabad); Badghis (Qaleh-ye Now); Baghlan (Pol-e Khomri); Balkh (Mazar-e-Shariff); Bamian (Bamian); Daikondi (Nili); Farah (Farah); Faryab (Maymana); Ghazni (Ghazni); Ghowr (Chaghcharan); Helmand (Lashkar Gah); Herat (Herat); Jowzjan (Sheberghan); Kabul (Kabul); Kandahar (Kandahar); Kapisa (Mahmud-e-Raqi); Khost (Khost); Konar (Asadabad); Kunduz (Kunduz); Laghman (Mehtar Lam); Lowgar (Pol-e Alam); Nangarhar (Jalalabad); Nimruz (Zaranj); Nuristan (Nuristan); Panjshir (Bazarak); Paktia (Gardez); Paktika (Sharan); Parwan (Charikar); Samangan (Aybak); Sar-i Pol (Sar-i Pol); Takhar (Taloqan); Uruzgan (Tarin Kowt); Wardak (Meydan Shahr); Zabol (Qalat)

 

Article four of the Constitution of Afghanistan, 2004 provides that the nation of Afghanistan be composed of all individuals who possess the citizenship of Afghanistan. The nation of Afghanistan shall be comprised of Pashtun, Tajik, Hazara, Uzbek, Turkman, Baluch, Pachaie, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, Brahwui and other tribes. The word Afghan shall apply to every citizen of Afghanistan. No individual of the nation of Afghanistan shall be deprived of citizenship.

 

The constitutional name of the country is the Islamic Republic of Afghanistan (Article one, the Constitution of Afghanistan, 2004), Islam is the state religion while followers of other faiths are free within the bounds of law in the exercise and performance of their religious rituals (Article two, the Constitution of Afghanistan, 2004) . All laws of the country  should be consistent with the tenets and provisions of the holy religion of Islam in Afghanistan (Article three, the Constitution of Afghanistan, 2004) .

 

From amongst Pashto, Dari, Uzbeki, Turkmani, Baluchi, Pachaie, Nuristani, Pamiri and other current languages in the country, Pashto and Dari shall be the official languages of the state. In areas where the majority of the people speak in any one of Uzbeki, Turkmani, Pachaie, Nuristani, Baluchi or Pamiri languages, any of the aforementioned language, in addition to Pashto and Dari, shall be the third official language, the usage of which shall be regulated by law (Article sixteen of the Constitution of Afghanistan, 2004).

 

The Country is the newest member of South Asian Association for Regional Cooperation (SAARC) and joined the Association in 2007.

 

2.      Government — The Executive Branch

The Executive Branch of the Afghan government consists of a powerful and popularly elected President and two Vice Presidents, first and second. The President is the head of state of country and executes his authorities in the executive, legislative and judiciary fields in accordance with the provisions of this Constitution (Article sixty, the Constitution of Afghanistan, 2004).

 

 

 

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 (Article sixty-two, the Constitution of Afghanistan, 2004).

 

The president must be a Muslim of above forty years of age, an Afghan citizen born of Afghan parents, must not hold dual citizenship and should not be convicted of crimes against humanity, a criminal act or deprivation of civil rights by court (Article sixty-two, the Constitution of Afghanistan, 2004). However, Article 16 (3) of the Electoral Law, 2004 provides that a Presidential Candidate shall not:

 

a) Pursue objectives that are opposed to the principles of the holy religion of Islam and the word and spirit of the Constitution.

b) Use force, or threaten with, or propagate with use of, force;

c) Incite ethnic, linguistic, regional or religious tension and discrimination;

d) Create real danger to the rights or freedoms of individuals or intentionally disrupt public order and security;

e) Have non-official military forces or be part of them;

f) Receive funds from foreign sources

g) Receive funds from internal illegal sources

 

 Election Law of 2014 in article 13 no longer requires the above conditions. It says: The candidate should be Muslim and Afghan citizen, born from Afghan parents, should have no other country’s citizenship.

 

It further requires that the candidate should not be less than 40 years old or convicted by court of committing crime against humanity or deprived of civil rights.

 

It further states that an elected president cannot carry the job more than two rounds.

 

The above conditions apply on the vice presidents as well.

 

The president is the commander-in-chief of the armed forces.

 

The detailed authorities and duties of the President are mentioned in Article Sixty-four of the Constitution, 2004. Presidential responsibilities include:

 

  • Supervising the implementation of the Constitution;
  • Determining policies with the approval of the National Assembly.
  • Proclaiming as well as terminating the state of emergency with the endorsement of the National Assembly;
  • Endorsing laws as well as judicial decrees; appointing the nation's ministers, the attorney general, the director of the central bank, and the justices of the Supreme Court, the National Security Director as well as the Head of the Red Crosse with the approval of the main legislative body, the Wolesi Jirga.

 

Article sixty of the Constitution, 2004, provides that in case of absence, resignation or death of the President, the first Vice-President shall act in accordance with the provisions of this Constitution. In the absence of the first Vice-President, the second Vice-President shall act in accordance with the provisions of this Constitution.

 

Read more about the President here .

 

3.      Government — The Legislative Branc h

A National Assembly consisting of two Houses, the House of People (Wolesi Jirga), the lower house, with 249 seats, and the House of Elders (Meshrano Jirga), the upper house, 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.

 

4.      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 article eighty-two of 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, 2004 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.

 

4.1. The Wolesi Jirga (House of People)

The Wolesi Jirga (House of People) has 249 seats with members directly elected by the people through free, general, secret and direct balloting. Article eighty-three of the Constitution provides that at least two females shall be the elected members of the House of People from each province. Therefore, 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).

 

The 2014 Election Law in article 14 prescribes the following conditions for a candidate of the National Assembly:

             

A candidate for the National Assembly (both house of Parliament), in addition to the conditions prescribed for voter, must also have the following two conditions:

 

  • Must be a citizen of Afghanistan or shall have obtained citizenship of the state of Afghanistan at least ten years prior to candidacy date or appointment.

 

  • He/she should not be convicted by a court of law of committing crime against humanity, felony or deprived of civil rights.

    

As far as the age of a candidate for the National Assembly is concerned the New Election Law in its article 12 prescribes the age of 18 for a voter which also applies to a candidate for the National Assembly that is for both Houses of the Parliament. Whereas the 2004 Election Law prescribed the age of 25 for the House of People and the age of 35 for the House of Elders.

       

The 2014 Election Law further provides that a candidate for the House of People must submit a nomination form with ID cards of one thousand of voters with 30,000 Afghanis as registration fee. This amount of money shall be refunded to the candidate if he/she wins the election or at least obtains two percent of the votes cast.

         

The 2014 Election Law, on reason of coverage by other laws, contains no provisions embodies in article 20(2) and its sub-paras of 2004 Election Law.             

          

Article 20 (2) of the Electoral Law, 2004 provided that Candidates must not:

 

a) Pursue objectives that are opposed to the principles of the holy religion of

Islam and the word and spirit of the Constitution;

b) Use force, or threaten with, or propagate the use of, force;

c) Incite ethnic, linguistic, regional or religious tension and discrimination;

d) Create a real danger to the rights or freedoms of individuals or intentionally

Disrupt public order and security;

e) Have non-official military forces or be part of them;

f) Receive funds from foreign sources

g) Receive funds from internal illegal sources

 

4.2. The Meshrano Jirga (House of Elders)

The Meshrano Jirga consists of a mixture of appointed and elected members (total 102 members).  Article 24 of the Electoral Law, 2004 provides that the number of Meshrano Jirga members shall be thrice the number of existing provinces. One third of them will be appointed by provincial councils, one third of them by district councils and the remaining one third by the president.

 

Members of the House of Elders shall be elected and appointed as follows:

 

·        From amongst each provincial council members, one individual shall be elected by the respective council for a four year term;

·        From amongst district councils of each province, one individual, elected by the respective councils, for a three year term;

·        The remaining one third of the members shall be appointed by the President, for a five-year term, from amongst experts and experienced personalities, including two members from amongst the impaired and handicapped, as well as two from nomads.

·        The President shall appoint fifty percent of these individuals from amongst women.

·        The individual selected as a member of the House of Elders shall lose membership to the related Council, and, another individual shall be appointed in accordance with the provisions of the law (Article eighty-four, the Constitution, 2004).

 

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:

 

  • Shall be a citizen of Afghanistan or shall have obtained citizenship of the state of Afghanistan at least ten years prior to candidacy date or appointment;
  • Shall not have been convicted of crimes against humanity,  felony as well as a crime or deprivation from civil rights by a court;
  • Shall have completed thirty-five years on candidacy day or appointment for the House of Elders (Article eighty-five, the Constitution of the Islamic Republic of Afghanistan, 2004).

 

5.      Sessions of the National Assembly

 

  • Both Houses of the National Assembly will convene two regular sessions annually (Article one hundred seven, the Constitution of the Islamic Republic of Afghanistan, 2004). 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 (Article one hundred four, the Constitution of the Islamic Republic of Afghanistan, 2004).

 

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 (Article One hundred five, the Constitution of the Islamic Republic of Afghanistan, 2004).

 

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

 

6.     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 (Article Eighty-seven, the Constitution of the Islamic Republic of Afghanistan, 2004).

 

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 consider and to review the actions of Government.

 

7.      The Legislative Process

Laws and procedures, including the statutorily-defined law-making and revision processes are stated in the Law on the Publication and Enforcement of Legislative Documents in the Islamic Republic of Afghanistan, 1999 Official Gazette no. 787), which also covers regulations and other legislative documents, as well as the National Assembly Rules of  Procedure.

 

Read the Rome Justice Conference (July 2-3, 2007), Panel on the Afghan Legislative Process

 

The Rome Conference on the Rule of Law in Afghanistan among other topics addressed the capacity building and resource needs, legal translation capacity as well as quality of legislative process of the legislative department of the Ministry of Justice .

 

Any law has to be approved by both Houses of the National Assembly (NA), the highest legislative organ 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 (Article Ninety-five, the Constitution of the Islamic Republic of Afghanistan, 2004). 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.

 

(It should be noted that the NA members fallen short to follow the timeline mentioned in the Constitution. Such a practice has caused delays in the legislative process.)   

 

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 cannot 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.

 

A flowchart of Legislative Process in Afghanistan can be found here .

 

The legislative department of the Ministry of Justice officially called Legislative Affairs and Academic-Legal Research Institute operates to achieve the following objectives:

 

Strengthening the rule of law through forming, drafting and reviewing legislative documents according to the goals and policies of the government. Moreover this Institute takes measures to promote legal knowledge through issuance, description and explanation of legislative documents in the community as well as providing consultations to the President, Council of Ministers and other governmental bodies.

 

The Institute as the highest academic-research department in the legislative affairs of the government shall form, draft and review the legislative documents (laws, decrees, regulations, statutes and their amendments, annexes, addendums and exclusions and approvals of the Council of Ministers with legislative nature) and shall present them to the Council of Ministers of the Islamic Republic of Afghanistan for further proceedings.

 

Ministries, Agencies and Companies are obliged to present their relevant legislative proposals to the Institute for review and further proceedings.

                  

8.     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" (Preamble);
  • Followers of other religions are free to perform religious ceremonies in accordance with the provisions of the law (Article two);
  • No law shall be contrary to the beliefs and practices of Islam(Article three);
  • Men and women have equal rights and duties before the law(Article twenty-two);
  • Afghanistan will have a presidential system of government (Chapter three, articles sixty - seventy);
  • The president is responsible to the nation and the lower house, or Wolesi Jirga (Article sixty-nine);
  • The president will be directly elected by the Afghan people with two vice-presidents, who are nominated by presidential candidates when standing for election(Articles sixty and sixty-one);
  • A national assembly will consist of two houses: a Wolesi Jirga or "house of people" and a Meshrano Jirga or "house of elders" (Article eighty-two);
  • The Wolesi Jirga will be directly elected by the Afghan people(Article eighty-three);
  • The Wolesi Jirga has the authority to impeach ministers (Articles ninety-one and ninety-two);
  • The president will appoint ministers, the attorney general and central bank governor with the approval of the Wolesi Jirga(Article sixty-four);
  • The President  should not hold foreign passport, but if a minister or ministers hold foreign passport 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(Article One Hundred fifty eight);
  • Pashto and Dari are the official languages with other minority languages to be considered official languages in the areas in which they are spoken (Article sixteen).

 

The full text of the Constitution may be found online.  

 

The Constitution-making process in Afghanistan can also be found online.

 

9.     The Judiciary

The Judiciary in Afghanistan is composed of the Supreme Court, Courts of Appeal and Primary Courts (Article One hundred sixteen, the Constitution of the Islamic Republic of Afghanistan, 2004). 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).

 

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 court shall, in pursuance of the Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.   

 

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.

 

9.1. 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 Wolesi 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.

 

9.1.1.     Supreme Court Dewans

The Supreme Court consists of the following Dewans:

 

  • General Criminal Dewan
  • Public Security Dewan
  • Civil and Public Rights Dewan
  • Commercial Dewan
  • Army Crimes Dewan (division) crimes and crimes against internal and external security

 

Each Dewan is headed by a member of the Supreme Court; who shall be appointed for this position upon the approval from the Supreme Court High Council.

 

9.1.2.     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.
  • Organize the affairs of the relevant dewan and submit report to the Supreme Court.

 

9.1.3.     Judicial advisors

The Supreme Court has judicial advisors appointed in any of the divisions as required.

They are appointed from among those persons who have full qualification, efficiency and wisdom with minimum of 15 years of practical judicial service experience. 

 

9.1.4.     Judicial powers and duties of the Supreme Court

The Supreme Court High Council 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.
  • Review and approve regulation, by-laws, term of reference and guidelines related to the organization of the judicial affairs.

 

9.1.5.     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;
  • other assigned powers in accordance with the provisions of the Constitution and other laws.

 

9.2. 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.

 

9.2.1.     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 cannot 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.

 

9.2.2.     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.

 

9.2.3.     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.

 

9.2.4.     Military Appeal Court

The Military Appeal Court is comprised of two divisions:

 

  1. Division for the crimes of officers, sergeants and saatenmans
  2. Division for the crimes of soldiers           

                                                               

The Military Appeal Court considers, in appeal level, the cases which were first adjudicated by primary military courts.

 

9.3. The Primary Courts

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

 

  •  Municipal Primary Court
  • Juveniles Court
  • Commercial Primary Court
  • District Primary Court
  • Personal Status Primary Court (family affairs)

 

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

 

9.3.1.     Primary Court Structure

 A Municipal Primary Court comprises of the following Dewans:

 

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

 

Each of the above division (Dewan) shall be comprised of a head and maximum of 4 members.

 

9.3.2.     Resolving cases by Dewans of primary courts

Municipal Primary Courts of the centre of provinces shall have the relevant Dewans to adjudicate the following 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.

 

9.3.3.     Leading Court and Dewans

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

 

9.4. 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 three 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.

 

9.5. The Commercial Court

When necessary, 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.

 

10. 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.

 

10.1. 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.

 

10.2. 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.

 

10.3. 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.

 

10.4. Juvenile Primary Court

There is a Juvenile Primary Court in the centre of every province which shall be made up of a head and three members. In provinces with high work load, more members may be appointed as necessary.

 

10.5. Personal Affairs Primary Court ( family affairs)

When necessary, a personal affairs primary court may be established in the centre of every province which shall have a head and two members.

 

11.   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.

 

12.   Registration of documents and trademarks

Registration of commercial documents and trademarks shall be the jurisdiction of the commercial court.

 

13.   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 years.
  • Not be convicted of any crime or intentional misdemeanor by absolute and final decision of an authorized court.
  • Hold the BA degree from any faculties of law or Sharia 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.

 

14.   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.

 

You can read detail about the Court structure with jurisdictions in Afghanistan here .

 

15.   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 .

 

16. 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 here .

 

  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 : 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.

 

USAID Afghanistan Legal Resources provides an index to laws.  

 

 



[ [1] ] See here .

[ [2] ] See here .