Law of Afghanistan
Encyclopedia
The legal system of Afghanistan
consists of Islamic, statutory and customary rules. It has developed over centuries and is currently changing in the context of the reconstruction of the Afghan state. The supreme law of the land is the Constitution of the Islamic Republic Afghanistan
of 2004. Beside there is complex legislation which stems from different historical periods. For instance, the so-called four volumes of civil law were developed on the basis of Egyptian models and promulgated in the time of the monarchy. Other legislation came into force under of President
Daoud
, the communist regime
, the Mujahideen
(1992-1996), the Taliban
(1996-2001) and the new government led by President Hamid Karzai
. Legislation promulgated before the current Constitution of 2004 came into force is valid only as far as it is in complinace with the principles and provisions of this constitution. Article 130 of the Constitution establishes that judges must apply the constitution and legislation and may only resort to Hanafi fiqh (i.e. one of the Schools of Islamic Law) if a necessary legal rule cannot be found in the written laws.
ic law. Murderers
were subjected to public executions and thieves had a limb or two (one hand, one foot) severed. Adulterers
were stoned to death in public. Taliban courts were said to have heard cases in sessions that lasted only a few minutes. Prison
conditions were poor and prisoners were not given food. Normally, this was the responsibility of the prisoners' relatives, who were allowed to visit to provide food once or twice a week. Those who had no relatives had to petition the local council or rely on other inmates.
In non-Taliban controlled areas, many municipal and provincial authorities relied on some form of Islamic law and traditional tribal codes of justice. The administration and implementation of justice varied from area to area and depended on the whims of local commanders or other authorities, who could summarily execute, torture
, and mete out punishments without reference to any other authority.
After the fall of the Taliban, Afghanistan's judicial system was fragmented, with conflicts between such core institutions as the Ministry of Justice, Supreme Court, and attorney general’s office. In addition, the judicial system’s infrastructure was destroyed; the absence of adequate court or ministry facilities, basic office furniture, and minimal supplies made substantive progress difficult. There were also tensions between religious and secular legal training with regard to appointments of new judicial personnel. Until Afghanistan’s new constitution
was adopted in 2004, the country’s basic legal framework consisted of its 1964 constitution and existing laws and regulations to the extent that they were in accordance with the Bonn Agreement
of 2001 and with international treaties to which Afghanistan was a party. The Ministry of Justice was charged with compiling Afghan laws and assessing their compatibility with international standards, but even it did not have texts of Afghan laws, which were largely unavailable, even among attorneys, judges, law faculty, and government agencies. While in power, the Taliban burned law books. There was no adequate law library in the country as of 2002.
The 2004 constitution established an independent judiciary under the Islamic state. The judicial branch consists of a Supreme Court (Stera Mahkama
), High Courts, Appeals Courts, and local and district courts. The Supreme Court
is composed of nine members who are appointed by the president for a period of ten years (nonrenewable) with the approval of the Wolesi Jirga. The Supreme Court has the power of judicial review. Lower courts apply Shia law
in cases dealing with personal matters for Shia followers. The International Security Assistance Force
are do not have the mandate to law enforcement.
Crime in Afghanistan
includes drug trafficking, money laundering, fraud, corruption, and black marketeering. The National Directorate of Security, Afghanistan’s national security agency, has been accused of running its own prisons, torturing suspects, and harassing journalists, which has added to the controversy over human rights in the country
. Copyright law in Afghanistan
has not been recognized by the United States
since 2005. The court of last resort is the Afghan Supreme Court
, which was approved in 2004 and is headed up by the Chief Justice of Afghanistan
. The judicial system
is still under construction.
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
consists of Islamic, statutory and customary rules. It has developed over centuries and is currently changing in the context of the reconstruction of the Afghan state. The supreme law of the land is the Constitution of the Islamic Republic Afghanistan
Constitution of Afghanistan
The Constitution of Afghanistan is the supreme law of the state Afghanistan, which serves as the legal framework between the Afghan government and the Afghan citizens...
of 2004. Beside there is complex legislation which stems from different historical periods. For instance, the so-called four volumes of civil law were developed on the basis of Egyptian models and promulgated in the time of the monarchy. Other legislation came into force under of President
President of Afghanistan
Afghanistan has only been a republic between 1973 and 1992 and from 2001 onwards. Before 1973, it was a monarchy that was governed by a variety of kings, emirs or shahs...
Daoud
Mohammed Daoud Khan
Sardar Mohammed Daoud Khan or Daud Khan was Prime Minister of Afghanistan from 1953 to 1963 and later becoming the President of Afghanistan...
, the communist regime
Democratic Republic of Afghanistan
The Democratic Republic of Afghanistan was a government of Afghanistan between 1978 and 1992. It was both ideologically close to and economically dependent on the Soviet Union, and was a major belligerent of the Afghan Civil War.- Saur Revolution :...
, the Mujahideen
Islamic State of Afghanistan
The Islamic State of Afghanistan was the name of the state of Afghanistan after the collapse of the communist regime, the Democratic Republic of Afghanistan, in 1992. In 1996, the country was renamed the Islamic Emirate of Afghanistan by the Taliban, after seizing control of the majority of the...
(1992-1996), the Taliban
Islamic Emirate of Afghanistan
The Islamic Emirate of Afghanistan was founded in 1996 when the Taliban began their rule of Afghanistan and ended with their fall from power in 2001...
(1996-2001) and the new government led by President Hamid Karzai
Hamid Karzai
Hamid Karzai, GCMG is the 12th and current President of Afghanistan, taking office on 7 December 2004. He became a dominant political figure after the removal of the Taliban regime in late 2001...
. Legislation promulgated before the current Constitution of 2004 came into force is valid only as far as it is in complinace with the principles and provisions of this constitution. Article 130 of the Constitution establishes that judges must apply the constitution and legislation and may only resort to Hanafi fiqh (i.e. one of the Schools of Islamic Law) if a necessary legal rule cannot be found in the written laws.
Judicial System
Under the Taliban, there was no rule of law or independent judiciary. Ad hoc rudimentary judicial systems were established based on Taliban interpretation of IslamIslam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
ic law. Murderers
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
were subjected to public executions and thieves had a limb or two (one hand, one foot) severed. Adulterers
Adultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
were stoned to death in public. Taliban courts were said to have heard cases in sessions that lasted only a few minutes. Prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
conditions were poor and prisoners were not given food. Normally, this was the responsibility of the prisoners' relatives, who were allowed to visit to provide food once or twice a week. Those who had no relatives had to petition the local council or rely on other inmates.
In non-Taliban controlled areas, many municipal and provincial authorities relied on some form of Islamic law and traditional tribal codes of justice. The administration and implementation of justice varied from area to area and depended on the whims of local commanders or other authorities, who could summarily execute, torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
, and mete out punishments without reference to any other authority.
After the fall of the Taliban, Afghanistan's judicial system was fragmented, with conflicts between such core institutions as the Ministry of Justice, Supreme Court, and attorney general’s office. In addition, the judicial system’s infrastructure was destroyed; the absence of adequate court or ministry facilities, basic office furniture, and minimal supplies made substantive progress difficult. There were also tensions between religious and secular legal training with regard to appointments of new judicial personnel. Until Afghanistan’s new constitution
Constitution of Afghanistan
The Constitution of Afghanistan is the supreme law of the state Afghanistan, which serves as the legal framework between the Afghan government and the Afghan citizens...
was adopted in 2004, the country’s basic legal framework consisted of its 1964 constitution and existing laws and regulations to the extent that they were in accordance with the Bonn Agreement
Bonn Agreement
Bonn Agreement could refer to*Bonn Agreement *Bonn Agreement *Bonn Agreement *Bonn Agreement...
of 2001 and with international treaties to which Afghanistan was a party. The Ministry of Justice was charged with compiling Afghan laws and assessing their compatibility with international standards, but even it did not have texts of Afghan laws, which were largely unavailable, even among attorneys, judges, law faculty, and government agencies. While in power, the Taliban burned law books. There was no adequate law library in the country as of 2002.
The 2004 constitution established an independent judiciary under the Islamic state. The judicial branch consists of a Supreme Court (Stera Mahkama
Afghan Supreme Court
Stera Mahkama or the Afghan Supreme Court is the court of last resort in Afghanistan. It was created by the Constitution of Afghanistan, which was approved on January 4, 2004...
), High Courts, Appeals Courts, and local and district courts. The Supreme Court
Afghan Supreme Court
Stera Mahkama or the Afghan Supreme Court is the court of last resort in Afghanistan. It was created by the Constitution of Afghanistan, which was approved on January 4, 2004...
is composed of nine members who are appointed by the president for a period of ten years (nonrenewable) with the approval of the Wolesi Jirga. The Supreme Court has the power of judicial review. Lower courts apply Shia law
Shia Family Law
Shia Family Law or Shiite Personal Status Law is a law of Afghanistan that was approved in February 2009 with Afghan President Hamid Karzai's signature. A portion of the law pertaining to sexual relations between husband and wife has made international headlines...
in cases dealing with personal matters for Shia followers. The International Security Assistance Force
International Security Assistance Force
The International Security Assistance Force is a NATO-led security mission in Afghanistan established by the United Nations Security Council on 20 December 2001 by Resolution 1386 as envisaged by the Bonn Agreement...
are do not have the mandate to law enforcement.
Crime in Afghanistan
Crime in Afghanistan
Crime in Afghanistan is present in various forms, and may include the following offenses: murder, contract killing, assassination, kidnapping, drug trafficking, money laundering, fraud, corruption, black marketeering, and other usual crimes...
includes drug trafficking, money laundering, fraud, corruption, and black marketeering. The National Directorate of Security, Afghanistan’s national security agency, has been accused of running its own prisons, torturing suspects, and harassing journalists, which has added to the controversy over human rights in the country
Human rights in Afghanistan
The situation of Human Rights in Afghanistan is a topic of some controversy and conflict. While the Taliban were well known for numerous human rights abuses, several human rights violations continue to take place in the post-Taliban government era....
. Copyright law in Afghanistan
Afghanistan and copyright issues
- International agreements :In 1958, Afghanistan ratified the Agreement on the Importation of Educational, Scientific and Cultural Materials, with Annexes A to E and Protocol annexed...
has not been recognized by the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
since 2005. The court of last resort is the Afghan Supreme Court
Afghan Supreme Court
Stera Mahkama or the Afghan Supreme Court is the court of last resort in Afghanistan. It was created by the Constitution of Afghanistan, which was approved on January 4, 2004...
, which was approved in 2004 and is headed up by the Chief Justice of Afghanistan
Chief Justice of Afghanistan
The Chief Justice of Afghanistan is the head of the Afghan Supreme Court. The incumbent chief justice is Abdul Salam Azimi.-List of Chief Justices, 2001-present:*Faisal Ahmad Shinwari , was member of the Islamic Dawah Organisation of Afghanistan...
. The judicial system
Judiciary of Afghanistan
Afghanistan's judicial system is still under construction. The Justice Ministry is now working to set up a workable judicial system, but it seems to be taking some time....
is still under construction.
See also
- Constitution of AfghanistanConstitution of AfghanistanThe Constitution of Afghanistan is the supreme law of the state Afghanistan, which serves as the legal framework between the Afghan government and the Afghan citizens...
- Capital punishment in AfghanistanCapital punishment in AfghanistanCapital punishment in Afghanistan is legal. The following is a list of recent state executions carried out by the Government of Afghanistan:*June 2011 - Two mass killers executed by hanging in Kabul...
- Law enforcement in AfghanistanLaw enforcement in AfghanistanLaw enforcement in Afghanistan is one of three major components of the nation's criminal justice system, along with courts and corrections. The National Directorate of Security is the domestic intelligence agency of the government of Afghanistan, which operates similar to that of the United States...