law of afghanistan

276 Pages·2016·3.35 MB·English

3 R D E D I T I O N
A N I N T R O D U C T I O N T O T H E
L A W O F A F G H A N I S T A N
An Introduction to the

Law of Afghanistan

Third Edition

Published 2011

Afghanistan Legal Education Project (ALEP)
at Stanford Law School
http://alep.stanford.edu
[email protected]

Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610
http://law.stanford.edu

Protected by Creative Commons License (No Derivative Works)
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ALEP – STANFORD LAW SCHOOL

Authors
Eli Sugarman (Co-Founder, Student Co-Director, 2007-09)
Alexander Benard (Co-Founder, Student Co-Director, 2007-09)
Anne Stephens Lloyd (Student Co-Director, 2008-09)
Ben Joseloff (Post-Doctoral Fellow at AUAF, 2008)
Max Rettig (Student Co-Director, 2009-10)
Stephanie Ahmad (Rule of Law Fellow, 2011-12)
Jason Berg

Editors
Morgan Galland (Student Director, 2010-11)
Rose Leda Ehler (Student Co-Director, 2011-12)
Daniel Lewis (Student Co-Director, 2011-12)
Ingrid Price (Student Co-Director, 2012-13)
Catherine Baylin
Elizabeth Espinosa
Jane Farrington
Gabriel Ledeen
Nicholas Reed

Faculty Director
Erik Jensen

Rule of Law Program Executive Director
Megan Karsh

Program Advisor
Rolando Garcia Miron

AMERICAN UNIVERSITY OF AFGHANISTAN

Contributing Faculty Editors
Ghizaal Haress
Hamid Khan
Haroon Mutasem

Chair of the Department of Law
Taylor Strickling, 2012-13
Hadley Rose, 2013-14
Mehdi Hakimi, 2014-

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PREFACE & ACKNOWLEDGEMENTS

To state the obvious, Afghanistan is currently undergoing a critical transition period. The Afghan
people now face the immense task of rebuilding a society and a country. This challenge, while daunting, is
also an opportunity for the youth of Afghanistan to effect momentous and positive change as the future
leaders of their country. To seize this opportunity, however, Afghanistan’s human resources must be
revitalized and replenished urgently. The decades-long conflict in Afghanistan has devastated the
country’s infrastructure and severely stunted the institutions that are central to educating and cultivating
leaders. Consequently, the country faces a dire shortage of qualified lawyers. This shortage is felt ever
more keenly during this time of transition, as the participation of skilled legal practitioners is crucial to
rebuilding the Afghan republic.

In response to this need, Stanford Law School's Afghanistan Legal Education Project (ALEP)
began in the fall of 2007 as a student-initiated program dedicated to helping Afghan universities train the
next generation of Afghan lawyers. ALEP’s mandate and goals are to research, write, and publish high-
quality, original legal textbooks, and to build out an equally high-quality law curriculum at the American
University of Afghanistan. ALEP’s broader vision is to help train the next generation of leaders who will
drive Afghanistan’s reconstruction and recovery.

On August 20, 2008, the American University of Afghanistan (AUAF) in Kabul inaugurated the
first-ever class of its new legal curriculum: Introduction to the Law of Afghanistan (Legal Studies 200).
Designed by the ALEP team, this foundational course offers students a comprehensive overview of the
current laws of Afghanistan and the legal system established by the 2004 Constitution. Taught by a well-
qualified Afghan law professor, Mohammed Haroon Mutasem, the course relies upon two primary texts:
the introductory textbook and a supplement containing various Afghan legal documents. Professor
Mutasem and the more than fifty students who enrolled in the course in 2008-09 provided constructive
feedback that led to the creation of the second edition, including a new chapter on civil procedure.

The ALEP team would like to extend acknowledge those individuals and institutions who have
made this project possible. ALEP’s faculty advisors are Erik Jensen (Co-Director of Stanford Law
School’s Rule of Law Program) and Stanford Law School Dean Larry Kramer. ALEP has obtained
generous support from public and private sources, including a three-year grant from INL at the U.S.
Department of State. The ALEP team would also like to acknowledge the support of Deborah Zumwalt,
General Counsel of Stanford University and member of American University of Afghanistan’s (AUAF)
Board of Trustees. ALEP is also delighted to continue its partnership with AUAF and is particularly
grateful for the support of AUAF’s President, Dr. Michael Smith and Dr. Bahar Jalali, Department Chair
of Political Science, Humanities and Law.

To the students who study this book and other ALEP textbooks, we hope that you enjoy studying,
debating, and engaging with these materials, your fellow students, and your faculty. We also hope that you
will be able to apply the knowledge obtained and the skills developed in learning to think like a lawyer in
whatever career that you pursue – be it in government, in the private sector, or in civil society.

Erik Jensen, Faculty Advisor, ALEP
Palo Alto, California, June 2011

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TABLE OF CONTENTS

Chapter 1: Legal History of Afghanistan and the Rule of Law…………………………………………1

Chapter 2: Actors and Institutions in the Current Constitutional System……………………………38

Chapter 3: Civil Procedure……………………………………………………………………………….63

Chapter 4: Property Law…………………………………………………………………………………97

Chapter 5: Commercial Law……………………………………………………………………………137

Chapter 6: Criminal Law……………….……………………………………………………………….174

Chapter 7: Legal Rights in Afghanistan………………………………………………………………..214

Glossary……………………………………………………………………………………………..……269
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CHAPTER 1: LEGAL HISTORY OF AFGHANISTAN AND THE RULE OF LAW

I. INTRODUCTION AND OPENING INQUIRIES

Imagine that you are a legislator in the Wolesi Jirga, the lower house of Afghanistan’s
National Assembly. One of your peers in the legislature proposes a law, which would require all
judges to hold a degree from one of Afghanistan’s law schools and not from any other
educational institution in Afghanistan or abroad. She asks you to support her law by voting yes
in the Wolesi Jirga because she says that it is important for all judges to have the same kind of
education. You want to do your own research about whether it would be constitutional to
mandate one kind of formal education. Where should you look to determine whether you should
vote for the law? Certainly you would look to the 2004 Constitution to determine whether there
is anything in the law of Afghanistan that would make this law unconstitutional. You would also
look to the Law of the Courts. What other sources of information could you look to?

Legal history is another good source of information that you could consult. By studying
legal history, along with the current constitution and laws, you could develop an informed
opinion not only about what is legal but also about what has worked in the past and what has
proved challenging. You might also discover instances in Afghanistan’s past where the education
of judges was standardized by law.

Section II of this chapter discusses Afghanistan’s rich and varied legal history. Although
Afghanistan’s legal history stretches back across millennia, this chapter focuses on the period
beginning with the government of Amir Abd al-Rahman Kahn, from 1880 to the present. The
consolidation of the state and the centralization of the legal system during the reign of Abd al-
Rahman were an important foundation for the legal system that is in place today. This chapter
focuses on five distinct legal periods: (1) the centralization of the state from 1880-1923; (2) the
constitutional period from 1923-1979; (3) the Soviet occupation from 1979 to 1988; (4) the civil
war period, including Taliban rule, from 1979-2001; and, and (5) from 2001 to the present. The
different legal institutions of each period are discussed in depth in Section II of this chapter.

Section III of this chapter looks more broadly at the definition, benefits, and challenges of
the “rule of law.” It attempts to answer the questions of what is meant by the rule of law and
why is it beneficial. It also explores challenges to the rule of law and discuses the recent history
of Indonesia, the most populous Islamic nation in the world, as a case study of the establishment
of the rule of law.

Before beginning this study of the legal history of Afghanistan, however, it is important
to examine two foundational concepts. First, what is “justice” in Afghanistan? Second, how do
the formal system of justice and the informal system of dispute resolution interact in
Afghanistan? The remainder of Section I addresses these questions.

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Justice in Afghanistan

Conceptions of justice are at the heart of any legal system. People will only follow a law
if they believe it is just. Certainly citizens of a state sometimes follow the law out of fear, but in a
constitutional system with different branches of government, the law is supposed to represent the
people’s vision of what justice is.

Definitions of justice often depends on culture, religion, and governmental structures.
What is justice for one nation, province, or even town may not be justice in another location.
Therefore, it is important to be sensitive to the cultural context in which you are thinking about
justice. Justice can often depend on the religion and values of the community concerned. As
discussed below, religion has played a significant role throughout Afghanistan’s history in
defining justice.

Since the beginning of the state of Afghanistan and especially since the consolidation of
the state under Amir Abd al-Rahman Khan, religious beliefs have played a major role in the
definition of justice in Afghanistan. Abd al-Rahman created a legal system with regularized
courts and procedures with the underlying understanding that the function of government was to
implement God’s law on earth. The ultimate aim of the legal system was to achieve a state where
the laws of God were followed and obeyed. In other words, the law of the nation was the law of
the Shari’a. Although other sources of law have developed throughout history in Afghanistan,
the religiously inspired conception of justice has always played an important role. Article 3 of
the 2004 Constitution requires that no law may contravene the principles of the Shari’a,
demonstrating that the idea of religious principles as justice is still foremost in Afghanistan
today.

Culturally, justice in Afghanistan often has a communal component. This means the
justice is often not merely personal, meaning that the outcome does not just affect one person.
Instead, justice is often seen as benefiting a whole group of people in a community.

There is also a broader sense of justice in Afghanistan as part of the democratic system.
Justice in a democracy is supposed to represent the will of the people, the voters, who are
charged with selecting their government. Therefore, in a democracy, if the citizens of a state do
not believe the law is just, then it cannot be legitimate. By exercising their right to free speech,
advocating for causes, and voting in elections, citizens in a democratic society can express their
beliefs about what justice is.

Is justice simply the end result achieved or is justice a fair method or process used to
achieve that result, regardless of what the result is? For example, has justice been achieved when
a man who murders another person and is sent to jail for life after an unfair trial? Or is justice
achieved when a man who murdered another person is freed because there is not enough
evidence to prove his guilt or because the evidence was gathered improperly? These two
conceptions of justice are referred to as procedural justice (fair methods) and substantive justice
(fair result). They can, and often do, exist simultaneously in nations that govern through the rule
of law.

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In Afghanistan, as everywhere, there is no definitive answer to the question of what
justice is. There is only the ability to look to the past – to what the laws were and how they
reflected the values of the people.

Discussion Question

How would you define justice? What are the elements of justice? Which result in the murder
case above do you think is more just?

Legal Pluralism in Afghanistan

Legal pluralism refers to situations in which there is more than one source of law, each of
which exerts control over the behavior of individuals in that society. Afghanistan is a nation with
legal pluralism because in addition to the formal written law - the civil and criminal codes - other
non-written, informal, or tribal law has significant effects.

Section II of this chapter will introduce you to the formal legal institutions that have
governed Afghanistan since 1880. It is important to keep in mind, however, the essential role that
informal, community-based legal institutions have played throughout this time period as well.
This textbook does not look in-depth into the informal legal processes, but because they are the
most widely-used system of settling disputes, both historically and today, it is important to
discuss them briefly.

Informal legal institutions, also called alternative dispute resolution, are the processes
outside of the formal court system through which individuals settle legal disputes. Imagine that
there is a dispute over land you claim is yours, which someone else is using and living on. Where
can you turn for help in settling this dispute? You can go to the Primary Court for your district
and lodge a legal complaint with the judges there. What if you don’t want to wait for the legal
process, which can be slow, and instead want to work out the dispute right away? You could go
to a respected group of elders in your town and ask them to help mediate the dispute and
recommend a resolution. This second type of dispute resolution is called alternative dispute
resolution because it is a process outside of the state’s institutions. Conversely, formal dispute
resolution is when disputes are settled in the state-controlled system. Afghanistan has a rich
history of legal pluralism where informal systems existed before the formal state institutions and
now complement them.

Any discussion of Afghanistan's legal system would be incomplete without addressing
the central role played by these informal institutions, such as shuras and jirgas. These
institutions are based upon local custom, tradition, and religious practices and have existed in
Afghanistan for centuries. Such terms, however, can be misleading. Shuras are local councils,
either religious or secular, that are typically convened on an as-needed basis to resolve disputes
or decide issues of community governance or resource management. The two principal types are:
shuras of the Ulema (Islamic scholars) or shuras of elders. Jirgas are similar to shuras and more
prevalent among Pashtun tribes. A jirga refers to a gathering of elders or leaders who sit in a
large circle to resolve a dispute or make collective decisions about an issue of community-wide
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importance. These informal institutions do not enforce the civil or criminal laws of Afghanistan,
but rather Islamic Shari’a law, customary tribal law, or the collective wisdom of elders.

Too often, “informal” is interpreted as “unsophisticated.” While it may be true that local
adjudicatory systems rely on oral tradition rather than written rules, the local processes are, in
fact, highly sophisticated. This sophistication is visible in both the decision-making processes of
local systems, as well as the structures of those systems. In a typical jirga, for example, decisions
are made in accordance with well-developed understandings of morality and justice (such as
Pashtunwali). In some cases, there is even an established system for appealing jirga decisions to
a higher group of elders. Thus, Afghanistan’s local adjudicatory systems share many of the
“formalities” of codified legal systems, and can rightly be viewed as institutions applying
customary law. And while legal scholars may disagree as to the outcomes reached by the local
adjudicatory systems—one major criticism is the manner in which women are treated by
customary law—the dismissal of the local systems as primitive and crude is both inaccurate and
unhelpful; it is this type of law that still governs the daily lives of most Afghans today, especially
in areas outside the major cities.

These practices still flourish today, and are important sources for the settling of disputes.
In areas where the Primary Court has very many cases and not enough judges, alternative
processes can help speed along the resolution of disputes. Further, in some towns the Primary
Court is not yet operating, so alternative processes are the only way that individuals can settle
disputes at all. Many citizens of Afghanistan, especially in rural areas, turn to shuras or jirgas to
resolve disputes because they are considered more fair, efficient, accessible, and respectful of
local values than the state system. Corruption, lack of accessibility, and slow response are three
common complaints about the formal justice system. Finally, these alternative processes, which
are community based, can help solve disputes in a cooperative manner and allow the parties to
live peacefully together in the future. These are some of the many benefits of the informal
system in Afghanistan.

This textbook, however, does not focus on these informal legal institutions. You may be
asking yourself if the informal system works so well, why does this textbook focus on the
formal, state-based legal system? The goal of this textbook is to inform you, citizens and future
leaders of Afghanistan, of the current formal legal institutions in Afghanistan and how they
work. This will be important when you start a business or practice as a lawyer because you will
operate within the formal legal system every day. It is important to know how to use the formal
legal system because it is the basis on which the state of Afghanistan is founded. There are
unique benefits to this formal system, which will be discussed in Section III of this chapter.
Further, there are some drawbacks to the informal system. Informal institutions lack the
procedural safeguards, uniformity, and oversight present in formal courts, and they sometimes
suffer from a lack of transparency. Additionally, codification of law allows it to be formally
evaluated and amended if the people believe that it is not serving the interests of society.

Still, as an ethical lawyer or businessman, it is important to be mindful of these
alternative systems for two reasons. First, as will be discussed in Section II of Chapter II, a
lawyer must always keep in mind every method of settling a dispute for his or her client.
Sometimes, it may be that the best way to settle a dispute is through one of these informal
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methods because it is less costly or will be better accepted by the other party to the dispute.
Second, it is important to know about these other dispute resolution systems simply because of
their prevalence. This text encourages you to think about these alternative dispute resolution
systems as you know them and to weigh their effectiveness and desirability against that of the
formal institutions you study.

An Example of the Formal and Informal Systems

Imagine a situation in which three people move from the provinces to Kabul. One is from
Lashkar Gah, one from Torghundi, and one from Mazar-i-Sharif. While in Kabul, two of these
people attack the third and steal money from his pocket. The robbers are identified and detained.
Assuming that local adjudicatory systems in Lashkar Gah, Torghundi, and Mazar-i-Sharif punish
assault differently, and there is not yet an accepted standard of punishment in Kabul, how should
the criminals be punished?

In a system of local adjudicatory bodies applying customary law, this is a difficult
question to answer. The authority of a local system rarely extends beyond its territory, so it is
difficult to determine which law applies. In a system of universally applicable codified law,
however, it is easy; there is no question as to which law applies.

Further, under a system of codification people can rely on the published criminal code.
This can be important in cases when a person is unsure if a particular act is considered criminal.
With a published penal code, such a person can find an answer without having to convene a jirga
or consult an expert. In other words, the law becomes both easily accessible and standardized,
which are important advantages for those making business, family, or personal decisions that
may involve criminal law questions.

Finally, codification of laws—including criminal law—can be an important aid in
attracting foreign investment and simplifying international relations. Potential investors and
foreign governments can rely on published laws when making decisions, avoiding the expense of
consulting experts in the local systems.

Discussion Question

1. Why are informal institutions so prevalent in Afghanistan? Does their existence strengthen or
weaken Afghanistan's legal system?

2. If your rights were violated, would you seek a remedy from informal institutions? What are
the advantages of using local custom instead of codified law as the basis for resolving
disputes? What are the drawbacks?

3. What is the best way to ensure uniformity of results within informal institutions? Should
government authorities supervise informal institutions?
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