Islamic Republic of Afghanistan Legal System and Research

By Ahmadullah Masoud

Ahmadullah Masoud is the Legal Technical Member of the Financial Dispute Resolution Commission (DAB) in Kabul, Afghanistan. Prior to his current position, he worked as the Senior Huququ Training Specialist at the Assistance for the Development of Afghan Legal Access and Transparency (ADALAT) USAID Project at Checchi and Company Consulting, Inc. He was also the Legal Adviser to the Ministry of Economy in Kabul, Afghanistan where he participated in drafting process of policies and laws, and provided legal advice and technical support to MOEC leadership. Mr. Masoud was also the Lecturer at the Law Faculty, Dean of Political Science, and the Acting Chancellor of Mashal University, in Kabul, Afghanistan. As the lecturer, he taught constitutional, defense, and family law as well as legal research and legal writing courses. His experience includes providing legal services in the areas of corporate, tax, contract, investment, and legal drafting and translation at the Elite Legal Services where he worked as the Finance Officer and Tax Adviser. His earlier experiences include being the Legal Research Adviser for the USAID Afghanistan Rule of Law Stabilization Program (RLS-F) conducting legal research training programs for professors and students of Sharia’ and Law Schools owned by Afghanistan Government. In this capacity he also coordinated academic exchanges for professors of Sharia’ and Law at various universities in South Africa, United States, Pakistan, Egypt, and Turkey. Mr. Masoud served as the Head of Reference and Legal Research Trainer in INLTC / USAID Afghanistan Rule of Law Project where he taught legal research courses for judges, military attorneys, prosecutors, defense lawyers, and INLTC students. Mr. Masoud has authored number of publications including the Legal Research Manual published by USAID, How Can We Train and Educate Our Children?, Transaction of Endowment in Islam in Afghanistan Laws, and more. He earned his Bachelor’s degree in Islamic Law from Sharia Faculty of Kabul University, his Master’s Degree in Law (LL.M.) from the University of Washington School of Law, and he is licensed defense lawyer of the Afghanistan Independent Bar Association. He is multilingual working in English, Arabic, Urdu, Dari, and Pashtu.

Published November/December 2018

(Previously updated by Omar Sial and Md. Ershdul Karim in October 2010 and by Qasim Hashimzai in November/December 2014)

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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 square km, 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 5,000 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 Jews. The official languages of the country are Pashto and Dari (Afghan Persian, a.k.a. 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 34 provinces (the capital of the province is in 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 2004 Afghan Constitution states that “[n]ational sovereignty in Afghanistan shall belong to the nation, manifested directly and through its elected representatives. The nation of Afghanistan is 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 citizenship and asylum related matters shall be regulated by law.”

“Afghanistan shall be an Islamic Republic, independent, unitary and indivisible state” (Article one, the Constitution of Afghanistan, 2004). “The sacred religion of Islam is the religion of the Islamic Republic of Afghanistan. Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals” (Article two, the Constitution of Afghanistan, 2004). “No law shall contravene 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 President shall be the head of state of the Islamic Republic of Afghanistan, executing his authorities in the executive, legislative and judiciary fields in accordance with the provisions of this Constitution. The President shall have two Vice-Presidents, first and second” (Article sixty, the Constitution of Afghanistan, 2004). However, after the problematic presidential election of 2014, the structure of the executive branch was changed. A new position (Chief Executive) was added to the structure, which has no constitutionality and most of the senior positions were divided 50/50 between the president Dr. Ashraf Ghani and Chief Executive Dr. Abdullah. The president and the Chief Executive entered into an agreement and structured a National Unity Government (NUG). This agreement is not only unconstitutional but also violates some of the provisions of the 2004 Afghan constitution.

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

The president must be a Muslim, shall not be less than forty years of age, shall be born of Afghan parents, and shall 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). The detailed authorities and duties of the President are in Article Sixty-four of the Constitution, 2004, and they 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;
  • Being the Commander in Chief of the armed forces of Afghanistan;
  • Declare war and peace with the endorsement of the National Assembly;
  • Take necessary decisions to defend territorial integrity and preserve independence;
  • Dispatch armed forces units outside of Afghanistan with the endorsement of the National Assembly;
  • Convene the Loya Jirga except in the situation prescribed in Article 69 of this Constitution;
  • 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 2004 Afghan constitution 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 on the government’s website.

3. Government — The Legislative Branch

A National Assembly consisting of two Houses, the House of People (Wolesi Jirga), the lower house, with 250 seats, and the House of Elders (Meshrano Jirga), the upper house, with 102 seats, forms the Legislative Branch.

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 2004 Afghan Constitution states 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 250 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.

Each province has proportional 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.

4.2. Meshrano Jirga (the House of Elders)

The House of Elders consists of a mixture of appointed and elected members (total 102 members). One-third (34) are elected by district councils (one per province) for three-year terms, one-third (34) by provincial councils (one per province) for four-year terms, and one-third (34) are nominated by the president for five-year terms. However, elections for the district councils were not held up to now (2018). As such, each provincial council also selected one of its elected members to temporarily hold seats in the house until district council elections are held. Half of the presidential nominees have to be women, two representatives from the disabled and impaired and two from the Kuchis. ((Article eighty four, 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 sessionsannually (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 104, 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 (Article 94, Afghan constitution, 2004). Proposals for drafting a law are 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 (Article 97, Afghan constitution, 2004).

The proposal is then submitted to the Meshrano Jirga (the Upper House), which will decide its approval or rejection in fifteen days (Article 97, Afghan constitution, 2004). It should be noted that the NA members fell 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 the People re-approves it with two thirds of all the votes, the draft will be considered endorsed and enforceable (Article 94, Afghan constitution, 2004).

Proposals for drafting the budget and financial affairs law shall be made only by the Government (Article 95, Afghan constitution, 2004). 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 (Article Ninety-Seven, Afghan constitution, 2004).

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 (Article 98, Afghan constitution, 2004).

In case of discussing urgent matters such as the annual budget, development programs, or issues related to national security, territorial integrity and independence of the country, the sessions of the Assembly shall not end until a decision is made (Article Ninety-Nine, Afghan constitution, 2004).

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 (Article hundred, Afghan constitution, 2004). A flowchart of Legislative Process in Afghanistan can be found at Legislative Consulting.

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.
  • Promote legal knowledge through issuance, description and explanation of legislative documents in the community.
  • 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 (source).

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 116, 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 (Article 2, Law on the Organization and Jurisdiction of Courts in Afghanistan):

The Judiciary is empowered to resolve disputes between and among individuals, legal entities including the state in accordance with law (Article 120, Afghan constitution, 2004).

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 (Article 133, Afghan constitution, 2004).

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 (Article 128, Afghan constitution, 2004).

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 117 and 118 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 (Article 18, Law on the Organization and Jurisdiction of Courts in Afghanistan):

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

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 (Article 19, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • Leading relevant Dewan’s activities.
  • Holding and presiding over relevant Dewan’s sessions.
  • Organize the affairs of the relevant Dewan and submit reports 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 (Article 24, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • 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 (Article 30, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • 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. The Head of the Court of Appeals shall be selected from among the judges who have enough qualification, experience and competency. The Head of the General Criminal Dewan is the deputy head of the Court of Appeals (Article 31, Law on the Organization and Jurisdiction of Courts in Afghanistan).

9.2.1. Structure of Dewans of Courts of Appeal

The Courts of Appeal contains the following Dewans (Article 32, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • 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 (Article 36, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • 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:

  • Division for the crimes of officers, sergeants and saatenmans
  • Division for the crimes of soldiers

The Military Appeal Court considers, in the 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 (Article 40, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • Central Provincial 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 centers of provinces when required after approval of the president.

9.3.1. Primary Court Structure

A Municipal Primary Court comprises of the following Dewans (Article 41, Law on the Organization and Jurisdiction of Courts in Afghanistan)

  • 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 center of provinces shall have the relevant Dewans to adjudicate the following cases in primary level in accordance with law (Article 42, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • 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 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 center 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 (Article 44, Law on the Organization and Jurisdiction of Courts in Afghanistan):

9.5. The Commercial Court

When necessary, a commercial court is to be established in center 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 (Article 45, Law on the Organization and Jurisdiction of Courts in Afghanistan):

10. District Primary Court Structure and Jurisdiction

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 (Article 47, Law on the Organization and Jurisdiction of Courts in Afghanistan):

District Primary courts shall deal in primary stage with all ordinary criminal, civil and family cases, which are legally presented, to them (Article 48, Law on the Organization and Jurisdiction of Courts in Afghanistan):

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 (Article 52, Law on the Organization and Jurisdiction of Courts in Afghanistan):

The decisions of the primary courts are absolute and final in the following situations (Article 53, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • 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.

There is a Juvenile Primary Court in the center 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. When necessary, a personal affairs primary court may be established in the center 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 (Article 58, Law on the Organization and Jurisdiction of Courts in Afghanistan):

  • 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 center 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 (Article 59, Law on the Organization and Jurisdiction of Courts in Afghanistan):

“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 learn more about the Supreme Court of the Islamic Republic of Afghanistan, its structure and jurisdiction at its website.

15. Independent Commission for Overseeing the Implementation of the Constitution (ICOIC)

Independent Commission for overseeing the implementation of the constitution has been established within the state of Islamic Republic of Afghanistan on 2010 and it has full independence in its activities. The ICOIC goal is to intensify and institutionalize a constitutional-state-based regime. For achievement of this goal, ICOIC according to the provisions of the constitution oversees compliance of actions of the president, the three branches of the government, and all governmental and non-governmental institutions with the provisions of the constitution.

15.1. Law Text on ICOIC

The basis for the Independent Commission for Overseeing the Implementation of The Constitution (ICOIC) is Article 157 of the Afghanistan Constitution, which says the Independent Commission for Supervision of The Implementation of The Constitution shall be established in according with the provisions of the law. Members of this commission shall be appointed by the president with the endorsement of the House of People. The ICOIC, since its establishment functions in according by its own law. This law which has been indorsed by parliament, contains 17 articles. In accordance with this law the commission has seven members. The members nominate by the president and receive vote of confidence from the parliament. The president of ICOIC has been elected through internal election for the period of 4 years The second two can be re-elected if they make themselves candidate. The commission is independent in its functions in according to the constitution, within the framework of the state of Islamic republic of Afghanistan. A member of ICOIC must fill full the following conditions. You can read detail about the ICOIC structure with jurisdictions in Afghanistan.

16. 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.

The Ministry of Justice website has 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.

17. 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 the International Legal Foundation.

Afghanistan Investment Support Agencies offers access to the 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 Key Documents provides access to the Index of Afghanistan Laws (updated as of April 2010). In addition, one can consult the following ministries for more information:

[1] See Canada’s Library of Parliament.

[2] See Afghanistan Online for more information about Afghanistan, including the history, people, culture, languages, ethnic composition, geography, government structure and politics, and more.