During more than 20 years of harsh experiences in communism, Islamism, blood feuds, conflict and civil war, the signs of a functioning Criminal Justice System in Afghanistan had been largely destroyed. During last two decades the rule of law as a key element to social order and peace building has been always neglected. It was just after collapse of Taliban regime and by the Bonn Agreement in 2001 that we witness some signs of a real judicial and legal reform.
With the formal endorsement of the new constitution in Afghanistan a basic step has been taken towards the consolidation of the nation-state that was initiated by the creation of the Afghanistan Interim Authority, and its successor the Transitional Islamic State of Afghanistan in 2002. In accordance with the provision of the Bonn agreement, on 4 January 2004 a new constitution was adopted by the Afghan Constitutional Loya Jirga (grand assembly). However, the judicial and legal challenges for Afghanistan still remain enormous.
The constitution, which envisages a presidential system in Afghanistan, paved the way for nation-wide presidential and parliamentary elections. The Interim Afghan Supreme Court was established in January 2005, and elections for the two houses of the Afghan Parliament held in September 2005. All these are, no doubt, significant achievements in the process of the political stabilization, establishment of democratic institutions, and the economic rebuilding of Afghanistan.
Notably since 2003 the United Nations agencies like UNODC, UNDP and UNAMA with special support of Italy, Germany, France and Austria took the major role in legal reform particularly in the realm of criminal justice. According to the UN Information Unit, since the fall of the Taliban's Islamic government four years ago the UNODC Programmes addresses both normative and operational key aspects of criminal justice; the reform of the penitentiary system in provinces as well as the rehabilitation and construction of principal Kabul prison and detention centres, training of judges, prosecutors and key professionals in justice system, the reform of the juvenile justice system, reform of media and drug laws, fair trial training projects for judges and prosecutors, the comprehensive revision of the Afghan national criminal rules and regulation are among the first steps in establishing a modern criminal justice system in a widely war suffered society.
Anyway, the criminal justice system in Afghanistan seems to constitute a good model for the West in order to test their potentials in establishing a Criminal Justice System in one of Muslim majority societies of the Middle East according to international law and standards relating to human rights. In the light of promising news on future of Afghanistan’s model of legal reform we may refer to the experience of the Constitutional Loyal Jirgas in Afghanistan that have shown the institution of jirga might have the capacity to bridge cherished Afghan tradition with modern values. Jirga is a patriarchal institution that has traditionally excluded women from participation, and some of its practices violated Afghan State laws, Islamic Law and Human Rights principles. Nevertheless, this criticism should not mean a rejection of the whole institution of Jirga as that would amount to "throwing the baby out with the bath water".
Briefing on Iranian and German Contributions
The 32th Session of the Criminal Sciences Lecture Series at the Law Faculty of Shahid Beheshty University in Tehran was held on Sunday, February 18. For a short report about this session see here. I should acknowledge that this very well received lecture series has been successfully running since 2003 under the direct supervision of a prominent criminologist and criminal policy professor in Iran, Dr. Ali Hossein Najafy Abrandady. This week’s topic was “the System of Criminal Justice in the Islamic Republic of Afghanistan”. This session was consisted of two parts; the first part held by Dr. Hossein Gholami, an assistant professor of criminology at Allameh Tabatabaei University in Tehran, and the second part by Mr. Gholamihaidar Allama, an Afghan PhD candidate in criminal Law and criminology at Shaheid Beheshti University. Both presenters are Fellows of the German Project on Rule of Law in Afghanistan which is led by two Institutes of the Max Planck Society, namely the Max Planck Institute for Public and International Law in Heidelberg, and the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany. Based in Heidelberg, Dr. jur. Tilmann Röder, as the Project leader, and Ms Mandana Knust and Mr Ramin Moschtaghy are jointly organizing and coordinating the MPIL Afghanistan Project. Besides, the project's fellows are preparing different manuals on Constitutional Law (by Mr Moschtaghi) and Human Rights (by Ms Knust). In addition, Mr Mohammad Sadr Touhid-Khaneh at the Max-Planck Institute in Freiburg, as the partner institute in this project, currently works on a criminal law manual for judge training courses which will be held in 2007-2008 in Kabul.
For a an evaluation and final report about the MPIL Fair Trial Project click here: fair_trial_final.pdf
Further Study:
- Legal Authorities in the Afghan Legal System (1964-1979), a research conducted by Bruce Etling in the Framework of the Afghan Legal History Project at the Islamic Legal Studies Program at Harvard Law School
- The MPIL's homepage on Afghanistan's Project has provided a good collection of materials for download and useful links about legal reform in Afghanistan, click here
- Here you can find a copy of Fair Trail Manuel which is prepared in both Farsi and English by the MPIL
- The Modern Pre-Taliban Penal Code 0f 1977 is available hereDownload penal_code.pdf
- To see an example of Laws and Regulations of Taliban regime see: the laws and regulations related to Amre be Maroof (laws concerning protection of morals in Islamic society)Download ghanoon_tanzim_amre_be_maroof_taliban.pdf
- For a new report on current status of the justice system in Afghanistan see here!
- For a comprehensive description of Criminal Justice System before and after Taliban see the full text of Prof. Hussein Gholami's lecture at Shahid Beheshti University see the Iran's Judiciary Weekly Ma'vaa, No. 612-613 here!
Some Post Taliban Laws:
1. The New ConstitutionDownload constitutional_code.pdf
2. Interim Criminal Law Procedure
Download intrim_criminal_law_procedure.pdf
3. Mass Media Law
Download mass_media_code.pdf
4. Police Law
Download police_code.pdf
Comments