Alaha Ahrar
September 20, 2013
The constitution of Afghanistan sets the nature, function and the structure of the legal system of the entire country. Afghanistan’s legal system is based on common law, civil law and most importantly traditional customary and Islamic religious (Sharia) law. This article illustrates the implementation of different Constitutions and the destabilization of legal system due to ongoing wars in Afghanistan. Due to constant decades of war different regimes with distinct political theories took control of Afghanistan and each one of them established its own Constitution in the country.
European countries’ interest in Afghanistan influenced the political and social situation of the country. Therefore, the governments of Afghanistan besides using traditional customary law and Sharia law, gradually, it started implementing common law and civil law in the country. Emir Abdur Rahman Khan was the kings of Afghanistan from 1880 to 1901. During his midst kingship, he established the first Constitution of the country and turned Afghanistan into a modern state. [1] However, the legal system at that time was semi-secular. Amir Abdur Rahman Khan believed in gradual reform of the Constitution and legal system in the country. Therefore, prior to his death he said:
My sons and successors should not try to introduce reforms of any kind in such a hurry as to set the people against their ruler, and they must bear in mind that in establishing a Constitutional Government, introducing more lenient laws, and modeling education upon the system of Western universities, they must adopt all these gradually as the people become accustomed to the idea of modern innovations, so that they will not abuse the privileges and reforms given to them.[2]
Emir Abdur Rahman Khan created and developed Afghanistan’s legal system and he is considered as the founder of Afghan modern state. The king worked hard to implement the new reformed legal system throughout Afghanistan. Emir Abdur Rahman Khan initiated a new legal system and divided it into three different groups such as, Islamic law, customary law and statutory law. However, the traditional tribal elders in some rural parts of Afghanistan kept practicing traditional customary law tribal council (Jirga) and Sharia law.[3]
Subsequently, in 1919 Amanullah Khan became the king of Afghanistan. His main focus was on reforming the legal system of Afghanistan; therefore, he created a new Constitution in 1923, which recognized two sources of law: The Islamic law and the statutes law. King Amanullah Khan tried to reduce the power of the religious scholars in the judiciary and initiated a new hierarchy court system. The king gave the power to the most secularly-trained judges and started to structure Islamic law. Although he was very popular at the beginning for his political plan of withdrawing Great Britain forces from Afghanistan. His rapid reform strategy of Afghanistan’s modernization displeased religious leaders. Thus, they entitled his reform as an anti-Islamic movement. Therefore, in 1929, the religious leaders and tribal elders organized a group of people to fight against him and ended his kingship.[4] Even though the Amanullah Khan kingship era ended but some of his legal system and legal traditional reforms remained there to this day that even now, most elements of the impending constitution have been in parts based on the 1923 Constitution. For instance, secular judges and bureaucrats even now deduce and codify Hanafi criminal law and his educational reforms have been used since it was implemented in Kabul.[5] So, King Amanullah Khan’s reforms did not fail in Afghanistan.
Afterward, Zaher Shah the last king of Afghanistan, who is known as The Father of the Nation ratified the 1964 Constitution. In order for the constitution to be accepted, King Zaher Shah used a very moderate method of reforming the legal system of Afghanistan. Therefore, the Constitution of 1964 respected Islam and Islamic law. Sharia law remained most important law of this period till the late 1970s that the civil and criminal codes enacted. Hence, from that point until 1977, the 1964 Constitution and the legal system that the Loya Jirga (grant council) drafted was implemented throughout the most parts of Afghanistan.[6] This Constitution particularly focused more on the court formation and legal system.
When the kingdom era concluded in 1973, the first president of Afghanistan, Daud Khan did not approve most parts of the 1964 Constitution. Daud Khan desired to modernize the country. Therefore, his regime ratified a new constitution. While Afghans were working on betterment of their government and strengthening their legal system, the Soviet Union invaded Afghanistan in 1979. They implemented a communist regime in the country. The majority of communists were nonbeliever atheists; therefore, they ratified a new modern and secular constitution. Since people of Afghanistan have been very religious, they started believing that their religion was under attack; therefore, they could not accept the presence of Russians in the country for their political and religious beliefs. In the midst of all these theoretical wars, political movements of Mujahideen started. Very soon, they took a nationalist approach to their political stance and they divided into 10 political parties of Mujahideen. Therefore, most Afghans joined them.
The people of Afghanistan defeated the Russians after 10 years of direct wars and eradicated their communist system in Afghanistan in 1992, but the resulting damage remained for decades.[7] Right after the Mujahedeen captured the entire country, they implemented the Sharia law. However, the severe civil war started in the country. These ongoing nationalist conflicts destabilized the legal system of Afghanistan greatly. The Ministry of Justice, Judicial Branches and all forms of laws deteriorated. Then people in different parts of Afghanistan started practicing and relying on Sharia and local traditional and customary laws practices. Meanwhile, during that era the nationalist movement of the Taliban emerged.
In 1996, the Taliban captured Kabul and Al-Qaeda troops spread into Afghanistan.[8] When the Taliban took control of Kabul, Afghanistan, the majority of Afghans were already Muslims because Islam had already reached in Afghanistan during the 7th century. At the beginning of the 11th century Afghanistan became the center of Islamic power and civilization.[9] Afghanistan adopted an Islamic government, when the communist regime ended in 1992. Therefore, Afghans were already familiar with the Sharia law and knew that it is both divine and universal. However, the Taliban implemented the strictest judicial system in the country. The Taliban began enforcing a new form of legal system and called it Sharia law. An innovated form of Sharia law, which the Taliban implemented was founded by Abdul Wahab from Saudi Arabia and considered to be an authoritarian, even radical and very new form of Sharia law that most Muslims did not know about it at the time. For instance, the legal system of the Taliban banned women from wearing white shoes, white socks and announced no education for women in Afghanistan. Even homeschooling was not allowed for women during the period of the Taliban due to their No Education for Women Policy. They also restricted people from attending public gatherings, all of which had previously been acceptable.
All these years of ongoing wars did not give the people of Afghanistan a chance to work on their state legal and judicial systems. Since the fall of the Taliban in 2001, Afghanistan is in a new political phase and the government practices a new legal system. When Al-Qaeda attacked the United States on September 11, 2001, the United States and United Nations decided to eradicate Al-Qaeda from the world and end the Taliban’s regime in Afghanistan. Thus, in 2001, the United Nations sponsored the Boon Conference to help Afghans to effect political reforms and establish a new democratic government to embrace a new constitution in Afghanistan.[10] Unlike the Sharia law, the state legal system is manmade law and changeable based on the times and the need for a change. State legal law is a new phenomenon to Afghanistan. Thus, the Constitution of 2004 still closely resembles the concepts of the 1964 Constitution.
Although Afghanistan faced decades of wars and different regimes ruled at different times, the administrative structure of the legal and justice system has remained mostly unchanged for more than seventy years and it is based on levels of courts. There are 34 provinces in Afghanistan and each one has its own court, where they handle all legal systems related to the questions of fact and law. The main court of Afghanistan is Supreme Court, it is in Kabul and determines appeals based on questions of law from the secondary Court and administers all the court systems. Moreover, there are High Courts, Appeal Courts and the Local and District Courts. Additionally, there are criminal bench, civil bench and a registration office for legal family and civil purposes.
Meanwhile, the non-stop years of wars and insecurity created a new judicial system and cultural practices in most rural provinces of Afghanistan, which has been an “on-the-spot” judgment system. Today, traditional, customary and “on-the-spot” judgments direct the daily lives of the majority of people in most far remote parts of Afghanistan. Traditional customary laws are very common in Afghanistan. The elders of communities try to resolve all kinds of disputes and fights through mediation and negotiation between families and individuals.
The decades of wars and instability of the situation weakened the legal system in Afghanistan for many years. Currently the major cities of Afghanistan benefit from the legal system of government in the country. However, most people in some provinces of Afghanistan still practice traditional customary law or Sharia law. Mainly the tribal elders of the communities make the final decision for people. Wars had negative impacts on the legal system and political situation of Afghanistan. Different regimes with very distinct political theories took control of Afghanistan but unfortunately each government implemented its own Constitution and legal system in the country; therefore, no one benefited from any of them.
Bibliography:
Afghanistan.” Central Intelligence Agency. August 22, 2003. Accessed September 26, 2013. https://www.cia.gov/library/publications/the-world-factbook/geos/af.html.
Afghanistan: History.” globalEDGE – Michigan State University. September 26, 2013. Accessed September 26, 2013. http://globaledge.msu.edu/countries/afghanistan/history.
Etling, Bruce. “Legal Authorities in the Afgh an Legal System (1964-1979).” Harvard Law School. September 26, 2013. Accessed September 26, 2013. http://www.law.harvard.edu/programs/ilsp/research/etling.pdf.
History of Afghanistan Historical Background.” One World Nations Online. http://www.nationsonline.org/oneworld/History/Afghanistan-history.htm (accessed September 26, 2013).
Shirazi, Roozbeh “Islamic Education in Afghanistan: Revisiting the United States� Role.” Project MUSE – Johns Hopkins University. Accessed September 27, 2013. http://muse.jhu.edu/journals/ncr/summary/v008/8.1.shirazi.html.
Lempesis, Jenna. “The Civil War in Afghanistan.” Mount Holyoke College. September 27, 2013. Accessed September 27, 2013. https://www.mtholyoke.edu/acad/intrel/afp/afghanoverview.htm.
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Tomsen, Peter. The Wars of Afghanistan. New York: Public Affairs, 2011.
[1] History of Afghanistan Historical Background,” One World Nations Online, http://www.nationsonline.org/oneworld/History/Afghanistan-history.htm (accessed September 26, 2013).
[2] Peter Tomsen, The Wars of Afghanistan (New York: Public Affairs, 2011), 63-64.
[3] Bruce Etling, “Legal Authorities in the Afgh an Legal System (1964-1979),” Harvard Law School, September 26, 2013, accessed September 26, 2013, http://www.law.harvard.edu/programs/ilsp/research/etling.pdf.
[4] Bruce Etling, “Legal Authorities in the Afgh an Legal System (1964-1979),” Harvard Law School, September 26, 2013, accessed September 26, 2013, http://www.law.harvard.edu/programs/ilsp/research/etling.pdf.
[5] Bruce Etling, “Legal Authorities in the Afgh an Legal System (1964-1979),” Harvard Law School, September 26, 2013, accessed September 26, 2013, http://www.law.harvard.edu/programs/ilsp/research/etling.pdf.
[6] J Alexander Thier, “The Making of a Constitution in Afghanistan,” New England Complex Systems Institute, http://www.necsi.edu/afghanistan/pdf_data/thier.pdf (accessed September 26, 2013).
[7] Jenna Lempesis, “The Civil War in Afghanistan,” Mount Holyoke College, September 27, 2013, accessed September 27, 2013, https://www.mtholyoke.edu/acad/intrel/afp/afghanoverview.htm.
[8] “Afghanistan: History,” globalEDGE – Michigan State University, accessed September 26, 2013, http://globaledge.msu.edu/countries/afghanistan/history.
[9] Roozbeh Shirazi, “Islamic Education in Afghanistan: Revisiting the United States� Role,” Project MUSE – Johns Hopkins University, accessed September 27, 2013, http://muse.jhu.edu/journals/ncr/summary/v008/8.1.shirazi.html.
[10] Afghanistan,” Central Intelligence Agency, August 22, 2003, accessed September 26, 2013, https://www.cia.gov/library/publications/the-world-factbook/geos/af.html.
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