3RD EDITION AN INTRODUCTION TO THE LAW OF AFGHANISTAN 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) i 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- ii 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 iii 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 iv 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. 1 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.