Law of Afghanistan - Judicial System

Judicial System

See also: Ministry of Justice (Afghanistan), Chief Justice of Afghanistan, and Afghan Supreme Court

Under the Taliban, there was no rule of law or independent judiciary. No one has a say in government issues Ad hoc rudimentary judicial systems were established based on Taliban interpretation of Islamic law. Murderers were subjected to public executions and thieves had a limb or two (one hand, one foot) severed. Adulterers were stoned to death in public. Taliban courts were said to have heard cases in sessions that lasted only a few minutes. Prison conditions were poor and prisoners were not given food. Normally, this was the responsibility of the prisoners' relatives, who were allowed to visit to provide food once or twice a week. Those who had no relatives had to petition the local council or rely on other inmates.

In non-Taliban controlled areas, many municipal and provincial authorities relied on some form of Islamic law and traditional tribal codes of justice. The administration and implementation of justice varied from area to area and depended on the whims of local commanders or other authorities, who could summarily execute, torture, and mete out punishments without reference to any other authority.

After the fall of the Taliban, Afghanistan's judicial system was fragmented, with conflicts between such core institutions as the Ministry of Justice, Supreme Court, and attorney general’s office. In addition, the judicial system’s infrastructure was destroyed; the absence of adequate court or ministry facilities, basic office furniture, and minimal supplies made substantive progress difficult. There were also tensions between religious and secular legal training with regard to appointments of new judicial personnel. Until Afghanistan’s new constitution was adopted in 2004, the country’s basic legal framework consisted of its 1964 constitution and existing laws and regulations to the extent that they were in accordance with the Bonn Agreement of 2001 and with international treaties to which Afghanistan was a party. The Ministry of Justice was charged with compiling Afghan laws and assessing their compatibility with international standards, but even it did not have texts of Afghan laws, which were largely unavailable, even among attorneys, judges, law faculty, and government agencies. While in power, the Taliban burned law books. There was no adequate law library in the country as of 2002.

The 2004 constitution established an independent judiciary under the Islamic state. The judicial branch consists of a Supreme Court (Stera Mahkama), High Courts, Appeals Courts, and local and district courts. The Supreme Court is composed of nine members who are appointed by the president for a period of ten years (nonrenewable) with the approval of the Wolesi Jirga. The Supreme Court has the power of judicial review. Lower courts apply Shia law in cases dealing with personal matters for Shia followers. The International Security Assistance Force are do not have the mandate to law enforcement.

Crime in Afghanistan includes drug trafficking, money laundering, fraud, corruption, and black marketeering. The National Directorate of Security, Afghanistan’s national security agency, has been accused of running its own prisons, torturing suspects, and harassing journalists, which has added to the controversy over human rights in the country. Copyright law in Afghanistan has not been recognized by the United States since 2005. The court of last resort is the Afghan Supreme Court, which was approved in 2004 and is headed up by the Chief Justice of Afghanistan. The judicial system is still under construction.