Source:

The Legal Education Network (University of Pittsburgh): Constitution, Government & Legislation ("The Legal Education Network (University of Pittsburgh):") [ID 256]

Document(s): The Legal Education Network (University of Pittsburgh):

12.2007 - Source: UN High Commissioner for Refugees

Essential contents of the Afghan Constitution ("UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers") [ID 22031]

"The Afghan Constitution was officially signed by President Karzai on 26 January 2004. It stipulates that Afghanistan is an Islamic Republic, and provides for an elected President, a Cabinet of Ministers, the Judiciary and a National Assembly comprising two houses – the Wolesi Jirga (House of the People) and the Meshrano Jirga (House of Elders). It also provides for the equality of men and women and, while requiring adherence to the United Nations Charter and the international treaties to which Afghanistan is party, states that “[n]o law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan”.

According to Article 130 of the Constitution, in the absence of relevant national legislation courts shall rule “in pursuance of Hanafi jurisprudence” and “within the limits set by [the] Constitution”. Exceptionally, Article 131 of the Constitution provides that the Shi’a school of law applies in cases dealing with personal matters of followers of the Shi’a sect. Furthermore, in other cases pertaining to the followers of the Shi’a sect, where no clarification can be found in the Constitution or other laws, the courts shall rule according to Shi’a jurisprudence.

The international treaties to which Afghanistan is party provide an important legal framework within which national laws should be applied. Although Afghanistan’s Constitution does not specify which provisions – international or domestic – should apply where national laws do not comply with these treaties, it is a basic principle of international law that a State may not invoke its national laws or the Constitution to justify a breach of international law. It is however not clear which will prevail where an international treaty obligation is interpreted as contravening the tenents of Islam."

Document(s): Open document

01.01.2004 - Source: International Development Law Organization

English full text translation of the Afghan Constituition of 2004 ("Constitution of Afghanistan") [#17859],  [ID 252]

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

DIS: Re-introduction of parts of the Constitution of 1964 ("The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan; 22 September - 5 October 2002") [#11326],  [ID 255]

Re-introduction of the 1964 Constitution does not in itself provide protection against extra-judicial executions, extortion or persecution by the local commandants. Furthermore, the Constitution does not protect women against cruelty or discrimination.

"The Deputy Minister of Justice, Rasooli, advised that the Constitution of 1964 has been reintroduced, but that some of the provisions of the Constitution are no longer applicable, because the country has changed since 1964. As an example, the Constitution grants certain powers to the King; however, Afghanistan is not a Kingdom any more. The Deputy Minister of Justice further said that according to the Constitution, the Supreme Court of the country must have 9 judges. In reality, there are 65 Supreme Court judges. The Constitution further stipulates that the upper age limit for Supreme Court judges is 60 years. In actual fact there are judges who are over 70 years old.[...]
The former Law Commission was not active and was therefore dissolved. As a consequence, the Deputy Minister of Justice was sceptical regarding the reintroduction of the Law Commission. The Director of the Secretariat of the Human Rights Commission and the Commissioner advised that all Taliban decrees have been abolished, and that it is the 1964 Constitution, which applies. They also pointed out that the Sharia laws are based on Islam, whereas the Constitution has been copied from another country. First and foremost, Afghanistan is an Islamic country, but the Taliban abused the Sharia laws. It is the hope of the human rights commission that the application of the Sharia laws will be limited, once the central government in Kabul is in control of the entire country.
The human rights advisor and the political advisor for UNAMA said that the 1964 Constitution is important as a reference framework, which can be used to support complaints relating to the violation of human rights. However, the implementation mechanisms are inadequate, particularly the judicial system. Hence, the re-introduction of the 1964 Constitution does not in itself provide protection against extra-judicial executions, extortion or persecution by the local commandants.
Furthermore, the Constitution does not protect women against cruelty or discrimination. The Norwegian ambassador believed that there is a need for a revision of the 1964 Constitution. They are waiting for the Constitutional Commission, which has not as yet commenced its work. In this connection, the ambassador pointed to similar bad experiences with the Law Commission, which had to be restructured, because the commission consisted of government staff, who had to assess the laws.
The coordinator of the International Human Rights Law Group said that the reintroduction of the 1964 Constitution has not brought about the required separation of the judiciary and the executive powers in Afghanistan. Hence, the Bonn Agreement has not removed this problem."

Document(s): Open document

07.02.2003 - Source: International Commission of Jurists

The 1964 Constitution ("Afghanistan`s Legal System and its Compatibility with International Human Rights Standards (by Dr. Martin Lau)") [#16224],  [ID 254]

"17. According to the Bonn Agreement, the 1964 Constitution is applicable on an interim basis to the extent that its provisions are not inconsistent with the Agreement itself, with the exception of the provisions relating to the monarchy and to the executive and legislative bodies provided in the Constitution.

18. Articles 25 to 40 of the 1964 Constitution contain provisions on ‘The Basic Rights and Duties of the People’. If properly observed by all authorities and political and military factions these articles would go a very long way towards safeguarding human rights and the rule of law in Afghanistan.

19. Article 25 provides for equality before the law: ‘The people of Afghanistan, without any discrimination or preference, have equal rights and obligations before the law.’ The article is remarkable in that it is simple, clear and unambiguous. However, as will be seen later, it must be regarded as a programmatic statement rather than a reflection of even the official law. This applies especially to the area of family law, which is governed by Islamic law, and which provides for differential treatment of men and women, especially in the areas of marriage, divorce and inheritance. As observed earlier, the legal reality itself departs significantly from the principles enunciated in Article 25. It should be noted that many other Muslim countries experience similar problems in matching the ideal of equality before the law with particular aspects of Islamic family law.

20. Article 26 contains a wide range of fundamental rights all concerned with the right to a fair trial, liberty and human dignity. Article 26 provides that:
a. ‘Liberty is the natural right of the human being. This right has no limitations except the liberty of others and public interest defined by the law.
b. The liberty and dignity of the human being are inviolable and inalienable. The State has the duty to respect and protect the liberty and dignity of the individual.
c. No deed is considered a crime except by virtue of law in force before its commission.
d. No one may be punished except on the orders of a competent court rendered after an
open trial held in the presence of the accused.
e. No one may be pursued or arrested except in accordance with the provisions of the law.
f. No one may be detained except on order of a competent court, in accordance with the provisions of the law.
g. Innocence is the original state; the accused is considered to be innocent unless found guilty by a final judgement of a court of law.
h. Crime is a personal deed. Pursuit, arrest or detention of the accused and the execution of sentence against him does not affect any other person.
i. Torturing another human being is not permissible. No one can torture or issue orders to torture a person even for the sake of discovering facts, even if the person involved is under pursuit, arrest or detention or is condemned to a sentence.
j. Imposing punishment incompatible with human dignity is not permissible.
k. A statement obtained from an accused or any other person by compulsion is not valid.
l. Confession of a crime means the admission made by an accused willingly and in full possession of his senses before a competent court with regard to the commission of a crime legally attributed to him. Every person has the right to appoint a defence counsel for the removal of a charge legally attributed to him.
m. Indebtedness of one person to another cannot cause deprivation or curtailment of the liberty of the debtor. The ways and means of recovering a debt shall be specified in the law.
n. Every Afghan is entitled to travel within the territory of his State and settle anywhere except in areas prohibited by the law. Similarly, every Afghan has a right to travel outside of Afghanistan and to return to Afghanistan according to the provisions of the law.
o. No Afghan shall be sentenced to banishment from Afghanistan or within its territory.’

21. The provisions of Article 26 are strengthened by Article 100 which provides that ‘In the courts of Afghanistan trials are held openly and everyone may attend in accordance with the provisions of the law. The court may in exceptional cases specified in the law hold closed trials. However, the judgement shall always be
openly proclaimed. The courts are bound to state in their judgements the reasons for their verdicts.’

22. The fair trial provisions contained in Articles 26 and 100, if properly implemented and reflected in the substantive and procedural laws of the country would go a long way in safeguarding basic human rights in Afghanistan. A closer examination of Afghanistan’s criminal laws, below, reveals that some of the constitutional provisions contained in Article 26 remain unimplemented. However, in the current situation this must be regarded as a comparatively small detail, considering that the reality of the criminal justice system as it
currently operates in large parts Afghanistan, remains outside the legal system contemplated by the 1964 Constitution.

23. Article 29 guarantees the right to property, Article 30 provides for freedom and secrecy of communications of persons, while Article 31 provides that freedom of thought and expression are inviolable. Article 27 provides that no Afghan can be extradited to a foreign state. A person’s residence is declared inviolable under Article 28. The right to assemble unarmed, without the prior permission of the state, for legitimate and peaceful purposes, in accordance with the provisions of the law, is guaranteed under Article 32, as is the right to form political parties. Apart from these civil and political rights, the 1964 Constitution also provides for limited social and economic rights. These comprise a right to free education (Article 34) and health, with the limits of its means (Article 36).

24. What is absent from the 1964 Constitution is a properly defined and guaranteed constitutional mechanism for the enforcement of these rights. Article 33 provides that ‘Anyone who, without due cause, suffers damage from the Administration is entitled to compensation and may file a suit in a court for its recovery.’ However, this article falls short of providing an effective enforcement mechanism. Also missing are constitutional provisions that afford these rights any higher protection against constitutional amendment or removal than the other parts of the 1964 Constitution. Article 120 provides that only adherence to the basic principles of Islam, Constitutional Monarchy in accordance with the provisions of this Constitution, and the values embodied in Article 8 shall not be subject to amendment."

Document(s): Open document

05.12.2001 - Source: UN Assistance Mission in Afghanistan

Bonn Agreement of 5 December 2001 ("Bonn Agreement") [#28868],  [ID 253]

"A Constitutional Loya Jirga shall be convened within eighteen months of the establishment of the Transitional Authority, in order to adopt a new constitution for Afghanistan. In order to assist the Constitutional Loya Jirga prepare the proposed Constitution, the Transitional Administration shall, within two months of its commencement and with the assistance of the United Nations, establish a Constitutional Commission.

II. Legal framework and judicial system

1) The following legal framework shall be applicable on an interim basis until the adoption of the new Constitution referred to above:

i) The Constitution of 1964, a/ to the extent that its provisions are not inconsistent with those contained in this agreement, and b/ with the exception of those provisions relating to the monarchy and to the executive and legislative bodies provided in the Constitution; and
ii) existing laws and regulations, to the extent that they are not inconsistent with this agreement or with international legal obligations to which Afghanistan is a party, or with those applicable provisions contained in the Constitution of 1964, provided that the Interim Authority shall have the power to repeal or amend those laws and regulations.

2) The judicial power of Afghanistan shall be independent and shall be vested in a Supreme Court of Afghanistan, and such other courts as may be established by the Interim Administration. The Interim Administration shall establish, with the assistance of the United Nations, a Judicial Commission to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions."

Document(s): Open document

04.2001 - Source:

University of Richmond T.C. Williams School of Law: Constitution Finder Afghanistan ("University of Richmond T.C. Williams School of Law") [ID 257]

Document(s): University of Richmond T.C. Williams School of Law