Seitenhistorie

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On the grounds of the existing body of literature and after a number of extensive consultations and interviews one may stateinterviews one, the understanding of the rule of law in Afghanistan may be summed up like this: For Afghans, the rule of law refers to all those state and non-state institutions that promote justice and human development through the application of public rules that are deemed fair, applied independently, enforced equally, and consistent with human rights principles. It encompasses public institutions, institutional process, and rules dealing with four fundamental dimensions; namely (1) independence of the rule of law institutions, (2) public and fair trials, (3) equal enforcement, and (4) consistency with human rights principles. Further, the definition embraces and encourages the coexistence of the three major legal traditions in AfghanistantodayAfghanistan today: Islamic shar'īa (interpretations), Western (mainly French) positive law and legal thought, as well as customary law (Barfield 2008: 351; Soboory 2005). Those four dimensions of the (proposed) Afghan definition of the rule of law are assessed against the limited body of qualitative and quantitative data available in today's Afghanistan. The emphasis is placed on the key justice institutions, such as the judiciary, the police, the attorney general's office (lu-ye tsārnvāli) and prison system - key institutions for promoting the rule of law. (Their institutional attributes and the links among them as a system have been assessed in terms of such factors as the number of qualified police, judges, prosecutors, and prison officers who have received training; the level of the rehabilitation of courts and prisons; the level of functioning (and effectiveness) of these institutions; and their perception by ordinary Afghans have been used as indicators of the level of the (re-)-establishment of the rule of law in Afghanistan. Cf. Wardak/Saba et al. 2007: 43, and 45 table 2.1).

Both the Bonn Agreement (2001) and the Afghanistan Compact (2006) strongly emphasize the duty of the executive and legislative authorities to bring Afghan laws in conformity to fundamental principles of human rights. This dimension , reflected also in the (proposed) definition largely represents the demands of the international community and donor countries. Noteworthy, according According to the Afghanistan Human Development Report (Wardak/Saba et al. 2007) , few Afghans who were consulted saw it is noteworthy that only few of the consulted Afghanssaw this as an important dimension of the rule of law. Yet, despite the importance of understanding the issue of "cultural relativism" in the Afghan context (and potential tension between certain Islamic and human rights principles), the Afghan Constitution and new amended Afghan laws are, in general terms, formally consistent with the fundamental principles. Concerning the judicial sector, however, one has to state , however, that more than 80 per cent of the disputes are still settled outside the state courts. The majority of legal professionals has no or very limited access to up-to-date legal sources. Legal norms enacted by the legislative branch should therefore be described as a "patchwork" (United States Institute for Peace 2004: 3; Senier 2006: 1) rather than a vivid system (Röder 2009: 257/258). Hence, the discrepancy between Islamic considered and so-called secular provisions remains unresolved and a legal policy issue. New codes like the Interim Criminal Procedure Code of 2004 even worsened this situation. Due to the fact that Italian legal reform consultants had streamlined the five-hundred articles of the 1965 qānun-e ejra'āt-e jazā'i (Criminal Procedure Code), Afghan judges, accustomed primarily to the civil law tradition, seem to find the new code too abstract - if they have ever seen it at all - and resort to its predecessor . (Röder 2007: 309). In additionAdditionally, many observers also express their deep concern at concerns about the judges' evident lack of apparent understanding and appreciation by judges by foundational notions of of basic notions of the judicial role and process (Armytage 2007: 198; Pfeiffer 2009: 27): concepts : Concepts of judicial independence, justice and the rule of law are not very much au fait within the judicial body .(Armytage 2007: 198; Pfeiffer 2009: 27).

In this Worth mentioning in the aforementioned context is Article 14 of the qānūn-e tashkīlāt va salāhiyāt-e mohākem-e qove-ye qasā-ye jomhūrī-ye eslāmī-ye Afghānestān that states, as to the has to be mentioned: as a guarantee against the interference of other state authorities on judicial decisions, Article 14 states that the judicial power shall be independent and subject only to the law. Thus, the legislator stipulated clearly that the judiciary shall have exclusive authority to decide whether an issue submitted for decision is within its competency as defined by law. (Cf. Principle 3 of the United Nations Principles on the Independenceof Independence of the Judiciary, adopted by consensus on the seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Milan, 6 September 1985 and endorsed by the General Assembly Resolution A/RES/40/32, New York, 29 November 1985, para. 5. The United Nations General Assembly later specifically welcomed the principles and invited governments to respect them and to take them into account within the framework of their national legislation and practice, see: Resolution A/RES/40/146, New York, 13 December 1985, para. 2). Having said this, one is able to ascertain that the separation of powers, in particular the separation between the judiciary and executive authority, is, at least formally also clearly regulated in the Constitution of Afghanistan (Moschtaghi 2008: 512): Article 116 of the Constitution of Afghanistan and Article 2 para. 1 of the qānūn-e tashkīlāt va salāhiyāt-e mohākem-e qove-ye qasā-ye jomhūrī-ye eslāmī-ye Afghānestān establish the judiciary as an independent organ of the state, being composed of the Stera Mahkame (Supreme Court), mohākem-e estenāf (courts of appeal) and the mohākem-e ebteda-ye (primary courts) (Moschtaghi 2006: 555). ) Moreover, Articles 120 and 122 of the Afghan Constitution meet the requirements for an institutional independence of the judiciary in providing that the competence to adjudicate lawsuits lies solely with the judiciary and that no law under any circumstances may exclude certain cases or a field of law from the competencies of the judiciary (Moschtaghi 2009: 77; and Moschtaghi 2006: 570).

Compared to other legal systems, the Afghan Constitution equips the government , the executive authority, with quite with rather extensive law making powers, which can be used power. In many cases, executive laws can be passed without an interaction of the Shura(Parliament), the typical Parliament and the regular legislative authority despite (despite the fact that the Constitution calls the Shurā-ye Melli (National Assembly) the "highest legislative organ"). Due to the The fact that the Constitution places legislation by the legislative process Parliament firmly under Government control , one is able to state that severely curtails the legislative powers have been severely curtailed. Should the Parliament, for example, despite the limitations on its legislative freedom of action, happen to adopt some legislation which the Government does not like, the President can still use his veto to prevent the bill from becoming President within his competences can veto legislations that he disapproves and, this, avoid that the bill becomes law. Such a presidential veto cannot be overruled except by a two two-thirds majority in the Lower House, the Wolsī Jirga (House of the People), which in most cases will be difficult to achieve (Article 94 of the Constitution). Moreover, the Government enjoys substantial lawmaking powers of its own, which it can use independently of the Parliament. Article 76 grants the Government the power to devise and approve regulations that are not contrary to the text and spirit of any law. The use of the regulatory powers of the Government is thus not dependent upon a prior parliamentary authorization. In the absence of any contrary constitutional or statutory provision, the Government can freely enact the rules which it deems necessary for the implementation of its policies. In addition, in case of recess of the House of the People, the Government can legislate in its place if this is necessary to confront an "emergency situation" (Article 79 of the Constitution). The "emergency situation" within the meaning of Article 79 of the Constitution has to be distinguished from a formally declared state of emergency, which entitle the President to transfer specific powers which normally belong to Parliament to the Government. By contrast, in an "emergency situation" under Article 79 of the Constitution, the transfer of legislative powers takes place automatically, without any formal presidential decision on the matter being necessary. Since the Constitution does not define the situation covered by Article 79 of the Constitution more precisely, the Government is free to adopt its own criteria in determining whether an "emergency" does in fact exist. The only way for Parliament to take back its powers would then consist in the rejection of the legislative decrees adopted by the Government during recess after it has reconvened (Grote 2004: 909).

This extensive authorizations are problematic with regard to the separation of powers and the rule of law and should at least mitigated by a strict judicial review. According to Article 121 of the Constitution and Article 24 para. 1 of the qānūn-e tashkīlāt va salāhiyāt-e mohākem-e qove-ye qasā-ye jomhūrī-ye eslāmī-ye Afghānestān the Supreme Court is competent to review the conformity of formal laws, legal decrees and international treaties with the Constitution and its interpretation. However, these legal decrees (farāmin-e taqnīnī) are a peculiarity of Afghanistan's Interim Legal System. They have the function of formal laws and are not equivalent to the decrees (moqararāt) which the government may enact according to Article 76 of the Constitution. (This perception correlates with the legal terminology used in the Iranian legal system since regulations since regulations passed by the government are called moqararāt as well, the term taqnīn is reserved for acts of the legislator; see Ja'afar Ja'afarī Langarūdī 2004: 679-680). There isTherefore, therefore, at least no direct possibility of judicial review of the legislative acts of the executive. Only an incidental review by the courts in the course of regular proceedings is possible as the executive exists. As courts are merely bound by law and not by executive decrees of the executive (Article 130 of the Constitution). Such , judicial review is only possible on an incidental base in the course of regular proceedings. However, such an indirect control is , however, not sufficient with regard to the rule of law (Moschtaghi 2009: 85-86; and Moschtaghi 2006: 584).

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Afghan rule of law (institutions) still lack(s) efficiency, capacity and nationwide coverage. Outside of the major cities, village councils or tribal elders have for generations played the predominant role in resolving disputes and meting out justice for generations. There are indications that this customary law system of law - which varies in form and substance throughout Afghanistan- has been subverted and manipulated by local wartime and current power-holders, but to what extent and effect has not been closely examined (United States Institute for Peace 2004: 10). Unsurprisingly, Afghan rule of law institutions are often viewed as susceptible to corruption and have perceived limited legitimacy within much of the country (Strand Holm 2007: 1; Bassiouni/Rothenberg 2007: 10). Confidence in the formal justice system is particular low in the South East, West and South West, regions which report the highest level of insecurity (Rennie/Sharma/Sen 2009: 20, and 88, see also and fig. 6.3). While genuine rule of law reform within Afghanistanwill require decades of investment, the current tension between expectations of rapid advancement and the delay on the ground has contributed to a sense of frustration among domestic stakeholders. Failing to improve rule of law reform could threaten the nation's reconstruction effort and the possibility of genuine peace and long-term stability.

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