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Original contribution by Hatem Elliesie, lawyer and doctoral student at the Freie Universitaet Berlin, Germany.
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TheIn Afghanistan the rule of law inhas Afghanistan hasalways been, generally speaking, fragile. The role of the state (_dawlat_) as a formal structure of authority, with andthe infunction of maintaining social order in Afghan society, has historically been is very limited. This appliesis true in particular in to rural Afghanistan, where about 80% of the Afghan population has been living live (Barfield 2008: 353). In some southern and eastern parts of the country, state institutions have no - or merely a nominal - existence (Wardak 2006: 355; Zuccarelli 2006: 227; Hagerty/Hagerty 2005: 123). The weakness of the Afghan state in mind, the _[Bonn Agreement|http://www.afghangovernment.com/AfghanAgreementBonn.htm]_ (2001) beganstarted a process, focusing on political institutions and procedures, emphasizing the reform of Afghanistan's justice system by stating that "with the assistance of the United Nations, a Judicial Commission \[should be established\] to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions." (Chapter II. 2. on "Legal framework and judicial system")_._ Subsequently, the _[_Afghanistan Compact_|http://unama.unmissions.org/Portals/UNAMA/Documents/AfghanistanCompact-English.pdf]_ (London Conference 2006) followed up on that initiative by signalling an agreement between the Afghan government and the international community. Moreover, the Rome _[Conference on the Rule of Law in Afghanistan|http://www.rolafghanistan.esteri.it/NR/rdonlyres/C555AE7E-E27F-4475-A050-75BD50F2B637/0/RomeConferenceChairsConclusions.pdf]_ (2007) - based on UN Security Council [Resolution 1746|http://www.unhcr.org/refworld/docid/460b8acb1c6.html] (2007) - reaffirmed the crucial importance of judicial and legal reform and the implantation of the rule of law reform for the reconstruction of Afghanistan. Finally, in 2008, the United Nations Development Programme Afghanistan arranged the _Support to Provincial Justice Coordination Mechanism_ project. Accordingly, the legal rule of law discourse and analyses have been centred primarily under the overall scope of Afghanistan's justice system reform. Disquisitions on the rule of law in Afghanistan are therefore rather focusing on efforts dealing with practical issues such as the establishment of procedures and strengthening the judiciary as stipulated e.g. in the "<span style="color: black"><em>qānūn-e tashkīlāt va salāhiyāt-e mohākem-e qove-ye qasā-ye jomhūrī-ye eslāmī-ye Afghānestān" (Law of Organisation and Jurisdiction of Courts of the Islamic Republic of Afghanistan, Official Gazette o. 851, 31 Sawar 1384 (21 May 2005))</em></span><span style="color: black">.</span> At large, the evaluation of the situation seems to be disheartening (Barnett 2007: 1). Some observers state that the rule of law in Afghanistan has not improved since the overthrow of the Taliban in December 2001. Many point out that security and freedom from corruption - key elements in fostering the rule of law - are nowhere near a reality in a country that has been ranked in the second or third lowest percentile for corruption by the World Bank Institute (Wardak et al. 2007: 37-50; Röder 2007: 307). |
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I. Rule of Law in Afghanistan's Context
In terms The constitution of Afghanistan 's rule of law understanding the constitution of Afghanistandoes does not identify a clear definition of the rule of law: It is not mentioned explicitly in the normative part of the Constitution, but only in the Preamble of the Constitution. Although the preamble itself does not share the legally binding character of the Constitution, since it . The Preamble is a compilation of motives rather than concrete rights or obligations , it nevertheless offers and does not share the legally binding character of the Constitution. Nevertheless, it offers guidance for the interpretation of the text of the Constitution. The rule of law is therefore established as a constitutional principle (Moschtaghi 2009: 22).
A proposed definition, derived from a review of On the grounds of the existing body of literature , as well as and after a number of extensive consultations and interviews conducted, states that "for interviews one may state: 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 Afghanistantoday: 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. Special stress 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).
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