Chapter One
General Provisions
Objective:
Article 1:
This law has been enacted pursuant to the provisions of Articles 116 and 123 of the
Constitution
for the purpose of managing the affairs related to the organization of the judiciary, duties
and
powers of the Supreme Court, primary and appeal courts and judges of the Islamic
Republic of
Afghanistan.
Independence:
Article 2:
The Judiciary shall be the independent pillar of the state and composed of Supreme
Court, Courts
of Appeal and Primary Courts. Traveling courts may be established when needed, on
recommendation by the Supreme Court and approval of the President.
Dispute Resolution
Article 3:
The Judiciary may resolve disputes between and among individuals, legal entities
including the
state in accordance with law.
Jurisdiction
Article 4:
No law under any circumstances may take a case out of the jurisdiction of judiciary and
submit it
to a different authority.
This article may not hamper the formation of specialized courts and military courts set
forth in
article 69, 78 and 127 of the Constitution.
Appealing
Article 5:
The parties to the case may appeal against decisions issued by the lower courts in
accordance
with law. The final decisions of the courts shall be considered exception to this provision.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٣
Resolution Methodology
Article 6:
(1) The cases shall be resolved in courts taking into consideration the quality and nature
of
the case in two stages, primary and appeal.
(2) The supreme court shall deal with the referred cases of courts of appeal only in terms
of
accurate application of law(to see if any provision of law is breached or accurately
applied), unless it has been authorized by law to resolve a case taking into consideration
the quality and nature of the case.
(3) Cases in courts shall be handled as follows:
1. At the primary stage, with participation of three judges. Except less than three judges
may
decide a case when they are not available.
2. At the appeal stage, three judges shall decide any case.
3. At the cessation stage, shall take place by two or more persons
Decision Source
Article 7:
The courts shall resolve cases in accordance with the constitution and other laws of the
Islamic
Republic of Afghanistan. If there is no clear legal provision for the case, the case shall be
handled in accordance with articles 130 and 131 of the constitution.
Open Trial
Article 8:
Trials in the Afghanistan courts shall happen in open procedure in which everybody may
attend,
subject to law. The court may convene the trials in a close procedure only if they are
legally
required or that it is deemed necessary. Making notice of the final decision shall always
be open
to public.
Legal Citation
Article 9:
The courts shall be duty bound to rely on the reasons, grounds and legal provisions for a
decision
to issue.
Enforceability of Decisions
Article 10:
The courts final decisions shall be enforceable unless it is about a death sentence, which
requires
approval of the president.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٤
Right to have Defense Attorney
Article 11:
Everybody shall be entitled to a defense attorney immediately after his/her arrest to
remove the
accusation charged against. In criminal cases, there shall be assigned defense attorneys
for the
destitute in accordance with the relevant legislation.
Translator/Interpreter
Article 12:
If the party does not speak the official language that trial is held in, translator/interpreter
may
help him/her understand articles and details of case and shall have the right to speak in
his/her
native language before the court.
Non-refusing of ruling
Article 13:
The court may not refuse to issue an order in any case that is under its proceeding. A case
may
leave the court only after decision is taken.
Independence in Issuing Decision
Article 14:
Courts shall be independent but subject to law only when issuing orders. Resolving a case
and
issuing an order by the courts shall be based on the principle of the parties’ mutual
equality
before the law and the court and obeying justice and impartiality.
No Party Membership
Article 15:
Judges may not hold membership in any political party while working as judge.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005Chapter Two
Organization, Structure and Jurisdiction of the
Supreme Court
The Supreme Court
Article 16:
The Supreme Court constitutes the highest authority of the judiciary of the Islamic
Republic of
Afghanistan.
Organization of the Supreme Court
Article 17:
The Supreme Court shall be composed of nine persons appointed by the president in an
agreement with Wolusi Jirga (house of people) in accordance with article one hundred
seventeen
and one hundred eighteen of the Constitution. The president shall appoint one of the
members as
the chief of the Supreme Court.
Supreme Court Dewans
Article 18:
1. The Supreme Court shall be consisted of the following Dewans:
a. General Criminal Dewan
b. Public Security Dewan
c. Civil and Public Rights Dewan
d. Commercial Dewan
2. Each Dewan set forth in clause one of the current article shall be headed by a member
of
the Supreme Court as selected on rotation basis by the chief justice for the period of one
year.
Powers of heads of Dewans:
Article 19:
Each head of the Supreme Court Dewans shall have the following powers and duties:
1. Leading relevant Dewan’s activities.
2. Holding and presiding over relevant Dewan’s sessions.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٦
3. Arranging affairs, coordinating judicial experiences of the Dewans and submission of
report to the Supreme Court.
Judicial advisors
Article 20:
The Supreme Court shall have judicial advisors and their total number may not be more
than
thirty six persons.
Appointment of judicial advisors:
Article 21:
Judicial advisors of the Supreme Court shall be selected from among the judges who have
required qualification, sufficiency and full competency, and at least have ten years
practical
judicial work experience.
Assignment of judicial advisors to the Dewans shall be the authority of chief justice.
Adisors’duties:
Article 22:
The judicial advisors shall analyze and study the cases filed and provide a report to the
judicial
meeting for decision to be made.
General Administration Office of the Judiciary
Article 23:
1. The judiciary shall have General Directorate of Administration to manage issues
related
to judicial and administration affairs.
2. Head of the Administration Office of the Judiciary shall be appointed on the
recommendation of the chief justice and approval of the president.Head of the
Administration Office of the Judiciary shall at the same time be both the secretary and
spokesman for the Supreme Court and shall have the following qualities:
1) Must not be younger than 30 upon appointment.
2) Have higher education and have enough administrative experience.
3) Have good character and moral and be well-known.
4) Not be convicted with anti-human crime, felony or deprived from civil rights.
3. The Supreme Court shall have professional and administrative branches, which operate
under the framework of General Administration Office of the Judiciary. Organization
and structure of the professional and administrative branches shall be regulated by
special regulation.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٧
4. General Administrative Office may create, if required, other branches after the consent
of Supreme Court and approval of the President
Judicial powers and duties of the Supreme Court:
Article 24:
The Supreme Court shall have the following jurisdictions and duties within the scope of
interpretation of laws and judicial issues:
1) Assessment on conformity of laws, decrees, legal documents, international contracts
and
conventions with the Constitution and their interpretation based on the government or
courts demand in accordance with law.
2) Propose for draft law on regulating the judicial affairs to the national assembly through
government.
3) Revising the rulings of courts due to presence of new reasons based on complaint by
the
AGO or by party to the claim according to the mentioned provisions and arrangement in
the law.
4) resolving Courts’ Conflict of Jurisdiction and submitting jurisdiction of resolving a
case
from one court to the other based on proposal by the AGO or party to the claim when
reasonable grounds arise.
5) Studying reasons and making decision on extraditing criminals to foreign states in
accordance with law.
6) Studying reasons of a charge made and making decision on submitting the Afghan
citizen to the foreign state in the light of article 28 of the Constitution.
7) Ensuring uniformity in judicial treatment.
8) Taking measures on criminal and disciplinary offences by judges.
9) Evaluating the courts inquiries on judicial issues and providing responses accordingly.
Convening sessions:
Article 25:
1. The Supreme Court shall convene its regular sessions once in fifteen days.
The Supreme Court’s extraordinary sessions shall be convened on a request by the chief
justice, proposal by the AGO or on the demand by one-third of its members.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٨
2. The required number to attend the Supreme Court meetings shall be completed by
twothird
of its members. The decisions shall be made upon by majority vote unless this law
mentions different.
3. Attorney general or, in case absent, his/her deputy to whom his/her jurisdiction was
transferred shall attend the Supreme Court meetings on criminal issues.
4. On the issues mentioned in clauses 1, 2, 3, 4, 5,6 and 8 of article 24 of this law,
decision
may be made by two-third majority of the entire members of the Supreme Court.
Overturning the lower courts decisions:
Article 26:
1. If a Supreme Court Dewan determines that the lower court ruling was contrary to the
law, fails to conform or interpret or contrary to the articles 130 and 131 of the
Constitution, it shall overturn the ruling and remand it to the lower court for issuance
of ruling. The Supreme Court Dewan may overturn a ruling which it observes as
contrary to the law even if the breach is not mentioned in the appeal.
2. If the failure in consistency or interpreting the law does not substantially affect the
ruling and the ruling is accurate and agrees to the law, the relevant Dewan may
confirm it.
Remand for invalidity:
Article 27:
1. If the Supreme Court Dewan overturns the appealable ruling due to invalidity in the
order
or invalidity in the basic procedures of the order, it shall remand the case to the relevant
court by mentioning the reasons for a decision. In the event the case is remanded to the
first court, majority of the judges who consider the case shall not have decided the case
before the appeal.
2. If there is a second appeal against the decision of the court for which the case was
previously remanded and the appeal is based on the previous reasons and grounds and the
referred court has issued the previous ruling (overturned by supreme court) with the same
(first) reasons, the Supreme Court shall take the issue into further study. If the appealed
case is overturned by the majority vote of the Court for related cases, the court for which
the remanded ruling was referred shall resolve and issue ruling and in this case the
referred court shall be duty bound to respect the instructed resolution by the Supreme
Court and their ruling at this stage shall be final.
Enforceability of orders and Rulings(Qarar):
Article 28:
The orders and Qarars by the higher court shall be enforceable on the lower courts on
newly
resolving of cases.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٩
Administrative Duties and jurisdictions of Supreme Court:
Article 29:
(1) The Supreme Court shall have the following duties and jurisdictions in its relevant
administration affairs:
1. Prepare the budget for the judiciary in consultation with the government
2. lead and control the administrative activities of courts of Islamic Republic of
Afghanistan
3. Approve rules and regulations to regulate matters concerning judicial and
administration
of courts.
4. Evaluate the results of judicial scrutiny and studies and taking measures to remove
defects and coordinate courts’ procedures.
5. Propose on the appointment of judges and judicial advisors to the president’s office
according to provisions of this law.
6. Propose on the appointment, transfer, upgrading, extension of the appointments’
duration
and retirement of judges according to the provisions of this law.
7. Propose on the establishment of courts and legal document registration directorates,
and
their specification of judicial and administration jurisdiction to the president’s office.
8. Implement the budget of the judiciary.
9. Providing necessary facilities for the courts’ activities.
10. Holding judicial practice course.
11. Taking appropriate measures for enhancing the knowledge and experiences of judges.
12. Monitor performances and activities of employees of judicial authority.
13. Prepare annual statistic report of all courts judicial activities.
14. Other duties and jurisdictions which are delegated to Supreme Court according to this
law and all other laws.
(2) The powers set forth in clause one of this article shall be implemented through the
General
Administration Office of the Judiciary.
Powers of the head of Supreme Court (chief justice)
Article 30:
The chief justice shall represent the Judicial Authority of Islamic Republic of
Afghanistan and
shall have the following jurisdiction and duties:
1. lead the judicial and administrative activities of the Supreme Court;
2. preside over the meetings of the Supreme Court;
3. chair the judicial sessions of the relevant Dewans of the Supreme Court as needed;
4. issue orders on the inspection of courts’ activities;
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
١٠
5. issue orders on resolving cases resulting from crimes and judicial and administrative
violation by judges;
6. monitor the implementation of courts final decisions;
7. monitor and control appropriate expenditure of the judicial budget;
8. delegate all or some of his/her powers to one of the members of the Supreme Court
when
sick, on leave, absence and other reasons;
9. monitor activities the General Administration Office of the judiciary;
10. provide reports on judicial and administrative activities of the judiciary to the
president;
11. Propose on pardoning, mitigation of imprisonment and other punishments of judges
to
the president’s office;
12. other assigned powers in accordance with the provisions of this and other laws;Chapter Two
Organization, Structure and Jurisdiction of the
Supreme Court
The Supreme Court
Article 16:
The Supreme Court constitutes the highest authority of the judiciary of the Islamic
Republic of
Afghanistan.
Organization of the Supreme Court
Article 17:
The Supreme Court shall be composed of nine persons appointed by the president in an
agreement with Wolusi Jirga (house of people) in accordance with article one hundred
seventeen
and one hundred eighteen of the Constitution. The president shall appoint one of the
members as
the chief of the Supreme Court.
Supreme Court Dewans
Article 18:
1. The Supreme Court shall be consisted of the following Dewans:
a. General Criminal Dewan
b. Public Security Dewan
c. Civil and Public Rights Dewan
d. Commercial Dewan
2. Each Dewan set forth in clause one of the current article shall be headed by a member
of
the Supreme Court as selected on rotation basis by the chief justice for the period of one
year.
Powers of heads of Dewans:
Article 19:
Each head of the Supreme Court Dewans shall have the following powers and duties:
1. Leading relevant Dewan’s activities.
2. Holding and presiding over relevant Dewan’s sessions.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٦
3. Arranging affairs, coordinating judicial experiences of the Dewans and submission of
report to the Supreme Court.
Judicial advisors
Article 20:
The Supreme Court shall have judicial advisors and their total number may not be more
than
thirty six persons.
Appointment of judicial advisors:
Article 21:
Judicial advisors of the Supreme Court shall be selected from among the judges who have
required qualification, sufficiency and full competency, and at least have ten years
practical
judicial work experience.
Assignment of judicial advisors to the Dewans shall be the authority of chief justice.
Adisors’duties:
Article 22:
The judicial advisors shall analyze and study the cases filed and provide a report to the
judicial
meeting for decision to be made.
General Administration Office of the Judiciary
Article 23:
1. The judiciary shall have General Directorate of Administration to manage issues
related
to judicial and administration affairs.
2. Head of the Administration Office of the Judiciary shall be appointed on the
recommendation of the chief justice and approval of the president.Head of the
Administration Office of the Judiciary shall at the same time be both the secretary and
spokesman for the Supreme Court and shall have the following qualities:
1) Must not be younger than 30 upon appointment.
2) Have higher education and have enough administrative experience.
3) Have good character and moral and be well-known.
4) Not be convicted with anti-human crime, felony or deprived from civil rights.
3. The Supreme Court shall have professional and administrative branches, which operate
under the framework of General Administration Office of the Judiciary. Organization
and structure of the professional and administrative branches shall be regulated by
special regulation.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٧
4. General Administrative Office may create, if required, other branches after the consent
of Supreme Court and approval of the President
Judicial powers and duties of the Supreme Court:
Article 24:
The Supreme Court shall have the following jurisdictions and duties within the scope of
interpretation of laws and judicial issues:
1) Assessment on conformity of laws, decrees, legal documents, international contracts
and
conventions with the Constitution and their interpretation based on the government or
courts demand in accordance with law.
2) Propose for draft law on regulating the judicial affairs to the national assembly through
government.
3) Revising the rulings of courts due to presence of new reasons based on complaint by
the
AGO or by party to the claim according to the mentioned provisions and arrangement in
the law.
4) resolving Courts’ Conflict of Jurisdiction and submitting jurisdiction of resolving a
case
from one court to the other based on proposal by the AGO or party to the claim when
reasonable grounds arise.
5) Studying reasons and making decision on extraditing criminals to foreign states in
accordance with law.
6) Studying reasons of a charge made and making decision on submitting the Afghan
citizen to the foreign state in the light of article 28 of the Constitution.
7) Ensuring uniformity in judicial treatment.
8) Taking measures on criminal and disciplinary offences by judges.
9) Evaluating the courts inquiries on judicial issues and providing responses accordingly.
Convening sessions:
Article 25:
1. The Supreme Court shall convene its regular sessions once in fifteen days.
The Supreme Court’s extraordinary sessions shall be convened on a request by the chief
justice, proposal by the AGO or on the demand by one-third of its members.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٨
2. The required number to attend the Supreme Court meetings shall be completed by
twothird
of its members. The decisions shall be made upon by majority vote unless this law
mentions different.
3. Attorney general or, in case absent, his/her deputy to whom his/her jurisdiction was
transferred shall attend the Supreme Court meetings on criminal issues.
4. On the issues mentioned in clauses 1, 2, 3, 4, 5,6 and 8 of article 24 of this law,
decision
may be made by two-third majority of the entire members of the Supreme Court.
Overturning the lower courts decisions:
Article 26:
1. If a Supreme Court Dewan determines that the lower court ruling was contrary to the
law, fails to conform or interpret or contrary to the articles 130 and 131 of the
Constitution, it shall overturn the ruling and remand it to the lower court for issuance
of ruling. The Supreme Court Dewan may overturn a ruling which it observes as
contrary to the law even if the breach is not mentioned in the appeal.
2. If the failure in consistency or interpreting the law does not substantially affect the
ruling and the ruling is accurate and agrees to the law, the relevant Dewan may
confirm it.
Remand for invalidity:
Article 27:
1. If the Supreme Court Dewan overturns the appealable ruling due to invalidity in the
order
or invalidity in the basic procedures of the order, it shall remand the case to the relevant
court by mentioning the reasons for a decision. In the event the case is remanded to the
first court, majority of the judges who consider the case shall not have decided the case
before the appeal.
2. If there is a second appeal against the decision of the court for which the case was
previously remanded and the appeal is based on the previous reasons and grounds and the
referred court has issued the previous ruling (overturned by supreme court) with the same
(first) reasons, the Supreme Court shall take the issue into further study. If the appealed
case is overturned by the majority vote of the Court for related cases, the court for which
the remanded ruling was referred shall resolve and issue ruling and in this case the
referred court shall be duty bound to respect the instructed resolution by the Supreme
Court and their ruling at this stage shall be final.
Enforceability of orders and Rulings(Qarar):
Article 28:
The orders and Qarars by the higher court shall be enforceable on the lower courts on
newly
resolving of cases.
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
٩
Administrative Duties and jurisdictions of Supreme Court:
Article 29:
(1) The Supreme Court shall have the following duties and jurisdictions in its relevant
administration affairs:
1. Prepare the budget for the judiciary in consultation with the government
2. lead and control the administrative activities of courts of Islamic Republic of
Afghanistan
3. Approve rules and regulations to regulate matters concerning judicial and
administration
of courts.
4. Evaluate the results of judicial scrutiny and studies and taking measures to remove
defects and coordinate courts’ procedures.
5. Propose on the appointment of judges and judicial advisors to the president’s office
according to provisions of this law.
6. Propose on the appointment, transfer, upgrading, extension of the appointments’
duration
and retirement of judges according to the provisions of this law.
7. Propose on the establishment of courts and legal document registration directorates,
and
their specification of judicial and administration jurisdiction to the president’s office.
8. Implement the budget of the judiciary.
9. Providing necessary facilities for the courts’ activities.
10. Holding judicial practice course.
11. Taking appropriate measures for enhancing the knowledge and experiences of judges.
12. Monitor performances and activities of employees of judicial authority.
13. Prepare annual statistic report of all courts judicial activities.
14. Other duties and jurisdictions which are delegated to Supreme Court according to this
law and all other laws.
(2) The powers set forth in clause one of this article shall be implemented through the
General
Administration Office of the Judiciary.
Powers of the head of Supreme Court (chief justice)
Article 30:
The chief justice shall represent the Judicial Authority of Islamic Republic of
Afghanistan and
shall have the following jurisdiction and duties:
1. lead the judicial and administrative activities of the Supreme Court;
2. preside over the meetings of the Supreme Court;
3. chair the judicial sessions of the relevant Dewans of the Supreme Court as needed;
4. issue orders on the inspection of courts’ activities;
Supreme Court’s Final Draft /Checchi/ Translation/Fayeq, May 19, 2005
١٠
5. issue orders on resolving cases resulting from crimes and judicial and administrative
violation by judges;
6. monitor the implementation of courts final decisions;
7. monitor and control appropriate expenditure of the judicial budget;
8. delegate all or some of his/her powers to one of the members of the Supreme Court
when
sick, on leave, absence and other reasons;
9. monitor activities the General Administration Office of the judiciary;
10. provide reports on judicial and administrative activities of the judiciary to the
president;
11. Propose on pardoning, mitigation of imprisonment and other punishments of judges
to
the president’s office;
12. other assigned powers in accordance with the provisions of this and other laws;v