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Section 19. Science of law
Section 19. Science of law
Omirzhanov Yesbol,
candidate of Jurisprudence, professor of international law Department al-Farabi Kazakh National University, Almaty E-mail: [email protected] Seraj Qutbul Arefin,
Student of the 1st year master degree of international law Department ul-Farabi Kazakh National University, Almaty
Pecularities of Afghanistan’s criminal law
Abstract: This article addresses the peculiarities ofAfghanistan’s criminal law. It includes brief information about criminal law of Afghanistan, afghan penal code, the role of Shari’a and its relationship with the criminal law of Afghanistan.
Also, this article discusses the core components of the afghan criminal law: the elements of a crime, criminal liability, punishment, and crimes proscribed under Afghan law. Some recommendations are focused in the article to remove the weak points and problems of available criminal law of Afghanistan.
Keywords: Afghanistan, criminal law, crime, punishment, criminal responsibility, Shari’a, constitution, penal code.
Introduction
The legal system of Afghanistan is affected by Roman Germanic legal systems, Islamic law and common law. The criminal procedural law of Afghanistan is affected by Roman Germanic legal systems. For instance in the section of crime division, trial processes and types of imprisonment is perfectly following this system. But the substantive criminal law of Afghanistan is mostly Islamic and the principles of Islamic criminal law are observed in the criminal code of the country and the constitution also emphasizes on it.
In addition, that the third article of Afghanistan’s constitution emphasizes that “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan, article 130, 131 of the constitution and the first article of Afghanistan’s penal code also describes that courts must observe and implement the Islamic law. Therefore it is concluded that Islamic law is the main source of substantive criminal law of Afghanistan [4].
It means that, Islamic law guides all aspects of Afghan criminal law, from the Constitution to the Criminal Code and its individual statutes.
While codification plays an important role in defining and publicizing criminal law, all legislatives in Afghanistan, including the Penal Code, is consistent with Islamic law [2, 87].
Criminal charges based on both Shari’a and the Penal Code is prosecuted in the primary courts. According to Article 130 of AC and article 1 of the APC, the sharia law (Hanafi jurisprudence) is one of the sources of afghan criminal law. Article 1 of the 1976 Penal Code states, “This Law regulates
the ‘Ta’zeeri’ crime and penalties" Those committing crimes of ‘hodod,’ ‘qessas’ and ‘diat’ shall be punished in accordance with the provisions of Islamic religious law (the Hanafi jurisprudence)” [3].
Therefore, it is extremely important that prosecutors, defense attorneys, and judges know both the law of the Penal Code and the provisions of the Hanafi School of Islamic jurisprudence [6, 3].
Whereas Penal code is the main content of criminal law of a country, the main principle of criminal law, types of crimes, criminal responsibilities and finally the criminal policy of a country is defined and described in penal code. In the article, a brief condition of available criminal law is considered and it’s to be mentioned that also the challenges and weak points of the penal code is appointed.
History of criminal law in Afghanistan
To study criminal law of Afghanistan, it is important to understand the historical roots of crime and punishment in Afghanistan. Although the history of Afghanistan’s criminal law is comprehensive and cannot be described in detailed in this topic but it is tried to overview the main points of the issue.
The history of Afghanistan's criminal law is studied in to two periods:
1. Before codification: During these periods there was not any penal code in Afghanistan and life in these periods had the tribal form, the governments were weak and the intervention of governments in criminal issues were rare or did not intervene.
On one hand, there were not modern legislations and from other hand the governments were weak, therefore the
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solution of criminal issues was done by criminal interaction or Islamic law.
2. After codification: This period has been started with approving of judicial systems in the 18th century during the era of Ahmad Shah Durrani and was improved with approving of (general penal code 1923) during the governance of King Amanullah [11, 50].
3. In 1965, a comprehensive criminal procedure code was approved — a major step towards the standardization of the criminal justice system. The 1965 code covered all aspects of criminal investigation and adjudication: investigation, detention, interrogation, search and seizure, evidence gathering and prosecution, the treatment of witnesses and the use of experts, and the right to appeal. Other significant developments in the late 1960s included further substantive criminal law statutes (e. g., the 1967 Law on the Prevention of Hoarding) and institutional reforms (e. g., the 1967 Law of persecutory).
The other major development in the codification of criminal law in Afghanistan came in 1976, when the country’s first penal code was approved. The Penal Code — published in Official Gazette No. 347— is an extensive document containing eight sections and 523 articles. For the first time, one unified document defined offenses and regularized punishments in all categories of crime except military law and crimes for which Islamic law provided specific punishment (i. e., Hudud, Qisas, and Diat crimes). From a codification perspective, the adoption of the Penal code was perhaps the most important development in criminal law in Afghanistan, and much of the Penal Code is still in use today.
Finally, following the 2001 fall down of the Taliban, Afghanistan began a new era of codification. Recent reforms in both criminal procedure and substantive criminal law have been codified through such documents as the 2004 Interim Criminal Procedure Code, the 2004 Law on the Campaign against Financing Terrorism, and the 2006 Counter-Narcotics Law and the 2009 law of violence against women.
Sources ofAfghan Criminal Law
There is no single source of criminal law in Afghanistan. Rather, Afghanistan’s criminal law draws on several sources, many of which have binding force and require criminal sanctions for violations. It should be noted, of course, that Islamic law guides all aspects of Afghan Criminal law, from the Constitution to the Criminal Code and its individual statutes. Yet, each of these individual documents plays a unique and important role in Afghanistan and in the criminal justice system. There are five major sources of criminal law: the Constitution, Shari’a, Penal Code, statutes, and legislative decrees [2, 9].
a. The Constitution: The Constitution of Afghanistan is the most important source of the Afghan penal law. In accordance with the hierarchy of laws, no statute or state regulation should be against the Constitution. Numerous articles of the Afghan Constitution (AC) deal with principles and matters related to criminal law which the legislators in
the National Assembly and other law enforcers must obey. Some of these articles of the Constitution are: Articles 3, 7, 22, 40, 49, etc.
b. Shari’a: The primary source of criminal law in
Afghanistan is the law of Shari’a. Under Shari’a, there are three types of crimes: hudud, qisas, and ta’azir. [8, 23].
In Afghanistan, the law of the Shari’a dictates the punishments for hudud and qisas crimes. The law of the Penal Code is accepted as defining the crimes and punishments for ta’azir crimes. Indeed, Article 1 of the 1976 Penal Code states, “This Law regulates the ‘Ta’zeeri’ crime and penalties. Those committing crimes of ‘hodod,’ ‘qassas’ and ‘diat’ shall be punished in accordance with the provisions of Islamic religious law (the Hanafi religious jurisprudence).”
c. Afghan Penal Code: The current Penal Code was written during the presidency of President Daoud after his successful coup against the monarchy (1976). One of the goals of president Daoud’s in the beginning of his government was to embark on a program of law codification. It was during his time as president that most of the codes upon which Afghanistan now relies, including the Code of Criminal Procedure and the Civil Code, were written. The Penal Code was also a product ofPresident Daoud’s codification campaign. Although the Penal Code was not considered the law of the state during the Soviet era, the civil war, and the Taliban rule, the Bonn Agreement restored it as the governing law of Afghanistan in 2002. While there has been some discussion of rewriting the Penal Code, but for now, the 1976 Penal Code remains in force. The durability of the code is due largely to its completeness and to its thorough descriptions of criminal activity. The penal code of Afghanistan has 523 articles. It divides in tow main parts. The first part discusses the general principles of the application of the Penal Code. The second part focuses the foundation for what constitutes a crime, the elements of a crime and criminal responsibility, and what types of punishment are possible [2, 12].
d. Statutes: The statutes that have been approved by parliament are the main sources of criminal law, and are divided into criminal and civil laws. Among the former are the Penal Code, the Criminal Procedure Law, the Juvenile Code, the Anti-Narcotics Law, the Law on Organization and Jurisdiction of Courts, the Military Penal Code, etc. To enforce these criminal laws, it is then also occasionally necessary to refer to other laws including Civil Law, the Press Law, Law on Price Control and Prohibition of Hoarding, Government Employees Law, etc.
e. Legislative Decrees: All legislative decrees that have been issued in accordance with the Constitution of
Afghanistan are equivalent to laws and are obligatory until they are annulled or amended by the National Assembly. Aside from laws that have been enacted through the legislative process, the President of Afghanistan also has the power to issue Legislative Decrees in accordance with the Constitution, which are equivalent to legislative acts and have the force of law. Examples of such laws include the
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Police Law, the Law against Bribery and Official Corruption etc [1, 75].
Classification of Crime based on penal code of Afghanistan
The classification of crime is an appropriate method of identifying what qualifies as crime as well as better understanding the relevant legislations. Each category of crime thus has a set of particular legal considerations which apply to it. It is to be mentioned that the criminal law ofAfghanistan has been classified crimes based on severity, occurrence and form which are as follow:
Classification of Crime in Terms of Punishment Severity
In Afghanistan’s legal system, according to Articles 23 to 26 of the APC, crimes of this category are divided into three groups: felony, misdemeanor and Obscenity. According to Article 24 of the APC, a felony is an act for which the punishment could be execution, life sentence or long-term sentence. According to Article 25 of the APC a misdemeanor is an offence for which the punishment could be imprisonment of more than three months to five years, or a fine of more than 3,000 Afghanis. According to Article 26 of the APC, an Obscenity is a lesser offence that entails a punishment of imprisonment from 24 hours to three months or a financial penalty of up to 3,000 Afghanis.
Classification of Crimes in Terms of Occurrence Time
Some crimes only take place by doing or refusing to do an act, and therefore there is no gap between the criminal act and its result, e. g. insulting or stealing, etc. These are called immediate crimes. In some cases, alternatively, there is period of time between the criminal act and its consequences. In this case, the completion of the criminal act is not possible without continuation of the material component of crime, such as an illegal detention/confiscation. This category of crime is called continuous crime. Differentiating between immediate crimes and continuous crimes has some legal implications which include how long laws apply to the crime.
Classification of Crimes in General, Political and Military Terms
A political crime is an offence that aims to change the government as a whole or to bring about infrastructural reforms, but on the condition that no violence is involved. Political criminals, unlike conventional criminals, do not commit their crimes for personal benefit. They are therefore entitled to some privileges, which include a trial in the presence of a jury, the lack of application of the principle of recidivism, no compulsion to wear prison uniform, no extradition, etc.
A military crime is an act which is committed by those who are recruited in the armed forces, including the police, and in relation to their military duties. According to the constitution (Article 134), the prosecution and definition of this type of crime are conducted according to special sets of laws (the Law on Military Crimes). Crimes which are neither political nor military in nature are called general crimes [1, 79].
Also afghan penal code recommends some penalties against these crimes which are classified as follow:
Classification of Punishment based on Severity
In this case, the most famous classification is dividing the punishments into criminal cases, misdemeanors and moral cases. This division forms the basis of the classification of crime in the APC. Articles 23 to 26 of this law relate to this issue.
Classification of Punishment based on Islamic Jurisprudence
According to Article 1 of the APC, the shari’a law of Hanafi jurisprudence is one of the sources for the definition of crimes and punishments. In Hanafi jurisprudence, the punishments are divided into hudud (Islamic prescribed punishment), qisas (killing in retaliation), deeyeh (blood money) and taziraat (discretionary punishments).
The hodood punishments include execution, stoning to death, whipping, exile, amputation of hands, etc. These punishments are prescribed for crimes such as adultery, homosexuality, drinking, fighting against Islam, and corruption (fesad fil-ard). Punishment for qisas (retaliation) takes one of two forms: killing in retaliation and amputation. In implementing qisas, issues such as equality between individuals, similarity and proportionality between the crime and the qisas are considered. Deeyeh is property or money that will be paid to the victim or his/her guardians in case it is not possible to execute qisas (retaliation), or in the case of agreement between the two parties. Taziraat (discretionary punishments) are punishments which are defined by the judge. It is also the judge who defines which crimes invoke these types of punishments. However, in Afghan penal legislation as in some other Islamic countries, the government is involved in defining the type of crimes and the corresponding discretionary punishments. The APC is a clear example of discretionary penal law.
Classification ofPunishment according to Importance
Punishments can be classified into three types: cardinal, ordinal or complementary.
Cardinal punishment is the main response or the reaction of law to a crime, such as qisas (retaliation) or execution for a premeditated murder. According to Article 97 APC, “Types of principal (cardinal) punishments are:
• Execution
• Life imprisonment
• Long-term imprisonment
• Medium-term imprisonment
• Short-term imprisonment
• Civil penalty.
Articles 98 to 111 of the APC define the duration and nature of each of these punishments. Ordinal punishment is “a punishment that will be applied to the convict according to the law, without being stipulated in the court’s ruling" (Article 112 of the APC). Various types of ordinal punishment are defined in Articles 113 to 116 of the APC.
Complementary punishment is a punishment that is prescribed for a convicted person according to the law.
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However, applying the punishment depends on what the court decides. According to Article 117 of the APC:
“Complementary punishments are:
• Depriving (the accused of some rights and privileges);
• Confiscation;
• Publicizing the ruling."
Therefore, issuing rulings for complementary punishments is optional for the court, while applying ordinal punishments to the convicted person is obligatory. Articles 118 to 120 of the APC concern complementary punishments.
Classification of punishment based on Subject
Punishments can be divided into various categories in terms of the type of suffering or limitations that can be applied to the criminal. The most important categories in this regard are:
• Punishments that take the convict’s life, such as execution or qisas (retaliation);
• Punishments that take away the convict’s freedom, such as various types of imprisonment (continued to short term);
• Civil penalties that can range from confiscation (Article 132 of the APC) to a fine [1,110].
The criminal law of Afghanistan has the positive points of its own and can supply the justice and is caused to protect rights and freedom of citizens. And oppositely this law also has the following weak points, problems that cannot observe the full rights of citizens.
1 -Despite the recognition of principle of legality of crimes and punishments in Afghanistan’s new constitution (2004), there are some materials in the penal code of Afghanistan (1976) that is now also available right now, which are in conflict with this principle. For instance the materials 126, 231, 229, 224, 221, 197, 193, 247, 246 and 427 of penal code are issues in which have conflicts with the principle. General and vague expressions are used in this material that has several types of commentary and meanings, this defect may cause to offense the rights and freedom of citizens in which are known in new constitution [3:232].
2- One of the main principles of codification of the penal code is that the criminal actions and expression should be clearly and specifically defined so as to be prevented from ambiguity. Regretfully at some cases has not been paid attention in this principle in Afghanistan’s penal code. and also some ambiguous and controversial expressions are existed in the penal code that are caused a lot of problems which are interpreted differently for instance no differentiation of abettor and person who assists the criminal [9].
3- Proportionality between crime and punishment is one of the accepted principles in penal code at some cases is also not observed in Afghanistan’s penal code. For instance some laws have been wanted to be approved in penal code and criminal law of internal and external security in case of their own special aims. For example severe of punishments mostly have been predicted for crimes related to internal and external security such as continual imprisonment and execution.
4- Another weak point of the Afghanistan’s penal code is that mostly using from imprisonment, especially shortterm imprisonment, for instance even 24 hours imprisonment has been approved in penal code of Afghanistan, while there is not less than 3 months imprisonment in other countries but they recommend fines in such situations.
5- One of the main problems ofAfghanistan’s penal code is newfound crimes, such as cyber crimes and mass crimes in which are not predicted in penal codes of the country. Currently about three million people have access to internet in Afghanistan that among of them about 750 thousand people are members of social networks. Now in Afghanistan, internet as a communicational network is not without problem and people of the country are meeting the new phenomenon by the name of cyber crimes. As information security manager of ministry of telecommunication of Afghanistan has told that last year more than 100 complaints regarding the cyber crimes have been recorded that most of them belong to social network of Facebook [8].
It’s hoped that available problems of the penal code of the country is considered and removed during the correction of the code. With consideration of the above mentioned problems, the followings corrections are recommended.
1- Judges and attorneys are facing to a problem and sometimes contradiction may appear among the laws and also public access is difficult to penal codes in case of sporadically insertion of penal code of the country in several laws. Therefore it is better to insert the penal codes of the country in a unit law in case of easy public access to them.
2- The penal code of Afghanistan does not match with the current situation of the country as it is an ancient law; it means that it has been approved during the government which was based on coup not on vote of people; however the slogans of the current government of Islamic republic of Afghanistan are freedom, democracy and human rights, moreover the current economically, socially and culturally situation of Afghanistan is different from the time of approving of the penal code, therefore it is necessary that the new penal code should be approved based on the current situation of the country.
3- After extensive evolutions and establishment of new government based on new constitution, this country has been committed to observe the international standards, therefore the legislators should be tried to observe the international standards and adopted principles in the penal code.
4- The current penal code of Afghanistan mostly based on imprisonment, even as it was mentioned that short term imprisonments up to 24 hours are also predicted, while criminology research shows that short term imprisonments do not have only amendment effects but have reverse and negative effect on criminals, therefore it is purposed that imprisonment should be decreased and instead of it alternative punishments should be inserted in to penal code. For example in 2012 Kazakhstan brought some changes in
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the penal code of the country as humanizing the criminal law, that as a result about 20 crime components were decriminalized by means of their transferring to the category of administrative violations or to the civil law relations sphere and some of economic crimes were liberalized. (10)
It is recommended that from this experience and the same experience should be used for correction and humanization Afghanistan’s penal code.
5- As it is mentioned above that based on authoritarian system of government, the proportionality between crime and punishment has not been considered so this defect causes that criminal justice is not supplied. In my believe, unfair dealing with criminals will not only decrease the crime and criminals on the contrary increases the crimes, therefore lawyers should pay attention to this point and correct this defect from new penal code.
6- We know that the views of the scholars are different in Islamic jurisprudence and according to the first article of penal code that Hudud, Qesas and Diat crimes are
referred to Hanafi jurisprudence. For this reason, it should be tried that dominant views of scholars to be collected to use in the courts.
7-As recently the cyber crimes are happened in Afghanistan and the victims of the crimes are increasing day by day as a result of no awareness and lack of sufficient notification about these crimes, therefore it is necessary that as soon as possible these crimes should be criminalized and to be inserted into penal code so as to decrease the problems caused by them.
Every state should find own way of forming it’s legal system and it can adopt some elements different legal systems. Criminal law of Afghanistan has own particular qualities and needs to be changed according to the requirements modern society. To improve upon criminal law they can use positive experience of countries such as Kazakhstan, which accept new criminal code, because ofthe new demands of society. We think, in future Afghanistan’s legislator will pay more attention to the human rights on accepting new legislative Acts in this field.
References:
1. Gholami, Hossein, Basics of Afghan Law and Criminal Justice (Max Planck Institute, 2007).
2. Stanford Law School, an Introduction to Criminal Law of Afghanistan (Afghanistan Legal Education Project (ALEP) 2008-2009).
3. Allama, Gholam Haidar, Articles on Afghan Criminal Justice, Irfan publish house, Tehran. 2011.
4. The Penal Code of Afghanistan, (October, 1976). http://aceproject.org/ero-en/regions/asia/AF/Penal%20Code%20 Eng.pdf/view
5. The Constitution of Afghanistan, (January3,2004) http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf
6. Afghanistan Justice Sector Support Program, “Afghanistan’s Criminal Justice System,” May 21, 2007.
7. Hesham Nasr, “Lectures on Penal Law Part I: Introduction to the Penal Law”.
8. http://www.bbc.co.uk/persian/afghanistan/2014/10/140920_k05_afghanistan_cyber_blackmail
9. Result sheet of correction workshop on penal code. http://moj.gov.af/fa/news/14850
10. http://ortcom.kz/en/news/criminal-law-humanization-carried-out-in-kazakhstan.195
11. Danis, Hafizullah, History of Criminal Law, Moustaqbale publish house, Kabul. 2012.
Sikorska Paulina Ewa, LLB, LLM
A Life-time Member of the Institute of Air and Space Law, Faculty of Law, McGill University, Montreal (Quebec) H3A1W9, Canada E-mail: [email protected]
For the Sake of Others: the Necessity to Regulate the Militarization and Weaponization of Outer Space
Abstract: This article discusses the legality ofmilitarization and weaponization ofouter space from the perspective of the Outer Space Treaty 1967, explains the reasons for the growing future significance of these two issues, and highlights the long-term consequences in the form of creation of space debris. The article concludes that there are some loopholes in Article IV of the Outer Space Treaty and that space powers, especially the US, should give up their national interest for the sake of the creation of a binding document that would prevent from deploying weapons in space.
Key words: militarization of outer space; weaponisation of outer space; nuclear weapons; Outer Space Treaty, space powers, national interest, space debris
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