The Government of the Islamic Republic of Afghanistan (GoIRA) was established under the 2004 Constitution, which defined the powers and functions of the executive, judiciary, and legislative branches. Under it, the president was constitutionally considered the head of state with authority in the three branches mentioned above. As the head of state, the president had the constitutional power to adopt administrative reforms to strengthen the government. For example, this power was used in practice to adopt structural and administrative changes in government entities, including dissolution. The presidential decrees pertaining to structural and administrative changes would usually include the status of assets, employees, and official documents of the concerned entities.
The executive branch of the GoIRA was also led by the president and included ministries. The ministers were accountable to the National Assembly, a parliament comprising the House of People/Wolesi Jirga and the House of Elders/Mashrano Jirga or lower and upper houses, respectively. The National Assembly was vested with the power to review and assess the performance of ministries and to hold them accountable. The Constitution recognized the judiciary as an independent branch of the state, with the Supreme Court as the highest judicial organ leading the country’s judicial branch. The Supreme Court had nine members nominated by the president and approved by the lower house of the National Assembly. The Attorney General’s Office (AGO) was vested with the authority to investigate crimes and file cases against the accused before the proper court.
This framework, established by the 2004 Constitution, governed the GoIRA until its collapse on August 15, 2021.
The legislative process during the GoIRA
By definition, under Afghan law, legislative documents include laws, legislative decrees, regulations, and rules or guidelines. Each type of legislative document had a unique legislative process, but this section will discuss only the process pertaining to laws.
The legislative process for a law proposed or drafted by the government or executive branch during the GoIRA comprised several steps. First, entities belonging to the executive branch of the government, such as the ministries, had the authority to draft a law. In addition, the Supreme Court had the drafting authority for the laws related to the judicial sector. Next, the Ministry of Justice (MoJ) had the responsibility to review the draft law with an additional assessment by the Legislative Committee. The review primarily served to ensure the law conformed to Sharia (commonly referred to as Islamic Law). Following the review, the Council of Ministers had the authority to issue the confirmation for the draft law. Next, the National Assembly was legally authorized to issue the approval, and the president had the authority to endorse it. The MoJ was then responsible for publishing the law in the official gazette for public awareness. After publication, the executive branch was primarily responsible for enforcing the laws.
In addition to the above, the National Assembly had the legal discretion to legislate on its own initiative, and the Supreme Court had the legal discretion to draft a law related to the judicial sector and process it further through the executive branch.
Furthermore, the MoJ was required under the 2017 Law on Manner of Processing, Publication, and Enforcement of Legislative Documents to prepare a draft Plan of Legislative Work for onward submission to the Cabinet for approval. The Plan of Legislative Work was an annual plan created by the MoJ for the government to determine what new legislative documents would it need. The relevant government entities were required to report their legislative needs to the MoJ. This was an effort aimed at eliminating legal insufficiencies that might delay the administrative progress of the GoIRA.
Notably, legislation during the GoIRA had prerequisites to comply with Sharia. Pursuant to Article 3 of the Constitution, “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.” Thus, that legislation in Afghanistan had to comply with Sharia was a constitutional principle. In addition, the 2017 Law on the Manner of Processing, Publication and Enforcement of Legislative Documents focused on compliance of legislative documents with Sharia.
The legislative process and civil society under the GoIRA
The drafting entity would often invite comments and arrange consultation meetings with private sector and civil society representatives during the drafting stage. Consultations with civil society and private sector representatives were perceived to be a means to include the public’s voice in the legislative process. The mentioned groups were supposed to ensure the interests of the general public. In addition, some of the entities would publish relevant draft laws and/or regulations on their websites for the general public to access. This is how the public would learn what changes are forthcoming in a particular area.
Furthermore, civil society organizations often conducted trainings across Afghanistan on the laws whose implementation was considered to have social consequences. Thus civil society organizations performed the role of increasing public awareness of laws with social consequences and acted as a bridge between the people and the government.
The Islamic Emirate of Afghanistan (IEA)
The IEA, also known as “Taliban rule,” is led by an Amir ul Mu’minin, which roughly translates to Supreme Leader. The IEA also features a prime minister who has several deputies.
As recently observed, the Supreme Leader has issued decrees about the country’s judicial, executive, and legislative affairs. The Supreme Leader also frequently makes appointments within the administrative branch of the IEA.
The status of laws under the IEA
The status of laws adopted under the GoIRA is unclear. The IEA has neither confirmed nor rejected the enforceability of the laws in writing. The IEA is observed to have maintained the view that any law contradicting Sharia will not be enforced. Written notification to this effect has yet to be made. In practice, the IEA has stopped the enforcement of some particular laws, such as the Insurance Law. It is further observed from practice that the IEA continues to use some of the GoIRA’s regulatory laws, such as taxation, nevertheless the status of some tax incentives available under the GoIRA is currently unclear, such as tax exemption. It is further observed that the IEA has disavowed the Constitution without any formal procedure.
Additionally, the IEA has taken on the duties of the Sciences Academy of Afghanistan (SAA). The SAA reportedly reviews the GoIRA’s laws for their consistency with Sharia and reports to the Cabinet or relevant entity.
Administrative changes under the IEA
The regulatory regime of the IEA has made administrative changes. It dissolved the following entities: the National Assembly, the Afghanistan Independent Human Rights Commission, the Independent Commission for Overseeing the Implementation of the Constitution, the National Security Council, and the High Council for National Reconciliation.
Information about the assets of the dissolved entities, which may include financial assistance from international donors during the GoIRA, is absent from the dissolution orders.
Additionally, the duties and powers of numerous entities have changed. For instance, the Attorney General’s Office, which formerly had the power to investigate crimes and file claims against the accused, currently lacks those powers. In an August 2022 circular, the Attorney General’s Office and its regional offices were instructed not to accept new criminal cases for investigation. It is expected that, in absence of a fully functioning Attorney General’s Office, the courts may conduct investigations in criminal cases. Whether the courts have the capacity to conduct both the investigations and administer the associated proceedings is yet to be seen and may prove challenging in practice, given the judicial structure of the country. There has yet to be any notable assignment of new duties to the Attorney General’s Office that has been made public.
Moreover, there have been developments within the judiciary and executive branches of the IEA to separate the General Directorate of Rights (locally referred to as the Huquq Directorate) from the MoJ to merge it with the Supreme Court. Huquq’s main functions under the 2020 Law on the Manner of Acquisition of Rights are to conduct an initial review of commercial and civil claims before their submission to competent courts, provision of means for the parties to settle the dispute amicably before judicial proceedings, and enforcement of final court orders. The logic behind Huquq is to speed up the process of obtaining rights in commercial and civil claims and to reduce the caseload of civil and commercial courts. As per an October 2022 decree of the Supreme Leader, the Administrative Offices of the IEA, MoJ, and the Supreme Court are instructed to prepare a “practical plan” of merging the Huquq with the Supreme Court and implement the same after its approval by “leadership” which presumably is a reference to the Supreme Leader.
The legislative process under the IEA
As indicated above, the status of the GoIRA’s laws is generally uncertain at present. According to some local reports based on the IEA’s cabinet resolution adopted in November 2021, all the ministries were instructed to point out and report within one month the laws, decrees, and regulations of the GoIRA which have a “Sharia problem” [referring to inconsistency with Sharia] to the Cabinet. The MoJ was reportedly assigned to collect and present the information to the Cabinet. Additionally, the SAA’s role in reviewing laws for consistency with Sharia was expanded, particularly in financial and business law sectors and other administrative matters. It is reported that the Cabinet has approved the establishment of a new center within the organizational framework of the SAA for banking and financial issues.
In November 2022, the MoJ published an order of the Supreme Leader regarding the “processing of principal documents.” The decree does not define a principal document, but it can be concluded from its content that the decree contains a process for new legislation. Under this new process, a government entity requesting the law shall prepare the initial draft. The drafting entity shall form and assign a committee comprising “Islamic scholars, experts and experienced employees.” The drafting entity shall then refer the initial draft to the MoJ for its “Sharia research, review and assessment”. The decree instructs the MoJ to conduct the committee review, and the MoJ will produce the final draft of a law. According to the decree, the MoJ must then share the final draft with an “independent commission.” That commission has not been formed nor its members announced. However, it is mentioned in the decree that the commission shall have a secretariat and a “special administrative structure.” The decree further states that the commission is the final or ultimate authority to review the final draft and has the authority to make corrections. The decree explicitly mentions that the draft shall be considered ready for endorsement following the commission’s review. Next, the final draft shall be presented to the Supreme Leader for endorsement. The legislation will then be enforced by the executive branch and shall be considered enforceable after the Supreme Leader’s endorsement, though the case might differ considering the content of the legislation. Lastly, the legislation shall be sent to the MoJ for publication in the official gazette after endorsement. As elaborated above, the IEA legislative process does not include consultations with the private sector or civil society organizations.
The information in this article is not exhaustive of all legislative and regulatory changes made since the fall of the GoIRA on August 15, 2021. However, it is notable that all changes made under the IEA require legislative and regulatory provisions to comply with Sharia without additional explanation. Furthermore, the former GoIRA’s involvement with the private sector and civil society organizations has dwindled under the new government. These changes have caused uncertainty in the country and a host of serious concerns: the public’s lack of understanding about the IEA’s regulatory actions and the toll it has taken on the economy, including foreign investment, which is at risk due to uncertainty regarding legitimate expectations of investors about predictability, in addition to other reasons, and the overall economic growth of the country.
Zahid Omarzai is a Senior Associate Attorney at a law firm in Kabul, Afghanistan. He was the head of Afghanistan’s Center for Commercial Dispute Resolution, at one point in time, during the GoIRA through which he founded institutional arbitration and developed other alternative dispute resolution mechanisms in Afghanistan, which are currently used by private parties in the country given certain judicial limitations.