Every nation survives by its history, as, the remaining historical values with their positive and negative effects have instructive role in gaining further experiences by individuals of the country. Our country has witnessed bright civilizations in the process of its prideful past, this land which has had constant memories related to conjunction and mixture of cultures and artistic treasures as well as political, cultural and social relation with commercial all over the world, containing structures in the areas of administration, judiciary and politics too, and functions of these organizational structures have been regulated and fabricated by laws.
As we see Widi’s melodies including religious laws were the first spark of laws and judiciary as a spiritual heritage in it. In Avista Goisht, indication has been given to Arian Monarchical organizational structure in Oxus Zone. Progressive Empires existed in East and on the bank of Dejla and Farat along with legal and judiciary system.
Zorester (Zardasht) has been a messenger of good thoughts, good words and good actions, convened the first congress or grand session in Arian society in Balkh and its members sat around the fire which was called Kanoon.
Arians held meetings called Samti and Sabha the members of which were consultants to the king in administrative, judicial and principles of administering the country’s affairs.
The Budais religious grand party which was held by Ashoka for regulating and arrangement of religious laws resulted in reformation and amendment in Budais order and creation of the way to drafting laws by the names of Mahayana (The way to emancipation from all types of narrow mindedness and prejudice).
During the dynasty of Yaftali in Seventh Gregorian Century in the north of Hindokosh there was a scholar called Dahrema Sina master of religious laws who lived there and in Bamyan lived legislators named Aria Dasa and Aria Yesna as well.
Heywan Tysing Chinese famous tourist (630 Gregorian) who paid visit to eastern parts of Afghanistan has written in his notes that, rulers and judges each had a part of the lands for their livelihood at their disposal.
With a view to investigate and interrogate crimes, penal code, trial and issuance of decision authorities existed in government organizational structure of that time.
During the period of dynasty of Sasani, the position of judiciary was extremely credential a person having experience and qualifications such as trusteeship and legal knowledge was assigned to this profession and the judge was called adjudicator and the chief justice was called adjudicator of the city or adjudicator of adjudicators.
In the first solar century of Islamic epoch, these titles have been introduced, the superior to judges, chief justice, judge, qualified scholar, Sheikh ul Islam, Sadr ul Sodoor and chief scholars; Since second solar century the Hanafi religious principles have been practiced in all courts of Balkh and Khorasan on either side of Jaihoon river the academic and judicial authority of Hanafi religion have been manifested.
During Amawee’s period the judges enjoyed practical independence and their order was enforceable both on governors and factionaries without adherence by days’ politics.
At that time judicial structures existed in the realm of Khorasan, but judges from non Arab race were appointed less.
During the period of Abbasi dynasty though caliphs were interfering with judicial affairs, but judges were appointed both from Khorasan and Arab. A special dress or uniform which had black color were determined for judges by Imam Abu Yusuf (God bless him) and the chief justice was like the justice minister of our epoch.
Abu ul Muslim Khorasani who established administrative system in Khorasan paid attention to judiciary in year (750 Gregorian), he appointed Qasim s/o Mashaje and Naqib Tamimi to judiciary of Khorasan.
The status of judiciary system of Tahiryan dynasty is not known, but Safariyan who had regular system of state authorities, parallel to other divisions, basic division, elders and executive power, law and traditions, existed as well.
During the period of Samanis in order to hear complaints and tackle cases of oppression of bureaus, special judges along with prosecutor’s office and judicial court managed affairs. The judge was recognized as vice of the king and judges were always selected from among the educated classes.
During the period of Ghaznawyan the cases were dealt with, in a stage without appealing. And judges were mostly elected from amongst people having sound view and were respected and trusted by the state, for example we can name Hussain Mahmoodi chief justice of Balkh.
In this system Ghorians were following Ghaznawyan, but the interference of Saljoqies in judicial issues was much more.
Under the rule of Changiz Khan the judicial courts were called Yargho, the judges were known as Yarghochi and the courts decisions were called as Mochalka and they had Islamic consultants as chamberlain.
Timor Lang respected judges and jurisprudents, but punishment of the criminals were confined to his own will. The punishment for a prince against an unforgiveable crime was not more than a few strikes by a stick called (Yasaaq), while the others were hanged even though they were innocent.
The Herat Timories who enjoyed wisdom and excellence valued the position of judiciary and the famous scholars of those times were appointed to judiciary that from amongst them we can name Mullah Ikhtiyaar u ddin, Mawlawi Nizamuddin and Abdul Qadir under the reign of King Hussain Bayeqra were called chiefs of justice.
Babur at his time of reign had compiled a book by Sheikh Noor u ddin Khawani under the title of Baburies verdict. Shir Shah Afghan paid special attention to court of justice and judiciary; saying that my son and the public are equal to me before justice.
His majesty Ahmad Shah Durani strictly adhere by the principles of administration of justice to people, protecting public rights, religious, faith and national laws.
Both in capital and provinces Sharia courts and judiciary existed and the spiritual stratum was respectable and all judicial apparatus and mosques were at their hand.
The chief justice of that time was Mullah Mohammad Khan uloom for the purpose of guiding judges compiled a book under the title of Ahmad Shahi verdict by Umdai al Umara Abdullah Khan Deewan Begi Wakil ul Dawla and Mullah Faizullah Khan.
Timor Shah Mawlawee Abdul Rahim s/o Qazi Abdul Rasool was ordered as chief justice. Moreover, at that time there was another title in the name of Jalees Sultan who was responsible for academic and sharia consultation of the king during king’s presence and absence. And sharia provisions were enforced by an authority under the name of Mir Adel and Darogha Islamic Justice.
The Sharia court of Kabul was located on the western part of Bala Isaar, the gardens of the king and judge during spring and summer seasons were the location for receiving the petitions of public and was the justice house and at this time in addition to formation of Sharia courts the ministry of justice existed as Madar ul Maham that Judge Faizullah Khan had held this position, but under the rule of king Shah Zaman the minister of justice was called as chief justice.
Shah Zaman, Shah Mahmood and Shah Shuja had organizational structure which was similar to judicial, the posts at that time were called chief justice, superior to judges, possessing sciences, trustee of Islamic laws, court trustee, courts trustee, and each one was equivalent to high ranks of minister of justice, deputy minister of justice and chief justice. And a talented scholar in the name of Azizuddin was at the head of Islamic laws trustee.
Ameer Dost Mohammad khan personally endorsed courts important decisions, and justice at that time included tow judicial components and police authority (parallel to sharia provisions claims were dealt with. Mullah Mohammad sayed khan an Mullah Abdurahman Khan Barekzai were as chiefs justice at that time.
At the first period of time of Ameer Shir Ali Khan, Mullah Abdurahman as Khan uloom and khan mullah administered the justice affairs of the country. Ameer Mohammad Azam khan and Ameer Mohammad Afzal khan,appointed abdurahman khan the judge and then his son Sadudin khan as khan auloom and as Chief Justice.
In the second period of his kingdom Ameer Shir Ali Khan following the reformation program of Alama Sayed Jamal u ddin Afghani in addition to formation of cabinet presided over by Noor Mohammad Shah Foshanjee, established justice institutions in the modern method. At this time Qazi Abdul Rahman Khan was chief justice and Qazi Abdul Salam Khan performed his duty as Minister of Justice.
During this period a military court for tacking cases of crime existed as well as a 12 member council consulting the king in administration of the country’s affairs which was selected by the king. Military statute, military principles and budget law were also codified and other books under title of Zakheerat ul Mulook, Fatawa and Arkan Salat were published in Shamsunahar press as well as a school called Malikzadaha in which law and politics were taught was also established.
Amir Abdul Rahman believed in independence of judiciary. Sharia provisions were enforced equally both on king and beggar even if a claim as to the king took place was he was summoned before the court, but if the judge criticized the action of the king his punishment was to be threatened to death.
A penal board comprising of qualified judges gave test, books such as Asasul quzat, Ehtesabudin and procedure for judges to settle hostilities and execution of trials were compiled by Maulawi Abdrauf Khaki, Mullah Abobaker and Mullah Ghulam Ahmad.
Paying attention to petitions of the people based on absoluteness of courts the king suggested establishment of a high court comprising of 12 members in Kabul city .these had the role of judiciary having power of decision making in the appellate stage, and paid attention to primary decisions in case of appeal made by one of the parties and considered over decisions of retaliation and correction -execution at the Supreme Court stage.
When Amir Habibullah Khan acceded to throne in year 1900 Mullah Saaduddin Khan was appointed as chief justice.
Moeen Ul Ahkaam or Zia Ul Ahkaam which were not published until then was published under the title of Saraaj Ul Ahkaam or Fi Mamelaat Ul Islam with Saraaj Ul Arkaan in 674 pages. Military court and military judge was also appointed at this time.
During the period of Amir the courts consisted of Sharia court, justice court, property court, postal court, funds court, arbitrator ( Panchaat) court, order court. And also statutes for transit, education, purchasing commodities from foreign states, wedding, condolence ceremony, identity card, income and taxation and regulations for police officers were codified and a legislative session was created as state assembly session. With restoration of independence of the country Amir Amanullah Khan brought remarkable transformations in political, economic, administration and judiciary areas.
In March 1919 the ministry of justice was founded as justice oversight and Mohammad Ibrahim Khan Barekzai as the first minister of justice held his post and his consultant was Mir Zamanuddin Khan Badakhshi , four types of courts existed, beside ministry of justice,: “reformative court, primary court, appeal court and supreme court” all the claims were firstly referred to reformative court, in case the parties did not satisfy the case was referred to primary court. Decisions of Supreme Court except execution sentence and long term imprisonment which were referred to the king for endorsement by the justice minister were obligatory.
Sciences council, state council and laws enacting convention were founded these institutions decided to codify numerous statutes, the mentioned statutes were published in the secretariat office press of ministers’ high council and then it was published at Rafiq press.
Iblaagh gazette was published in both Pashto and Dari languages by Mirza Mohammad Akbar Khan the chief editor on Mondays first of Hamal SY 1300 fallen on 21st March 1921. This gazette played the role of today’s official gazette in which some of decrees, royal declarations etc were published and posted on walls in Kabul and Kandahar cities so that it would be an aid to raising public awareness.
In article 33 of basic organizational structure statute under the title of central administration in addition to introducing the ministry of justice, indication was given to its duties. And it was mentioned that “in Afghanistan the ministry of justice is mandated to regulate justice affairs and disciplinary power.”
In the above mentioned statute the organizational structure of the ministry of justice in year 1921was as below:
- Legal affairs directorate
- Executive directorate
- Commercial affairs directorate
- Personnel directorate
- Correspondence directorate
And also the article 35 of the mentioned statute states that:
“At the ministry of justice Supreme high board, police department, personnel directorate, accountancy clerkship, correspondence clerkship and papers clerkship were available.”
In this period that the ministry of justice was established the chief justice was also existed in the following composition:
Military judge, law appellate judge, punishment appellate judge, law primary judge, punishment primary judge, primary and appellate personnel court judge, securities judge and reformative court judge
In order to enact better laws in 14 Sep year 1920 law enacting session which later on was called as state council under the chairmanship of Sardar Shir Ahmad Khan and co-chairmanship of Badri Baig Turkey was created. Nik Mohammad Khan, Fatih Mohammad Khan, Jumma Khan, Habibullah Khan, Abdul Ghani Khan, Najaf Ali Khan and Mohammah Qasim Khan were the members of this council that as result of their constant attempt more than 60 statutes were codified and processed. The basic statute of high state of Afghanistan which was approved in grand assembly year 1922 in Paghman district was one of the most important statutes and greatest political and legal document of the country.
So far as historical texts implies when enacting of a statute is required for a ministry or department the mentioned ministry or department drafted its design and devolved it to the state council, the state council after consideration, presents the drafted design to the high session of ministers and after the approval and endorsing by the king is referred to the first authority for implementation.
Amir Habibullah Khan (The servant of the religion of Rasool ul allah peace be upon him) had no minister of justice in his state organizational structure only Mullah Sahib Khan as war priest, Malik Mohsin as the governor of Kabul and Sayed Mohammad the deputy to minister of justice and was carrying out the job of supreme court judge and decided the cases. And a session was existed under the title of Tanzim Islamia headed by Mohammad Azam Khan Tatamdaraee.
Relative use was made of some of systems and laws of the Amania period according to deceased Mohammad Alam Faizad who has written an article in the book named second seminar of Afghanistan’s tomorrow, the king tried to enact basic principles which was not enforced but it is not to be remained unsaid that all decrees and orders of the Habibi government were reflected in Habib Ul Islam gazette.
During the period of Mohammad Nadir Shah, Fazil Omar Mojadadi was the ministry of justice and then Fazil Ahamd Mojadadi held the post and had extensive authority. Triplet courts including primary, appeal and Supreme Court dealt with cases and directorate of scholars association and reformative court existed as well.
Moreover, basic principles year 1930 of the high tribunal when required for trial of state ministers was so provided that after the execution of the assigned task was repealed.
Hai allal Fallah magazine media of scholars association started its publication in the month of June, 1930 under supervision Mullah Bozorg Sahib Tagab and head of correspondence Mullah Mir Khan Chaparhari and this magazine from 1936 on years coincident with forth decade the monarchy system by chief editorship of Abdul Karim Gadaa, Mohammad Shah Irshad, Mohammad Yaqoob Komak, Abdul Ahad Ashrati, Mohammad Akram Abqari named as Al Falah and from 1963 by chief editorship of Abdul Wahid Wojdani and Samandar Ghoryayee named Niaw and then Judiciary and then righteousness and Justice which manifested great academic and cultural services which continues up to now.
The organizational structure of the ministry of justice in the year 1942:
Fazil Ahmad Mojadadi the minister, chief justice, head of scholars association, personnel director, papers director, control director.
The organizational structure of the ministry of justice in the year 1953:
Minister of justice, deputy minister, chief justice, head of scholars association, auditing director, secretariat, executive and personnel directors and control director
The organizational structure of the ministry of justice in the year 1956:
Sayed Abdullah Khan the minister, deputy minister, secretary, moreover, in year 1958 for the purpose of regulating legislative affairs, principles were published and legitimacy of laws were codified and processed.
The organizational structure of the ministry of justice in the year 1961:
Sayed Abdullah Khan the minister and the organizational structure in the capital were as below:
Deputy Minister, chief justice, head of scholars association, the general director of codification of laws (this directorate upgraded to department in year 1963 and in year 1963 law for administration of verdicts and legislation was processed in 10 articles), secretary , general administration director, budget director, personnel director, accountancy director, papers director and service delivery director. The constitution of year 1964 provided the establishment of the Supreme Court as a big pillar of triplet powers and based on it, in month of August year 1966 supreme judiciary society under the chairmanship of Mohammad Qadir Tarakai as an independent judicial nucleus was established and judiciary was separated from ministry of justice and acquired its independence.
And then in month of Oct 1967 deceased Prof. Abdul Hakim Ziaee was appointed as chief justice of Afghanistan. In this constitution the Attorney General Office was also provided, that the mentioned institution till year 1980 was a part of ministry of justice and till recent years the minister of justice was also acting as Attorney General and the first act regulating the affairs of attorney general office was made in year 1964.
In year 1964 state cases department was established in order to defend the moral and material interests of the state against the persons.
And for the purpose of regulating affairs related to it law for management of state cases having 10 articles was enacted and was published in issue number 17 dated 18 Dec 1964. And the law for management of defenders affairs were also codified and were published in issue number 19 dated 05 Feb 1964 and was prepared for implementation and enforcement.
The general director for laws codification in year 1963 was upgraded to department and law of verdicts and legislation enacted in 10 articles and was published in issue number 17 dated 18 Dec 1964 of official gazette. In 06 March 1963 an official gazette aimed at publication of all decrees, monarchy declarations, laws, regulations, charters and bills, high meeting of ministers’ approvals, international protocols, treaties, agreements, official declarations and other legislative documents and commercial announcements for public awareness was at the concession of the ministry and under the chief editing of Mohammad Yousof Roshanfikr started its publication and law of official gazette started publication of its first issue as well.
In month of Nov 1964 the central laws (Huqooq) department was separated from ministry of interior affairs and became a part of ministry of justice and in provinces and districts belonged to the courts, but in 1967 again it was operating under the governor.
This authority later on upgraded to department and now in each province its organizational structure exists as departments and in local administration organs as directorates and for its legal operation the law of procedure for obtaining rights was enacted in year 1987.
The organizational structure of the ministry of justice in the year 1970:
Minister, deputy minister, secretary, high department of attorney general office, scholars association department, legislation department, state cases department, juvenile correction department, general auditing directorate, central rights directorate, foreign relation directorate, official gazette directorate, general directorate for registration of documents and properties after the establishment of republic under the leadership of Mohammad Daud Khan the judiciary system of the country once was named as high judiciary council and was integrated into ministry of justice and the decree number 3 dated 26 July 1973 provided and Dr. Abdul Majeed as the minister of justice, attorney general and head of high judiciary council were appointed and Ghulam Ali Karimi as general sub director of judiciary administration was assigned.
Likewise Mawlawee Abdul Basir chief justice, Dr. Sayed Afghani, Samiuddin Zhowand deputy minister of justice ministry, Abdul Hadi Hedayat assistant attorney general members and Dr. Henatullah Iblagh were secretary of this council.
Brief organizational structure of the ministry of justice in 1973:
General administrator of judiciary, special police court, judiciary audit department, scrutinizing and studies department, human resources department, correspondence and inspection department, securities and document registration department, judiciary administration department, attorney general office, general legislation department, high department of endowment (Awqaaf), state cases department, scholars association department, juvenile correction department which were established in 30 May 1970, general rights (Huqooq) department and correspondence general department.
High department of endowment (Awqaaf) had a magazine from 1971 on under the title of endowment (Awqaaf) which was published under the chief editorship of Asadullah for awhile.
Deputyships of attorney general office comprised of, deputyship of scrutinizing and petitions affairs, deputyship of judicial prosecution affairs, deputyship of investigation and controlling, deputyship of high court judges, deputyship of police special court.
Following to 27 April 1978 coup d’état the judicial system separated from the ministry of justice and the supreme court came into being once more, the ministry of justice continued its activities intended for legislative issues, states’ rights and interests defense, individual rights defense, juvenile correction and their orientation to sound and honorable life, in spite of enormous difficulties could manage to perform these critical tasks particularly in the area of legislation.
Presently the organizational structure of the ministry of justice is as follows:
- The minister’s office
- Correspondence department, secretariat, petitions and reception directorate.
- Professional deputy minister
- Administration deputy minister
- General Legislation department with.
- External Relation Department, Department of coordination and organization of non- discretionary projects with organizations ,General Manager of External Relation ,Manager of External Relation Department, Executive Manager, General Manager of organizing non- discretionary projects ,Manager of organizing non- discretionary projects, General Manager of coordination with organizations, Manager of coordination with organizations.
- State cases department, defense lawyers’ general directorate, property dealings general directorate in Kabul and state cases departments in the provinces, petitioners’ directorate.
- Juveniles correction department
- Mobilization, reviewing and registration department of social organizations and political parties
- General laws (Huqooq) department, law (Huqooq) department of Kabul province, Kabul city laws districts (Huqooq) and justice departments in all provinces and sub directorate of states cases law (Huqooq), juvenile correction and legal aid in Kabul and provinces and law (Huqooq) sub directorates in local administration organs.
- Human resources department
- Planning, policy and foreign relations department
- Legal aids department
- Department of publication, official gazette general directorate, justice magazine directorate
- Administration department, personnel general directorate, general services directorate, general accountancy directorate, general budget directorate and general correspondence directorate, Department of Procurement
- Internal audit department which was added to organizational structure of ministry of justice since 2005.
That each one of these departments has small administrations related to their tasks as general directorate’s level.
The routine activities of ministry of justice are being regulated and led by the following legislative documents:
- The regulation for management of performances and activities of Ministry of justice: published in issue number (787) dated 06 April 1999.
- State cases law: published in issue number (1115) dated 21 Sep 2013.
- Property dealing law: published in issue number (786) dated 06 July 1999.
- Petition addressing law: published in issue number (786) dated 06 July 1999.
- Defense lawyers law: published in issue number (943) dated 15 June 2007.
- Obtaining rights procedures law: published in issue number (786) dated 06 July 1999.
- Juvenile correction center law: published in issue number (969) dated 2008 official gazette.
- Social organizational law: published in issue number (1114) dated 01 Sep 2013.
- Political Parties Law: published in issue number (996) dated 01 August 2009.
- Regulation for registration procedure of political parties.
With the view to better deliver legislative services, the general legislative department consists of the following seven departments:
- Labor and administration laws Department
- Human rights and international laws department
- Educational, cultural and health laws department
- Civil laws department
- Economical and financial laws department
- Criminal laws department
- Commercial and private sector laws department
It should be mentioned that:
- Publication and legislative documents enforcement procedure law in 3 chapters and 4 articles; published in issue number (787) dated 06 April 1999.
- The rights and privileges of the scientific cadres members law in 10 articles; published in issue number (787) dated 06 April 1999.
- Legislative processing and providing procedure regulation in 6 chapters and 45 articles; published in issue number (1081) dated 10 July 2012.
- The charter of legislative affairs and scientific and legal research institute in 5 chapters and 34 articles; published in issue number (924) dated 11 July 2007.
The above mentioned are, the legislative documents which guides the general legislative department in carrying on its related affairs, in addition, the ministry of justice has a library which was established in 1960 of which most valuable books were lost during years of civil war, requires cultural aid in this area.
General legislation department in its scientific archive that is called as general directorate of legislation classification and is in use of professional cadre, has recorded statistics that during the one century of legislation life a total of (1335) legislation documents are approved, from among of which (452) statute, principles and laws, (234) charters, (444) regulations and (511) legislative decrees.
At the end of this discussion better to name some of the ministers’ names from the ministry’s establishment till now:
Amanullah Khan Period:
Mohammad Ibrahim Khan Barakzai
Sardar Hayat Khan
Nadir Shah Period:
His honor Fazil Omar Mojadadi
His honor Fazil Ahmad Mojadadi
Mohammad Zahir Shah Period:
His honor Fazil Omar Mojadadi
His honor Mir Ata Mohammad Hussaini
Sayed Abdullah Khan
His honor Sayed Shams u ddin Majroh
Dr. Abdul Hakim Tabibi
Dr. Mohammad Haidar Khan
Dr. Mohammad Ihsan Tarakai
Prof. Mohammad Asghar
Associate Prof. Abdul Satar Sirat
His honor Mohammad Anwar Arghandiwaal
President republican of Mohammad Daud Khan Period:
Dr. Abdul Majeed
Associate Prof. Wafiullah Samiee
From April 1978 Coup d’état to April 1992:
Abndul Hakim Sharaiee Jawzjani
Abdul Rashid Aryan
Abdul Wahab Safi
Mohammad Bashir Baghlani
Prof. Ghulam Mahiuddin Dariz
Mawlawee Jalaluddin Haqani
Lawyer Mehrajuddin Kharoti
Mullah Nooruddin Torabi
Interim Transitional Administration Period:
Lawyer Abdul Rahim Abbas (Karimi)
Islamic Republic of Afghanistan Period:
Hi honor Ghulam Sarwar Danish
His honor Saranpoh Habibullah Ghalib
His honor QanoonPoh Sayed Yousuf Haleem
His honor Dr. Abdul Basir Anwar
His honor QanonPoh Fazel Ahmad Manawi
Taliban Second Period:
Mawlawi Abdul Hakim "Sharaye"