Historic Review of AGO in Afghanistan
Definition of AGO (Saranwali):
“Saranwali” is a Pashto term and is derived from “Sarana” which means; to monitor, observe, review and evaluate. It means that after serious scrutiny and evaluation these activities will be performed on a subject or a thing.
“Saranwal” is the person who is assigned by the government to equally enforce the law.
In our country every person who works in the professional areas of Attorney Office is called an attorney (Saranwal).
Additionally, Saranwal was called by different names in different periods.
· Public Attorney
· Attorney of Rights by God
· Attorney of Proving Crimes
· Claim Attorney
· King Attorney
· Honorable Hostile
Some law scholars believe that this office was first established in Rome before 14th century and was called King Attorney. At first, perpetrators of crimes such as heresy to Christianity and betrayal to states property were referred to the Attorney Office for investigation. Some other law scholars have said that Attorney Office was established in France in 14th century and then in 16th century it earned the current authorities in Europe.
Then, other countries did the same as deemed necessary. The main objectives of countries or societies for establishing Attorney Offices were preventing criminal cases and safeguarding individual and social rights. States have also placed Attorney Office in their constitutions.
Authority and power of this office differed and had its specifications in each country. They prepared their legal system considering the characteristics and conditions. There is no difference in the meaning of “Saranwal”, or “Saranwali”, and in some countries there were no attorneys at all but still these tasks were performed by another person in another name.
As mentioned, Public Attorney, Attorney of Rights by God, Attorney of Proving Crimes, Attorney, King Attorney and Honorable Hostile, all have the same meaning, only their positions and legal rights differ based on structural system of states. In fact, an attorney prohibits people from disobedience of the law.
Methods of investigation and trial, which are called criminal procedures, have been different throughout the history. There are about three different criminal procedures observed all the way through the history.
Adversarial Trial System and its history:
This method of investigation existed before creation of totalitarianism and is deemed the most ancient method of proceeding in criminal procedures. In this method, the case was preceded in the court by the two parties; accused and victim, without any kind of interruption by the state. The victim or his/her legal representative would personally collect evidence against the accused and would request the court for his/her punishment. The accused would come to the court with equal rights as the victim and would defend their selves. The litigants had completely equal rights. The judge would only hear reasoning of litigants and then announce his decision. All the process were conducted orally and in non-written form. The judge did not have any active role in collecting evidence or documents and the litigants had the main role. Confession was the most important reason, followed by witnesses’ testimony and oath. This method of hearing had been created through influence of religious faith in states after the period of private retaliation and was gradually eliminated after totalitarianism was established.
Inquisitorial Trial System and its History:
This system of investigating criminal cases was created by creation of totalitarian states, and the start of absolute supremacy of kings (Monarchy), by removal of church’s influence from the state and separation of religion from the politics. In such states, there were no adherences to laws, opposite to adversarial trial system, where the accused could be defended in the best way. In this method, the right to defend for the accused was decreased to the minimum. Social interest was the priority. During this time, state workers used to investigate and search for crimes without waiting for individual people to complain and they would judicially prosecute the accused person. Its investigation was done secretly; but in written form. The more the power of kings (states) increased, the more Inquisitorial trial system improved and replaced the adversarial trial system. Scholars resonate the roots and creation of this system back to the Roman Empires period during that time, this method was usual for investigation of crimes which were committed by lower class people or criminals. State officials used to investigate the accused persons directly without any complain by the victim. In the mid-century, religious crimes such as conversion from Christianity to other religions were also included in this method. The third Pop “Enosan” accepted it and then Latran Religious Council (Concile De Latran) officially accepted it as well. In this method the accused persons did not have the right to defend themselves; neither did they have the right to know what is on the file so that they could create counter reasons for that. They would directly be taken from the detention centers and prisons to the court which was also not public.
Composite Trial System:
In adversarial trial system, the accused had the sole right to defend themselves, but it would leave social interest and public protection unobserved. In inquisitorial trial system, social interest was secured; but it would put the right of the accused to defend themselves in danger. Therefore, another special method for criminal proceedings was created, which later on became famous as composite trial system. It means that, part of the investigation, before the trial, was conducted by state officials who were taken from inquisitorial system and the trial and decision part was taken from adversarial trial system. The trial was public. The accused person(s) had the right to hire an attorney and defend themselves. There is no specific example which would show to which extend did they observe adversarial trial system or inquisitorial trial system, but legislators of every country have tried to observe these two systems as much as necessary for their own country and have developed their criminal procedures by combining these two systems. Since this system has always a sign of both systems, it is called the composite trial system.
According to the history, all three above described systems have been practiced in Afghanistan. There is no evidence existed in the history before Islam, before the time of Kabul Shahan and after Islam regarding this. Except for 630s when Hioun Tseng who had penal code and a fair court, talked about crimes and their punishments. He said, if anyone fails to follow social rules and manners and violates justice or integrity, his nose, ears, hands or feet will be chopped-off. There were cash fines against small crimes. If someone refused committing a crime, four types of investigation and means of proof were performed, and if they were found guilty, they were sentenced to punishment accordingly.
This report shows that for investigation of crimes on that time, penal codes, trials and sources existed in administration. After Islam, the same duties were given to judge and police.
Justice institutions existed in the administrative offices of Central-Asia from very old times. During the period of Sasanian Empires, judges had a high position in the state as well. Only people who had a background of honesty, loyalty and were fully aware of laws and were not needy to others were hired as judges. During Sassanid’s the famous family of “Rajal” was in charge of courts that used to control different affairs of the country inherently. Judicial Office of the kingdom belonged to one of these lineages as well. Also in provinces the judge was selected through chaplains. Therefore, the terms “Qazidawar” on those times are always mentioned concurrently with other chaplain classes such as “Dastoran”, “Mobedan”, and “Herbedan”. The judge was called “Dadwar”, Chief Justice was called “Shahrdad” and “ReyaDadwaran”. Sometimes his duties were carried out by another person called “AayenBez”.
There was one judge (Dadwar) and two other persons called “SroshorZezarig” (Jurisprudence Moderator) and “Dastoor Hamdaz” (Vice-commander) assigned for each province and their relevant areas. The military judge was called “Dadwar” and often “Herbedan”, who like judges used to issue judicial verdicts.
Because of provisions of "Mazdysna” traditions, composite courts with many judges were temporarily established. They would invite witnesses and litigants of the case in a pre-determined time and would send their decision after hearing the claims. Litigants of the case were not allowed to talk too much or waste according to judicial regulations. If a judge committed a fraud because of personal purposes, he would be judicially investigated as well.
Based on "Tansur” letter, there were three types of crimes that were to be judicially investigated:
1st: Crime against the order of Allah such as atheism and heresy.
2nd: Crime against the king such as revolt, fight and betrayal.
3rd: The crimes that people were perpetrating among themselves such as stealing, adultery, and harming.
The penalty for the 1st and 2nd types of the crimes was capital punishment and the outcome of the 3rdtype of the crime was physical punishment or even capital punishment. Sometimes, the political prisoners were sent to the jail of “Anosh” (the fence of the forgetting). Revealing name of the prisoner was prohibited as well. The last reference of the trial of the people was the king himself. Mostly the petitioners were going to his doorway and sometimes, the king himself was coming outside of the palace to listen to the petition of the people. The king listened to the complaints of the people; especially, in the two events such as New Year “Nawroz” and “Mehragan”.
We can say that the duty of public attorney was performed by “SroshorZezarig” (Jurisprudence Moderator) and “Dastoor Hamdaz” (Vice-commander) and they were assisting the judge. In fact, attorney is doing all the investigations for the justice and keeping the case in front of the judge for the verdict. Therefore, this is a big assistance in the society for ensuring justice.
Attorney Office after Islam:
During the era of Muhammad PBUH; the judge of the Muslims was Muhammad PBUH himself and was solving the conflict of the people. The residence of “Madina” had committed that they would refer to Allah and his messenger for the solution of their hostilities and disputes. Muhammad PHUH was making judgment among them according to the revelation. He was listening to the both hostile parties.
Later on, in the judicial organization of Islam; the “Hasbat” system along with justice system was established. The judiciary domination was shared among the judge, the “Mohtaseb” and judge (Qazi Muzalim). It means that the judge was solving the public disputes in the light of religion, and “Mohtaseb” was responsible for the public system and was solving the criminal cases while the position of judge was equal to the position of Chief of Appeal Court of today. The judge and “Mohtaseb” used to listen to the complaints of the people, “Mohtaseb”. Sometime, based on the judicial duty; it was needed that the judge and the “Mohtaseb” to work on issuing the verdicts, do the investigation and focus on a case which was helpful in increasing the speed of solving cases.
The "Hasab” system was imposed by Islam caliph “Hazrat Omar” for the 1st time. He upraised to this activity himself. But the name of the “Mohtaseb” was accustomed during the era of Khalifa Mahdi in 158/169 Hijri. The “Mohtaseb” was holding the responsibilities of different judicial, social and implementation of religious orders in the Islamic judiciary system. “Ibni Khaldoon” has counted the general duties of the “Mohtasebin” the following:
1. Explaining the vices and punishment as well as the torture for its perpetrators;
2. Driving people to abide by the public interests such as not closing the roads/ways, preventing the carriers and sailors from transiting the heavy loads, ordering the destruction of the newly built foundations which could cause annoyance to the people.
3. Preventing the teachers from excessive beating of school children and students;
4. Concern over deception and superstition on living of necessities as well as weighs and cereals or grain, that’s the responsibility of the municipality nowadays;
5. Driving people to the justice and affairs of which verdicts were not clear but were useful for the society;
The religious duty of the “Hasbat” was assigned to the credible, Muslim and men with legitimacy. He used to appoint assistants in the other cities and villages, who were always monitoring the professionals and the cities. The “Mohtaseb” used to sit in the central mosque and perform his duties.
Judgment for the implementation of the justice and resolving the general complaints of the people, listening to the injustice and addressing the oppressive acts was also established in administrative and judicial organization of Islamic era. Tyrant repressor means the person who was handling the oppressive acts was appointed in the cities and villages by the caliph and his ministers. For the 1st time “Hazrat Ali” did this job in the Islamic era.
The oppressor’s court was coagulated in the presence of 5 groups of people:
1. Helpers and followers of the tyrant oppressor: who were enforcing the judicial order by their power;
2. Authorities: Those who were giving information to their lords and were revealing the true facts of the hostility claims;
3. Scholars: Those from whom tyrant oppressor, took adjudication in “Shariah and legal issues;
4. Scribe: Those who were recording the promise view of the hostility and their rights;
5. Witnesses: Those who were trying to proof the claim of the hostility and were giving testimonies. Therefore, the oppressor’s court was listening to the public complaints in each session and this was the duties of oppressor’s judge.
Attorney Office in Afghanistan:
In Afghanistan, from the beginning and in the light of the principles of Holy Quran; it was established in the era of the 3rd caliphate of Muslims “Hazrat Usman”. Later on, with the rising of “Hazrat Imam Abu Hanifa” the scholar and scientist of Islamic jurisprudence and according to the principles of Islam; the judges’ of this country have followed the same rules.
Eventually, in 1921; the constitution of principal structures was published and enforced. In the center, state council and in the provinces the high authority as well as advisory board of the lawyer was established and the courts of the officers were connected to the advisory board of state council. So, in order to follow charges in the different stages of the trial; defense lawyer was required to follow claim against the officers under charges.
Later on, it was needed that the plaintiff must be present in term of the rights of Allah. The necessary amendments were made in the constitution of the principal structures of Afghanistan \. Attorney for proving crimes was named for the 1st time in this period.
According to the above mentioned attachment; defense lawyer was appointed by Ministry of Justice in the capital and in the provinces by the governor or high authority.
Later on, in the constitution of 1964 the Public Attorney Office was established as the official government agency. In the article 103 it has been stated as the following: “The investigation of crimes by Public Attorney, which is a part of the executive force of the state, will occur by considering the provisions of this law.”
In the constitution of 1964 due to the similarity of the duties; in the judicial chapter, based on the definition of the rights the court was called as "Qaza Waqef" and "Qaza Jales". The Qaza Waqef has been named as Accusatory Judiciary and the sitter judicial has been named as the Trial judiciary.
The Attorney Affairs Arrangement Law was enforced in 24 articles on November 16, 1964 and published on the 17th official gazette. This law has introduced the Attorney as the Attorney General's Office Attorney General's Office and Attorney General has been introduced as the Attorney of all people Afghanistan.
Structures (Tashkeel) of Attorney Office of Afghanistan in 1964:
The attorney central office was established in 1964 to detect and deal with the crimes based on article 103 of constitution. Currently, attorney offices exist in each province. The formation and duties of AGO are as follow:
We will have a comprehensive look at each section of Attorney Office:
Crime Detection Sub-department:
The duties of crime detection Sub-department includes inspection of the gazettes and investigations regarding the secret and criminal clauses of media, scrutiny of the criminal cases and receiving of daily incidents reports from Ministry of Interior as well as taking care of those reports. The reports of the criminal cases that have been received from the provincial Attorney Offices, arranging, ordering and compilation of the general reports that have been received, monitoring of the condition of the prisons, detention centers and prisoners as well as the rectifications that have been occurring in this regard.
General Sub-department of Scrutiny:
General Sub-department of scrutiny was established in December 1964. Liable officers and some of the technical members were included in the formation of this Sub-department who were working in the specific groups.
Prosecution Relation Sub-department:
The duties of this Sub-department were as follow:
1. Receiving of the criminal cases from the government organization in which the relevant crimes had been proved due to the inspection.
2. Reading of the issued cases and presenting of the necessary recommendations to Attorney General's Office and issuance of the instructions to the related departments.
3. Suggestion to the directorate regarding the cases which are referred to the Attorney General's Office for final decision based on the article 349 of the Criminal Procedure Code.
4. Submission of prepared reports to the higher authority.
5. Securing contacts and cooperation with the relevant departments of the Attorney office in center, provinces and ministries.
6. Other orders of the Attorney General Office.
Central Primary Attorney Office:
This office is responsible for the following tasks:
1. Submission of the cases for the purpose of criminal proceedings.
2. Returning the defective cases in order to complete them.
3. Sending arrest warrant to the accused person by the relevant department in order to send them to court.
4. Preparing indictment for the case based on the law articles.
5. Initiating claim in the primary stage against the accused persons in the official crimes and crimes against public security and interests in accordance to the law.
6. Providing appeal request while there is lack of contentment to the issued verdicts of primary court in criminal cases.
7. In case there is no need to appeal, submit the recommendation of AGO to make decision regarding the referred cases based on the article 349 of Criminal Procedure Code.
8. Enforcing the absolute verdicts of the primary courts.
9. Receive the detention warrant of the accused persons from the court based on the Criminal Procedure Code.
10. Submit the report of activities and cases underwork to the directorate of AGO.
Appellate Prosecution Office of Government Staff and Public Security:
The duty of this Attorney Office is to precede the criminal cases of public security official’s. The Public Security Office of the provincial courts issue their verdicts as the preliminary courts, after which these cases are referred from the Attorney General’s Office, or the relevant provincial authority, convicts or the accused themselves for appealing purposes to this office.
When the indictment is completed the cases are referred to the Central Preliminary Appellate Court. Then, the court makes its decision in the presence of the representative of the mentioned Attorney Office, after all the trial sessions proceeding to the case are completed.
Once the decision of Central appellate court is received, the mentioned prosecution refers the case for cassation process to Supreme Court by the request of attorney Office or the convict.
If the parties agreed to refer the case for cassation process, the decision of appellate court is considered as final decision and case is referred to the relevant department for implementing the penalty.
Cases which are referred to this Attorney Office are summarized as follow:
1. Smuggling 2. Forgery including the cases of counterfeit notes 3. Bribery 4. On duty crimes by officials and employees 5. Embezzlement 6. Disturbing or disrupting public security 7. Escape from prison
B: Public Rights
Cases that occur between state and people;
C: Justice Cases related to temporary appeal.
502 cases were sent to the appellate for revision from December 22, 1966 to March 20, 1968.
Attorney Office of the Cassation Courts of Public Security Officials:
This office is responsible for the following tasks:
1: Submission of the cases for cassation process, and preparing indictment against the decision of appellate court in criminal cases.
1. Enforcing the final verdicts of the Supreme Court.
2. Receive the detention warrant of the accused persons from the mentioned court.
3. Submit proceedings report, inspecting the proceeded cases and sending them to the directorate of AGO.
On April 14, 1980 the Basic Principles which were equivalent to the interim constitution law at that time, was approved by the Revolutionary Council of the time. It was enforced from April 27, 1980. In accordance to article 58 of the mentioned law AGO was parted for the first time from Minister of Justice and considered as an independent department in the structure (Tashkeel) of the government. According to this article Attorney General's Office was considered as unit system based on the principles of centralization and the management of other Attorney Offices was resonated to AGO.
In the year 1986 some changes appeared in the leadership of the state. The constitution law was approved by “Loya Jirga” and on March 27, 1987 it was endorsed by the president. In chapter nine of this law there is a particular discussion about AGO.
During the regime of Taliban, AGO was dropped in terms of structure (Tashkeel) based on the decree number 12 dated March 6, 1997 and was placed under Ministry of Justice. In accordance to decree number 109 dated September 15, 1998 the authority of AGO was handed over to judges. In article 16 of this decree it’s stated that: “Prosecution investigation is entrusted to judiciary, judges are obliged to complete the cases within one week and submit it to the courts for a decision over them”.
After the fall of Taliban regime in December 2001, AGO was once again given structure (Tashkeel) and authority. Constitution law of Afghanistan was approved by Loya Jirga, and on January 26, 2004 it was endorsed by the president and was enforced and once again AGO regained its credibility. In article 134 of this law it’s stated that: “detection of crime is duty of police, and the Attorney Office is responsible to investigate the crimes and set up claim against the accused person in the court in accordance with the law”. Attorney Office is independent in all its activities except in executive power.
After the formation of the election based government in Afghanistan, the organizational structure (Tashkeel) of AGO was also developed. This department was previously part of Ministry of Justice, and turned back into an independent organ. AGO has four Sub-Directorate offices and each sub-directorate office has several departments in its structure.
AGO currently has round about 5 thousand employees in center and provinces including professional, administrative sectors and contract employees.
A glance on Constitutions of Afghanistan in different periods and the position of Attorney Office in them…
The first constitution of Afghanistan was drafted after the Independence of Afghanistan in 1923 named the Fundamental “Nezam Nama” of Afghanistan Government, when Amir Amanullah Khan was in Power and then it was approved in ” Loy Jirga” that was held in Jalal Abad. As all representatives of the people were not present in that time, the approval of “Nezam Nama” was suspended for another Jirga. The Jirga was held in Paghman, Kabul province in 1925 and 1540 representatives of people participated. The constitution that was drafted in 73 articles was approved in Loy Jirga. In the first chapter of “Nezam Nama”, in its fundamental structure (Tashkeel), Independent office of “Tabia” has been named which is described as follow:
1- Ministry of Defense
2- Ministry of Foreign Affairs
3- Ministry of Interior Affairs
4- Ministry of Justice
5- Ministry of Education
6- Ministry of Finance
7- Ministry of Commerce
As it seems in the provisions of Ministry of Justice in fundamental structure (Tashkeel) of “Nezam Nama”, the main duties of Ministry of Justice has been formed by the related judiciary duties and the structure (Tashkeel) of Judiciary. Ministry of Justice is responsible for regulating the disciplinary and judiciary affairs in Afghanistan. The General Board of Afghanistan Courts created the judicial power of Afghanistan. The courts in Afghanistan are divided into two branches, Primary court and Appellate Court. In addition to that, the Restorative Court also exists.
The Justice Cassation Board; was made of one chief and four members. Decision on lawsuits, and on commercial claims and criminal trials entered to the Appellate court were adjudicated by the Justice Cassation Board. It required time that the claimant had to be present in haq-u-llah (state’s right). For this reason, the amendments were added in the fundamental structure (Tashkeel) of “Nezam Nama”, and for the first time the Attorney for Proving a Crime was named in amendments.
The Minister and the Sub-Director of the ministry had to hire an attorney in case of initial investigations of criminals attributed to the Ministry and to the relevant independent offices. The defense attorney proofs the crime against the criminal in the court of claimants. . The Attorney for Proving a Crime was also determined by respected offices in the provinces.
If a joint victim’s and state’s rights lawsuit was claimed against a person in the courts of Afghanistan, and if the claimant was absent before the issuance of the verdict, a general claimant or an attorney was assigned temporarily from the local officials for solving the case as his state’s right based on amendment number 24 of July-1926. The plaintiff’s victim’s right was suspended till his presence.
These types of proceedings continued till 1929. The political changes that occurred after a short time across the country stopped such types of proceedings. Law of Civil Servants Trial was enacted and published in 1946 and after enactment, a general department of civil servants trial was created in center. The preliminary court was preceding the claims of officers’ trial. These proceedings continued with another specific structure (Tashkeel) till 1964.
The Second Constitution:
The second constitution of Afghanistan was drafted when Nadir Khan was in power. The Loy Jirga was held in 1930 and 525 representatives of people participated and 110 principles were approved as Fundamental Principles of Afghanistan.
The Third Constitution:
The third constitution of Afghanistan was drafted when Mohammad Zahir Shah was in power. First the drafting process of the law started by Drafting Committee, and the drafting committee finished drafting the constitution in March-1964. Then an advisory committee was set up to provide the necessary advice. All the activities were published by Ministry of Information and Culture to aware the people and have their ideas. As a result, some of the writers published their ideas regarding the issue.
Zahir Shah was the Head for the Loy Jirga that was held in “Salam Khana Building” in 1946. The negotiation continued for ten days among the representatives of the people. Finally, the new concept of judicial independence and the new constitution was signed by 454 representatives and its enforcement stage started by approval of Zahir Shah. Public Attorney Office was established as a formal state office in the mentioned law. Article 105 of the mentioned law states: "The investigation of crime by Attorney is a part of the state’s executive power and it is preceded according to the provisions of this law."
The mentioned constitution had 11 chapters. The Public Attorney Office was named in Judicial Chapter and the Attorney is mentioned in this chapter as well. According to this law, the Ministry of Justice is in charge of judicial functions. In fact, the aim for the enforcement of this constitution was to propagate the governmental higher system to create the structure (Tashkeel) of the three branches of power and with enforcement of the constitution, an independent judicial system was introduced as a government unit. The creation of the Public Attorney Office separated the judiciary from the executive branch of Ministry of Justice and began to work as a part of state. The Law on Regulating the Attorney Office Affairs promulgated in official gazette number 17 in 24 articles and was enforced on –December 17, 1964. This law introduced the Attorney Office as Attorney Generals’ Office (Public Attorney Office) and the Attorney General as the Public Attorney of Afghanistan.
Article 2 of this law stipulates: The High Attorney Office is regulated under the directorship of Attorney General's Office in Ministry of Justice. The office is comprised of a Deputy Attorney General, some other deputies, Attorney General's Office providers and administrative officers in every preliminary court; Provincial courts, Appellate courts and Supreme Court, and one or more members of the Attorney Office are in charge of working in this office.
The Attorney Office Law was enacted on February 20, 1967 and the Attorney Office Regulation Affairs Law was abrogated and according to this law Minister of Justice was introduced as the Attorney General.
The Fourth Constitution:
The fourth constitution of Afghanistan was drafted when Mohammad Dawood Khan was in power. Dawood Khan assigned delegations for drafting the constitution in 1976 and the drafted law was promulgated in gazettes. The Loy Jirga started to work on December 31, 1976 with participation of 325 representatives. After 10 days of negotiations on January 15, 1977, the law was approved by Dawood khan and its enforcement was announced.
In constitution of 1977 it is mentioned that: “Detection of crimes is the duty of police and investigation , proceeding and litigation are duties of attorneys who are part of the executive power of state which takes place in accordance with provisions of the law.”
Accordingly, the investigation was absolutely and practically attributed to the Attorney Office. In this period of time considering the mentioned goals, the attorney office showed that they have taken effective steps in ensuring legality and social justice that fulfilled the satisfaction of the citizens in hiring the students who graduated from Law, Sharia and even other faculties.
The Fifth Constitution:
The fifth constitution of Afghanistan was named Fundamental Principles of Democratic Republic of Afghanistan; it was drafted in 1980 by the Revolutionary Council of the Democratic Republic of Afghanistan. The Law was temporarily approved and enacted in 10 Chapters and 68 articles.
Chapter eight of this law has been specified to Attorney Office and Introduced Attorney office as single unit system. After the formation of a Democratic Republic, administrations safeguarding the laws came in to power, which were also a part of the party. This issue in itself attenuated the legal system and legitimacy. If some high-ranking party officials were accused, their investigation process depended on the permission of the Board Chairman of the Revolutionary Council. After receiving the permission, some attention would be paid to the investigation of the accused. Those, whose investigation permission was not given, their investigation would be kept on hold.
The Sixth Constitution:
The sixth constitution of Afghanistan was enacted in the presidential period of Doctor Najibullah. This law was signed in the Loya Jirga of year 1968 and is comprised of 13 chapters and 149 articles. The ninth chapter of this law was specified for the Attorney Office.
Article 117 of this law states: “Afghanistan’s AGO is a centralized based system which is comprised of; AGO, Provincial Attorney Offices, Attorney Offices of General Districts, Districts, Towns, Cities, Areas and the Attorneys of Military Forces.” This law also states that the state can create a specific Attorney Office within the unit system of AGO.
It also states in Article 118: “AGO is independent in its leadership activities of its organ, and is only dependent of law and AGO.”
The Attorney General and his Deputies are determined by the President for a period of 6 years, in accordance with the article 119 of constitution.
The Seventh Constitution:
The seventh constitution of Afghanistan was composed in 114 articles comprised of 50 bodies in the presidential period of Burhan-u-din Rabani. This law was never signed and approved due to the problems and civil war in the country.
On September 9, 1996, the political system of the country changed. The Islamic Republic of Afghanistan was crushed by the Taliban. This group changed the Islamic republic of Afghanistan into the Islamic Emirates of Afghanistan.
The leaders of this group in regards to the implementation of laws ordered that for the purpose of strengthening the Shariah Law in the country, all the laws and regulations should be reviewed by the scholars, working under the Supreme Court. The materials which are against Shariah should be omitted and after the emirate approves, it should be published in Official Gazette.
In this period, the issue of incorporating AGO with Ministry of Justice was raised. Based on the decree number 12 on March 6, 1997 the following changes were made on main structures (Tashkeel) of the state and in the Ministries. The Administrations, which in the period of Daud Khan were ministries, should become ministries. Departments and sub- departments and also other related administrations should be merged with the main sections of the administration. As a result, AGO and Ministry of Justice became a single administration. In the next stage, the issue of transferring the authorities and duties of the AGO to the Judiciary was discussed. In the decree number 109 dated September 15, 1998 in the second paragraph of the article mentioned:
The investigation duties of AGO has been given to the judiciary. The judges were obligated to complete the investigation of cases within one week and shall send it to the courts for the decision. And all this were in a way that in the original decree all the authorities and duties of the AGO such as investigation, proceedings the initiation of a claim, the authority in regards to consent or requesting an appeal all were the duties of judges. The professional officials who were working in these sections were all fired. Finally, out of 16 departments only 2 departments under the names of the Oversight Department on the Implementation of Law and Oversight on the Detention Centers remained the same. The administrative and professional departments all were omitted from the structure (Tashkeel) one after another.
Also in regards to Oversight of AGO, decree number 215 on November 15, 2008 was issued, which stated:
“Through this way it is directed to the Ministry of Justice with the oversight officials of the AGO section of MOJ in center or provinces to oversee from the Ministries, General Departments and its branches in provinces from the proper implementation of law and avoiding to not abide by the law, decrees and the provisions of the Islamic emirates of Afghanistan considering paragraph 3 of Article 3 of AGO Law.
The purpose of issuing such order was clear. They wanted to know whether the laws, regulations, decrees and provisions of the emirate has been implemented or not? Otherwise it is believed that there was no need to have an oversight department. Thus, keeping the oversight department was only for this purpose. The department of oversight on the detention centers was just to show off and it didn’t have legal morality. Since, on that time people without legal license and specific attorney were kept under custody and detention. In Taliban regime, no law or criteria existed for arresting or releasing people. A simple Talib letter was enough for incarceration. The condition lasted until Taliban regime collapsed.
The Eight Constitution:
The eight constitution of Afghanistan was created after the collapse of Taliban regime in 2003. The Loya Jirga was conducted on November 14, 2003. After 23 days of discussion, on December 15, 2003 the constitution draft was approved in 12 chapters and 162 articles by the representatives and it was signed and enforced by the president.
The 134th article of this law in regards to AGO structure (Tashkeel) and Authorities states: “Discovery of crimes shall be the duty of police, and investigation and filing the case against the accused in the court shall be the responsibility of the Attorney’s Office, in accordance with the provisions of the law. The Attorney’s Office shall be part of the executive organs and shall be independent in its performances.”
AGO's Structure (Tashkeel), authority and activity is regulated by the law. Discovery and investigation of the duty related crimes of the police officials and NDS officials are regulated by the specific law.
Thus, Attorney’s Office with a new structure (Tashkeel) and authority started its activities. And today tries to work as an important organ in ensuring justice and enforcing the law.
Generally, the Attorney’s Office somehow, has always been existed in the constitutional laws of Afghanistan, and how much authority over the years it has had, goes back to the periods, systems and laws.