Thomas Kraemer is a senior attorney at Kakar Advocates in Kabul, Afghanistan and a graduate of the University of Pittsburgh School of Law. He is currently a special correspondent for his JURIST based in Istanbul, Turkey.
Last Saturday it was announced that criminal investigations and prosecutions are no longer under the jurisdiction of the Afghan Attorney General’s Office. The news came through a circular signed by the Acting Attorney General of the Islamic Republic of Afghanistan, Mawwawi Shamsuluddin Shariati. A memorandum is an intra-governmental notice or memorandum directing the transmission of information from one government agency to another.
Regional Attorney General’s Offices are no longer accepting new criminal cases, according to the memo. Government agencies are directed to report criminal cases directly to court. Criminal cases already underway in the Attorney General’s Office but not yet concluded will also be referred to the courts. The Attorney General’s Office no longer has the power to investigate, prosecute, or supervise criminal cases, nor can it order the arrest or release of suspects.
Under Article 134 of the 2004 Constitution of Afghanistan,[d]Detecting crimes is the duty of the police, and investigation and prosecution of defendants in court is the responsibility of the Attorney General’s Office. The procedures for the Attorney General’s Office to carry out these functions are laid down in the Afghan Code of Criminal Procedure and the Law on the Structure and Powers of the Attorney General’s Office.
The Taliban, which took power in August 2021, rejected the 2004 constitution when it ratified it, and the interim government established after the fall of the Islamic Republic of Afghanistan continues to deny its validity. Although the government has not formally abolished the Constitution or amended the Code of Criminal Procedure or the Law Concerning the Structure and Powers of the Office of the Attorney General, these powers will continue to be unenforced with respect to criminal proceedings in Afghanistan. is clear.
The move is believed to indicate a belief within the Taliban government that judges trained in Islamic law are better positioned to apply Shari’a principles to criminal matters. And how to proceed with the trial is attracting attention. The current functioning of the Attorney General’s Office is also unanswered so far, given that the law and constitution do not authorize it to handle civil matters.
