Public Law
Hasanali Moazenzadegan; Seyed Mohammad Hosseini; Abdulqodus Arseen
Abstract
1. IntroductionA judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into question the existential philosophy of that judicial system. People's ...
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1. IntroductionA judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into question the existential philosophy of that judicial system. People's lack of trust in the judicial system leads to a decrease in the legitimacy of the political system which causes political and social crises and at higher levels, the collapse of the political system. Based on the principle of separation of powers, which has been one of the most important intellectual achievements of mankind in social administration, the power of the government is separated and divided into the three branches of legislative, judiciary, and executive organs (although they maintain their interaction), in order to prevent the concentration of power in one person or institution. Judicial independence is, therefore, one of the logical results of accepting the principle of separation of powers, the origin of which can be found in the era of Aristotle. Today, this principle is considered one of the most important principles and, in fact, the cornerstone of democratic governments–a form of government that seems better able to provide justice than other forms of government. The Principle of Judicial Independence in International Documents and the Legal System of AfghanistanOne of the results of accepting the principle of separation of powers, as mentioned earlier, is the acceptance of the principle of judicial independence. This principle has been discussed and supported in international and regional documents. In Afghanistan, for the first time during the reign of Amanullah Khan, it was recognized in Article 53 of the Constitution of Afghanistan (1923) by stating that "all courts are free from any interference". In the Constitution of the Islamic Republic of Afghanistan (2004), there is no clarity about accepting the principle of separation of powers. But from its general structure and its division of chapters –the fourth chapter (government) the fifth chapter (the National Council) and the seventh chapter (Judiciary) it is inferred that this principle is accepted. Judicial independence is also explicitly accepted in Article 116: "The judiciary is the independent pillar of the government of the Islamic Republic of Afghanistan". Research ProblemIn Afghanistan, in recent years, several criminal cases have resulted in decisions that raised questions about the status and position of judicial independence in the judicial system of the Islamic Republic of Afghanistan: Do judges and the judicial system of Afghanistan act independently? History of Research and Its MethodAlthough much research has been done about judicial independence in the world, it has received less attention in Afghanistan which is perhaps the reason why Afghan legal writers have made fewer claims about the strength or weakness of judicial independence in Afghanistan based on evidence. Therefore, evidence-based research about judicial independence, in which the personal judgment of the authors is minimized, is one of the needs of Afghan society. The main question of this essay is regarding the status of judicial independence, as one of the most important pillars of good governance, in the legal system of the Islamic Republic of Afghanistan.Judicial independence can be studied at both organizational and individual levels. At the organizational level, it is indicated by a look at factors such as the recognition of the independence of the judiciary in the constitution and other laws, the exclusivity of judicial authority in the judiciary, the binding nature of the rulings of the judiciary on other organs, administrative independence, and finally, its financial independence. Also, to evaluate individual judicial independence, one should consider indicators such as the process of selecting and appointing judges, job security of judges, prohibition of engaging in political and other duties for the judges, prescribing objective conditions for their promotion and demotion, documentation of judicial decisions, establishing a judicial panel in court, judicial immunity, the salaries of judges and finally their safety and security. Conclusion The results of this study show that in Afghanistan during the republic period, at the organizational level, while the independence of the judiciary was recognized in the constitution and other laws of the country, the exclusion of jurisdiction in the judiciary was not desirable. The rulings of the judiciary were not so binding on other organs which had damaged its independence. Administrative independence was also weak, but financial independence was in a good condition. At the individual level, the selection and appointment of judges was not suitable, but the job security of judges had been relatively good as the mechanism of hiring judges was in a good situation that ensured their job security to a large extent. The guarantee of the prohibition of their employment in political duties was weak, but in other duties, the ban had been appropriately executed. Also, while the prescription of objective criteria for the promotion and demotion of judges was very bad, the judicial decisions were documented and the judicial boards were established in proceedings. Judicial immunity had been realized incompletely, judges' salaries were assessed as appropriate but their safety and security had been inadequate. In general, judicial independence in Afghanistan was weak which, according to the authors, had caused people's distrust in the judicial system and as a result, a decrease in the legitimacy of the republican system. This can be considered one of the factors for the fall of the Islamic Republic of Afghanistan.
hassanali moazenzadegan; sirous zargham nezhad
Volume 14, Issue 37 , June 2012, , Pages 147-170
hassan ali moazen zadegan
Volume 2, Issue 3 , October 2001, , Pages 177-213
