“No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan,” the Constitution states in article 3. Historical facts, social values and religious tenets play significant role in legislation process. Legislators will have to be aware of all facts in a society and the challenges that might hamper the implementation of law. Law is established to protect the fundamental rights and liberty of citizens, ensure social justice and maintain discipline.
In the Islamic Republic of Afghanistan, religious values hold strong sway in legislation and no law is supposed to be against the Islamic tenets. A secular law will not meet the needs of a religious society and vice versa. Lawmakers are to consider not only religious values but also cultural standards, social mores and ethical code so as to establish law according to the needs of the public. In other words, public custom is one of the sources in legislation and parliamentarians, who represent the nation, should approve the laws which are no contrary to a society’s custom.
Equality and lack of discrimination on the grounds of one’s race, color and creed are legal principles in legislation and law must uphold citizens’ rights equally. When laws are immaculately approved by legislative power, citizens have to abide by them. Article 94 of Afghanistan’s Constitutions says, “Law shall be what both houses of the National Assembly approve and the President endorses….” Following the endorsement of the president, in Afghanistan, the nation must obey the law for two reasons: the theory of “social contract” suggests that law is a binding contract between state and nation. Secondly, the school of natural rights suggests that the main reason behind the binding law is gaining justice – which is a significant want of mankind. Therefore, all, including the public and executive power, must abide by law. Based on this theory, the most vital function of law is to ensure justice and an unjust law will not be binding.
Savigny, a German lawyer and the founder of historical school, believes that law is the product of the public conscience and social upheaval. According to him, nation – a group of people with common beliefs and collective conscience residing a particular land for generations – is the lawmaker in a society. Therefore, law is not based on the state’s will.
It is believed that whenever law and the public beliefs are in conflict, society will move towards anomy and the rights and liberty of citizens will be vulnerable to chaos and disorder. Unsurprisingly, sometimes some legal principles will work well in a particular geography with certain history and social values while the same principles will bear bitter fruit in another society. However, there are some legal universal principles to be considered in legislation all around the human societies such as justice, commitment to contract, etc.
It is believed that law is the reflection of a society’s historical facts, social values, cultural standards and moral norms. A society’s law roots in moral standards of the public – though moral values differ from one society to the next. When law violates moral standards, it will not be respected by citizens and will erode shortly. It should be noted that legal rules are binding and the executive power is supposed to implement the law whereas there is no force behind moral values other than one’s conscience.
In Afghanistan, where more than 99 per cent is Muslim, the law is established based on religious tenets, moral values and international standards – Universal Declaration of Human Rights (UDHR) and international instruments are recognized officially. Constitutionally, the government is committed to form a democratic society, void of violence and bloodshed, where people’s rights and freedoms are protected, any kinds of discriminations are condemned, physical and mental torture of prisoners and forced confessions are banned, women are considered equal to men, etc. In short, the current law is in accordance with the society’s facts and meets the social, political and economic needs of the public if enforced properly.
The persisting challenges are not the result of legislation but poor implementation of law. There are serious challenges in the machinery of the government which hamper law-enforcement and the officials do not fulfill their commitments. As it was mentioned above, the state and nation made a binding contract – based on theory of “social contract” – in which the nation vowed to abide by law and be prosecuted in case of breaking it and the government vowed to protect their rights to life, liberty and property.  But what if the government violates this contract and does not protect the citizens’ rights?
Since the law is established on democratic basis and respects the society’s values, citizens are not allowed to violate the law. But they can resort to civil disobedience and peaceful demonstrations against the poor implementation or flagrant violation of law by officials. Civil society activists and media will have to put pressure on the government to respect and enforce the law. With the implementation of law, the bulk of the challenges will be resolved in the country. So, approving law without putting it into practice will not alleviate the challenges. The dishonor of poor governance and lack of law-enforcement will be more than the honor of having democratic law.