Law experts necessitate legal reforms in Afghanistan to develop a strong legislative framework

Three senior lawyers, in a joint article, have said that Afghanistan legal system requires crucial and comprehensive legal reform to enable the country to overcome range deficits and problems to pave the ground for sustainable growth in various arenas.

In their joint article published by Pajhwok News Agency, Shaheer Momeni, Pasoon Sadozai and Tamim Momeni have opined that legal reform in Afghanistan is a necessity, adding that the laws of a nation are its foundational pillars and should be at the forefront of the government's agenda.

The article reads that the Islamic Republic of Afghanistan (the Government) and various national and international organizations have made continuous efforts since 2002 to reform the country’s obsolete laws. However, the reform process has been sluggish and inefficient and, in many instances, the reforms introduced are incoherent and inadequate.

The lawyers added this has been principally due to the absence of a coherent reform program and the lack of effective coordination and consultation between Government agencies and relevant national and international stakeholders, as well as the lack of institutional capacity.

This has resulted in the enactment of defective legislation - such as the laws and regulations governing company and contractual matters - as well as legal and regulatory gaps in crucial areas of law. The impact of the pervasive deficiencies in Afghanistan’s legal regime is amplified by the inadequate legal knowledge and expertise of Government agencies to implement commercial laws and the lack of capacity of judges to effectively interpret and apply commercial laws where disputes arise.

Legal reform is crucial to achieving development in Afghanistan and should be at the forefront of the Government's agenda. The establishment of a law commission as set out in this paper (the Commission) would replace the current legislative procedure with one in which a single independent and competent body with the requisite legal expertise and competence leads a comprehensive program of legislative reform. This would mark a vital stride towards addressing the pervasive deficiencies in Afghanistan’s legislative regime and the development of a robust legislative framework, which is an indispensable factor for the rule of law, tackling corruption, economic development and attracting foreign direct investment.

Current legislative practice generally involves a relevant government agency drafting a proposed law for submission to the Ministry of Justice for review. The Ministry of Justice, in turn, submits the draft law for approval to the Council of Ministers. Subsequently, the draft is sent to Parliament for review and approval. There is generally limited or no meaningful consultation with relevant stakeholders as part of this process.

The inadequacies inherent in the current legislative process are twofold. Firstly, the relevant government agencies do not possess the requisite expertise and resources to draft legislation in line with international standards and in a manner that is suitable for effective implementation and enforcement in the context of Afghanistan’s specific circumstances and judicial framework. The Commission would address this by availing adequate resources and expertise to effectively meet these challenges.

Secondly, the current approach elicits questions of conflict of interest as the relevant government agency drafting a particular law is often also its ‘custodian’ and principal implementing body. This may incentivize the relevant government agency to draft legislation in a manner that grants it the maximum possible control and authority, notwithstanding that this may jeopardize the effectiveness of the relevant legislation.

The establishment of the Commission would circumvent such conflicts of interest as the Commission would draft legislation but would have no direct role in its implementation. In addition, the Commission would independently evaluate all relevant views and interests to ensure that draft laws address, in a balanced manner, the needs and concerns of all stakeholders.

As an independent body, the Commission would keep the law under review with the overriding objective of ensuring that the law is fair, effective, concise and simple. It would conduct extensive review and consultation in order to formulate a comprehensive program of law reform, which may be reviewed and amended as necessary from time to time. Prior to taking forward a particular project, the Commission would consult all stakeholders - including relevant government agencies, judges, lawyers, academics, non-governmental organizations and the private sector - to ensure that their interests and views are given due consideration.

The Commission would recommend reform where required or upon receiving a proposal or invitation for reform from a government agency or other stakeholder. In particular, the Commission would review areas where gaps are apparent, areas which are unduly complicated or outdated, or areas where reform is otherwise necessary to enhance the effectiveness of the relevant legislation. Following a comprehensive process of research and consultation, the Commission would make recommendations for reform of the relevant law to the relevant government agencies and the Parliament.

The role of the Commission would comprise of drafting and proposing new legislation to fill gaps in the legislative regime; for example, among other key laws, there are currently no specific laws governing torts (such as negligence) or trusts in Afghanistan. To ensure the maintenance of an effective legal framework, the Commission would also facilitate the repeal and amendment of existing legislation. This would allow obsolete or unnecessary laws – such as certain outdated laws based on the Egyptian civil code and are no longer applicable or suitable - to be repealed to avoid confusion and improve accessibility.

In addition, the Commission would recommend amendments to existing legislation as necessary; for example, the laws currently governing arbitration, company, partnership, insurance, contract, and public-private partnership matters require significant amendments to be brought in line with international best practice.

Moreover, in order to increase accessibility and modernize existing legislation, the Commission would facilitate the consolidation of existing legislation by bringing together, where possible, existing provisions located in separate legislation.

Ten Commissioners, each of whom may serve for up to two consecutive terms, would be appointed on a full-time basis for a period of two years. The Commissioners may undertake other relevant activities during their incumbency, including the provision of training and the delivery of relevant presentations and workshops to government agencies and members of the judiciary. This would assist, in particular, with keeping relevant stakeholders abreast of complex legislation and their practical application. 

The Commissioners would be aided by up to ten staff members, which will include a Parliamentary Counsel who would liaise with Parliament, a team of up to five research assistants who should be experienced lawyers, as well as an appropriate number of administrative staff depending on the workload of the Commission. The Commission would engage independent consultants where external expertise is required.

The Commission would consult widely, as mentioned above, to formulate a comprehensive program of law reform, which would be shared with Parliament, the Ministry of Justice and other relevant government agencies for review and comment. Prior to project selection, the Commission would consult, amongst others, the Judiciary, relevant government agencies, non-governmental organizations, and the private sector.

The Commission would consider whether to review an area of law for reform on the basis of the following criteria: (i) importance, i.e. the extent to which the relevant law is ineffective and the potential benefits of reform; (ii) suitability, i.e. whether the Commission is the most suitable body to conduct the review; and (iii) resources, i.e. whether the Commissioners have adequate expertise to conduct the review and sufficient funding for the project.

Once the Commission has decided to review an area of law, the scope of the project would be decided in conjunction with the relevant government agencies and a study of the relevant area of law would be undertaken to identify all defects. The Commission would publish a consultation paper detailing the existing law and its defects and the arguments for and against the available options for reform. The consultation paper would be circulated widely to all relevant stakeholders for their review and comment.

Following the expiry of the specified consultation period and the review of responses, a final recommendation paper would be produced by the Commission and submitted to Parliament and relevant government agencies, including the Ministry of Justice, for consideration. Where necessary, the Commission would submit the draft law(s) reflecting its recommendations together with the relevant recommendation paper.

The Commission would make recommendations for a legal form, but the enactment, amendment, repeal or consolidation of laws would be implemented by Parliament or pursuant to an executive order in accordance with the subsisting legislative process and framework.

Law reform is crucial to achieving Afghanistan's development objectives as envisioned in, amongst other notable policy and strategy documents, The Afghanistan National Development Strategy, and should be at the forefront of the government's agenda.

However, progress with legislative reform thus far has been sluggish and inefficient and, in many instances, the reforms introduced are patchy and incoherent. This has been attributed to, amongst other factors, the inadequacy of the technical legal expertise and institutional capacity of government agencies and existing legislative bodies.

The proposed Commission would be ideally placed to undertake the challenge of transforming Afghanistan’s legal framework to one that reflects international best practice and its establishment is imperative to meeting Afghanistan's development objectives at this critical juncture as the country strives for economic independence.