Defending the Principle of Legality in Afghanistan: Toward a Unified Interpretation of Article 130 to the Afghan Constitution
The 2004 Constitution of Afghanistan is one of the main sources of criminal law in the country, not because it defines crimes and punishments, but because it establishes the fundamental, individual rights and liberties that impact criminal law and procedure. Among these is the principle of legality, as expressed in Article 27 of the Afghan Constitution. The principle of legality is the doctrine that no person shall be held criminally liable for any conduct unless a statute criminalizing that conduct precedes it. This doctrine is based on the idea that it would be unjust to announce that an act is illegal, or increase the degree of punishment for a crime, after that act has been committed. This doctrine however is complicated by Article 130 of the Afghan Constitution, in which courts are directed to use Hanafi Fiqh (jurisprudence) to fill in the statutory gaps when no provision in the Constitution or other Afghan statutes offers a path to justice. This Article explains that, based on Article 130, many criminal courts have used Hanafi jurisprudence to justify convicting individuals for crimes or subjecting individuals to punishments that exist under certain interpretations of Hanafi jurisprudence, but the crimes and punishments are not codified in the Afghan Criminal Code. This Article argues that these interpretations of Article 130 not only violate the principle of legality set forth in Article 27 of the Afghan Constitution, but also contradict international criminal law including the principles of the Rome Statute of International Criminal Court. In addition, this Article asserts that differences in judicial training are at the root of why some jurists interpret Article 130 to allow for this level of discretion and some do not.