The current controversy over the Juvenile Delinquency law illustrates the conflicts within the Afghan legal system. The conflicts are rooted in Afghan history itself. "From the 1880's until the 1960's, Afghanistan essentially had a dual judicial system. A system of sharia courts headed by clergy handled areas ... such as criminal law, family and personal law laid down in the sharia. A separate system of government courts handled state law issues, such as those relating to commerce, taxation, and civil servants." In 1964, an Afghan constitution, ratified by the Loya Jirga attempted to bring those threads closer together, but it was ripped apart again in the period of war with the Soviet Union and during the rule of the Taliban.
Following the defeat of the Taliban at the hands of US forces in 2002, an international conference in Bonn stipulated the appointment of a "Judicial Commission" whose role was to "to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions." That sweeping task proved easier said than done. A Stanford University study described some of the difficulties which arose.
- Only 10 days after the close of Afghanistan's Constitutional Convention, Afghanistan's Supreme Court violated the word and spirit of Afghanistan's new constitution. Without any case before the court, and based on no existing law, the court declared on January 14, 2004 that a performance by the Afghan pop singer Salma on Kabul television was un-Islamic and therefore illegal. The video featuring the modestly dressed Afghan woman singing about rural life was recorded in the 1970s.
The reason for not approving the juvenile delinquency law was because there were differences considering the ages for male and female juvenile delinquents. This law defines the ages for punishment at 18 years for boys and at 17 years for girls. But according to the general Human Rights, those under 18 are called children.
Human Rights organizations praised Karzai's action, but it was opposed by various persons in the opposition, who argue that this law is contrary to the Islamic Sharia Law. Karzai's refraining from approving the juvenile delinquency law was praised by many parliament members who also didn't agree.
Member of Parliament Azita Fafat says that all laws that are approved by the parliament must be in accordance with the constitution of Afghanistan and the international conventions that were already approved by Afghanistan.
Islamic Sharia Law
The members of parliament who approved the juvenile delinquency law, referred to Article 3 in the Constitution which says that a law can not be accepted when opposing the Islamic Sharia law. Irfanullah Irfan, another member of parliament pointed to natural differences between man and woman, and refrained from approving the juvenile delinquency law for a lack of Sharia rules.
The juvenile delinquency law was approved six months before, after which it was sent to the Senate for final approval. The Senate-members approved the law without any changes and sent it to the presidential office. Many lawyers believe the original sources of such disagreements are in the constitutional law because the constitutional text for civil cases is not clear enough.
For this reason anyone can interpret the articles of the constitutional law with special regard to their own interests.