Editor in Chief: Moh. Reza Huwaida Thursday, December 13th, 2018

Lawbreaking – A Common Practice


Lawbreaking – A Common Practice

Man is entitled to live a free and dignified life without barriers to hamper his liberty. He has the right to express his thoughts and beliefs. Whenever the public find one’s thoughts and attitudes in conflict with the society, they cannot lynch him/her without legal process - otherwise it will be considered a flagrant violation of law. On the other hand, one can exercise his human rights and liberty to the extent that they are not harmful to others. In case of breaking the law, no one, other than competent governing bodies, is allowed to prosecute the accused.
Constitutionally, the police and district attorney are responsible to prosecute suspects or criminals. The police have the duty to collect evidence, investigate crimes, question or keep the suspect in custody, however, without torture. The Constitution states in article 134 as, “Discovery of crimes shall be the duty of police, and investigation and filing the case against the accused in the court shall be the responsibility of the Attorney’s Office, in accordance with the provisions of the law. The Attorney’s Office shall be part of the Executive organ and shall be independent in its performance….”
To view the foundation of Attorney Office historically, it was first established in Napoleonic Code in 1808 in France Criminal Law. The Code, which was founded in 1804 with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws. The Napoleonic Code was very influential on developing countries outside of Europe, especially in the Middle East, that were attempting to modernize their countries through legal reforms. Napoleon set to reform the French legal system in accordance with the ideas of the French Revolution because the old feudal and royal laws seemed confusing and contradictory to the people. The French Revolution’s Declaration of the Rights of Man and of the Citizen had declared that suspects were presumed to be innocent until they had been declared guilty by a court.
Even though the Napoleonic Code was not the first civil code and did not represent the whole of his empire, it was highly influential and significant. It was adopted in many countries, including Afghanistan. Afghanistan’s legal system is highly influenced by French law. Although, democracy is immature, the legal system is modern and in accordance with international civil and democratic standards. For instance, considering innocence as original state and crime as a personal act, prohibiting discrimination and distinction on the grounds of race, color, sex, etc, prohibiting torture, persecution and the acts which are contrary to human dignity, recognizing freedom and dignity as inviolable, etc. are universal principles which are stated in Afghanistan’s Constitution.
The law regarding the formation and authority of Attorney Office has passed four periods of influence in Afghanistan. It was first approved in the solar year of 1343 during the reign of Muhammad Zahir Shah, who was bestowed the title of “Father of the Nation” in Emergency Loya Jirga of 2002. The higher administration of attorney, which was initially dependent to the Ministry of Justice, was established on the basis of this law. The second law of attorney was approved in 1358. Similarly, the third and fourth ones were endorsed in solar years of 1369, during Dr. Najib’s government, and 1392.
Law has been widely violated in Afghanistan, mainly by dictatorial regimes. As a result, the communist parties (1358) held their political opponents in custody and some were tortured or lost their lives during regimes without standing on trial. Political prisoners were kept in damp and dark basements and their rights and dignity were trampled upon in the worst possible way. Laws were approved to prevent the individuals from committing crime and to protect the rights and dignity of the public. Now, the question is that can people exercise their rights to life, liberty and property under the current law?
The public still show interest in violating law and order in the country. As a result, just a few days back, I witnessed that a car, whose driver was suspect of a moral crime, was pelted with stones by an angry mob in a part of Kabul city and sought to pull the driver out to punish him. But the police reached on time and rescued him from the mob. The case of Farkhunda, a 27-year-old woman who was lynched by irate mob in Kabul more than a year ago, demonstrates the same fact. Similarly, desert courts take place every now and then in some villages, wherein traditional mindsets are deeply embedded. In short, people tend to punish the accused or suspects without the right to do so.
It is not only the common people who violate the law but officials also break the law on a large scale – based on a survey released only days earlier. Administrative corruption, bribery and keeping the suspects or criminals in prison longer than their detention-time are some common practices in government’s machinery. However, the government is supposed to enforce the rule of law, protect the rights and dignity of the public and prevent them from infringing the law. Citizens should be able to exercise their natural rights, i.e. the rights to life, liberty and property, without barriers.

Hujjattullah Zia is the permanent writer of the Daily Outlook Afghanistan. He can be reached at zia_hujjat@yahoo.com

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