THE VALIDITY OF THE PRINCIPLE OF LEGALITY IN AFGHAN CRIMINAL LAW: PROBLEMS AND SOLUTIONS

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SADR TOUHID KHANEH MOHAMMAD

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Journal: CRIMINAL LAW RESEARCH Year:2017 | Volume:4 | Issue:17 Page(s): 155-188

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Title

THE VALIDITY OF THE PRINCIPLE OF LEGALITY IN AFGHAN CRIMINAL LAW: PROBLEMS AND SOLUTIONS

Author(s)

SADR TOUHID KHANEH MOHAMMAD | Issue Writer Certificate

Keywords

PRINCIPLE OF LEGALITY OF CRIME AND PUNISHMENT

CRIMINAL LAW

THE CONSTITUTION

PENAL CODE

THEORY OF WEAK LAW

AFGHANISTAN

IRAN

HANAFI JURISPRUDENCE

Abstract

According to the Afghan Constitution, in the absence of relevant statutory laws, courts shall refer to HANAFI JURISPRUDENCE. However, there are other explicit and implied constitutional conditions, which should be taken into consideration, including compliance with the PRINCIPLE OF LEGALITY OF CRIME AND PUNISHMENT, which as one of the most fundamental principles of modern CRIMINAL LAW is guaranteed not only in the current Constitution but also in all the six most recent Afghan constitutions. However, Article 1 of the Afghan PENAL CODE of 1976 stipulates that it regulates only Tazirat punishments and refers Hodud, Qisas and Diyat punishments to HANAFI JURISPRUDENCE. This article is repugnant to these explicit and implied constitutional conditions, and as a “weak law” can be ignored. Generally speaking, although Sharia enjoys a prominent position in the Afghan Constitution, its status is different from the IRANian Constitution, which governs generally and absolutely over all articles of THE CONSTITUTION itself, as well as over all other laws and regulations. Besides, the legislator’s approach in the subsequent articles of the Afghan PENAL CODE of 1976 shows that even the legislator himself did not believe deeply in his own Article 1. Moreover, among recent laws, there are some examples that implicitly confirm the fact that Article 1 is not valid.

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APA: Copy

SADR TOUHID KHANEH, MOHAMMAD. (2017). THE VALIDITY OF THE PRINCIPLE OF LEGALITY IN AFGHAN CRIMINAL LAW: PROBLEMS AND SOLUTIONS. CRIMINAL LAW RESEARCH, 4(17 ), 155-188. SID. https://sid.ir/paper/266579/en

Vancouver: Copy

SADR TOUHID KHANEH MOHAMMAD. THE VALIDITY OF THE PRINCIPLE OF LEGALITY IN AFGHAN CRIMINAL LAW: PROBLEMS AND SOLUTIONS. CRIMINAL LAW RESEARCH[Internet]. 2017;4(17 ):155-188. Available from: https://sid.ir/paper/266579/en

IEEE: Copy

MOHAMMAD SADR TOUHID KHANEH, “THE VALIDITY OF THE PRINCIPLE OF LEGALITY IN AFGHAN CRIMINAL LAW: PROBLEMS AND SOLUTIONS,” CRIMINAL LAW RESEARCH, vol. 4, no. 17 , pp. 155–188, 2017, [Online]. Available: https://sid.ir/paper/266579/en

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