mohammad sadr touhid-khaneh
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 ...
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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.
Jafar Yazdian Jafari
Abstract
In this article I embark on the contrast between individual and national
security in crimes against security. Crimes against the state can be divided
into crimes against existence of state and authority of state. In these crimes
the first victim is the state itself. Crimes against the security are ...
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In this article I embark on the contrast between individual and national
security in crimes against security. Crimes against the state can be divided
into crimes against existence of state and authority of state. In these crimes
the first victim is the state itself. Crimes against the security are located in
the first category. In these crimes accused rights probably are violated by
the state because the state cannot remain neutral. In this regard, firstly I
discuss on the principals of criminal law about crimes against security and
then its legality. Some scholars believe that public interest is a good pretext
to violate the given rights but other scholars firmly assert that no pretext is
welcomed. This research shows that the present criminal regulation of Iran
followed the first approach which has progressed after the revolution
(1979).
