The Separation of Powers and the Problem of Constitutional Interpretation (Dari)

Abstract

This article discusses the civil responsibility of the state in the legal system of Afghanistan, which is based on Article 51 of Constitution. It begins with an explanation of two theories regarding the basis of the civil responsibility of the state: the theory of fault and the theory of risk, which lead to different results in some cases where a citizen or corporation claims compensation for some damage. However, the existing Afghan legislation lack some clarity; among others, the relevant actions of the state have not yet been defined and categorized. The article therefore explains the scholarly understanding of these activities and decisions that the state carries out, which include legislation, contracts, administrative decisions, judgment, and so on. Legal scholars further categorize them in sovereign and none- sovereign, political, administrative and judicial, and national and local actions. Another important question concerns the burden of proving the state civil responsibility, which has not been regulated in the legal system of Afghanistan, too. In order to pave the ground for the implementation of Article 51 of the Constitution, drafting and approval of a law on civil responsibility of the state – as it exists in the USA, the Islamic Republic of Iran and other countries – seem to be recommendable.