Afghanistan Defense Attorney Entrance Exam cheat sheet

The 2004 Constitution of Afghanistan is the supreme law; Article 6 obliges the state to observe the Constitution, and any law inconsistent with it is void.

Article 121 empowers the Supreme Court to review laws, decrees, and international treaties for Constitutionality on referral from courts or the government.

Article 130 directs courts to apply statutory law first, then Hanafi jurisprudence as a residual source where no statute covers the matter.

Article 116 establishes the judiciary as independent; judges are appointed by the President with approval of the Wolesi Jirga and cannot be removed except by law.

The Constitution creates three branches: executive (President), legislature (bicameral National Assembly: Wolesi Jirga and Meshrano Jirga), and judiciary.

Article 3 states that no law may contradict the sacred religion of Islam; Article 7 obliges respect for the Universal Declaration of Human Rights.

Article 22 guarantees equality before the law and non-discrimination; Article 24 protects liberty as an inherent human right.

Article 31 guarantees the right to defense, including counsel in criminal cases; Article 32 prohibits forced confessions and compulsion.

Hierarchy of norms: Constitution > ratified international treaties > statutes (Qanun) > regulations and administrative orders.

Legality principle: no crime and no punishment except under a prior law (nullum crimen, nulla poena sine lege); Article 27 of the Constitution.

Crimes are classified by penalty into major crimes (jinayat), minor offenses (junah), and petty violations (khilaf); classification governs procedure and limitation.

Mens rea categories include intentional (amdan), quasi-intentional (shibh-i-amd), and negligent (khata) conduct; intent generally required for major crimes.

Attempt (shuru') is punishable where the statutory offense is major; mere preparation is not punishable unless the law expressly says so.

Complicity: principal, accomplice (sharik), and accessory (mu'in); the accomplice receives the penalty of the principal offense.

Defenses include minority (under 18 subject to juvenile regime), insanity, duress, mistake of fact, self-defense (difah-i-mashru'), and superior orders where unlawful.

Penalties include hodud, qisas, diyat, ta'zir, and hadd-based corporal punishments; statutes set ta'zir ranges for most ordinary crimes.

Statute of limitations bars prosecution after prescribed periods; it does not run for grave offenses such as murder or crimes against humanity.

Non-retroactivity: a later, more lenient law applies retroactively to the benefit of the accused (favor rei).

Arrest requires lawful authority; the suspect must be informed of the reason for arrest and the charge in a language he understands.

The detained suspect must be brought before a competent authority within 72 hours; any longer detention requires a court order (Article 31).

Pretrial detention is exceptional; release on bail or personal recognizance is the default where the offense is not grave and flight risk is low.

The suspect has the right to counsel from the first interrogation; if indigent, counsel is appointed at state expense in major cases.

Search of a dwelling requires a judicial warrant except in hot pursuit, consent, or risk of destruction of evidence.

The investigation file must be disclosed to the defense before trial; the accused has a right to examine evidence and cross-examine witnesses.

Interrogation must be recorded; a confession obtained by torture, coercion, or threat is void and inadmissible.

The prosecutor (saranwal) supervises the investigation; the accused may file complaints against unlawful detention with the court.

Juveniles are handled by specialized juvenile courts; detention is a last resort and the presumption of innocence is reinforced.

Burden of proof rests on the prosecution in criminal cases; the standard is proof beyond a reasonable doubt.

The accused enjoys the presumption of innocence; silence or refusal to confess cannot be treated as an admission.

Admissible evidence categories include documentary evidence, testimony, expert opinion, physical evidence, and confessions.

A confession must be voluntary, made by a person with legal capacity, and corroborated where the offense is grave.

Hearsay is generally excluded unless it falls within a recognized exception (dying declaration, official records, business records).

Witness competency: a witness must be of sound mind and sufficient age; interested witnesses may testify but their credibility is weighed.

Illegally obtained evidence, particularly through torture or unlawful search, is excluded; the exclusionary rule protects fair trial rights.

Expert testimony is admitted where specialized knowledge is needed; the expert's opinion is advisory, not binding on the court.

Corroboration rules apply to accomplice testimony and to certain offenses requiring multiple witnesses under Islamic evidentiary rules.

Opening statement should state the theory of the defense and what the evidence will show, without argument or facts not provable.

Cross-examination should be leading, controlled, and aimed at one fact per question; avoid open-ended questions that invite explanation.

Objections must be timely and specific: leading, hearsay, relevance, speculation, foundation, and privilege.

Direct examination uses non-leading questions; leading questions are permitted for hostile witnesses and preliminary matters.

Closing argument may draw reasonable inferences from admitted evidence but may not assert facts outside the record.

Preserve the record: objections, offers of proof, and motions must be made on the record to support appeal.

Motion for acquittal (no case to answer) should be made at the close of the prosecution case where evidence is insufficient.

Effective assistance requires investigation, witness interviews, review of the file, and advising the client of plea consequences.

Sentencing advocacy: present mitigating factors such as age, remorse, restitution, family circumstances, and cooperation.

Duty of confidentiality covers all information learned in the representation and survives termination of the relationship.

Conflict of interest: a lawyer may not represent two clients with adverse interests in the same or substantially related matters without informed consent.

Competence and diligence require adequate preparation, legal research, and timely communication with the client.

The lawyer must not knowingly present false evidence or assist a client in perjury; withdrawal may be required.

Fees must be reasonable and disclosed; contingent fees in criminal cases are prohibited.

Attorney-client privilege protects confidential communications made for legal advice; it belongs to the client and only the client may waive it.

Disciplinary proceedings are conducted by the bar association and the courts; sanctions range from reprimand to disbarment.

A lawyer may not communicate with a represented opposing party about the subject of the representation without consent of that party's counsel.

Candor to the tribunal: the lawyer must cite adverse authority and correct misstatements of law or fact.

Contract formation requires offer, acceptance, consideration (or cause), capacity, and lawful object; consent must be free from duress and fraud.

A contract may be void (no legal effect), voidable (rescindable by the aggrieved party), or unenforceable for procedural defects.

Remedies for breach include specific performance, damages, rescission, and restitution; damages aim to place the injured party in the position as if performed.

Property law distinguishes ownership (milkiyat) from possession; transfer of immovable property generally requires registration.

Commercial transactions are governed by the Commercial Code; negotiable instruments and bills of exchange require formalities.

Agency: the principal is bound by acts of an agent acting within actual or apparent authority.

Limitation periods bar civil claims after prescribed years; the period runs from when the right to sue accrues.

Corporate entities have separate legal personality; shareholders' liability is generally limited to their contribution.

Arbitration clauses are enforceable; awards may be set aside only on limited grounds such as fraud or excess of jurisdiction.

Fair trial guarantees include an independent and impartial tribunal, public hearing, and reasonable time.

Presumption of innocence, right to counsel, right to examine witnesses, and right to an interpreter are core fair trial rights.

Article 14 of the ICCPR guarantees equality before courts and the right to a fair and public hearing by a competent tribunal.

Torture and cruel, inhuman, or degrading treatment are absolutely prohibited; no exception for emergency or war.

The UDHR (Articles 5, 9, 10, 11) and the ICCPR bind Afghanistan as treaty obligations under Article 7 of the Constitution.

Non-refoulement prohibits return of a person to a state where there are substantial grounds for risk of torture.

Right to liberty: detention must be lawful, reasoned, and subject to judicial review; habeas corpus relief must be available.

Freedom of expression, assembly, and association may be restricted only by law and only where necessary in a democratic society.

Economic, social, and cultural rights include the right to education, health, and work, subject to progressive realization.

Primary sources: Constitution, statutes, regulations, ratified treaties, and binding judicial decisions; secondary sources are persuasive only.

Citation format for Afghan statutes: name of the law, year of enactment, official gazette number, and article number.

IRAC structure: Issue, Rule, Application, Conclusion; use it for legal memoranda and exam answers.

A legal memorandum typically contains: statement of facts, questions presented, brief answer, discussion, and conclusion.

Pleadings must state material facts, the legal basis, and the relief requested; avoid argument and evidence in the statement of claim.

A motion should identify the relief sought, the legal authority, the factual grounds, and attach supporting evidence.

Statutory interpretation tools: plain meaning, legislative purpose, systematic context, and travaux preparatoires.

Research databases include the Official Gazette (Rasmi Jarida) and the Ministry of Justice for official texts of laws.

Drafting checklist: identify parties, define terms, state obligations clearly, allocate risk, and include dispute-resolution and governing-law clauses.