Expert Opinion versus Witness Testimony and the Possibility of Conflict in Afghanistan’s Legal System

Abstract

Expert opinion and witness testimony are regarded as the principal means of proof in the Afghan legal system. The Law on the Principles of Civil Procedure treats expert evidence under the rubric of “ahl-e-khabr,” composed of persons with specialized knowledge and experience, and defines testimony as the declaration of truth before the court expressed by the formula “ashhadu.” The central question of this study is whether a conflict can arise between these two evidentiary means in civil and commercial disputes. An analysis of the status and potential conflict between expert opinion and testimony plays an important role in enhancing the quality of adjudication, ensuring judicial fairness, and promoting consistency in judicial practice, and it can reduce existing legal ambiguities in the process of proving claims. The aim of the research was an analytical comparison of expert opinion and testimony and an assessment of the feasibility of conflict between them. The main research question asks whether, within the framework of the Law on the Principles of Civil Procedure, a conflict between expert opinion and testimony is conceivable and realizable. This applied study was conducted using a descriptive-analytical method. Data were collected through library research and analysis of statutory provisions, and the scope of the research is limited to civil and commercial disputes. The findings indicate that the realization of a conflict between means of proof requires four conditions: (1) plurality of evidentiary sources; (2) inconsistency of their content; (3) identity (unity) of the subject matter; and (4) simultaneous probative force. The results further show that a conflict does not materialize in some scenarios, and where it does occur most jurists give precedence to testimony—unless the expert opinion produces judicial certainty for the judge, in which case the expert opinion is preferred over testimony.