PART III POSTCONFLICT ADMINISTRATIONS IN PRACTICE
Chapter 10. Th e Rule of Law and Judicial Reconstruction
A. Re-establishing the Judicial System
3. Afghanistan: Reconstruction in a Complex Legal
The Afghan judicial system’s infrastructure was destroyed as a result of decades of war and political disorder. Basic office furniture and adequate court facili- ties did not exist and law books, legal decisions, studies and case reports were largely lost.903 The focus therefore needed to be on a re-launch of the judiciary and reconstruction of the infrastructure. In reality, the reconstruction process began only in early 2003, after the identification of Italy as the lead donor, the constitution of an Afghan Transitional Authority, and the development of a strategic framework jointly developed by UNAMA and the Judicial Reform Commission.
898 Hasegawa, S., ‘The Development Perspective: Three Imperatives for Sustainable Peace and Nation-building in a Post-Conflict Society’ (20 May 2005), para. B (1).
899 Hasegawa, S., ‘Lessons Learned from Peacekeeping and Peacebuilding Support Missions in Timor-Leste’, Berlin Centre for International Peace Operation (27 January 2006), p. 17.
900 See e.g. Human Rights Watch, ‘World Report 2003: Asia – East Timor’ (2004) and Judicial System Monitoring Programme, ‘Recent Developments in the Courts’ Justice Update Issue 22/2005 (October/November 2005), p. 1.
901 See for the same critique GA, ‘Interim report of the United Nations High Commissioner for Human Rights on the situation of human rights in Timor-Leste’, UN Doc. A/57/446 (2 October 2002), para. 25.
902 Human Rights Watch, ‘World Report 2003: Asia – East Timor’ (2004), p. 3.
903 See Judicial Reform Commission – UNAMA – UNDP, Rebuilding the Justice Sector of Afghanistan, Project Nr. AFG/03/001/01/34 ( January 2003).
The Bonn Agreement paved the way for judicial reform, although it explic- itly delineated the basis of such reform. Several elements in the reconstruction process, such as the definition of the applicable law, were thus very different from those in previous cases. The applicable Afghan laws and codes existed, but were largely unavailable to attorneys, judges and prosecutors. It was thus more a question of compiling, rather that defining, the applicable law.
(a) Finding and Compiling the Applicable Law
Afghanistan lacked a comprehensive judicial system, and laws differed substan- tially in the different provinces. The Afghan judicial system consists of state law, Sharia law and customary law, overlapping each other in the same subject areas.904 The 1964 Constitution, which settled the applicable law in accordance with the Bonn Agreement, had a unified system of laws, but the various succeeding regimes adopted new laws, often creating inconsistencies with each other.905 As the latter remained formally applicable, determining the applicable laws was not uncomplicated. Combined with the lack of training and education for judges, the lack of access to legal texts has resulted in a wider application of Sharia law throughout the country.906 The revision and compilation of laws was therefore the main issue in post-conflict Afghanistan.
The Bonn Agreement provided that until Afghanistan’s new constitution was adopted the country’s basic legal framework would consist of the 1964 Consti- tution and existing laws and regulations to the extent that they accorded with the Bonn Agreement and with international treaties to which Afghanistan was a party.907 The Afghan Interim Authority was also given the power to amend and repeal existing laws.908 The International Development Law Organisation was mandated by the Government of Italy – the ‘lead nation’ in judicial reform – to issue a compilation of all Afghan laws that were applicable in accordance with the Bonn Agreement.
904 For an overview see Wardak, A. and Spivack, D., ‘Afghanistan’s Domestic Legal Framework,’
The Senlis Council (September 2005).
905 Thier, J. A., ‘Re-establishing the Judicial System in Afghanistan’, CDDRL Working Paper Number 19 (September 2004), p. 10. See in general on the applicable law and Afghanistan’s legal background: International Commission of Jurists, ‘Afghanistan’s Legal System and its Compatibility with International Human Rights Standards’ (November 2002), para. 16.
906 See International Crisis Group, ‘Afghanistan: Judicial Reform and Transitional Justice’, Asia Report N°45 (28 January 2003), p. 7; International Commission of Jurists, ‘Afghanistan’s Legal System and its Compatibility with International Human Rights Standards’ (November 2002), paras. 11 and 59 and Thier, J. A., ‘Re-establishing the Judicial System in Afghanistan’, CDDRL Working Paper Number 19 (September 2004), p. 9.
907 Section II, 1), Bonn Agreement.
908 Ibid.
Revising existing laws and writing new ones was similarly imperative for the reform of the judiciary. Several new laws, such as the Law on the Organisation and Jurisdiction of the Courts, the Juvenile Justice Code and the Law on Prisons, were adopted in June 2005 after long consultations with the international community and UNAMA. The drafting of the interim Code of Criminal Procedure, which was promulgated by Presidential Decree in February 2004,909 was probably one the major achievements of the Judicial Reform Commission, UNAMA and Italy.
The new Code of Criminal Procedure replaced the former code throughout the country, but the difficulty in the effective implementation of the laws resurfaced.
The Italian plan was to focus on some 20 District Courts and the training of 20 Judges and 20 Prosecutors, who would then be assigned to pilot District Courts.
This plan was rightly criticised because of its partial focus on District Courts which would have caused inconsistency in the application of the interim code.910 Effective implementation of the new Code was problematic as the rural areas continued to rely more on the traditional dispute settlement mechanisms. Even in the rest of the country, the lack of qualified judges and of the availability of amended and newly passed laws makes it hard to apply these laws. A review of the Civil and Criminal Codes has conversely not yet been undertaken, although they have remained unaltered since their adoption in the 1970s.
(b) Institutional Reform and Physical Reconstruction
Beside the complexity of the fragmented Afghan legal system,911 the difficulty in rebuilding and proposing reforms in the justice sector in Afghanistan was mainly related to the many official institutions involved in the judiciary. The Minister of Justice, the Supreme Court and the Attorney General’s Office all have competences with regard to the justice sector, and work in parallel. With the establishment of the Judicial Reform Commission, which we will discuss in the next paragraph, a fourth institution was added. The lack of coordination between the official institution, UNAMA and the Judicial Reform Commission,
909 Report of the Secretary-General, UN Doc. A/58/742–S/2004/230, supra note 728, para.
27.
910 See for a critique Miller, L. and Perito, R., ‘Establishing the Rule of Law in Afghanistan’, United States Institute of Peace Special Report 117 (March 2004), p. 8.
911 See in general on this, and the implications for the reconstruction process: International Crisis Group, ‘Afghanistan: Judicial Reform and Transitional Justice’, Asia Report N°45 (28 January 2003), p. 5; Economic and Social Council, Commission on Human Rights, ‘Final report on the situation of human rights in Afghanistan submitted by the Special Rapporteur, Mr. Felix Ermacora, in accordance with Commission on Human Rights resolution 1994/84’, UN Doc.
E/CN.4/1995/64 (20 January 1995) and International Commission of Jurists, ‘Afghanistan’s Legal System and its Compatibility with International Human Rights Standards’ (November 2002), p. 15.
led to a focus on enhancing the coordination between these bodies instead of reforming the judiciary.912
The Bonn Agreement vested the judicial power of Afghanistan in the Afghan Supreme Court. The Interim Administration was also asked to “establish, with the assistance of the United Nations, a Judicial Commission to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions”.913 The first Judicial Commission was set up on 21 May 2002914 and comprised 16 members appointed by President Karzai.
As no progress had been made by the Judicial Commission and many criticisms had been expressed about its membership, which comprised only men linked to the ministries or the Supreme Court,915 it was dissolved in August 2002. A second commission called the ‘Judicial Reform Commission’ was eventually set up in November 2002.916 The Judicial Reform Commission’s task was limited to reform proposals, as the Commission had no authority in the Administration of Justice.917 Only the existing formal judicial institutions – the Minister of Justice, the Supreme Court headed by the Chief Justice, and the Attorney General’s Office – could implement proposed reforms. The Judicial Reform Commission’s tasks were nevertheless broad, from considering programmes for the selection and training of judicial professionals and prosecutors to proposing programmes for legal reform throughout the judicial system.918 The Judicial Reform Com-
912 See Report of the Secretary-General, UN Doc. S/2003/1212, supra note 742, (30 December 2003), para. 22.
913 Art. II, 2), Bonn Agreement.
914 Following the approval of its establishment by the President of the Interim Administration of Afghanistan (Interim Administration of Afghanistan, Presidential Decree 1243, 21 May 2002).
915 International Crisis Group, ‘Afghanistan: Judicial Reform and Transitional Justice’, Asia Report N°45 (28 January 2003), p. 12.
916 Islamic Transitional Government of Afghanistan, Presidential Decree 153 (2 November 2002).
The delays in the establishment – and working – of the Judicial Reform Commission had serious consequences, as many judicial appointments had already been made, especially to the Supreme Court which, in December 2002, comprised 137 members instead of 9, as provided for by the 1964 Constitution. Equally, the Chief Justice, Mawlawi Fazl Hady Shinwari, had created a fatwa council within the Supreme Court to issue extra-judicial religious decrees, without any legal basis and therefore in complete violation of the 1964 Constitution, the 1968 Law and Afghanistan’s international legal obligations See International Crisis Group,
‘Afghanistan: Judicial Reform and Transitional Justice’, Asia Report N°45 (28 January 2003), p. 10.
917 Islamic Transitional Government of Afghanistan, Presidential Decree 153, Art. 3.
918 Ibid., Art. 2, 3, 4 and 5. The Judicial Reform Commission was composed of 12 prominent Afghan legal experts, including two women, who were added to the Commission’s members only the day before the adoption of the presidential decree.
mission disbanded in June 2005 following a complete transfer of judicial reform responsibility to the three permanent judicial institutions.919
However, it is clear that in the first two years after the Bonn Agreement vir- tually no progress had been made in the Justice sector. Only in January 2003 did the Judicial Reform Commission publish the strategic framework, setting out the needs of and strategic plans for the reconstruction process.920 More than a year later, UNAMA formulated a new ‘Proposal for a Long-Term Stra- tegic Framework’921 expressing its views on improving the justice system and strengthening the permanent institutions by focusing on the reconstruction of the physical infrastructure, further training of judicial personnel, and law revi- sion. Despite the proposed focus, physical reconstruction of the judiciary has been very sparse and has centred on Kabul and its surroundings.922 A survey by the Judicial Reform Commission in February 2004 revealed that a majority of court buildings either did not exist or were severely damaged.923 With regard to the court structure, and although the Bonn Agreement does not explicitly refer to the 1964 Constitution as the framework for the judiciary and the courts, the general provisions of the 1964 Constitution relating to the organisation of the judiciary and the courts were nevertheless seen as applicable.924 In some districts, the Provincial Courts and/or Primary Courts had been established but were not functioning, while in other districts, most notably in the rural areas, the courts
919 Report of the Secretary-General, ‘The situation in Afghanistan and its implications for inter- national peace and security’, UN Doc. A/59/744–S/2005/183 (18 March 2005), para. 38.
920 Judicial Reform Commissions – UNAMA – UNDP, Rebuilding the Justice Sector of Afghani- stan, Project Nr. AFG/03/001/01/34 ( January 2003). The framework was officially supported by governmental officials, UN officials and the international community following the Rome Conference of December 2002 organised by the main donor and donor-coordinator. See: Final Statement of Rome Conference on Justice in Afghanistan (19–20 December 2002).
921 UNAMA – Rule of Law Unit, ‘Securing Afghanistan’s Future – Considerations on Criteria and Actions for Strengthening the Justice System: Proposal for a long-term strategic framework’
(February 2004).
922 After almost three years, only the Ministry of Justice building, the Attorney General’s offices and the Provincial Court Building in Kondoz had been restored. Report of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, UN Doc. A/60/224–S/2005/525 (12 August 2005), para. 42.
923 See Islamic Republic of Afghanistan – Ministry of Justice, ‘Justice for all – A Comprehensive Needs Analysis for Justice in Afghanistan’ (May 2005) and UNAMA – Rule of Law Unit, Securing Afghanistan’s Future – Considerations on Criteria and Actions for Strengthening the Justice System: Proposal for a long-term strategic framework (February 2004), p. 24.
924 That version of the Constitution as such only established the Supreme Court of Afghanistan as the administering, directing and representing authority of the judiciary (Article 107, 1964 Constitution), while the other courts were determined by the Law of the Jurisdiction and Organization of the Courts of Afghanistan of 1968.
had never been established.925 The new Constitution, adopted in January 2004, and the new Law on the Organisation and Jurisdiction of the Courts largely maintained the courts’ structure and competences. Nevertheless, there is a need to implement these structures effectively. In May 2006, for example, there was still only one Family and one Juvenile Court in the entire country,926 while there were still some 308 vacancies to be filled at the level of the District and Provincial Courts.927
(c) Continuous Education
The training of magistrates holding office is of course the most important part in this process, considering that Afghanistan, especially compared to Kosovo or East Timor, could rely on an active group of magistrates. In 1992, there were approximately 1,800 judges, 1,100 prosecutors, 6,000 support staff for the courts, and 4,000 support staff for the offices of the Attorney General.928 The majority of the judges and prosecutors had nevertheless been dismissed by the Taliban and by earlier governments, and replaced by theology graduates. This had resulted in a huge number of appointed magistrates lacking the required qualifications. In 2004, UNAMA’s Rule of Law Unit estimated that only a third of the judges and prosecutors held university degrees,929 while the Constitution clearly provided that in order to become a judge one must have a degree from the Faulty of Law or the Sharia Faculty. But the focus was laid too heavily on individuals who had no basic requirement for exercising the legal profession.
Obviously, magistrates who did not have the required university degrees should have been replaced, but it was seen as politically unfeasible to disqualify unskilled personnel.930 Instead, the training for sitting judges and prosecutors was seen as a method of giving officials who lacked the required basic legal education the minimum training they needed to do their job.
The main and largest training programme consists of providing continuous legal education to sitting judges and prosecutors. The programme was sponsored
925 UNAMA – Rule of Law Unit, ‘Securing Afghanistan’s Future – Considerations on Criteria and Actions for Strengthening the Justice System: Proposal for a long-term strategic framework (February 2004)’, p. 7.
926 Basel, M., ‘Judging in Countries in Conflict or Transition: An Afghan Perspective’, International Association of Woman Judges – 8th Biennial Conference (3–7 May 2006).
927 Report of the Secretary-General, UN Doc. A/60/712–S/2006/145, supra note 152, para.
26.
928 World Bank – UNDP – Asian Development Bank, ‘Afghanistan – Preliminary Needs Assess- ment for Recovery and reconstruction’ ( January 2002), para. 35.
929 UNAMA – Rule of Law Unit, ‘Securing Afghanistan’s Future – Considerations on Criteria and Actions for Strengthening the Justice System: Proposal for a long-term strategic framework (February 2004)’, p. 18.
930 Miller and Perito, supra note 910, p. 9.
on a bilateral basis by Italy as the lead nation in coordination with UNAMA and the Judicial Reform Commission. The programme was subcontracted to the International Development Law Organisation (IDLO) and the equally Italian-based International Institute of Higher Studies in Criminal Sciences.
The 16-month programme started in July 2003 and ended in October 2004.931 Some 450 judges, selected by the Judicial Reform Commission, took part in the courses. Courses were given on all aspects of law, as well as on the role of the judiciary, court and case management and judicial drafting.932 Although a clear focus on the principles of fair trial and human rights law seemed inevitable, the IDLO decided not to include human rights of women in its curriculum, nor questions on gender sensitivity, because this would be too sensitive for Afghans.933 Even so, human rights law and gender equality are internationally recognised standards. The fact that these issues were or still are sensitive should not have precluded their inclusion in the training programmes. In fact, the training courses for local judicial actors in these fields of law were possibly the only opportunity to introduce these principles to the judiciary. The programme was however not repeated in the following years.
A recurring problem is the small percentage of women participating in these courses. In the first initial training sessions, only 20 participants were women,934 and there does not seem to be any policy for improving women’s participation in the training courses. No official figures or statistics exist on the percentage of women in the Afghan judiciary, but Amnesty International reports state that approximately 1.3 per cent of judges are women, which corresponds to 27 women out of a total of 2,006 sitting judges in August 2003.935 On the other hand, the IDLO advanced that out of the 150 Kabul judges who followed the training courses approximately one third were women.936 In any case, the inadequate representation of women in the judiciary is an alarming fact, and was reported by the Special Rapporteur of the Commission on Human Rights on violence
931 See International Institute of Higher Studies in Criminal Sciences (ISISC), ‘Interim Training for the Afghan Judiciary’, Report on the Activities of ISISC during the first 6 months of the Project ( July 2003–January 2004).
932 An overview of the curriculum is available on IDLO’s website: ‘Interim Training Program for the Afghan Judiciary’, www.idlo.int/Afg_interim_training.htm.
933 GA, ‘Report of the Special Rapporteur of the Commission on Human Rights on violence against women, its causes and consequences, on the situation of women and girls on Afghanistan’, UN Doc. A/58/421 (6 October 2003). See for a critique: Amnesty International, ‘Afghanistan:
Re-establishing the rule of law’, Report n° ASA 11/021/2003 (14 August 2003), p. 14.
934 Ibid., p. 13.
935 Ibid., pp. 13–14.
936 IDLO, 2003 Annual Report (2004).
against women, who asked the Afghan Transitional Authority to take measures to increase the number of women in the judicial institutions.937
The setting up of an initial training programme for young lawyers, which commenced in May 2003, was an equally important step in re-establishing the judiciary. The successful completion of this course is a prerequisite for perma- nent appointment in the judiciary and other official institutions, such as the Ministry of Justice. The Legal Education Centre, established by the Judicial Reform Commission in April 2003, was mandated to oversee and organise the one-year training sessions.938 The first training session, launched in May 2003, was attended by some 150 lawyers who graduated from the Faculty of Law and the Sharia Faculty. In May 2004, the first batch of 125 law students graduated after the one-year course at the Legal Education Centre.939
Notwithstanding the various efforts to re-create a sustainable judicial system, there was no clear coherence between the different programmes. Apparently, a separate training programme has been set up for every parcel of funding received by a state. Equally, considering the fundamental need to provide training and even basic education to the already appointed magistrates, especially in the Provinces, a mandatory training scheme following an assessment of all judges should have been envisaged. At present, more than six years after the signature of the Bonn Agreement, unqualified magistrates are still serving in many of the courts and tribunals. Many of the appointed judges still lack a university educa- tion, as required by the constitution and the laws. In addition to the problems relating to the qualification of judges, the judiciary is faced with considerable and deep-rooted corruption, mainly caused by very low salaries.940
937 GA, ‘Report of the Special Rapporteur of the Commission on Human Rights on violence against women, its causes and consequences, on the situation of women and girls on Afghanistan’, UN Doc. A/58/421 (6 October 2003), para. 29.
938 The course was divided into a nine-month theoretical part, including teaching on national, international and human rights law, followed by three months of practical training (Amnesty International, ‘Afghanistan: Re-establishing the rule of law’, Report n° ASA 11/021/2003 (14 August 2003), p. 13).
939 Judicial Reform Commission – UNAMA – UNDP, ‘Rebuilding the Justice Sector of Afghani- stan’, Project Nr. AFG/03/001/01/34 ( January 2003). See also Press Briefing by Manoel de Almeida e Silva, Spokesman for the Special Representative of the Secretary General on Afghanistan, UN News Centre (13 May 2004).
940 UNAMA – Rule of Law Unit, ‘Securing Afghanistan’s Future – Considerations on Criteria and Actions for Strengthening the Justice System: Proposal for a long-term strategic framework’
(February 2004), p. 24. See also: Basel, supra note 926. An increase of 500% over a period of 12 years has however been envisaged by the latest ‘Needs analysis’ from the Ministry of Justice (See Islamic Republic of Afghanistan – Ministry of Justice, ‘Justice for all – A Comprehensive Needs Analysis for Justice in Afghanistan’ (May 2005), p. 7.