DOCSLIB.ORG

Reforming Afghanistan's Broken Judiciary

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

REFORMING AFGHANISTAN’S BROKEN JUDICIARY Asia Report N°195 – 17 November 2010 TABLE OF CONTENTS EXECUTIVE SUMMARY AND RECOMMENDATIONS ................................................. i I. INTRODUCTION ............................................................................................................. 1 II. A LEGACY OF POLITICAL INTERFERENCE ......................................................... 4 A. CONSTITUTIONAL MONARCHY: 1923-1973 ................................................................................. 4 B. DAOUD AND PDPA GOVERNMENTS: 1973-1989 ......................................................................... 5 C. THE MUJAHIDIN AND TALIBAN: 1990-2001 ................................................................................. 6 D. AFTER BONN: 2001-2004 ............................................................................................................ 7 III. INTERNATIONAL INVOLVEMENT ......................................................................... 10 IV. LEGAL ARCHITECTURE ........................................................................................... 13 A. THE 2004 CONSTITUTION .......................................................................................................... 13 B. THE COURTS .............................................................................................................................. 15 1. Supreme Court ........................................................................................................................... 15 2. Lower courts .............................................................................................................................. 17 3. Special courts: counter-narcotics ............................................................................................... 18 C. ATTORNEY GENERAL ................................................................................................................. 19 D. MINISTRY OF JUSTICE ................................................................................................................ 21 V. THE CAPACITY-CORRUPTION CONTINUUM ..................................................... 23 A. A QUESTION OF CAPACITY ........................................................................................................ 23 B. CONFRONTING CORRUPTION ...................................................................................................... 25 VI. OPERATING OUTSIDE THE LAW ............................................................................ 28 A. EXTRAORDINARY JUSTICE ......................................................................................................... 28 B. U.S. DETENTION POLICY ........................................................................................................... 29 C. THE LIMITS OF INFORMAL JUSTICE ............................................................................................ 30 VII. CONCLUSION .............................................................................................................. 31 APPENDICES A. MAP OF AFGHANISTAN .................................................................................................................... 33 B. GLOSSARY OF TERMS ...................................................................................................................... 34 C. ABOUT THE INTERNATIONAL CRISIS GROUP .................................................................................... 35 D. CRISIS GROUP REPORTS AND BRIEFINGS ON ASIA SINCE 2007 ......................................................... 36 E. CRISIS GROUP BOARD OF TRUSTEES ................................................................................................ 38 Asia Report N°195 17 November 2010 REFORMING AFGHANISTAN’S BROKEN JUDICIARY EXECUTIVE SUMMARY AND RECOMMENDATIONS Afghanistan’s justice system is in a catastrophic state of war. The courts, for years, have suffered manipulation disrepair. Despite repeated pledges over the last nine years, from an executive branch that has abused the law to for- the majority of Afghans still have little or no access to ju- tify its position in the ongoing tussles between the secular dicial institutions. Lack of justice has destabilised the and religious, the centre and periphery, the rich and poor. country and judicial institutions have withered to near The Afghan government’s historic inability and persistent non-existence. Many courts are inoperable and those that unwillingness to resolve conflicts between state codes, do function are understaffed. Insecurity, lack of proper Islamic law and customary justice embedded in the legal training and low salaries have driven many judges and culture have further destabilised the country. The critical prosecutors from their jobs. Those who remain are highly leverage provided to fundamentalists in the constitution susceptible to corruption. Indeed, there is very little that has concurrently had a deep impact on the evolution of is systematic about the legal system, and there is little legal institutions. evidence that the Afghan government has the resources or political will to tackle the challenge. The public, conse- The strong presidential system adopted under the 2004 quently, has no confidence in the formal justice sector constitution has only exacerbated the weakness of judicial amid an atmosphere of impunity. A growing majority of institutions. The lack of a clearly defined arbiter of the Afghans have been forced to accept the rough justice of constitution has undercut the authority of the Supreme Taliban and criminal powerbrokers in areas of the country Court and transformed the court into a puppet of Presi- that lie beyond government control. dent Hamid Karzai. Given the wide range of powers granted the president and lack of checks and balances in To reverse these trends, the Afghan government and inter- the system, it is unrealistic to expect change will come national community must prioritise the rule of law as the from his quarter. The international community, meanwhile, primary pillar of a vigorous counter-insurgency strategy has done little to create incentives for political restraint that privileges the protection of rights equally alongside and accountability within the executive. The National As- the protection of life. Restoration of judicial institutions sembly must, therefore, consider its options for triggering must be at the front and centre of the strategy aimed at constitutional review either through convening a constitu- stabilising the country. The Afghan government must tional Loya Jirga, or grand assembly, or through the adop- do more to ensure that judges, prosecutors and defence tion of a constitutional amendment requiring the initiation attorneys understand enough about the law to ensure its of a full-scale review of the founding document by 2014. fair application. Reinvigoration of the legal review proc- ess and the adoption of a more dynamic, coordinated Friction between various stakeholders over the priority approach to justice sector reform are critical to changing and content of rule of law reforms is blocking progress. the system. Justice is at the core of peace in Afghanistan There is a strong need to improve the legal review proc- and international engagement must hew to the fundamen- ess by building capacity at the ministry of justice, with tal goal of restoring the balance of powers in government combined input from Afghan officials and expert inter- and confronting governmental abuses, past and present. national advisers. At the local level, the government and Urgent action is also needed to realign international assis- international community must deliver on the promise tance to strengthen support for legal education, case man- made at the 2007 rule of law conference in Rome to sup- agement, data collection and legal aid. port better coordination between primary courts in the provinces and districts and high courts in Kabul. Legal institutions and legal elites have been deeply affected by the political paroxysms of more than three decades Dysfunction at the provincial level has long been a hall- of conflict. The judiciary has been scarred by a legacy of mark of a system unable to resolve tensions between its political interference by both Afghan powerbrokers and highly centralised organisation and the diffusion of the external actors. Judicial independence has, as a result, population across difficult and often inaccessible terrain. been one of the main casualties of Afghanistan’s protracted Over the years, the Afghan government and the interna- Reforming Afghanistan’s Broken Judiciary Crisis Group Asia Report N°195, 17 November 2010 Page ii tional community have endeavoured to resolve this prob- justice system to conform to international norms until U.S. lem, most notably through the introduction of regional and NATO allies adjust their own policies and practices. trainings for Afghan judges and prosecutors. This is not enough. After nearly a decade of financial pledges and promises, neither the government nor the international RECOMMENDATIONS community have a full picture of the demand for legal services at the provincial and district level. Province-by- To the Government of Afghanistan: province assessments of the courts, attorney general’s office and ministry of justice, including a focused look at 1. Initiate a serious, comprehensive review of the con- caseloads, settlement and conviction rates, shortages in stitution with a view
Recommended publications
  • A Letter from Afghan Professors

    A Letter from Afghan Professors

    Seattle Journal for Social Justice Volume 12 Issue 1 Article 3 2013 Greetings and Grievances: A Letter from Afghan Professors Laurel Currie Oates Seattle University School of Law Follow this and additional works at: https://digitalcommons.law.seattleu.edu/sjsj Recommended Citation Currie Oates, Laurel (2013) "Greetings and Grievances: A Letter from Afghan Professors," Seattle Journal for Social Justice: Vol. 12 : Iss. 1 , Article 3. Available at: https://digitalcommons.law.seattleu.edu/sjsj/vol12/iss1/3 This Article is brought to you for free and open access by the Student Publications and Programs at Seattle University School of Law Digital Commons. It has been accepted for inclusion in Seattle Journal for Social Justice by an authorized editor of Seattle University School of Law Digital Commons. For more information, please contact [email protected]. 61 Greetings and Grievances: A Letter from Afghan Professors Laurel Currie Oates* On that first day, all of us were wary. Although I had taught in Afghanistan on two prior occasions, this was the first time some of my “students” were professors who taught Shariah1 law at the country’s two most conservative universities: the University of Nangarhar, which is in the eastern part of Afghanistan, and the University of Kandahar, which is in the south.2 Wearing traditional clothing and beards, the professors who sat in front of me looked very much like the “insurgents” so often featured on my evening newscasts. I, on the other hand was a woman, albeit an older woman, from the United States.3 * Laurel Currie Oates is a Professor of Law at Seattle University School of Law.
  • Reforming Afghanistan's Broken Judiciary

    Reforming Afghanistan's Broken Judiciary

    REFORMING AFGHANISTAN’S BROKEN JUDICIARY Asia Report N°195 – 17 November 2010 TABLE OF CONTENTS EXECUTIVE SUMMARY AND RECOMMENDATIONS ................................................. i I. INTRODUCTION ............................................................................................................. 1 II. A LEGACY OF POLITICAL INTERFERENCE ......................................................... 4 A. CONSTITUTIONAL MONARCHY: 1923-1973 ................................................................................. 4 B. DAOUD AND PDPA GOVERNMENTS: 1973-1989 ......................................................................... 5 C. THE MUJAHIDIN AND TALIBAN: 1990-2001 ................................................................................. 6 D. AFTER BONN: 2001-2004 ............................................................................................................ 7 III. INTERNATIONAL INVOLVEMENT ......................................................................... 10 IV. LEGAL ARCHITECTURE ........................................................................................... 13 A. THE 2004 CONSTITUTION .......................................................................................................... 13 B. THE COURTS .............................................................................................................................. 15 1. Supreme Court ........................................................................................................................... 15
  • The Justice System As the Most Important—Though Time Consuming—Strategy for Overcoming Poor Judicial Performance and Reducing Corruption in the Justice System

    The Justice System As the Most Important—Though Time Consuming—Strategy for Overcoming Poor Judicial Performance and Reducing Corruption in the Justice System

    Public Disclosure Authorized Public Disclosure Authorized Justice Development Programming in Fragile and Conflict-Affected Areas: Perspectives of Two Leaders in Justice Administration Public Disclosure Authorized Chief Justice Abdul Salam Azimi, Chief Justice of Afghanistan Christiana Tah, Minister of Justice, Republic of Liberia Public Disclosure Authorized About the Justice and Development Working Paper Series The Justice and Development Working Paper Series serves as a platform for new and innovative thinking on justice and development that features work from World Bank and external authors. It is a product of the World Bank’s Justice Reform Practice Group, which generates knowledge and provides advice and assistance to Bank staff and Bank client countries on building improving state and non-state justice system institutions and mechanisms. Justice and Development disseminates the findings of works in progress to facilitate a more rapid exchange of ideas about development issues and justice reform. Editorial Policy The Justice and Development Working Paper Series publishes original research papers on law, justice and development. Publication proposals may be made by Bank staff and external contributors. Manuscripts must be in English and no longer than 25-30 pages. They can be submitted at any time. All submitted papers will be acknowledged and carefully reviewed by the editorial committee. Criteria for selection include rigorous scholarship and topics about innovative approaches to law, justice and development generally, particularly topics related to institutional reform of justice sector agencies justice in development, including community legal empowerment and access to justice programming criminal justice reform and administration justice systems in conflict-affected and fragile areas monitoring and evaluation of justice systems and projects.

  • Making the 2004 Constitution of Afghanistan: a History and Analysis Through the Lens Of

    Making the 2004 Constitution of Afghanistan: A History and Analysis Through the Lens of Coordination and Deferral Theory Shamshad Pasarlay A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Washington 2016 Reading Committee: Clark Lombardi, Chair Joseph Janes Jonathan Eddy Hugh Spitzer Rachel Cichowski Program Authorized to Offer Degree: School of Law © Copyright 2016 Shamshad Pasarlay University of Washington ABSTRACT Making the 2004 Constitution of Afghanistan: A History and Analysis Through the Lens of Coordination and Deferral Theory Shamshad Pasarlay Chair of the Supervisory Committee: Professor Clark Lombardi School of Law My objective in this dissertation is to provide a theoretically informed history of Afghanistan’s many constitutions. While Afghanistan’s constitutional history has attracted considerable scholarly attention, it remains under-examined from a theoretical perspective. Building on insights from coordination theory and constitutional deferral theory, this dissertation attempts to tell a complete, nuanced, and theoretically informed constitutional history of Afghanistan as well as a history of the drafting and reception of the 2004 Constitution of Afghanistan. Through this analysis, it normatively judges Afghan constitutions by examining whether they coordinated the various disparate factions of this deeply divided country. This dissertation finds that the most successful Afghan constitutions deliberately left major issues unresolved when powerful
  • Constitutional Law of Afghanistan

    Constitutional Law of Afghanistan

    AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF AFGHANISTAN An Introduction to the Constitutional Law of Afghanistan Afghanistan Legal Education Project (ALEP) at Stanford Law School alep.stanford.edu [email protected] Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 www.law.stanford.edu ALEP – STANFORD LAW SCHOOL Authors Rose Leda Ehler (Student Co-Director, 2011-12) Daniel Lewis (Student Co-Director, 2011-12) Elizabeth Espinosa Jane Farrington Gabe Ledeen Editors Stephanie Ahmad (Rule of Law Fellow, 2011-12) Ingrid Price (Student Co-Director, 2012-13) Sam Jacobson (Student Co-Director, 2013-14) Catherine Baylin Jane Farrington Jay Minga Jason Fischbein Faculty Director Erik Jensen Rule of Law Program Executive Director Megan Karsh Advisors Rolando Garcia Miron Rohullah Azizi Visual Designers Daniel McLaughlin Paula Airth AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Faculty Editors Ghizaal Haress Jenn Round Mohammad Isaqzadeh Nafay Choudhury Chair of the Department of Law Taylor Strickling, 2012-13 Hadley Rose, 2013-14 Mehdi Hakimi, 2014- TABLE OF CONTENTS Chapter 1: An Introduction to Constitutionalism……………………………………………. 1 Chapter 2: The Separation of Powers………………………………………………………...36 Chapter 3: The Executive…………………………………………………………………….. 91 Chapter 4: Government & Administration…………………………………………………112 Chapter 5: The Legislature………………………………………………………………......135 Chapter 6: The Judiciary……………………………………………………………………. 151 Chapter 7: Fundamental Rights of Citizens Civil & Political Rights and Economic, Social, & Cultural Rights………………………..179 Chapter 8: Fundamental Rights of Citizens Rights of Criminal Defendants……………………………………………………………… 243 Glossary……………………………………………………………………………………..... 265 i PREFACE & ACKNOWLEDGMENTS Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007 as a student-initiated program dedicated to helping Afghan universities train the next generation of Afghan lawyers.

  • Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed

    Rule of Law in Afghanistan Why U.S. Efforts to Geoffrey Swenson Promote the Rule of Law in Afghanistan Failed Upon assuming ofªce in January 2009, President Barack Obama demanded a dramatic shift in U.S. policy toward Afghanistan. Government corruption and lawlessness were fueling the Taliban insurgency. State courts sought rents rather than justice. Obama promised a new approach to halt the steadily deteriorating security sit- uation, bolster the state’s failing legitimacy, and reverse the Taliban’s striking resurgence. Promoting the rule of law and ending the justice vacuum would be at the center of U.S. policy, along with military force.1 Advancing the rule of law constituted a hallmark of U.S. counterinsurgency efforts in Afghanistan. The ofªcial policy declared, “Justice and rule of law programs will focus on creating predictable and fair dispute resolution mechanisms to eliminate the vacuum that the Taliban have exploited.”2 In one sense, the Obama adminis- tration had identiªed a central truth: post-conºict state-building constitutes a major domestic and international endeavor with profound transnational secu- rity implications.3 Establishing a viable state justice sector is vital to the overall success or failure of state-building efforts.4 Geoffrey Swenson is a fellow in the Department of International Development at the London School of Eco- nomics and Political Science. The author thanks Nancy Bermeo, E.A. Brett, Richard Caplan, Richard Youngs, seminar partici- pants at the London School of Economics, and especially the anonymous reviewers for their very helpful comments. He is also grateful to those interviewed for this article for their invaluable in- put.
  • Judicial Independence in Afghanistan: Legal Framework and Practical Challenges

    Judicial Independence in Afghanistan: Legal Framework and Practical Challenges

    JUDICIAL INDEPENDENCE IN AFGHANISTAN: LEGAL FRAMEWORK AND PRACTICAL CHALLENGES Shoaib Timory February 2021 Afghanistan Research and Evaluation Unit Research for a better Afghanistan Afghanistan Research and Evaluation Unit Issues paper JUDICIAL INDEPENDENCE IN AFGHANISTAN: LEGAL FRAMEWORK AND PRACTICAL CHALLENGES Shoaib Timory February 2021 This disclaimer informs readers that the views, thoughts, and opinions expressed in the publication belong solely to the author, and not necessarily to the author’s employer, organisation, committee or other group or individual or that of AREU. Author: Shoaib Timory Editor: Toby Miller Publication code: 2101 E ISBN: 978-9936-641-662 © 2021 This publication may be quoted, cited, or reproduced only for non-commercial purposes and provided that the source is acknowledged. Where this publication is reproduced, stored, or transmitted electronically, a link to AREU’s website (www.areu.org.af) should be provided. Afghanistan Research and Evaluation Unit 2020 About the Afghanistan Research and Evaluation Unit The Afghanistan Research and Evaluation Unit (AREU) is an independent research institute based in Kabul that was established in 2002 by the assistance of the international community in Afghanistan. AREU’s mission is to inform and influence policy and practice by conducting high-quality, policy relevant, evidence-based research and actively disseminating the results and promote a culture of research and learning. Since 2020, AREU organization is registered with Ministry of Economy (MoEc) as a non-profit NGO. As the top think-tank in Afghanistan and number three in Central Asia according to the Global Go To Think Tank Index Report at the University of Pennsylvania, AREU achieves its mission by engaging with policy makers, civil society, researchers and academics to promote their use of AREU’s research-based publications and its library, strengthening their research capacity and creating opportunities for analysis, reflection and debate.
  • SAE Enewsletter

    SAE Enewsletter

    A QUARTERLY UPDATE FROM THE SOCIETY OF AFGHAN ENGINEERS 1 | P a g e A QUARTERLY UPDATE FROM THE SOCIETY OF AFGHAN ENGINEERS SAE eNEWSLETTER Volume 11, Issue 2 Hamal 1400 April 2021 P.O. Box 11097, Alexandria, Virginia 22312 http://www.afghan-engineers.org/index.html ___________________________________________________________________________ _____ ______________________ _ Dear Colleagues: On behalf of the the SAE There is news about SAE- eNewsletter Subcommittee, I Ashraf Roshan Scholarship am wishing you, your for Architecture Education in INSIDE THIS ISSUE respected families, friends, Afghanistan. and colleagues a Happy New 3 SAE President’s Message Year 1400 . We are looking Message from the Chairman, The newsletter includes 6 forward to the prosperity and SAE Board of Directors peace in Afghanistan and the report of the newly elected 8 Wingwall Design of Skewed- entire world. Executive members of the Crossing Concrete Box Society and Chairpersons of Culverts We are also wishing you the Committees for the 2021- safety from coronavirus. 2023 term. There is news 22 Interview with Honorable Professor Abdul Salam Azimi This is the second issue of the about SAE 2021 new former Chief Justice of the Year 2021 SAE eNewsletter members. Supreme Court of the Islamic (newsletter) and eleventh Republic of Afghanistan, and year of the quarterly update We are looking forward to the former President of Kabul from the Society of Afghan receipt of your technical news University Engineers (SAE) through the and articles, especially about 32 Membership News publication of the newsletter. Afghanistan. 33 SAE-Ashraf Roshan This issue of the newsletter Very Truly Yours, Scholarship for Architecture features an article by Education Amanullah Mommandi, P.E.
  • © Copyright by the Endowment of the United States Institute of Peace

    © Copyright by the Endowment of the United States Institute of Peace

    Part VI Middle East and Central Asia © Copyright by the Endowment of the United States Institute of Peace © Copyright by the Endowment of the United States Institute of Peace 20 Big Tent, Small Tent The Making of a Constitution in Afghanistan1 J Alexander Thier n late 2003, Afghanistan experienced a those centered on urban-rural, modern- moment of hope for renewal and rec- traditional, and ethnic distinctions, as well onciliation after decades of turmoil and as on divergent views on the role of Islam in Idevastation. Thirty years earlier, a coup had politics. These cleavages have fueled—and upended a nascent democratic order, setting have been further exacerbated by—recent off a series of invasions, regime changes, and conflicts. Moreover, in the course of thirty civil wars that would kill 10 percent of the years, Afghanistan changed from a constitu- population, send a third of Afghanistan’s peo- tional monarchy to a republic, to a commu- © Copyrightple into exile, and destroy theby infrastructure the Endowmentnist dictatorship under Soviet occupation, of to and economy of this already least-developed a failed and fractured state engaged in dev- thenation. United In December 2003, States Afghanistan con- Instituteastating civil war, to ofthe home Peace of a funda- vened a loya jirga, 2 or grand national assem- mentalist and obscurantist theocracy which bly, to revise and ratify a new constitution. thrived, in part, upon the largesse of a global The goal of this process and the document it terrorist confederation’s leaders and revenue would produce was to forge a new and lasting from the world’s largest opium crop.