Source:

Frankfurter Rundschau: New religion police established at Supreme Court [ID 733]

12.2007 - Source: UN High Commissioner for Refugees

The Supreme Court comprises 9 judges and is the highest judicial organ in Afghanistan ("UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers") [ID 22289]

"The Supreme Court is the highest judicial organ in Afghanistan. Its duties include the review of laws, decrees, international treaties and international covenants to ensure they comply with the Constitution. The Supreme Court comprises nine judges, appointed for ten-year terms by the President, with the approval of the Wolesi Jirga. The President assigns one of the nine judges to serve as Chief Justice. The Supreme Court manages the personnel, budgets, and policy decisions of the entire national, regional and local court system.

On 5 August 2006, nine new Supreme Court judges were sworn in. The new Court is perceived as moderate, technocratic and educated. Currently, the Supreme Court is composed of the following:

• Chief Justice Abdul Salam Azimi;
• Judge Mohammad Qasem Hashemzai;
• Judge Abdul Rashid Rashed;
• Judge Gholam Nabi Nawai;
• Judge Bahuddin Baha;
• Judge Zamen Ali Behsudi;
• Judge Mohammad Qasem;
• Judge Mohammad Alim Nasimi; and
• Judge Mohammad Omar Barakzai.

In October 2006, Chief Justice Azimi presented the Supreme Court’s five-year reform strategy to achieve the rule of law benchmarks of the Afghanistan Compact and the ANDS. The strategy incorporates, inter alia, a plan to systematically review judicial remuneration, appointments, promotion and discipline. Efforts have also been made to fill the vacant positions within the court system and to ensure that newly-appointed judges meet higher standards of professionalism."

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

Supreme Court ("The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan; 22 September - 5 October 2002") [#11326],  [ID 729]

"A minimum of three judges are involved in each case before the Supreme Court. It was the opinion of the Deputy Minister of Justice that it does not cause any problems that the composition of the court may result in two judges having their professional background in Islamic law, and one having studied secular legislation - or vice versa. In certain cases, the Islamic law is applied in preference to secular law. The Deputy Minister of Justice did not go into further detail on this issue but mentioned that according to the Koran there are certain types of cases, that should not be dealt with by women. These may be cases involving amputation or the death sentence, but cases of this type no longer occur since the fall of the Taliban. It was only under the Taliban, that sentences involving amputation or death were pronounced. It never happened before, nor after the Taliban. There are still provisions for amputation and the death sentence in the law, but such sentences are not applied in practice.
In addition to the ordinary courts, there are some special courts: the Court for Young Criminals, and the special family court that pronounces final sentences but has no punitive power. The family court makes non-criminal related decisions in matters regarding divorce, engagement and similar matters. The court carries out conciliation rather than judgments."

Document(s): Open document

05.03.2003 - Source: Medica Mondiale

The Supreme Court: Fatwahs ("Trapped by Tradition - Women & Girls in Detention in Kabul Welayat") [#14380],  [ID 730]

"The Supreme Court’s issuance of Fatwahs In 2003, the Lord Chief Justice Shinwari has issued a multitude of legal rulings, known as ‘Fatwahs’, enshrining restrictive ideas routed in traditional interpretations of Islam. For example one ruling has been issued to ban cable television, and another has been issued to impose single-sex education nation-wide. The contents of these rulings reveals the architects to be not just conservatives but fundamentalists. The Fatwahs have shocked liberals in Kabul, who see them as giving implicit support to those with conservative ideology, and who note their rarity in former times. By contrast, in conversation, representatives of the Supreme Court claim that the Fatwahs have no legal weight and are merely recommendations which any religious figure has authority to issue. It is not clear if Shinwari can be counted as such a figure. Given the political power that legal institutions could represent, it is particularly vital to monitor the ways in which The Supreme Court and Judiciary are being used to restrict freedoms, including for women, and to watch for ways they are manipulated to constrain the possibility for progressive legislation."

Document(s): Open document

28.01.2003 - Source: International Crisis Group

Chief Justice of the Supreme Court ("Afghanistan: Judicial Reform and Transitional Justice") [#10512],  [ID 731]

"The Supreme Court is controlled by Fazl Hadi Shinwari, an ally of the Saudi-backed fundamentalist leader Abd al-Rabb al-Rasul Sayyaf. Shinwari was appointed in December 2001 by former president Burhanuddin Rabbani. President Hamid Karzai re-appointed him in June 2002, much to the surprise of many as the constitution requires that a Chief Justice be under 60, while another provision has been interpreted as requiring that the Chief Justice be educated in all sources of Afghan law, religious and secular. Shinwari is believed to be in his 80s and does not have formal training in secular sources of law.
Shinwari has rapidly placed political allies in key positions, even expanding the number of Supreme Court judges from nine to 137. Of the 36 Supreme Court judges whose educational qualifications are known, not one has a degree in secular law. Shinwari's actions, together with the re-emergence of a ministry to promote Islamic virtue, have added to fears that the judicial system has been taken over by hard-liners before the Afghan people have had a chance to express their will in a democratic process. The Supreme Court has also established new National Security Courts that will try terrorist and other cases although it is unclear whether it had the right to create courts that are not mandated in law."

Document(s): Open document
02430afgh.pdf

28.01.2003 - Source: International Crisis Group

The Supreme Court and the Chief Justice ("Afghanistan: Judicial Reform and Transitional Justice") [#10512],  [ID 732]

"The current Chief Justice, Fazl Hadi Shinwari, is the former head of a Peshawar madrasa and a close associate of Abd al-Rabb al-Rasul Sayyaf, leader of
the puritanical, Saudi-funded Ittihad-i-Islami party. He was appointed by President Burhanuddin Rabbani shortly before the Bonn Conference and retained by President Karzai after the formation of both the Interim Authority in December 2001 and the Transitional Administration in June 2002. Shinwari's
re-appointment has disturbed many who believe that Afghanistan needs to return to the relatively progressive values outlined in the 1964 Constitution. Some observers speculate it was a concession to Sayyaf, whose party did not get a cabinet ministry.
There are a number of problems with Shinwari's appointment. He is well over the maximum age of 60 set by the 1964 Constitution for a new Chief Justice, and his lack of training in secular law means he may not satisfy the requirements of article 105.
Shinwari has moved rapidly to appoint a large number of judges, expanding the Supreme Court to 137 by December 2002 ­- far in excess of the nine envisaged in the 1964 Constitution. The identities of 36 of Shinwari's appointees are publicly known; most appear to have minimal qualifications in Islamic law and none in Afghan or Western secular law. Some have clearly been chosen because of
their connections to political leaders. Shinwari has not appointed any women, some of whom fear they will be excluded from the judiciary."

Document(s): Open document
02430afgh.pdf