The Ministry of Justice [ID 742]

"The Ministry of Justice in both the Interim Authority and the Transitional Administration has been headed by Abdul Rahim (Abbas) Karimi, a professor of Sharia from Takhar Province. Though previously associated with Islamist parties ­ in turn, Gulbuddin Hikmatyar's Hizb-i-Islami and former President Rabbani's Jamiat-i-Islami ­Karimi casts himself as a relative moderate. In a speech delivered during the inauguration of the second Judicial Commission on 28 November 2002, Karimi said that the Quran leaves large areas of law open to ijtihad (interpretation) and added that "anyone who says we can't draw upon the experience and laws of other countries is mistaken". He also identified several areas in which new laws were needed, including those governing the police and the rights of defendants.
But in the absence of a functioning judicial commission, the ministry has drafted laws in a number of areas that may have critical implications for democratic development. During a meeting with ICG, Karimi said his ministry had drafted laws on municipal elections and political parties ­ the latter "on the basis of the laws of developed countries" ­ and had submitted them to the cabinet for approval and promulgation. The UN had not been consulted. In addition, Radio Afghanistan reported on 10 November 2002 passage of a law on social organisations, which was confirmed to UNAMA by the legislative department of the ministry.
At the time of writing of this report, the draft laws were not available for review. However, a press law of the Interim Authority illustrated the risks of drafting and enacting legislation in the absence of an independent advisory body. That law, approved by President Karzai in February 2002, lifted the government's monopoly on broadcast media but included restrictions on press freedom ranging from onerous licensing and registration requirements to prohibitions on material that might be considered blasphemous or "weaken the army of Afghanistan". It further provided that "if there is no penalty anticipated against the crimes in this law, the violators will punished in accordance with the orders of Hanafi religious jurisprudence of Islamic Sharia", and subjected the distribution of foreign press and films imported from abroad to prior permission from the Information Ministry.
Critics argue that the law has chilled hopes that the press might play a vibrant role in encouraging public debate as well as greater transparency and openness in government. The Transitional Administration hosted in early September 2002 an International Seminar on Promoting Independent and Pluralistic Media in Afghanistan. On its final day, the Deputy Minister of Information and Culture, Abdul Hamid Mobarez, endorsed a declaration that recommended including the right of free speech and free media in the new constitution and initiating: thorough and time-bound review of the legal system ... with the goals of creating laws and procedures that promote freedom of expression, protecting the rights of journalists, and guaranteeing their freedom to do their work in safety, including publishing critical reports and opinions ... [and] suspend[ing] immediately licensing provisions for publications as required by the February 2002 Press Law.
As of December 2002, however, the legal review and the revision of the press law had not yet been initiated."

11.12.2006 - Source: Schweizerische Flüchtlingshilfe

Judical system is neither efficient nor reliable ("Afghanistan; Update") [ID 18381]

"Es ist dem afghanischen Staat weiterhin nicht gelungen, die angestrebten Reformen im Justizbereich umzusetzen. Die in der neuen afghanischen Verfassung verankerte Rechtsordnung ist bisher nicht umgesetzt worden. Von einem funktionierenden Justizsystem kann nicht die Rede sein.Noch immer halten ehemalige Kriegsherren, die wegen Menschenrechtsverletzungen sowie Involvierung in den Opiumhandel angeschuldigt werden, hohe Regierungsposten inne. Weiterhin herrscht eine Atmosphäre der Gesetzlosigkeit und Straffreiheit."

Document(s): Open document

03.2004 - Source: US Institute of Peace

Overview of the needs for reconstruction of the judicial system in the wake of the Constitutional Loya Jirga ("Establishing the Rule of Law in Afghanistan") [#22463],  [ID 734]

Document(s): Open document

03.12.2003 - Source: UN General Assembly

Preliminary survey of justice sector needs completed; number of other initiatives have begun (training for judges and prosecutors, infrastructure rehabilitation, and legal education and awareness) ("Report of the Secretary General on the situation in Afghanistan and its implications for international peace and security (A/58/616)") [#18064],  [ID 735]

"28. In the context of Afghanistan’s fragile transition to peace, reform of the justice sector is inseparable from security, and thus from parallel reforms of the military, the police and the correctional system. The goal of judicial reform in particular is to create impartial, accountable, sustainable and permanent institutions of justice.
29. The Transitional Administration established the Judicial Reform Commission, which began work in November 2002 (see A/57/762-S/2003/333, para. 37, and A/57/487-S/2002/1173, para. 25). Italy, the lead donor country for the justice sector, organized a conference in Rome on 19 and 20 December at which donors pledged $30 million for financial and technical support, of which $20 million came from Italy itself.
30. The Judicial Reform Commission completed a preliminary survey of justice sector needs, including physical infrastructure, staffing, procedures, informal justice and corrections, in 10 provinces in June 2003. A number of other initiatives have begun, including training for judges and prosecutors, infrastructure rehabilitation, indexing and revising of laws, and legal education and awareness."

Document(s): Open document

06.10.2003 - Source: UN General Assembly

Judicial Reform Commission (JRC) ("Report of the Special Rapporteur of the Commission on Human Rights on violence against women, its causes ad consequences, on the situation of women and girls in Afghanistan (A/58/421)") [#17532],  [ID 736]

"19. The Judicial Reform Commission (JRC) was established in November 2002 and is composed of 11 prominent Afghan legal experts. JRC is mandated to “rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions”. However, as a creation of the Bonn Agreement, JRC has no formal role in the administration of justice. Its role is limited to proposing reform strategies and seeking international donor assistance. Thus, the success of JRC depends on the willingness of the formal judicial institutions — the Supreme Court, the Ministry of Justice and the Attorney- General’s Office — to implement its suggested reforms. Nonetheless, JRC has facilitated the compilation of applicable laws and it has convened working groups that are currently redrafting legislation, including the criminal law, for presentation to ATA. JRC has also successfully initiated the establishment of the Legal Education Centre (LEC) and members of JRC have recently carried out a survey of the judicial system. Training of the judiciary is organized for young lawyers by LEC under an agreement with the Supreme Court and the Ministry of Justice. All young lawyers who wish to be considered for judicial appointment must have successfully completed the training. The second training programme, intended for sitting judges and prosecutors, is conducted by the International Development Law Organization (IDLO). It should be noted here that IDLO has apparently decided not to include human rights of women and gender sensitivity in its training modules as this is thought to be “too sensitive for Afghans”. This poses a serious concern. This decision will have grave implications for women’s access to justice and should be seriously reviewed."

Document(s): Open document

29.09.2003 - Source: International Crisis Group

Report focused on land disputes and water resources, ethnic and family disputes and proceedings concerning judiciary and governance ("Peacebuilding in Afghanistan") [#16299],  [ID 737]

Document(s): Open document

14.08.2003 - Source: Amnesty International

Provincial courts are in operation in some provincial capitals; failure to establish the family and juvenile courts ("Afghanistan: Re-establishing the rule of law") [#15047],  [ID 738]

"Outside of Kabul, the Provincial Courts are in operation in some provincial capitals. For example, Provincial Courts have commenced work in the capitals of Kandahar, Kunduz, Herat, Nangarhar, Kabul, Balkh, Parwan, Badakhsan, Paktia, Farah, Logar, Badghis, Parwan, Logar and Wardak provinces.
However, in many of these provinces, the Primary Courts have yet to be established. For example, in Mazar-e Sharif, Jalalabad and Herat only a very small number of Primary Courts are working. As a consequence, these Primary Courts and the Provincial Court are attempting to deal with the caseload of up to ten Primary Courts.

Amnesty International recognises that logistical and financial constraints may have hindered the establishment of some specialized courts. However, in the areas visited by the organisation, it was evident that apart from the Family and Juvenile Courts, all other specialized courts, including Public Security and Commercial Courts, had been established. Amnesty International is concerned that the failure to establish the Juvenile and Family Courts stems from the reluctance, on the part of the Supreme Court, senior Afghan judges and the international community, to recognise and prioritise the work of these courts. The failure to establish the family and juvenile courts appears to reflect a wider lack of concern for the protection of vulnerable groups in Afghan society and, in particular, women."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Two training programmes initiated: one for young legal professionals, the other one for sitting judges and prosecutors ("Afghanistan: Re-establishing the rule of law") [#15047],  [ID 739]

"Two training programmes have been initiated. The first, which commenced in May 2003, is a one-year course for young legal professionals. This course is being organised by the newly established Legal Education Centre (LEC) in Kabul and it aims to provide a backstop for the legal professional training which is currently unavailable, but which is a legal pre-requisite for judicial appointment. There are currently 150 young lawyers, all employees of either the Ministry of Justice, Supreme Court or Attorney General’s Office, engaged in the program. Only 20 of the participants are women.
Amnesty International welcomes the LEC program for young lawyers and commends the JRC for securing an agreement from the Supreme Court and the Ministry of Justice that all young lawyers who wish to be considered for judicial appointment must have successfully completed the LEC training. However, the organisation believes that this arrangement should be institutionalised and formalised in law in order to ensure that there is no ambiguity regarding the recognised qualifications for judicial appointment in Afghanistan.
The second training program is intended for sitting judges and prosecutors. The International Development Law Organisation (IDLO) has assumed responsibility for this training, which involves three-month, part-time training courses for serving judicial personnel. The IDLO had intended to start the first training cycle of 250 judges and prosecutors on 1 June 2003. However, a number of problems, including the absence of a properly planned and appropriate curriculum, stalled the initial commencement of this program, which started in August 2003. The IDLO programme provides training to judges and prosecutors together. Given the short duration of these part-time courses, this raises questions as to whether it will be possible to equip both professional groups with the very different legal skills that they require to carry out their duties."

Document(s): Open document

23.07.2003 - Source: UN General Assembly

Judicial Reform Commission has made some progress in the areas of infrastructure rehabilitation and training (survey in 10 provinces completed, training programmes under way, revision of the law initiated) ("Report of the Secretary-General on the situation in Afghanistan and its implications for international peace and security A/57/850–S/2003/754") [#14760],  [ID 740]

"19. The re-establishment of the rule of law in Afghanistan is essential to the peace process. Without reform of the institutions of justice, the legal framework that underpins the peaceful resolution of disputes will not take root; impunity for armed lawbreakers will persist, citizens will be deprived of justice, and the confidence of international investors will remain low. The reform of the justice sector has not been without difficulties. In a country where the rule of the gun has been the dominant feature for well over two decades, the justice sector has suffered probably more damage than any other part of the State structure, and its rehabilitation will be unavoidably slow. To provide better overall guidance, the responsibilities of the Judicial Reform Commission need to be refined and more prominent decisionmaking roles afforded to permanent justice institutions. The Constitutional Loya Jirga to be held in October 2003 should establish suitable arrangements for the structure of the judiciary and the office of the attorney-general.
20. Nonetheless, the Judicial Reform Commission has made some progress in the areas of infrastructure rehabilitation and training. A survey of justice sector needs in 10 provinces (Baghlan, Bamian, Gardez, Herat, Jalalabad, Kabul, Kandahar, Kunduz, Mazar-i-Sharif and Takhar), which will provide the basis for planning and rehabilitation priorities, was completed on 1 June 2003. Three training programmes for judges, prosecutors, lawyers and legal scholars are currently under way. Participants are receiving instruction in comparative law, civil and penal codes, civil and criminal procedure, national traditions, international standards, and human rights. Revision of the law has been initiated in the fields of criminal law and criminal procedure and the administration of judicial organizations. In Kabul, reconstruction of the State judicial infrastructure has commenced with support from Italy, the lead country for judicial reform, and the United States of America. In the context of Afghanistan’s fragile transition to peace, reform of the justice sector is inseparable from security, and thus from commensurate reform of the military, police, corrections, and disarmament, demobilization and reintegration."

Document(s): Open document
Open document

05.2003 - Source: US Commission on International Religious Freedom

Islamist conservatives said to move quickly to put stamp on judicial system ("Report on Afghanistan") [#13728],  [ID 741]

"While the donors were slow to engage, Islamist conservatives were moving quickly to put their stamp on the judicial system in post-Taliban Afghanistan. President Karzai retained as Chief Justice Fazl Hadi Shinwari, an associate of Professor Abdurrab Rasul Sayyaf, leader of the Saudi-funded, Wahhabi Ittihad-i-Islami Party. Originally appointed by President Burhanuddin Rabbani, Shinwari was ineligible for the position according to the 1964 Constitution’s age and education requirements (being over the maximum age of 60 for a new Chief Justice and lacking the education in civil law required by the position). Chief Justice Shinwari quickly appointed some 137 judges, far in excess of the 9 called for in the 1964 Constitution. None were women and many lacked the legal-education qualifications specified in existing Afghan law. Equally troubling, Justice Shinwari’s public pronouncements have shown that he favors an Islamic state under a hard-line interpretation of Sharia that restricts the rights and freedoms, including religious freedom, of those who do not agree. Chief Justice Shinwari has spoken out against coeducation, endorsed amputations and other abusive corporal punishments, threatened death to recalcitrant non-Muslims, founded a religious law-enforcement apparatus under the Supreme Court’s control, and attempted to curtail freedom of speech and expression through bans on television broadcasting of women dancing or singing and on cable or satellite television in general."

Document(s): Open document

13.08.2002 - Source: UN General Assembly

Judicial Commission ("Situation of human rights in Afghanistan A/57/309") [#9762],  [ID 743]

"The Judicial Commission was also established by the Interim Administration by a decree of 6 June 2002. It is an independent expert body entrusted with the task of making recommendations on any action necessary for rebuilding the justice system in Afghanistan. It is to work in close consultation and cooperation with the Ministry of Justice and other governmental and non-governmental bodies to (a) organize a comprehensive programme of compiling, publishing and distributing all laws in force in Afghanistan; (b) propose changes or amendments to existing laws; and (c) recommend new legislation, as necessary, for the proper administration of justice.
The guiding principles to be taken into consideration by the Judicial Commission in fulfilling its mandate are set out in a schedule to the decree. These include (a) ensuring the establishment of an independent judicial authority in accordance with the 1964 Constitution and international instruments ratified by Afghanistan; (b) creating a separate chamber within the Supreme Court as a constitutional court with jurisdiction over interpretation of the new constitution and the authority to make rulings on the constitutional validity of Afghan laws and regulations and on alleged human rights violations in contravention of the new constitution; (c) establishing a high judicial council, consisting of senior members of the judiciary, to administer and oversee the justice sector, which will have its own budget and powers in relation to (i) the appointment, promotion, transfer and discipline of judges; (ii) preventing intervention in or influence of judicial proceedings by executive or other authorities; and (iii) other matters on which guiding principles have been adopted by the United Nations."

Document(s): Open document
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