Afghanistan is obligated to reform its judicial system as part of the Bonn Agreement creating provisional guidelines for steering the country toward democratic elections in 2004. But Afghan lawyers and human rights activists are complaining that little progress has been made toward reforming the country's judicial system. Moreover, a debate has arisen over whether Afghanistan should abolish capital punishment.
Prague, 11 March 2003 (RFE/RL) -- Following the signing of the Bonn Agreement in December 2001, a special commission of local experts working with UN advisers was created to help Afghan officials decide how best to bring its judiciary practices and criminal laws in line with international standards.
The commission was also expected to make recommendations on addressing the country's past human rights abuses. But according to Abul-Ahror Romizpour, a law professor at Kabul University, the commission -- which has already once been dissolved once re-established -- has not lived up to expectations. He says true legal and judicial reforms have yet to begin: "After the Loya Jirga assembly [in June 2002], Afghan people had great expectations about the transitional government, especially about the reforms in national institutions like the judicial system. Unfortunately, the [reform] process is very slow."
After the fall of the extremist Taliban regime, Afghanistan officials restored the judicial system and criminal code established by Afghan President Mohammad Dawud in the 1970s. But local experts say that system falls short of international standards and is not able to guarantee the rule of law.
For example, there is no requirement under Afghan law to provide a defendant in a criminal case with an attorney. Trials are typically conducted with no defense attorneys.
Mohammad Farid Hamidi, a member of the Independent Human Rights Commission in Afghanistan, tells RFE/RL that defense lawyers in the country are virtually powerless to aid defendants.
"There are some defendants who have been in detention for about nine months and their cases have not yet been transferred to court," he says. "They have no right to meet their families or talk to defense lawyers. According to Afghan law, defense lawyers cannot meet defendants without prosecutors' permission. We need a sufficient system that gives power and independence to defense attorneys."
Hamidi says the Afghan judicial system is also vulnerable to economic and political pressure and can come under the influence of factional commanders and regional governors.
"In Afghanistan, trials do not take place in accordance with law. In provinces, warlords are the law, the judge, the government. Judges are not free from political pressure and pressure from other elements. Sometimes they issue a decree they don't have the authority to make, such as banning cable television or prohibiting women from appearing on television. The judiciary in Afghanistan is by no means independent."
Afghanistan also suffers from a shortage of professional lawyers. The London-based human rights organization Amnesty International has called on donor countries to contribute financial and technical resources to train judges, prosecutors, criminal defense lawyers, and other legal professionals.
Romizpour of Kabul University says many graduates of madrassahs, or Islamic religious schools, were appointed as judges during the five-year Taliban regime. Many of these judges, he says, are still working in the country's judicial system despite the fact that they are not properly qualified.
"We need professional lawyers with sufficient knowledge of both modern law and Islamic Sharia law," says Romizpour. "In our provinces, there are still many people working in the judicial system who used to work under the former Taliban regime. They have no knowledge of [modern] law; they have only been to Pakistani madrassahs."
A human rights expert from the United Nations says judicial reform in Afghanistan must include the suspension of all executions and the eventual abolition of capital punishment. In a report due to be presented to the UN Human Rights Commission later this month, Asma Jahangir, the body's special rapporteur on extrajudicial, summary, and arbitrary executions, warns that the problem is severe enough to put the peace process in Afghanistan at risk.
But in Afghanistan, local experts and even some rights activists argue it is impossible to get rid of the death penalty altogether. Both the Afghan Constitution and the current criminal code are based on Sharia law, which permits the death penalty -- by hanging or shooting -- under certain circumstances.
"I think in a society that does not have a proper criminal justice system, in a society where crime and violence are widespread, the total abolition of the death penalty may create many problems."
Local human rights activists say two people have been sentenced to death over the past year, and their sentences have yet to be carried out. But many critics say officially sanctioned executions are not the main problem. Much more worrying, they say, are arbitrary executions and revenge killings, which reportedly remain widespread throughout the country.
Observers say two things need to be done: to stem such extrajudicial punishment, and to adequately address the rights abuses of the past. If these steps are not taken, many say the peace process in Afghanistan may ultimately fail.