Date:01/02/2003 URL: http://www.thehindu.com/2003/02/01/stories/2003020102251700.htm

International

Afghanistan's judicial system in tatters

By B. Muralidhar Reddy

ISLAMABAD Jan. 31. A new report by the International Crisis Group (IGC), an independent group engaged in in-depth studies in conflict zones, reports that Afghanistan's legal system has collapsed.

The 30-page report says the rebuilding of Afghanistan's legal system after 23 years of war is being seriously hampered by lack of international action and domestic political infighting.

The report released here says that those judicial institutions that do exist are desperately short of funds and trained staff, and susceptible to bribery and intimidation. Moving towards the rule of law is a vital part of peace-building in Afghanistan, but the Transitional Administration or the United Nations is not giving it.

In the report, the ICG calls on the Afghanistan President, Hamid Karzai, to request the retirement of the Supreme Court Chief Justice, Fazl Hadi Shinwari. It says Justice Shinwari is much older than the maximum age of 60 allowed by the Constitution, and does not have formal training in "secular" sources of law — an implicit requirement in the Constitution.

A cleric with strong links to a fundamentalist political party, Justice Shinwari has expanded the number of Supreme Court judges from nine to 137, many of whom are also unqualified in secular law. There are serious tensions between the Chief Justice, the Minister of Justice and the Attorney General's office.

Justice Shinwari had recently banned cable television across Afghanistan.

The ICG's Asia programme director, Robert Templer, said, "While the international community has dithered over judicial reforms, there are fears that the Afghan justice system has been taken over by hardliners before the Afghan people have had a chance to express their will in a democratic process. It is up to the new independent commissions established under the Bonn Agreement of December 2001 to oversee the rebuilding of the judiciary, the drafting of a new constitution and selection of civil servants".

The Bonn Agreement also re-established the 1964 Constitution as Afghanistan's key legal document until a new constitution is drafted. These commissions must have their independence assured and International Security Assistance Force (ISAF) should be prepared to protect commission workers where needed.

The ICG says the U.N. and the Transitional Administration have done little to press accountability for past human rights abuses and Mr. Karzai has described justice as a "luxury for now".

This means that militia commanders who control much of the country can continue to abuse human rights with impunity and most Afghans remain afraid to speak publicly about their concerns.

The ICG's senior analyst, Vikram Parekh, said justice is not a luxury and it was a vital component of any lasting peace and durable reconstruction and so should be a top priority for the Transitional Administration and the international community.

Without a functioning legal system, Afghanistan will be unable to develop a proper government, attract investment, deal with the drug production, settle property disputes, ensure that the rights of all citizens are protected, and move towards reconciliation.