When Afghanistan’s constitution was first drafted in 1964, its liberal, forward-thinking approach led to it being described as the “envy of the Muslim countries”.
Decades of war and misrule, though, have left the trophy legal system close to collapse, and it is the job of the interim government, created after the US-led rout of the controlling Taliban party, to devise a set of laws that will best serve the country in the future. Under the terms of the Bonn Agreement signed in December 2001, the original 1964 constitution has been dusted off and reinstated until a new structure is installed in 2004.
Implementing a new rule of law that will effectively appease all those concerned will be no easy task. Afghanistan was previously controlled by three overlapping and often conflicting legal systems – tribal law, Sharia, or Islamic, law and a formal state structure. So any new system will have to take account of all of these, as well as incorporating global legal requirements such as human rights laws.
A positive step towards change was taken in January, when the Afghan Judicial Reform Commission and the United Nations Development Programme signed up to a project to rebuild the country’s justice system – the first major move since the formation of the Judicial Reform Commission itself.
Then, at the beginning of April, a closely guarded first draft of a new national constitution was presented to Afghan President Hamid Karzai, with a final version expected to be approved by October. Such progress would seem to suggest that a happy rebirth of the state is imminent.
But is it? Even at this early stage the legal reform process is dogged with problems and is being tugged in two directions by Western-influenced reformists on one side, and powerful but conservative Islamic adherents on the other.
Another worry for those involved in the Afghan reconstruction process is that the Western world is not going to cough up all of the $9.5bn (ú6.13bn) it pledged for support shortly after the Taliban regime was toppled. Now that the world’s focus is firmly on the war in Iraq, Afghanistan fears that it is going to be abandoned so soon after its rescue.
These fears alone make the need for a robust legal system all the more important and put even more pressure on the lawyers, who have been drafted in from all over the world, to come up with the goods on time.
As breathing life into a derelict legal system is a task that most lawyers would never dream of undertaking, Lawyer 2B finds out what it involves and speaks to the lawyers who will be making it happen.
Ismat Khajavee, First-year law student, School of Oriental and African Studies
Ismat Khajavee left Afghanistan in 1998 because of the political problems, but wants to return home to help solve them once he has qualified as a lawyer in the UK.
“Afghanistan was occupied by the Soviets when I was born,” he recalls. “We had to run away from our home when I was five and I received a gunshot in the arm.
“After the Soviets left, things were quite peaceful for a while until 1995, when the Taliban seized control and started to persecute people on the basis of their religion and language. I was injured in a bomb explosion when the Taliban took control of the area we lived in and was unconscious for four or five days. One of my brothers has also been killed.”
Khajavee is coming to the end of his first year of legal studies and is currently focusing on Asian and African laws in addition to English law. He hopes to qualify as a solicitor in the UK, specialising in immigration, and eventually wants to go back to Afghanistan to work in politics.
“It’s a desperate situation in Afghanistan,” he says. “We need a legal system that includes human rights law, because there’s still a lot of discrimination going on among ethnic groups and against women, and that needs to stop.”
While much has been done to reform the structure of Afghanistan, Khajavee says there is a real need for more human capital to fill the skills and resources gap created by years of war and plunder. Although Khajavee embraces the need for international law, he hopes that his country’s new structure and ideology will preserve Afghanistan’s Islamic traditions.
“I feel quite positive about the controlling government in place, although it’s not highly progressive at the moment,” he states. “We need something Islamic but a bit more liberal. You can’t take Islam away from the Afghans.”
John Dempsey, Associate, Linklaters
John Dempsey, an associate in City giant Linklaters’ New York office, decided to volunteer for a nine-month placement with the International Rescue Comm-ittee in Afghanistan, because it was a way to “contribute positively to the future of a country that is at a significant turning point in its modern history”.
Based in Kabul, Dempsey is advising the country’s new interim government on property law, and although he is only a couple of months into the sabbatical, he claims to feel quite settled already.
“We have hot water, internet access, electricity, restaurants, a few bars, and there are lots of expats around. The country itself is in a shambles and in fact people tend to forget that there’s still a war being fought here, with all the attention drifting southwest towards Iraq these days.”
One constant reminder of the war, however, is the need for increased security, and Dempsey says it is often difficult to get around on his own without advanced planning, a radio and even armed guards.
“The legal system here’s both more and less advanced than I thought it might be,” he adds. “The 2001 Bonn agreement and the 1964 constitution provide some framework. However, courts are understaffed and underequipped and often the official courts aren’t trusted by the local population, who generally prefer more traditional dispute resolution, such as by presenting claims to tribal elders. Customary Islamic and traditional law principles, while sometimes complementing each other, often conflict.”
When Dempsey returns to New York later this year, he will go back to his old job in the firm’s capital markets practice, advising major financial institutions on general corporate matters.
But in Kabul, Dempsey’s daily clients are Afghan government ministries, UN agencies, non-governmental organisations and local officials.
“My role is to assess the real property law in the country,” he says. “It’s clear that the system isn’t effective and still on the periphery of policy planners’ minds. Rule of force, rather than rule of law, often applies in Afghanistan, and many people have had their homes taken by various warlords and others without any compensation.
“Eventually, if all goes to plan, I hope to work with other lawyers to suggest steps that might improve dispute resolution mechanisms, so that returning refugees, and other people displaced from their property, might have a fair system in place to present their property claims.”
If recent reports are accurate, then the property laws Dempsey has been working on could be put to the test sooner than expected. Exiled Afghans have started to flood back into the country in the past 12 months in search of the homes, shops and schools they were forced to abandon. The UN now estimates that around 1.8 million people returned home last year, and it expects another 1.2 million by the end of 2003.
So when Dempsey heads back to Linklaters after nine months in Afghanistan, does he expect to suffer from culture shock?
“I think returning to firm life shouldn’t be too much of a shock, as I’ve already spent two and a half years at Linklaters and enjoyed my time there,” explains Dempsey. “Taking such a sabbatical helps broaden your perspective and helps you to think creatively, which should be an asset in whatever future legal career is pursued.
“Strong capital markets are as important in global development as strong property laws – both kinds of work are rewarding in their own ways. I’ll just have to get used to wearing a tie again.”
Dr Qasim Hashimzai, Deputy Minister of Justice, Afghanistan
Dr Qasim Hashimzai was considered to be one of Afghanistan’s best legal brains in the 1970s, when he worked in Kabul as deputy head of the Supreme Court’s research department. His legal skills won him a scholarship to the UK, where he studied at Oxford University, before going on to gain a doctorate in comparative law from Sheffield University. But when he reached the end of his studies, his family in Afghanistan told him not to come home because a Soviet-backed communist government had seized control of the country and had already forced some of his family into exile.
Last spring, though, after more than 17 years with the BBC Monitoring Service, Hashimzai decided to volunteer for a ‘reverse brain-drain’ scheme organised by the International Organisation for Migration, which aims to attract back educated Afghans who live abroad. Hashimzai was the first UK-based Afghan to take part in the Ret-urn of Qu-alified Afghans Programme and he has been working in Kabul for around nine months. Part of his massive brief is to advise ministers of justice on how to best rebuild the legal system.
“After the Tali-ban was toppled, I heard that the Afghan interim government was asking for people to come back to help rebuild the country,” he recalls.
“I thought it was the right time for me to go. After all, I’d done all that legal study but wasn’t able to practise in the UK.”
With his wife and children still at home in Reading, Hashimzai has thrown himself into his new role.
“Decades of war have had a huge impact on the legal system and also legal education,” explains Hashimzai. “There’s masses of work to be done. The machinery of justice is just not working properly. The capacity of lawyers in this country is a cause for worry, hence the need for help from Afghans who’ve left the country. There’s a lack of law teachers and teaching facilities. Many materials and resources have also been lost
– there are no computers and telephones. It’s very hard work, but is so interesting that you don’t notice you’re working late. I’m always dashing around.”
One of Hashimzai’s first tasks has been to work out a masterplan of action for the judicial commission, taking into account international requirements such as human rights, the treatment of prisoners and juvenile justice. Now the commission is starting to compile and redraft all of the laws within the 1964 Afghan Constitution.
“One of the main problems is the enforcement of law and the role of the warlords,” says Hashimzai. “There are lots of guns in the hands of the warlords and these people are affecting safety in the provinces. Law is the backbone of society, but it can only be applied when security prevails.”
Another major task for the new Afghan government is to bring all the people who have committed atrocities to justice – a task that Hashimzai admits will not be an easy one.
“The international Human Rights Commission will come and see if Afghanistan’s laws [comply] with the standards of the UN human rights charter. The success of this is so crucial for Afghanistan, because people who have committed atrocities are still around.
“Most of the lawyers and judges here aren’t well paid and the possibility of corruption is a cause for worry. People here desperately want international support, because as soon as international forces leave the country, civil war will start again.”
Despite the mammoth task ahead and the constant need for more funding and human resources, Hashimzai remains positive about Afghanistan’s future.
“Building up capacity in Afghan-istan’s legal sector and bringing about changes in other areas of the constitution is not something that will happen in the next month. But I’m optimistic that things will happen,” he concludes.
Suraya Paikan, Former law lecturer and founder of the Afghan Women Lawyers and Professionals Association (AWLPA)
Life for women from all walks of life was terrible under the brutal Taliban regime. Banned from learning and working, except in exceptional circumstances, women could only travel in public if they were covered by a burkha and accompanied by a male relative.
Although women had been allowed to study law at the University of Kabul from the 1960s, the Taliban regime made it impossible for women to practise as lawyers or judges, and most of the family courts were shut down or destroyed.
Yet due to the bravery and determination of one woman, an undercover network of women lawyers has managed to blossom under the cover of burkhas and has now started to bloom in the relative freedom of post-Taliban Afghanistan.
Suraya Paikan started the AWLPA in 1998, with the Taliban regime in full throttle. With only 10 members, including one US citizen (even though contact with foreigners was forbidden), the women met in secret at a series of safehouses across Kabul.
Paikan had studied law at Baku University in neighbouring Azerbaijan, where she learned about international law and experienced Soviet attitudes towards gender equality at first hand. She then started to teach law at Balkh University in Mazar-e-Sharif, where she established the AWLPA, but was forced to flee with her family to Kabul after she was informed by the wife of a Taliban member that her life was in danger.
After four years underground, the AWLPA has emerged as an organisation bent on educating and training women lawyers who have been repressed by 23 years of civil war and political unrest. Paikan is also advising the interim Afghanistan government on how women will be best represented and protected under the revised national constitution.
One of the AWLPA’s major plans for the future is to boost legal awareness among women by launching a series of branches across towns and cities in Afghanistan; in fact, a branch was opened in Mazar at the beginning of this year.
The first edition of a members’ journal, Women and Law, was published last year, and Samantha Knights, a barrister at 3/4 South Square, has been attempting to raise the AWLPA’s profile in the UK, as well as helping raise enough funds for a second series of magazines.
“This situation really needs long-term support such as funding, training courses, books, materials and links with other associations,” says Knights. “It will need a lot of encouragement and support to bring about change in the cultural environment.”
Speaking at the Bar Human Rights Committee’s conference last year, Paikan described what women lawyers in Afghanistan currently have to endure: “We don’t have books, pens or paper. At times we have no electricity or running water. Women in this country don’t know what their rights are. Most people don’t even know what laws are in force. Very slowly we’re trying to train lawyers and provide them with written materials on the law.
“We hope that the international community which brought a new government to us will bring us a new democratic system based upon the rule of law. Without justice, law and democracy there is no possibility of a normal country.
“We need support for our situation and for our women, who have suffered morally and mentally from all these years of war.”