Fear and uncertainty confront the Afghani legal profession … Lawyers, law and chaos … Kabul lawyer says his practice has been “suspended” … Women judges … Destruction of legal research work at the university … Return of a Sharia legal system … Lawyers and judges in flight
His name has been withheld, but this is what he told us on Tuesday, August 31:
“Since the Taliban takeover of Kabul city on August 15, 2021 all law enforcement departments, prosecutions, courts, justice departments and most of other government departments have been closed and all public services are suspended.
The private sector businesses are mostly open with limited services and business activities.
Our law firm has been open since Saturday August 28, 2021, but we don’t have any legal work, as all departments which we worked in are closed. We didn’t receive any requests for legal services since then. The same situation is with all other law firms.
I expect that such suspension of services will continue for the next few weeks, until a new government is established. And reduction in legal business may continue from months to years, depending on the actions and performance of the future government.”
Early accounts say that practitioners and judges have been scrambling to leave the country.
The ABC had a report about the Adelaide-based daughter of an Afghan judge, who executed and jailed members of the Taliban, begging the Australian authorities for help in getting her father out of the country.
The judge, who is an Hazara, is now in hiding and there’s scant hope he’ll be saved by the Australian government, which last week abandoned further rescue missions.
It’s an unsafe country for judges. In 2008 Judge Alim Hanif the head of the Central Narcotics Tribunal, a division of the Court of Appeal, was murdered, and in January this year two female judges were killed in the streets of Kabul.
There are approximately 270 women judicial officers in Afghanistan, according to the International Association of Woman Judges – which has been pressing for humanitarian assistance for those who are unsafe and want to leave.
The IAWJ has been able to assist about 20 of them to leave the country, with their families. Over the past two weeks a steady stream of judges has managed to get out, yet approximately 180 female members of the judiciary and their families remain – many of them in hiding.
In other professions there has been a mixed outcome for women following the takeover by the Taliban. Female journalists at the TV network Tolo were told to resume their work, while on the state run channel a woman news anchor was sent home.
The 2004 Constitution provided for a formal civil law structure with a nine member Supreme Court, appointed by the president. The Supreme Court had branches in the provinces with procedures differing from place to place depending on local conditions and customs.
The nine senior justices were responsible for the management of the regional and local courts throughout the country.
In 2006 Western intervenors pressed president Hamid Karzai to replace the religious conservative chief justice Fazel Hadi Shinwari, who was not a trained judge or an Islamic scholar, was regarded as corrupt and had antediluvian views about women’s rights.
Shinwari preferred the promotion of mullahs to do judicial work, rather than qualified judges.
A report from the Library of Congress said that the replacement chief justice, Abdul Salam Azimi, a former university professor and an adviser to Karzai, was just as conservative.
In 2020 Transparency International gave Afghanistan a corruption perception score of 165 out of 180 – an improvement from the time when it had the second highest corruption rating in 2009, 179 out of 180.
The civil code is a default law, applying when no other law is directly applicable, and is largely based on laws passed under the last king, Mohammad Zahir Shah (1933–73). Some of the code is drawn from Egyptian Sharia law, while law relating to property and obligations have influences from the French code.
To make things even more exotic some post-2004 judicial education has been provided by Italian jurists. Most of the local court officials came from Muslim religious schools and had limited judicial skills.
Significant parts of Afghanistan have long been in the hands of the Taliban so a majority of cases have been tried according to Sharia, tribal or customary law.
The country also has seen the rise of Taliban mobile “shadow courts” since around 2010 and they are often found to be faster, fairer and less corrupt that the state courts. For crimes against the person (Qisas crimes), payment of “blood money” remains an accepted remedy in parts of the country.
There are a handful of established home grown law firms in Kabul – Shajjan & Associates, Kakar Advocates Law Firm and Masnad. It’s understood that some of the partners have moved recently to Doha and elsewhere in the Middle East.
In 2007, the Afghani parliament, passed a law allowing for the creation of an independent bar association for non-government lawyers, and by the following year about 500 defence attorneys had joined.
The US Aid Agency assisted in the creation of branches of the Afghanistan Bar Association outside of Kabul – in Balkh, Herat, Nangarhar and Kandahar.
The past two weeks in the country has been chaotic and uncertain. Banks are closed, commerce has ground to a halt, there are food shortages and few people have been paid for their work.
The Financial Times reports that prices have surged for everyday essentials in the import dependant country, the borders are closed and the new Islamist rulers cannot access $US9 billion in frozen currency reserves.
Foreign aid which accounts for 40 percent of Afghanistan’s GDP has ground to a halt.
To add to the chaotic situation the prisons were opened by the Taliban and hardened criminal and political detainees were released.
One Afghan woman who spoke on background to Justinian knows of a girl in Kabul subjected to a marriage demand by a serious offender, who is among those recently released. From Australia there were desperate efforts to secure a visa so that she might escape what looks like a desperate fate.
Other women have been burning their jeans and other items indicative of western cultural influence.
At the American University of Afghanistan scholars have been busily destroying their work on the Hazara genocide for fear of reprisals by the Taliban. The legal researchers who worked on this project are now in hiding and trying to leave.
A government collapse and a Taliban takeover has thrown Afghanistan’s capital into chaos as people rush to evacuate to safety. https://t.co/MDOUUhCcTN pic.twitter.com/GnxCTuXwA5
— Reuters Graphics (@ReutersGraphics) August 18, 2021
Following an interview with Waheedullah Hashimi , a commander who is close to the Taliban leadership, Reuters reported that the power structure of Afghanistan would “bear similarities” to how the country was run from 1996 to 2001, the last time the Taliban was in charge.
Hashimi added that Afghanistan would not be a democracy:
“There will be no democratic system at all because it does not have any base in our country. We will not discuss what type of political system should we apply in Afghanistan because it is clear. It is sharia law and that is it.”
Sharia law, like most legal systems, is complex. It’s based on Islamic religious law and its application varies widely, with rules that include the length of beards and the role of women.
Strict interpretations by the Taliban have seen stonings, whippings, public executions, amputations and the banning of television, music snd cinema. Schools for female students were shut.
Sharia law run by mullahs is not so easy to implement in a society that has moved from a rural way of life to a relatively sophisticated commercial economy.
Hashimi has said that a council of Islamic scholars will determine the legal system.
Suhail Shaheen, a spokesmen for the Taliban’s political office in Doha, told Al Jazeera:
“We will proceed in the coming days to go about finding solutions like working on judiciary and [getting] religious scholars to review the system and its implementation … in light of the Islamic rules …
As for women, they can have their basic rights as per Islamic rules.”