Kabul Center for Strategic Studies

Justice Reform in Afghanistan: Nasrullah Istanikzai Explains

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Professor Nasrullah Istanikzai is a member of the Law Faculty and Chair of the Department of Civil and Commerce Law at Kabul University, where he attended law school, and a lecturer at the Institute of Diplomacy in the Afghan Foreign Ministry.  

Until 2006, he served as a Deputy Minister of Information and Culture.   One of Afghanistan’s foremost legal experts, Professor Istanikzai  is the author of several books, including a historical overview of the Afghan judicial and parliamentary systems.  Kabul Direct interviewed Professor Istanikzai at his office in Kabul University.

Kabul Direct: In the past seven years, many reforms have been implemented in the Afghan judicial system. Can you tell us about them?

Professor Istanikzai:  First, some background is necessary.  Broadly speaking, the Afghanistan judiciary system went into a crisis mode in 1973, during the codetta of Daud Khan.  During this period, the judicial system was made an instrument of politics. Since then, the Afghan judicial system has been unable to gain back its independence in spite of the regime changes the country has gone through.  When the interim government first came to power in late 2001, the international community began working with the new government to reform the judiciary.  The independence of the judiciary was duly enshrined in the new constitution of  2004.  However, the judiciary branch is still a long way from actually achieving this independence

Kabul Direct: So the judiciary is still not fully  independent?

Professor Istanikzai: In principle, it is independent, but in practice it remains dependent.  We still do not, for example have rule of law in Afghanistan.

Kabul Direct: Is the government somehow interfering with the independence of the judiciary?

Professor Istankizai: Yes. The structural problems we have are related to the rolling structure of the government here in Afghanistan.  Our cultural communities are also able to exert their influence on the legal system.

Another negative influence is the widespread corruption, which negatively impacts every other sphere of the Afghan government too but it is especially harmful to the judicial system.    Our attorneys, police, and even the Ministry of Justice are vulnerable to influence. Key officials use their positions to wield influence and award privilege base on ethnicity and tribe, or other factors.  We have all seen how important ethnicity was in the selection of the Supreme Court’s High Council.

Kabul Direct: Can you describe the consequences of having a dependent judiciary?

Professor Istankizai: Having a dependent judiciary means that there is more chance that the law, the commands and precepts of that law, will not be obeyed.  A dependent jury cannot apply the law fairly and therefore it cannot fulfill its most  basic role.

Kabul Direct: You mentioned the ethnic and sectarian considerations that factored into the Supreme Court appointments.  How do we deal with all the unwritten customs that go into these decisions?

Professor Istankizai: It is indeed hard to get rid of such biases, especially in Afghanistan. Even our constitution and parliament had to institutionalize ethnicity by explicitly naming each of them. Ethnicity and tribe are still given more weight in most selection processes than a candidate’s competency.

Kabul Direct: How do we change this?

Professor Istankizai: I think the government has to make sure that ethnicity and tribe are not allowed to be taken into consideration. We need to make sure that every single governmental position is filled on the basis of competence, not on community or tribe.

Kabul Direct: Considering how important these concerns are in Afghanistan, do you think that the country is really ready for a meritocracy?

Professor Istankizai: I think it is and that we will be wasting our time if allow this to go on for another four to nine years. We have to get rid of the bias in our system. I hope the day comes when we will see the nation’s minorities side by side the majority on, say, the Afghan Supreme Court High Council.

Kabul Direct: Can we talk about the changes that have occurred in the judicial system? By that I mean the structural changes that have been put in place and the the changes that have been made in the rank and file. What impact have the reforms of the past seven years had?

Professor Istankizai: I don’t think that there have been any real changes in the structure of the Afghanistan judicial system. According to the Afghan law, the courts are divided along two jurisdictions: First there are the courts with case competence (DadGah Haie Ba Salahyat Mozoie).This is the court that that rules on which cases should be further investigated and to what degree. We also have the high courts, that include the four tribunals. For example, the special narcotics tribunal, which only tries narcotics cases. The second system is the Competence Court (Salahiyat Hozawi). This is the court where local cases are heard. Each provincial district across Afghanistan is supposed to have one of these courts. In fact, as new administrative districts are created, a court with area competence is automatically established as part of the process. However, the establishment of these new courts does not necessarily mean these new courts can be relied upon to administer the new changes in law the government is trying to implement.

Kabul Direct: Why have there not been many structural changes in the Afghan judicial system?

Professor Istankizai: Because the judiciary system of Afghanistan does not have the capacity to change itself or to introduce any real structural changes. For example, a key issue facing the courts is the trying of war criminals. Up to date, the judiciary has not had the ability to bring war criminals to justice, or to even force them to come to court. There is also no political will to effectively deal with war criminals either.

Kabul Direct: Regarding the reforms in human resources of the Afghan judicial system, have we seen changes there?

Professor Istankizai: There have been changes in the human resources of the courts. The international community has been helpful in providing training and workshops to educate the Afghan judges and employees of the Afghan Supreme Court. The international community has taken time to analyze every aspect of the judicial system and I do think that slowly but surely this will help us bring out some very real changes.

Kabul Direct: What about the changes in the membership of the Supreme Court High Council? The new council is now comprised of individuals who better understand and can more effectively administer the judicial reforms. Is this not a bona fide achievement of the reform process in your mind?

Professor Istankizai: Yes, you are right. But do not forget that unless the context laws (Ghavanin e Matni) themselves are reformed there is not much this new council can do to administer the judicial reforms they are expected to. The problematic laws themselves have to be changed or otherwise the new council will be stalled too.  Remember, their first duty is to the law.

Here is an example of the type of problem they face. As you know, the mass media law in Afghanistan is based on a liberal notion of press freedom. But the panel code (Qhanoon e Jaza) of Afghanistan, can easily allows for the arrest and imprisonment of journalists. This is the challenge to press freedom in Afghanistan. The means that journalists and members of the media can be held for very vague reasons. So in spite of the press freedom in our constitution, press freedom remains threatened because of the panel code of Afghanistan.

Kabul Direct: Why was the Context Law not changed during the reform process?

Professor Istankizai: Unfortunately, no one in government or the judicial system thought to change this law. This is an example of what happens when people who do not fully understand the law try and change the law. They can make things worse than they were before.

Kabul Direct: What needs to be done? Can not the new justices play a role in modernizing the Afghan judicial system?

Professor Istankizai: They could indeed. However, there need to be changes in the foundations of our institutions for them to be effective. Aside from structural changes, we need to change our laws as well in order to have a modern judicial system.

Kabul Direct: You mentioned some contradictions andparadoxes in Afghan law. Could you describe them further?

Professor Istankizai: Afghanistan’s system of law is very complex. Part of the system is based on Islam. Another part is based on the Qanoon e Taamoli. And then part of our law is based on other modern laws. For example, the civil code of Afghanistan says that since everyone enjoys the rule of law, all civil cases should be decided by the law. According to Afghan statutory law, the first source of law is the law, the second source of law is Sharia, and the third source of law is what is customary. But then in the Afghan constitution, it says that Islam is the basis of the law. In this case you see that the statutory law and the constitution contradict each other. This is the type of paradox I meant.

Kabul Direct: Can we go into this more deeply? Critics say that there are two challenges to the rule of law in Afghanistan. First, there are the pressures of modernization, the pressure to have a system of law which conforms to international law. The second is to have a system of law that conforms to Sharia. In Afghanistan, Sharia has been considered the primary source of law now for the past two decades – least since the Mujahedin government.  Can these two systems of law be reconciled? If not, how does Afghanistan deal with the demands of the two opposing systems?

Professor Istankizai: Well, first, many judges in Afghanistan have been trained in the foreign seminaries. Even at this point, many are not trained to administer or even concerned about the Afghan law. They look only to the sources they learned about in the seminaries – that is, the Islamic schools of jurisprudence or the decrees and fatwas of their particular school. Their concern is not what is written in Afghan law.

Recently, I attended a meeting where a high-ranking Supreme Court judge was present. He was arguing that the foundations law in Afghanistan – the civil code (Qanoon e Osul e Mohakemat e Madani e Afghanistan) – is useless should be abandoned and replaced entirely with the laws or Fiqh from his school of Islamic jurisprudence. Now, I am considered to be an expert on the school of law he was referring to – I teach this subject here at Kabul University – and I believe that this law is indeed very important and can be productively applied with few shortages.

But that said, in some parts of Afghanistan, the actual structure of implementing this law, makes it very complex. For example, cases of murder resolved by the elders of a village. In other words, it automatically invalidates that official justice system of Afghanistan. We do need to find a way to reconcile these different systems of law so that we can have a just system. We need to specify where and to what extent we rely on Qanoon e Taamoli. We also need to specify the role Islam and the foundations should play in our system of law.

The point is to have less vagueness in our law. There is a historical precedent in Afghanistan. In 1973-4, justice in Afghanistan for remote areas and villages was the purview of councils or Jirga hai Solhiya (peace Jirgas). The Jirgas decided on all matters or dispute and whatever they ruled applied.

To remove the paradoxes, judges need to be made aware of the law. Second, the people need to be made aware of the bounds of law as well, they need to have a sense of what the law says and how it affects their interests. Third, we need to make sure that the law is consistent with Shaira. We need to confront any contradictions and resolve them. There are no paradoxes in our civil law or in our panel code. But there are many such challenges and paradoxes in our economic law.

Kabul Direct: Many criminal cases, even murder cases, have been resolved by the Jirgas. In the remote areas of the country cases probably do not even come to the official system. During the reform process did the international community push to bring the justice system to these remote areas to bring them into the official system?

Istanikzai: They were not successful enough in this regard for many reasons.  First, people rely on their traditional methods to sort out their issues – to their benefit as well as their peril sometimes in these remote areas.

Then there is the issue of access. For people in remote areas, it is almost impossible to obtain access to the official system. The bureaucracy of Afghanistan is a challenge for anyone when it comes to getting issues resolved expediently. The Jirgas by contrast resolve whatever comes before them within one or two weeks.

Then the corruption of the official system drives people to the unofficial justice system. Finally there is the problem of ignorance. Many Afghans still have no idea what they can expect from the official law and justice.

Kabul Direct: How can Afghanistan reconcile the demands of international law with the cultural and religious traditions of Afghanistan?

Istanikzai: This, of course, is the main problem. If we divide Islamic countries into the secular and the religious; we see that in the secular countries, the there are divisions between the religious and the secular. This is because of the unresolved paradoxes between the international laws and conventions, and the religious law.

For a country like Afghanistan, where religion and politics are in opposition, whenever we find a paradox, then it should be the religious laws that prevail. We signed the international conventions for political reasons.

Kabul Direct, Volume 2, Issue 7, July 2008

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