Afghanistan's Constitution
Without greater Western investment in Afghanistan's infrastructure and judicial system, the new constitution may offer little more than hollow promises.
June 2004
Afghanistan's Legal System: A View from the Inside
The condition of Afghanistan's legal system is bleak, and not enough is being done to help improve it. This was the message delivered by a group of senior Afghan lawyers and judges at a meeting held at the Institute in early December. Twenty-five years of war and the shadow of Taliban rule have left the legal system in shambles.
Many of the courts don't even have buildings in which to operate, and while there have been some positive developments over the past two years, these have been few and far between. Outside of Kabul, local warlords mete out customary forms of justice with little regard to sharia or international humanitarian law.
Afghanistan desperately needs more law professors, more institution building, and greater control over its provinces. The irony, participants said, is that Afghanistan has a rich legal tradition that could become the backbone of a coherent and stable society if the resources to rebuild it are made available.
Among those attending the meeting were Ataullah Lodin, president of the High Court, Kabul province; Khuda Bakhesh, chief judge, City Court, Herat: Mohammad Ismail Makhdoom, president of the Rustaq District Court, Takhar province; Baba Kalan, president of the Criminal Court, Kapisa province; Abdul Raaof, dean, Faculty of sharia, Herat University; and Ansarullah Said, president, Office of the Chief Justice, Supreme Court, Kabul.
Afghanistan's Loya Jirga passed the most liberal constitution in the region stretching from Syria to Pakistan late last year. In addition to guaranteeing freedom of speech, faith, movement, and a host of other civil rights, the constitution also provides for the equality of the sexes and requires that 25 percent of the seats in the legislative branch be set aside for women.
Yet the Constitution's protections may prove illusory—unless quick action is taken to restore Afghanistan's infrastructure and judicial system. So concluded a panel of experts convened by the Institute for a briefing held on Capitol Hill in late January.
The panelists were Said Tayeb Jawad, Afghanistan's ambassador to the United States; Barnett Rubin, director of studies at the Center for International Cooperation at New York University; Laurel Miller, a program officer in the Institute's Rule of Law Program; and Robert Perito, a special adviser to the Rule of Law Program.
Of the panelists, the ambassador was perhaps the most sanguine, lauding the outcome of the constitutional process and expressing hope that the remaining challenges could be met. He identified three of these challenges as particularly important: first, that Afghanistan's state develop the capacity to provide local and regional services; second, that the state properly prepare for national and regional elections currently scheduled for mid-year; and third, that the state expand its jurisdiction and administrative control over the full extent of its territory. These are daunting challenges, he said, but he was optimistic they could be met.
The remaining panelists also viewed the constitutional Loya Jirga as a milestone in rebuilding Afghanistan. But they were less hopeful about the national reconstruction project. Rubin noted that early disbursements of aid went mostly to emergency humanitarian needs rather than to reconstruction, and argued forcefully that much more aid—on the order of $15–20 billion—was needed to build an Afghanistan that contributes to rather than threatens global security.
Laurel Miller and Robert Perito provided a generally pessimistic overview of current security conditions in Afghanistan and the absence of an even nominally adequate judicial system. "The rule of law was never strong in Afghanistan," Miller said, "but after 23 years of warfare it has been displaced almost completely by the 'rule of the gun.'"
In most of the country outside of Kabul, regional power-holders—or, less politely, warlords—exercise political, police, and judicial authority. Indeed, the most powerful warlords continue to exercise influence over key ministries and institutions, including the Supreme Court. Meanwhile, the opium trade is flourishing, earning an amount equal to half the nation's legitimate gross national product and nearly five times the government's budget. It will take years—and an enormous investment—before the Afghan government can put in place a counter-narcotics capacity robust enough to make a dent in the drug trade.
Despite the growing danger, said Miller and Perito, little is being done by Western nations to address these problems, aside from some work in police training. No strategy has been developed for reforming and rebuilding the justice sector; few legal training programs are underway; virtually nothing has been done to update the court system or repair the courts' physical infrastructure. The vast needs of the corrections systems have been almost entirely ignored.
The slow pace of reform stems from a number of factors, Miller and Perito said, including the inherent difficulties of conducting post-conflict reconstruction in a country that has suffered two decades of warfare. But they also criticized the United States and the United Nations for abdicating their responsibilities and placing an unrealistic burden on Afghans to provide for their own security and reconstruction—jobs, they said, that Afghans have little capacity to execute.
