Challenges, cautious optimism for Afghanistan rule of law initiatives


Afghanistan’s arduous road to the rule of law continues to encounter blockages and delays. In March, Rebecca Gang and Saeeq Shajjan, both Harvard Law School LL.Ms, who worked as defense attorneys in the country’s nascent new legal regime, together with Jasteena Dhillon, a fellow at the Harvard Kennedy School’s Carr Center for Human Rights Policy, shared their experience working in the country’s legal institutions.

“I found that the pragmatic approach we were following on the ground, if not a complete mismatch, was not an answer to the break down of the rule of law,” Dhillon said. Using the example of Bosnia, she noted that post-conflict judicial institutions are generally not equipped to deal with the unique situations they face.

Dhillon provided a brief overview of the issues facing Afghanistan’s legal system,  including the interaction between Afghanistan’s formal and informal justice systems, both based in Sharia, and reflecting holdovers from the Roman civil and English common law systems. Within this context the discussion touched upon whether the international community correctly understands the challenges Afghans face and whether its presence is a help or a hindrance. She further explained the difficulty in determining the cycle of policy initiatives, as they may begin on the ground, filter up to policy makers and then circle back down.

An Afghan attorney, Shajjan worked with the International Development Law Organization and Independent National Legal Training Center at Kabul University. Prior to returning to the United States for her LL.M, Gang focused on legal assistance and access with the Norwegian Refugee Council and the Afghanistan Independent Bar Association (AIBA).

Shajjan recounted relevant aspects of Afghanistan’s history, noting attempts at legal and political reform. Ruling from 1919 to 1929, relative moderate Amanullah Khan created the country’s first constitution and compiled the penal code, as, according to Shajjan, “the state tried to make justice accessible.” With the 1973 coup, however, many earlier miseries returned to Afghanistan. “All the work that was done before was nullified,” Shajjan said.

Following the 2001 U.S. invasion, Afghanistan adopted a new constitution, which  enshrined several human rights. Article 31 altered the scenario for the accused,  providing that, “Upon arrest, or to prove truth, every individual can appoint a defense attorney.”

With defense counsel almost a rarity in the country before, Shajjan recalled entering the courts of judges who did not even recognize the idea. He noted that the new constitution also includes a prohibition on torture and an equal protection clause, and he compared rights on paper to their effective, real time implementation.

Despite some shortfalls, and even as he noted that many challenges extend to the  entire country, Shajjan remains hopeful. “I am optimistic that things are happening,” he said, pointing to the establishment of the Afghanistan Independent Human Rights  Commission and the Election Commission. “Afghanistan does have certain achievements.”

Of Gang, Dhillon said, “We worked in the same places at different times and both worked with AIBA. In post conflict countries, we put a lot of emphasis on judges, et cetera, but forget about defence lawyers.” After spending the last four years in Afghanistan, in part as an advisor to the first AIBA, Gang explained her reasons for stepping back into academia.

“First, I came to Harvard to give my grandparents the year off from me living  in Afghanistan,” she said. “Secondarily, because I came home from work everyday in tears, or if not in tears, with the feeling of having spent my day banging my head against the wall.”

Gang had begun to question the appropriateness of the AIBA’s law and development approach and whether it would simply entrench more deeply the very justice sector problems it purported to solve.

Law and development emerged as a distinct field in the 1960s and 1970s, Gang said, as people aimed to make a transformation from formalism to instrumentalism. Issues arose, however, when western assumptions were applied to developing countries. In reaction to this concern, a new model has been in relied upon since the mid-1970s. In practice, these polices were enforced by those with access to lawyers, thereby reinforcing the interests of the elite.

“These iterations of level development all circle around this one concept and say the same thing, that locals need to design these programs. It says, ‘as long as locals are designing these projects, all of our problems are solved’,” Gang said.

With the Bonn Agreement on the framework for Afghanistan’s post-2001 government moving forward, the International Bar Association (IBA) conducted a fact-finding mission in Afghanistan. Without standards for or regulation of the legal profession, and no structure to answer the problems of defense attorneys, it was nearly impossible to implement Article 31. The IBA suggested the creation of a new institution, which led to the AIBA’s formation.

Gang said, “The IBA comes in and says, this is the solution, we are going to set up a framework; we are going to look at international best practices. Then you Afghans you fill it in.”

Opening its doors in July 2008, the AIBA has met with both success and failure. Gang noted the accomplishment of even staffing the office and beginning work on  non-controversial cases. By contrast, AIBA services have not expanded beyond Kabul, it lacks a strategic plan, and it continues to avoid controversial advocacy. “All of the  problems we set out to fix, they have not only not been solved, but the mechanisms we set up to solve them have ensured they won’t be solved,” Gang said.

Shajjan tried to temper Gang’s concerns, saying “this is the first year, don’t expect  everything from them. They will do this.”

Dhillon offered an angle of realism and progress. “When you are in the field you know  that you are not always doing it right, but you just hope that it fits, and you push and you push. It’s great to go back and do this reflection.”

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