By L.F. Brown
5 October 2004
There was much controversy when Afghanistan’s Chief Justice of the Supreme Court, Fazil Hadi Shinwari, then 73 years of age, placed a ban on cable television last year, due to its content being un-Islamic. It became a good opportunity for critics of what was seen as the threat from Islamists in power in Afghanistan to criticise his qualifications to be in his position, citing article 105 of the 1964 Afghanistan constitution, which included the proviso that the Chief Justice could only be appointed by the king (with President Karzai effectively standing in this position) if he was between the age of 40 and 60, as well as having “sufficient knowledge of jurisprudence, the national objectives, and the laws and legal system in Afghanistan.” The International Crisis Group charged that he had stacked the Supreme Court with hardline judges who, like him, had no secular legal education. And they also feared that “the Afghan justice system has been taken over by hardliners before the Afghan people have had a chance to express their will in a democratic process.”
Mr. Shinwari, a Pashtun (with ethnicity being an important factor in any political appointment - Pashtuns make up 40% of the Afghan population), was appointed Chief Justice in December 2001 by then president Burhanuddin Rabbani, just before the Bonn agreement (the result of a U.N.-sponsored Afghan peace conference after the ousting of the Taliban from power the previous month) was adopted on the 5th of December. Two major outcomes of the Agreement were the establishment of an Afghan Interim Administration for six months (which would be and was replaced by the Afghan Transitional Authority in June 2002 after an emergency Loya Jirga elected Mr. Karzai as its President), as well as the adoption of the ostensibly secular 1964 constitution, subject to the provisions of the Bonn Agreement. After being appointed Chief Justice by the Interim Administration in January 2002, he was again made Chief Justice in June 2002, this time by the Transitional Authority, a position he retains to this day.
Mr. Shinwari was unmoved by the objections directed towards him, defending his qualifications (IWPR, 28 March 2003):
"I think the knowledge I have in Islamic studies and principles is enough for a chief justice," he said. "I will never accept and am not obliged to learn any law or regulation opposing Islamic law." But he acknowledged that "there are some foreign rules and regulations that are similar to Islamic laws, such as human rights, and I will never oppose them."
He also defended his decision (IWPR, 28 March 2003):
"I will never ignore Islamic principles for the sake of anyone. And I would oppose anything that leads society to non-Islamic actions." He said he decided to ban cable television after investigating complaints by several people about its un-Islamic content, which included Indian movies and western programmes that showed women in scanty clothes.
The deputy minister of information and culture, Abdul Hameed Mubarez, was not convinced (IWPR, 28 March 2003):
"The chief justice should first of all be acquainted with non-Islamic principles. If he is not, he should have people to give him sound and constructive advice. I am optimistic that the matter will be considered in the new constitution."
I wonder what Mr. Mubarez thought when the new constitution was passed by a Loya Jirga on the 4th of January 2004 and signed into law by Mr. Karzai a few weeks later.
Article 118, dealing with the qualifications of the Supreme Justice (who is to be chosen and can be dismissed by the Afghan President), states that not only isn't there a maximum age for the Chief Justice, but only a “higher education in legal studies or Islamic jurisprudence, as well as expertise and adequate experience in the judicial system of Afghanistan” is required.
And what kind of expertise, indeed, what kind of laws will allowed to be promulgated is vague and circular, inevitably open to conflicts, as these excerpts from the Constitution show:
Article 1
Afghanistan shall be an Islamic Republic, independent, unitary and indivisible state.
Article 2
The sacred religion of Islam is the religion of the Islamic Republic of Afghanistan.
Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals.
Article 3
No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.
[Article 130 on amendments, notes: “The provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended.”]
Article 6
The state shall be obliged to create a prosperous and progressive society based on social justice, preservation of human dignity, protection of human rights, realization of democracy…
Article 7
The state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights.
The state shall prevent all kinds of terrorist activities, cultivation and smuggling of narcotics, and production and use of intoxicants.
Article 34
Freedom of expression shall be inviolable.
Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution.
Every Afghan shall have the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities.
Directives related to the press, radio and television as well as publications and other mass media shall be regulated by the law.
Article 35
To attain moral and material goals, the citizens of Afghanistan shall have the right to form associations in accordance with provisions of the law.
The people of Afghanistan shall have the right, in accordance with provisions of the law, to form political parties, provided that:
1. Their manifesto and charter shall not contravene the Holy religion of Islam, and principals and values enshrined in this constitution;
2. Their organizations and financial resources shall be transparent;
3. They shall not have military or quasi-military aims or organizations; and
4. They shall not be affiliated with foreign political parties or other sources.
And when laws haven’t even be made:
Article 130
In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws.
If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.
That is, in pursuance of the rulings of Islamic scholars on Islamic, or Sharia, law, by the courts.
Obviously the views of Mr. Shinwari will have an enormous effect on legal rulings. And some of the precedents he has already set raise serious questions:
* In October 2002, Nina Shea of The Center for Religious Freedom, wrote:
On January 24, for instance, Shinwari had told the international press that under the new government, adulterers would be stoned to death, the hands of thieves amputated, and consumers of alcohol given 80 lashes.
He is also opposed to the practice of Christianity. Reuters quoted him as stating: "The Islamic government, according to sharia, is bound to punish those who get involved in anti-Islamic activities. We can punish them for propagating other religions-such as threaten them, expel them and, as a last resort, execute them." Shinwari told a National Public Radio correspondent that Islam has three essential rules. First, a man should be politely invited to accept Islam; second, if he does not convert, he should obey Islam. The third option, if he refuses, is to "behead him."
Two weeks before his appointment as chief justice, Shinwari reiterated that the nation would continue as an Islamic state under all-encompassing sharia law. According to Agence France Presse, Shinwari insisted there would be no "Western-style government" in Afghanistan: "No one will accept it. Only an Islamic government is acceptable to the Afghan people." The 70-year-old justice had lived in exile for nearly 40 years, mostly in Pakistan, where he taught Islamic law at a madrassa. Decorating the wall above his desk, according to the Associated Press, are a sword and a leather lash for flogging. They were left by the Taliban, but Shinwari keeps them up as symbols of the harsh sharia justice which he also endorses.
Not that Shinwari isn't critical of the Taliban. Indeed, he never misses an opportunity to denounce them as "barbaric" for having carried out stonings and amputations as public spectacles in Kabul's sports stadium, rather than in private. He has faulted them for pressing private doctors, and not special prison doctors, to implement sentences of amputation. He has deplored their rushing hastily to judgment, instead of methodically using appropriate procedures. But Shinwari has never backed away from the extreme sharia punishments, and has repeatedly and publicly asserted that he intends to apply them in the supreme court he now heads. "We are not eager to execute criminals or chop off heads," he recently told the Washington Post, "but if all the conditions are fulfilled, [it] is required."
In an absolute sharia state, only the judiciary holds power. Iran's President Khatami has repeatedly complained that religious judges hold the real levers of power and do not allow him to usher in the civil liberties for which he was twice elected. Already in Afghanistan, Karzai's justice ministry has ceded formal control of the central prosecutor's office to the court [although article 134 of the new constitution prohibits this and states that the “Attorney's Office is part the Executive branch, and is independent in its performances.” But then again, so did article 103 of the 1964 constitution which was supposed to be in force until the new constitution was adopted], and a commission on judicial reform was dissolved after religious hard-liners obstructed it [to be resurrected in November 2002 in the form of the Judicial Reform Commission]. If Shinwari's vision of Afghanistan were realized, he and his colleagues on the bench would emerge as the country's most powerful political figures. And the U.S. should not expect much in the way of cooperation from them. Shinwari has already said that he will be lenient with those involved in Afghanistan's opium industry-a priority concern of the State Department-since, as he explained to the press, narcotics are not banned under Islamic law. Nor is it a good sign that he is given to referring to non-Muslims, even in public interviews, as "infidels."
* When two journalists, Mer-hossin Mahdawi and Ali Raza Payam, caused an uproar in some quarters in 2003 by publishing articles (in which one of them they asked: “If Islam is the last and most complete of the revealed religions, why do the Muslim countries lag behind the modern world?”) and a cartoon that were considered blasphemous towards Islam, they were arrested and a death sentence was suggested by the Supreme Court to its fatwa division, which agreed. After an international outcry Mr. Karzai ordered them temporarily released until the trial (even while he said he had ordered their arrest to “protect the constitution and the beliefs of the majority of the people"), during which time they escaped, fled to Pakistan, were recognised there and then applied for and were granted asylum in another country.
* Soon after Afghanistan’s new cabinet was announced in June 2002, Women's Affairs Minister Sima Samar allegedly told a Canadian magazine that she didn’t believe in Sharia (Islamic) law. Mr. Shinwari blew his top and accused her of speaking "against the Islamic nation of Afghanistan." Ms. Samar was formally charged with "blasphemy," which can carry the death penalty. She declined her new post and the charge was dropped under pressure from the United States.
* And recently when the maverick Presidential candidate Latif Pedram made remarks that were critical of the treatment of women under Islam, Mr. Shinwari tried to get him thrown off the ballot although the election board rejected the request.
Article 90 of the constitution states that the National Assembly (“the highest legislative organ”) will be responsible for “Ratification, modification, or abrogation of laws or legislative decrees.”
In addition:
Article 94
Law shall be what both Houses of the National Assembly approve and the President endorses, unless this Constitution states otherwise.
Article 95
The proposal for drafting laws shall be made by the Government or members of the National Assembly or, in the domain of regulating the judiciary, by the Supreme Court, through the Government.
Article 97
Proposals for drafting laws shall be first submitted to the House of the People [the lower house] by the government.
In other words, it is up to the government to pass laws, which can also receive formal suggestions from the Judicial Reform Commission, which was established on the 2nd of November 2002 (as required by the 2001 Bonn Agreement) and is proposed to continue until the end of this year. Its purpose, as the name implies, was to reform the shattered justice system.
In the latter half of December 2002 the Conference on Justice in Afghanistan, which was closed to the media, was held in Rome to discuss the rebuilding of Afghanistan’s justice system. A couple of days before, a discussion group was convened by the International Development Law Organization (IDLO), an intergovernmental organization funded by 11 western countries (including the United States), as well as various multilateral organizations and corporations. The IDLO described it as such:
On December 16-17 2002 the members of the new Afghan Judicial Commission, charged with the reform of Afghanistan’s legal institutions, together with many of the world’s leading experts in Islamic Law took part in a Roundtable, organized by IDLO in Rome on “The Role of Law in a Modern Afghanistan”.
The President of the Supreme Court of Kabul, Almaj Mawlawy Fazal Shinwari, the Chief Public Prosecutor, Abdul Mahmood Daqeeq, and the Deputy Minister of Foreign Affairs, Wahid Monawar, were among the participants of the two-day event.
The results and recommendations of the Roundtable were presented later the same week at the Conference on Justice in Afghanistan, organized by the Italian Government, which was held in Rome on December 19 and 20 and inaugurated by President Hamid Karzai and the Italian Minister of Foreign Affairs, Franco Frattini.
The Associated Press reported the outcome:
Earlier in the week, Afghanistan's 11-member Judicial Commission, charged with reforming the judiciary, met with about 75 scholars and legal experts in Rome to draft a set of recommendations setting out top priorities. The conclusions of that meeting were that Islamic law has "all the elements that are really required to underpin a human rights agenda and a modern state agenda which are completely compatible with international standards," said William Loris, director-general of the International Development Law Organization, which trains lawyers and judges in developing countries. The Rome-based IDLO is advising the Judicial Commission on how to carry out the reforms.
All the elements, for the world. Judicial Reform Commission Chairman, Bahauddin Baha, was no doubt pleased with the outcome of the two-day meeting (Paknews, 30 November 2002):
The head of a new commission tasked with reforming Afghanistan's legal system said Thursday it will still be based on traditional Islamic law, which allows authorities to sever the hands of thieves and stone adulterers to death.
Commission Chairman Bahauddin Baha said Islamic law, or Sharia, cannot be changed.
"No commission will replace the rule of Islam. Our country is an Islamic country and we will implement Islamic law," he said.
He said those laws were still enforced in Afghanistan. However, no amputations or stonings have been reported since the hardline Taliban government was overthrown last year in a U.S.-led war.
Baha said such punishments were unlikely because the burden of proof required is so great that they would be difficult to implement.
"If you read the Quran very carefully, cutting off somebody's hand for theft ... it's very difficult to do," Baha said. "You need a lot of witnesses to verify if a crime actually occurred. It's possible, but it's not easy."
He called the Taliban's harsh interpretation of Sharia an aberration. "What the Taliban practiced was not Sharia law, it was something they made up themselves and it was not acceptable to the people and it was not acceptable to Islam," Baha said.
But it was always going to be this way. In September 2002, before an audience at the Council on Foreign Relations in New York, Mr. Karzai (who seems likely to retain his position as President after the October 9 presidential poll) was asked about Sharia law in Afghanistan:
President Karzai, we all welcome and are heartened by your affirmation that human rights and tolerance will return to Afghanistan under your leadership. But we also well aware of recent reports of the return of religious police to religious forms. A judicial commission which has indicated its support of Sharia Punishments. Corporal punishments. A chief justice who affirms that amputations will take place but only in private and no longer in public.
He replied:
All very relevant questions, ma'am. The religious police question. It is not a religious police. It is a preaching body. It's like missionaries. Religious elements who want to volunteer to preach spiritual over evil. And there are only 200 of them resistant. No more than that. And the man who was in charge of this who made somehow a statement that was not in keeping with the government's policy was dismissed the next day by the ministry without letting me know. So, when I called the minister to complain about his official, he said the man has been already dismissed. We're very careful about that.
The question of Sharia, ma'am, we are an Islamic country. When you ask a clergy of ... or a man who interprets jurisprudence in accordance with Islam as to what will be the punishment of a man that would steal? The book says cut off his hand. That's the straight answer. But that's not the circumstances in which he does that. It is extremely, extremely difficult in the real interpretation of Sharia to cut off somebody's hand. The hand-cutting part is only applicable, only applicable, if the society has been provided with all the means of work and earning and making a life. In the absence of that, you are not allowed to do that.
So, Afghanistan is not an ideal society for earning money. So, in Afghanistan it will not happen. I asked the chief justice about this when he made the statement. I have told him you have made the statement. This will probably cause a lot of concern. He said, "Yes. The media do not publish the explanation that I had, they only published my statement." So, I assure it will not happen. There are strict, strict rules of earning that kind of punishment. Very strict rules. Very strict rules.
But Ms. Shea of The Center for Religious Freedom (see above), who cited the talk Mr. Karzai gave, was not convinced:
But what if the new court were to dispense with the "strict rules"-as the old Taliban court did? Will critics of the court share Sima Samar's fate and be charged with blasphemy? One of the problems with extreme sharia is that it allows no room for checks on judicial power. Karzai probably knows better, but he is under strong pressure from an Islamist defense minister, Mohammed Fahim, and the still well-armed leaders of the Northern Alliance.
Iran provides a real-time demonstration of how and why extreme sharia law is difficult to reform, let alone remove. In early September, Hashem Aghajari, a leading voice in President Khatami's reformist movement, went on trial for "blasphemy" after giving a speech in which he called for reforms of the sharia system. He could now face the death penalty. Scores of other critics of sharia law have been flogged and jailed in Iran in recent months, and some 60 dissenting publications have been shut down.
The stoning to death of women found guilty of adultery under the Taliban (and, more recently, in Africa) has prompted outraged editorials in the West. But the more fundamental problem of extreme sharia-that its all- powerful judicial apparatus precludes democracy and sharply reduces human freedom across the board-has been all but overlooked. When asked about the development of penal sharia in Afghanistan, a senior State Department official told me recently that State was concerned about Karzai's security, not about sharia. They fail to realize that in a hard-line sharia state, with 7th-century laws and punishments, the supreme court is not merely another branch of government: It's where the real power resides. Countries where religious judges directly command the coercive powers of the state are de facto theocratic. No president or parliament can override their decisions, no politician or journalist can criticize them; to do so would be blasphemy.
Time will tell.
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