The international efforts to rebuild the justice system in Afghanistan as part of state-building have come a long way in the last 12 years. From the zero baseline of the Taliban regime to today; the judiciary in Afghanistan is more than 2,000 judges strong, nearly 5,000 prosecutors, a robust bar association with 2,500 members, a host of NGOs providing pro bono legal representation to women and children, a vibrant private sector, and law schools in seventeen provinces producing more than a thousand lawyers each year.
However, has all this made any contribution to the promotion of rule of law in Afghanistan?
Article 34 of the Afghan Constitution states that freedom of expression is inviolable and gives every Afghan the “the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this Constitution.” Presumably, the “other means”include the right to peaceful assembly.
Since July 2003, Afghans have been exercising their right to protest and taking to the streets to demandreform, freedom and other fundamental rights. And, the tradition of peaceful protest has continued with most recent one on February 2 by a group of prominent Afghan women,asking President Ashraf Ghani to fulfill his campaign promise of appointing a minimum of four women to cabinet posts.
And then there are protests, which threaten violence and civil unrest if demands are not met by the government.In June 2014, people took to the streets alleging massive fraud in presidential elections and threatened violence if demands are not met. The fear of violence was so real that it required John Kerry’s intervention and the establishment of the National Unity Government (NUG) to subside.In October 2014, demonstrators demanded the closure of a newspaper and arrest of its staff, which published an article considered blasphemous. The editor later said it was inadvertent and apologized for publishing the article. The newspaper was then closed for fear of violence.
Recently, protestors closed Kabul-Mazar highway to protest fraud in Provincial Council elections, and Provincial Councils closed offices in 19 provinces to protest against the new law Parliament passed this month removing oversight authority from their duties. One Provincial Council member on TV said they demand this authority be given back to them, that the president should veto this law, pounding the news desk with his fist of fury. Another one said that if demand is not fulfilled, then offices will be closed and massive protest will ensue.
President Ghani then ordered the Independent Directorate of Local Governance (IDLG) to look into the law and make necessary recommendations. A tentative agreement has been reached with the provincial councils.
Article 139 of the Constitution does not provide for monitoring or oversight “Nezarath – a dirty word in the political parlance that could mean at times observe and monitoring/oversight” authority for the provincial councils. It states that the “provincial council shall participate in the attainment of the development objectives of the state and improvement of the affairs of the province in the manner prescribed by laws, and shall advise the provincial administration on related issues.” If the drafters of the Constitution wanted to give monitoring or observing authority to the Provincial Councils, they would have stated so. They only gave advisory role to them.
Article 90 of the Constitution empowers the National Assembly with the authority to draft laws. Parliament in 2006 passed a law giving this authority to Provincial Councils to observe how provinces use their financial resources, and in February 2015, Parliament repealed that authority. Article 120 of the Constitution stipulates that real and incorporeal persons can file grievances with the courts.
The potential legal issues in this case, if it were brought before a court, would have been whether Parliament has the authority to revoke provincial councils’ ability to observe the provincial administration financial efforts; whether the Constitution intended to include this authority; and whether this authority should be given to make provincial councils effective as representatives of the people.But President Ghani missed an opportunity to direct the aggrieved Provincial Council members to courts to duke it out with the Parliament so that the issue is resolved through rigorous constitutional analysis, and for everyone to respect and abide by the final disposition – win or lose. It is the proper way to resolve disputes and give the system a chance rather than cave in to demands and fear of violence. Respect for judiciary and capacity will be build. But, most importantly, people will have a channel to vent and be properly heard. It would have been a great precedent.
"But President Ghani missed an opportunity to direct the aggrieved Provincial Council members to courts to duke it out with the Parliament..."
Similarly, Afghanistan has media and election laws, among others, whichallowan aggrieved party to file complaint with court for violation of laws. But no one files these kinds of cases in courts because no one trusts the judiciary, and because taking to the streets and threatening violence are efficienttools – just like Taliban justice – with a high probable favorable outcome. Then government officials including the president scramble to avert violence, potential security disaster, and reach some consensus in resolving dispute and grievances. Powerful corrupt politicians have employed this technique for the last 13 years – the quintessential of whom was the late Ahmad Wali Karzai, brother of the former President Hamid Karzai. Whenever report of his involvement with CIA or corruption emerged, hundreds of people would pour in to Kandahar city streets at the behest of Ahmad Wali asking for exoneration and symbolic warning of impending violence, if not.
Corruption is probably the major driver of violent extremism in Afghanistan. And Ashraf Ghani, presumably, for fear of continued political corruption, basically froze government activities, effectively paralyzing it for the time being.
The strategy is working to an extent as the fear of losing job or referral to the prosecution office made corrupt officials tread carefully. However, until a remedy is in place soon or alternative solution is sought, continuation of this strategy will breed discontent throughout the country because of the lack of economic opportunity and the resultant high unemployment. The recent freeze on procurement in the Ministry of Defense on the alleged corruption of over 219 million USD in fuel contracts is a prime example.
In the past six years, both Afghans and internationals told me that they would not pursue resolution of their disputes through courts because they are corrupt. Ihave also witnessed many cases resolved through corruption or other external cajoling.
Lots have been written about Afghans resorting to opposition for justice because the formal justice system is corrupt, incompetent, inept and time consuming. Yet, hundreds of millions have been poured in to re-building thissystem, which no one uses. If no one uses it, how can it be fixed? And, where claims are filed with courts, both nationals and internationals opt for the easy way out by paying the judge, prosecutor, or police.
Similarly, there has not been even one claim (recorded) against anyone for compensation of a wrong, individual or an organization, which imports products including harmful medicine, and professionals such as doctors and hospitals who prescribe twenty different medications and perform operations medically unnecessary but that actually harms patients, the government, or corrupt public officials.
To fight corruption and mitigate violence, President Ghani must adopt similar laws and procedures to qui tam or a derivative of the United States False Claims Act, public interest litigation, and class action.
Qui tam allows a private individual to file on behalf of the government who defrauds the government and receives part of the recovery. Qui tam claims will be an effective tool to successfully prosecute corruption in Afghanistan and it provides incentive to the individual to be rich. Simply imagine how many staff at these fuel contracting companies would have reported the fraud if Afghanistan had a False Claims Act.
The Public Interest Litigation (PIL) is a tool that could effectively hold public officials accountable for their actions or lack thereof. Black’s Law Dictionary defines PIL as “a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” In India, PIL has been used successfully since the 1970s. PIL is used to obtain justice for the people, to voice people’s grievances through the legal process with an aim to give everyone access to court and obtain legal redress. This is what is missing in Afghanistan. PLI can be used to address such general societal issues of corruption charges against public servants, reform in outdated traditional social customs like ‘baad’ (exchange of girls in marriage to resolve family disputes), child marriage, or illegal detention or arrest, torture of persons in police custody, and speedy trials among others.Any citizen or non-governmental organization can file with the court to seek legal remedy for public interest issues.
A class action can be a powerful tool against producers, importers and professional services providers for their negligence and duty. A mechanism allowing a larger group “class” of aggrieved to file in court seeking compensation for the wrongs is an unappreciated deterrent against anyone who currently reigns with impunity. The fear of compensation prevents the perpetrators to consider the action twice before taking it.
President Ghani must support the system (courts) and litigants. Nationals and internationals must give it a chance to grow. The Supreme Court must break its silence as a secretive organ of the government and respect the law starting with making hearings public, unless exempt by law, and publish judges opinions.Only through a collaborative action can we realize the impact of international and Afghan efforts of the last 12 years.
People are injured by corruption, but no one is doing anything about it. Give them the mechanism and venue to be heard and grievances resolved by a jury of peers or a judge that can be based on legal logic, reasoning, and application of the law in a transparent manner-written and published for everyone to see. Only then can we really achieve the intended goals of the intervention to build the rule of law in Afghanistan and a country.