Crisis in Supreme Court

Friday, 18 November, 2005

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an IWPR

Shafiqullah, 38, from the eastern Nangarhar province, has been battling in the courts for 10 years to regain 8,000 square metres of land he says was seized from him by armed gangs during Afghanistan’s years of factional fighting.

By now, he says, he has paid almost three times the actual value of the land in bribes to judges considering his case, including some sitting on the highest judicial body, the supreme court – all to no avail.

Nor does he hope that much will change under the newly-appointed members of the court, who were nominated on January 3 by President Hamed Karzai.

"I did not sleep after the proclamation of the [new] interim supreme court,” he said. “I know these faces very well, and they do not work for God and the people; they work for bribes.”

Shafiqullah’s poor opinion of the nine-member court is hardly unique. Even supporters of the court admit that members of this, the nation’s highest judicial body, have been susceptible to bribery and political influence.

Others now charge that the court’s current members fall short of the minimum education standards set down in the country’s constitution, approved in January 2004, to hold their posts.

It’s hardly any wonder, then, that many of the court’s most controversial decisions are routinely ignored.

Supreme court spokesman Wahid Muzhda, in an interview with IWPR, acknowledged that the court has had problems with corruption. He blamed, in part, the unstable political and security situation and said that many high-level staffing decisions were made through political influence or outright intimidation, degrading the calibre of judicial appointees.

“The influence of weapons and the weakness of the government led to bribery in the supreme court and the judicial system,” he said.

Many had hoped that this situation would change when Karzai announced the new nine-judge court last month. But instead, Karzai made only one change in the previous composition, removing Fazal Ahmad Manawi, who had been its deputy head, and appointing Ayatollah Mohammad Hashim Salehi, a Shia cleric. Salehi is the first Shia to be appointed to the court in overwhelmingly Sunni Afghanistan.

Chief Justice Fazl Hadi Shinwari, seen as a conservative, retained his post.

Karzai had initially appointed all nine members to the bench in December 2001 following the collapse of the Taleban.

Some accuse Karzai of bowing to political pressure by failing to reform the court.

"Karzai made the appointments under pressure from the right wing in order to appease them,” said political analyst Mohammad Qasim Akhgar. He declined to name which groups might have influence the president’s decision.

But a prominent Afghan attorney who is familiar with the court’s inner workings, and declined to allow his name to be used, said he believed the court’s makeup is the result of a secret deal between Karzai and former mujahedin factions in advance of last October’s presidential vote. The conservative Ittehad-e-Islami party, headed by Abdul Rab Rasul Sayyaf, had managed to dominate the court, the attorney said.

"Unfortunately it is a political deal that was accepted before the presidential election that the supreme court should stay in Sayyaf's hands," he said. "We should hold memorial services for democracy with the formation of this new supreme court.”

Manawi, the dismissed justice, told IWPR he has no idea why he was the only supreme court judge not to reappointed to the bench by Karzai. But he said he believes deals and political interests have always influenced the court's composition.

“If the decisions [on the appointment] of judges are made based on politics and tribal interests, then there is no real judicial system,” said Manawi. “The current judicial system isn’t a real one because it serves the government and powerful figures rather than the people.”

Presidential spokesman Hamid Elmi denied politics played a role in Manawi’s dismissal. “These changes in the supreme court were not because of any political concerns,” he said. “The government just tried to make a better judicial system.”

Muzhda, the court’s spokesman, applauded the appointment of the new judge. He called Salehi "a highly educated and a very experienced judge”, and said Manawi had been removed because of concerns over his political connections.

Under the constitution, members of supreme court and judges are prohibited from being involved in politics until after their terms have concluded.

Judges on the supreme court are appointed by the president and serve staggered terms, with three being appointed to four-year terms, three to seven-year terms and three to ten-year terms. All appointments need to be confirmed by an as yet unelected parliament.

Because the country’s legal framework is a combination of both Islamic and civil law, the constitution requires that the justices possess higher education degrees in areas, a standard most on the bench currently fail to meet.

Akhgar, the political analyst, said the court is currently made of up “fundamentalists”.

"The concern is that supreme court members have different views toward democracy, because all of them are mullahs [Muslim preachers] and maulavis [Islamic scholars] and don't have contemporary knowledge of international and [Afghan] civil law,” said Akhgar. “Another concern is the judges’ opinion about real democracy because they are all mullahs who don’t have knowledge of modern human rights.”

In addition to acting as the final court of appeal in cases dealing with land seizures, divorce, murder, kidnapping and drug smuggling, the supreme court is also empowered to hand down judgements on what it sees as violations of shariat law, even without cases formally being presented for its consideration.

For example, it recently recommended death sentences for two journalists who the court found had insulted Islamic principles in their publication by criticising the mujahedin. The court also attempted to bar a presidential candidate from appearing on the ballot for questioning polygamy, ban women singers from appearing on television, and condemned a self-proclaimed Miss Afghanistan for appearing in a beauty contest wearing a bikini.

In each instance, the court’s ruling has been ignored.

So far, any and all attempts to reform the country’s court system in general and the supreme court in particular have been unsuccessful.

Habibullah Ghalib is a member of the government’s judicial reform commission, a special body created by Karzai in November 2002. He told IWPR that his panel had not been consulted in advance about the latest supreme court appointments.

"The commission put forward a suggestion [in January 2003] to the supreme court about getting rid of people who don't have experience and a high level of education,” he said, “but the supreme court ignored us and replied by saying that it is an independent organisation.”

Those recommendations were also forwarded to Karzai’s office. There’s no sign that the president even responded to the commission’s report.

Ghalib said the commission also warned against using nepotism as a basis for appointing judges but that warning has also been ignored.

The situation has become so serious that it is openly discussed in the Afghan press. Last October, the independent weekly newspaper Cheragh wrote, “The supreme court, one of the three basic pillars of our political system and the only institution for justice in accordance with the religion, has always played a big role in maintaining the framework of society.

“But under the interim and transitional governments , the supreme court - unlike other institutions – has been unable to make a place for itself in the new society. Instead, it stance consists merely of defending its existence.”

This story has not been bylined because of concerns for the security of IWPR reporters.

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SUPREME COURT MEMBERS

* Chief Justice Fazel Hadi Shinwari, 74. Studied Islamic knowledge in India and Pakistan, and graduated from Arabia Dar-ul-Ulum, an Islamic college in Kabul. In his first year of study he memorised the Koran in six months.

* Mohammed Hashim Salehi, 55. Graduate of the Waez School, an Islamic college in Kabul. Holds a degree in Islamic studies from a university in Najaf, Iraq.

* Maulavi Mohammed Azim Jalili, 73. Holds a degree in Shariat law from Kabul University.

* Maulavi Samargul Ashraf, 70. Holds the title of mullah and has a degree in Shariat law from Kabul University.

* Murad Ali Murad, 65. Holds a degree in Shariat law from Kabul University.

* Sayed Munir Muhib, 64. Studied Islamic knowledge in Paghman province. Has a degree in Shariat law from Kabul University, and a master’s degree in Shariat from al-Azhar Islamic University in Egypt.

* Maulavi Qiamuddin Kashaf, 60. Studied Islam in unofficial schools. Has no official degree.

* Maulavi Fazil Wahab, 58. Holds the title of mullah. Graduate of the Arabia Dar-ul-Ulum in Kabul.

* Sayed Abdul Razaq Musamim, 48. Studied Islamic knowledge in northern province of Kunduz. Holds a degree in Shariat law from Kabul University.