Chief Justice Under Scrutiny

Monday, 21 February, 2005

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Hafizullah Gardish

The qualifications of the conservative chief justice of the supreme court, Fazil Hadi Shinwari, are being questioned in the wake of his controversial ban on cable television.

Shinwari does not appear to meet the requirements for the post set out by the 1964 constitution, which is the law of the land under the Bonn Agreement. He is over the age limit of 60 and has not received an education in secular law.

But Shinwari, speaking to IWPR in a rare interview, defended his recent decision and insisted that he has the right to continue to hold his post.

"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".

Shinwari, who is Pashtun, was born in 1930 in rural Nangahar province, eastern Afghanistan. He received his primary education from his father, who was a mullah, and other religious scholars. In 1945-46, he studied at the prestigious Dewband Madrasa in India, and he was also educated in Afghanistan in an Arabic madrasa.

The chief justice said he is legally allowed to stay in his post under Article 105 of the constitution.

Former president Burhanuddin Rabbani appointed Shinwari to the supreme court in December 2001, just before the Bonn Agreement was adopted. President Hamed Karzai made him chief justice in June 2002, under the new legal system.

Article 105 states that judges of the supreme court shall “have sufficient knowledge of jurisprudence, the national objectives, and the laws and legal system in Afghanistan. The King appoints one of the judges of the supreme court, whose age is not less than 40 and not over 60 years, as the chief justice.

“The King can review the appointment of the chief justice and the judges of the supreme court after the lapse of ten years from the date of their appointment to the said offices”.

Since Afghanistan’s legal system is in a state of flux, and a new constitution has not yet been written, this article is open to interpretation.

Karzai, as head of state, is considered to hold the powers of the former king.

Article 105 can be interpreted to mean that Karzai can allow the chief justice to continue even if he exceeds the age limit, said Dr Tariq Rishad, an Afghan analyst living in Holland who was in Kabul recently to visit his father.

However, Shinwari had been on the supreme court for less than a year when Karzai appointed him, not ten years as the article requires.

While Shinwari has insisted that he has the law on his side, he nonetheless

implied that he would leave if Karzai demanded it.

"I am not interested in posts or positions, nor in imposing myself on Afghans," he said.

A recent analysis of Afghanistan's judicial system by the International Crisis Group - a non-profit research and advocacy group - recommended that Karzai ask for Shinwari's resignation and replace him with someone who meets the qualifications for the post.

But even if Shinwari voluntarily resigned, Karzai would find it hard to replace him.

Top-level appointments in the current administration reflect a delicate balance between various political and ethnic factions. Getting rid of one of the few Pashtuns and one so strongly pro-Islamic could create serious problems.

In addition, the few judges who are educated in both sharia and secular law are not thought to be as experienced as Shinwari in Islamic jurisprudence.

The chief justice also was politically neutral during the Taleban era, which

makes him a rare commodity. And one possible rumoured candidate, who has better qualifications than Shinwari, is Shia - which would never be accepted by the Sunni majority in Afghanistan.

But there is a danger that retaining Shinwari as chief justice could lead to the judiciary adopting an Islamic code of law in advance of a proper debate on the issue.

The ICG report notes Shinwari has filled the supreme court with his political allies, a significant number of whom have no degree-level education in secular law.

"Shinwari's actions ... have added to fears that the judicial system has been

taken over by hard liners before the Afghan people have had a chance to express their will in a democratic process," the ICG report said.

In answer to repeated requests from IWPR for comment, Karzai's spokesman, Sayed Fazil Akbar, said his office was "too busy" to answer questions about Shinwari.

Few dare to speak out directly against the chief justice because of his powerful allies. But his ruling on cable television in January provoked the anger of many.

"I am a Muslim and I am not opposed to Islamic orders, but the court is

concentrating on such minor matters. I question whether was set up to just to

ban things like cable television," said an instructor at Kabul University, who

asked not to be named.

"Why doesn't the court deliver verdicts against commanders who have committed

atrocities and salted away state funds?"

The deputy minister of information and culture, Abdul Hameed Mubarez, is one of the few to have spoken out publicly against Shinwari's rulings.

"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," he told IWPR.

Dr Tariq Rishad agreed. "The chief justice should know Islamic and international laws and principles thoroughly in order to find a mutually acceptable path between the two," he said.

Defending his decisions, Shinwari told IWPR, "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.

Mubarez suggested that under the 1964 constitution, Shinwari had no right to

issue the ban; that the proper procedure would have been to refer the matter to the president who would then have authorised the information and culture ministry to investigate it.

Mubarez insisted that not all cable and satellite programme were against Islam;

that most were educational and recreational and benefited the younger

generation. " It's necessary that the youth know about the outside world and

that their minds develop," he said.

The chief editor of Anees daily, Ahmad Zai Siamak, said, "There are some

elements in the government who are afraid of the freedom of media. They are frightened that it might lead to questions being asked about them and possibly being put on trial.”

Siamak quoted a common Afghan expression in defence of cable television, even if it may sometimes carry un-Islamic material. "Some people use a glass for water, some for milk, and others use it for wine - so should we break all the glasses, or only punish the one who drank wine in it?"

Hafizullah Gardish is an independent journalist in Kabul. Rahimullah Samander, IWPR local editor and staff reporter, also contributed to this report.