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Published online by Cambridge University Press: 08 March 2011
In Afghanistan, rule of law projects have placed a heavy emphasis on rebuilding courts and law enforcement institutions. Little attention has been given to the critical element of defence, particularly criminal defence services for the poor. Yet, without defence lawyers, there can be no rule of law. This article examines the right to counsel in Afghanistan and the indispensable role that defence lawyers are playing in the development of the justice system, illustrated by the experience of the International Legal Foundation. By providing early and effective representation to their clients, lawyers ensure that Afghanistan's new laws and constitutional provisions protecting the rights of the accused are implemented.
1 Constitution of Afghanistan, 1964, Art. 26, available at: http://www.afghan-web.com/history/const/const1964.html (last visited 30 November 2010); Constitution of the Republican State of Afghanistan, 1976, Art. 31, available at: http://www.afghan-web.com/history/const/const1976.html (last visited 30 November 2010); Constitution of Afghanistan, 1987, Art. 41, available at: http://www.afghan-web.com/history/const/const1987.html (last visited 30 November 2010); Constitution of Afghanistan, 1990, Art. 41, available at: http://www.afghan-web.com/history/const/const1990.html (last visited 30 November 2010); Constitution of the Islamic Republic of Afghanistan, 2004, Art. 31, available at: http://www.supremecourt.gov.af/PDFiles/constitution2004_english.pdf (last visited 30 November 2010).
2 While the right to counsel existed in theory, it was virtually ignored in practice until the post-conflict reconstruction efforts began and non-governmental organizations (NGOs) began to establish legal aid offices and train criminal defence lawyers. See UN Assistance Mission in Afghanistan (UNAMA), Arbitrary Detention in Afghanistan: A Call For Action, Volume I: Overview and Recommendations, 2009, p. 16, available at: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=49d07f272 (last visited 30 November 2010), which states that: ‘Engaging a defence counsel is a relatively new concept in Afghanistan’.
3 Constitution of the Islamic Republic of Afghanistan, above note 1, Art. 31.
4 As of 30 November 2010.
5 Other rule of law efforts in Afghanistan may not be as successful. On 24 September 2010, the New York Times reported that the United States had funded a US$35 million campaign (which included kite-flying) ‘to promote the use of Afghanistan's formal justice system’. Rod Nordland, ‘Afghan equality and law, but with strings attached’, in New York Times, 24 September 2010, available at: http://www.nytimes.com/2010/09/25/world/asia/25kite.html (last visited 30 November 2010).
6 The ILF is an international, non-governmental organization promoting fair and just criminal justice systems in post-conflict countries and regions in transition by establishing effective, quality criminal defence services for the poor. For further information about the ILF, see: http://www.theilf.org.
7 Constitution of the Islamic Republic of Afghanistan, 2004, above note 1, Art. 31.
8 Ibid.
9 Ibid.
10 See Muhammad Abdel Haleem, Adel Omar Sharif, and Kate Daniels, Criminal Justice in Islam: Judicial Procedure in the Shari'a, I.B. Taurus & Co, London, 2003, p. 90; see also the different constitutions, above note 1.
11 Afghanistan acceded to the ICCPR on 24 January 1983. See United Nations Treaty Collection, Status of Treaties, Chapter IV Human Rights, International Covenant on Civil and Political Rights, available at: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (last visited 30 November 2010).
12 M. A. Haleem et al., above note 10, p. 90.
13 Hadiths are recorded life events of the Prophet Muhammad that serve as important tools for Islamic jurists interpreting the Qur'an and Sharia (Islamic law).
14 Allah's Apostle heard some people quarrelling at the door of his dwelling, so he went out to them and said, ‘I am only a human being, and litigants with cases of dispute come to me, and someone of you may happen to be more eloquent (in presenting his case) than the other, whereby I may consider that he is truthful and pass a judgment in his favour. If ever I pass a judgment in favour of somebody whereby he takes a Muslim's right unjustly, then whatever he takes is nothing but a piece of Fire, and it is up to him to take or leave’ (Sahih Bukhari, Vol. 9, Book 89, No. 292). The right to counsel may also derive from the Islamic ‘Theory of protected interests’, through the right of self-preservation (liberty, physical wellbeing): see Matthew Lippman, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction, Greenwood Press, Inc, Westport, CT, 1988, p. 64. These interests grant every person the right to do what is in their power to safeguard their rights, including the right of a beneficiary to call on others to assist them in protecting their rights. See Osman Abd-el-Malek al-Saleh, ‘The right of the individual to personal security in Islam’, in M. Cherif Bassiouni (ed.), The Islamic Criminal Justice System, Oceana Publications, London, 1982, p. 83. The right to counsel is a necessary extension of self-preservation since ‘it provides the accused with the means to establish innocence and to defend himself’ (ibid.). Thus, the right to counsel is based on this penumbral right of assistance.
15 Awad M. Awad, ‘The rights of the accused under Islamic criminal procedure’, in M. C. Bassiouni, above note 14, p. 98.
16 There is some disagreement, specifically in the Hanafi School, as to whether some crimes categorized as Hudud (crimes against God) require a right to counsel, but the majority view holds this distinction to be irrelevant. See M. A. Haleem et al., above note 10, p. 90.
17 O. A. al-Saleh, above note 14, p. 84.
18 The United States Supreme Court opinion in Powell v. Alabama (1932) established the right to counsel in capital cases and elaborated on the necessity of counsel: ‘Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he is not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect’. United States Supreme Court, Powell v. Alabama, 287 U.S. 45, 69 (1932).
19 Natalie Rea, Customary Laws of Afghanistan: A Report by the International Legal Foundation, International Legal Foundation, 2004, p. 1, available at: http://www.theilf.org/reports-ilfa-customary-laws.pdf (last visited 25 January 2011).
20 Ibid., p. 9.
21 A male guardian can be the woman's husband, father, or, failing those, another male family member.
22 Article 51 of Afghanistan's first Constitution, introduced in 1923, provided that: ‘every citizen or person appearing before a court of justice may use any legitimate means to insure protection of his rights’ (Constitution of Afghanistan, 1923, Art. 51). Arguably, this provision may have indirectly provided for the right to counsel based on the ‘Islamic theory of protected rights’; see O. A. al-Saleh, above note 14, p. 83.
23 Constitution of Afghanistan, 1964, above note 1, Art. 26.
24 Thier, J. Alexander, ‘The making of a constitution in Afghanistan’, in New York Law Review, Vol. 51, Winter 2006–2007, p. 560Google Scholar.
25 ‘Every person has the right to appoint defense counsel for the defense of a charge legally brought against him’: Constitution of the Republic of Afghanistan, 1976, above note 1, Art. 31.
27 ‘The accused has the right to defend himself personally or through an advocate’: Constitution of Afghanistan, 1990, above note 1, Art. 41.
28 J. A. Thier, above note 24, p. 561.
29 Ibid., p. 561.
30 ‘The “Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions”, otherwise known as the Bonn Agreement, was signed on December 5, 2001. The Bonn Agreement is a framework for transformation and stabilization of the Afghan political system’ (ibid., p. 566).
31 Ibid., p. 561.
32 Ibid., p. 566.
33 Constitution of the Islamic Republic of Afghanistan, 2004, above note 1, Art. 31.
34 Afghanistan Public Policy Research Organization, ICDAA/ILF: Nationalizing Legal Aid in Afghanistan, External Review, 2009, p. 11.
35 In its January 2009 report, Arbitrary Detention in Afghanistan, UNAMA noted that: ‘Coupled with the presumption of guilt, [the] lack of familiarity with the function and purpose of defense counsels appears to create hostility toward the right to defense counsel by the police, prosecutors and Courts, as demonstrated by the consistent failure to inform detainees of their rights to defense counsel and limitations placed on defense attorney's [sic] access to investigation, proceedings, and documents’ (UNAMA, above note 2, p. 16). While it is true that many police, prosecutors, and courts continue to impede the right to counsel in Afghanistan, the UNAMA report fails to take into consideration the many improvements that have been made since the reconstruction effort began.
36 See ibid. The UNAMA report incorrectly generalizes that ‘engaging defense counsel is seen as a sign of guilt, rather than a critical protection against abuse of power and arbitrary detention’. While undoubtedly many individuals still believe this to be true, Afghanistan's defence providers have made enormous progress in educating the justice sector, as well as ordinary citizens, about the important role of defence lawyers in the justice system.
37 Under the Afghan Penal Code of 1976 that is currently in force, ‘A person who commits adultery … shall be sentenced to long imprisonment’: Afghan Penal Code, Art. 427, published 7 October 1976 (15 Mizzan 1355 ah) in the Official Gazette, No. 347. English translation available at: http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweafg.htm (last visited 30 November 2010).
38 The legal definition of adultery in Afghanistan comes from the Hanafi school of Sharia law: Adultery (Zina) is any sexual act between a man and a woman who are neither married nor have a slave/master relationship. See Sharh-e Fatehull Qadeer, Vol. 4, p. 138; Bahrull Raiq, Vol. 5, p. 3; Badaye ull zaye, Vol. 7, p. 33.
39 During the initial pilot phase of the ILF's project in Afghanistan, the ILF's Executive Director, Natalie Rea, and two Afghan lawyers studied Afghanistan's criminal laws and practices in the country's detention centres and courts.
40 Owing to differences in early case-tracking methods, complete data on pre-trial release vs. detention are not available for years 2003–2006. During that time, ILF-Afghanistan represented roughly 900 clients. Pre-trial detention statistics for cases handled in 2010 will be reported on the ILF's website, www.theilf.org, in January 2011.
41 In 2007, ILF-Afghanistan represented 1466 clients, of whom 196 were released from pre-trial detention. In 2008, 964 of 3971 clients were released pre-trial; in 2009, 1101 of 4879 clients were released pre-trial.
42 ‘Debt shall not curtail or deprive the freedom of the individual’: Constitution of the Islamic Republic of Afghanistan, 2004, above note 1, Art. 32.
43 The Afghanistan Interim Code of Criminal Procedure for Courts, or Interim Code of Criminal Procedure, available at: http://www.asianlii.org/af/legis/laws/icc175/ (last visited 30 November 2010), was enacted in 2004.
44 ‘From the moment of the introduction of the action until when the criminal responsibility has been assessed by a final decision the person is presumed innocent’ (ibid., Art. 4).
45 Ibid., Art. 6.
46 ‘When the arrest performed by the Judicial Police is sanctioned … the arrested person shall be released if the Saranwal has not presented the indictment to the Court within fifteen days from the moment of the arrest …’ (ibid., Art. 36).
47 ‘The suspect and the defense counsel have the right to be present during searches, confrontations, line-up procedures and expert examinations as well as during the trial’ (ibid., Art. 38(2)).
48 ‘The evidence which has been collected without respect of the legal requirements indicated in the law is considered invalid and the Court cannot base its judgment on it’ (ibid., Art. 7).
49 Ibid., Art. 36.
50 See ibid., Art. 55: ‘[t]he records of the testimonies of the witnesses as well as of the expert exams, collected during the investigative phase, can have the value of evidence as basis for the decision only if it results that the accused and/or his defense counsel were present during the operations and were in a position to raise questions and make objections’. See also ibid., Art. 7.
51 For example, the chief of the Afghan Attorney General's Office (AGO), concerned about messages being passed between defence lawyers and their clients that were ‘against the national interest’, proposed to limit the rights of detainees to speak with their lawyers. See Proposed Criminal Procedure Code, April 2009, Art. 5, Sec. 11, fn. 11 (English translation by Justice Sector Support Program and UNODC). The Afghanistan Independent Human Rights Commission objected to any limit to the right of lawyer–client confidentiality. As the AGO was in the minority, the draft was changed to guarantee suspects and accused persons ‘The right to communicate freely and confidentially, orally or in writing with his counsel and without the authorities listening to or reading such communication’ (ibid., Art. 5, Sec. 11).
52 The Afghanistan Independent Bar Association sent an email to UNODC on 27 July 2009 voicing its concerns about the draft law. Subsequently, the President of the Bar Association met with UNODC, who agreed to provide them with a copy of the draft law. Furthermore, as a result of these discussions, UNODC invited the Bar Association to a conference in Austria on 27 October 2009 to share its views. The Bar Association sent an official letter to all provinces about the fact that the draft law was eroding the rights of lawyers, and instructed all defence lawyers to review the draft law and give their views. Information obtained from conversation between ILF-Afghanistan staff and the President of the Afghanistan Independent Bar Association, 29 November 2010.
53 See website of the Afghan Ministry of Justice: http://www.moj.gov.af/?lang=en&p (last visited 30 November 2010).
54 See Pawelski, Ele, ‘Defining justice in Afghanistan: development of a national legal aid system’, in Windsor Review of Legal and Social Issues, Vol. 27, 2009, p. 195Google Scholar: ‘Afghanistan has had a short history of defence lawyers, and only nominal government legal aid services’. See also UNODC, Afghanistan, Afghanistan: Implementing Alternatives to Imprisonment, in Line with International Standards and National Legislation, 2008, p. 53: ‘The Supreme Court has a legal aid office but it has been extremely inadequate’.
55 See website for the Afghan Ministry of Justice, above note 53.
56 Information obtained by ILF-Afghanistan staff during a January 2009 meeting with a Deputy Minister of the Ministry of Justice and the head of the Ministry of Justice Legal Aid Office in Kabul.
57 Constitution of the Islamic Republic of Afghanistan, 2004, above note 1, Art. 31.
58 Government for the Islamic Republic of Afghanistan, Ministry of Justice, Justice for All: A Comprehensive Needs Analysis for Justice in Afghanistan, Kabul, May 2005, p. 10, available at: http://www.rolafghanistan.esteri.it/NR/rdonlyres/B0DB53D0-A1F9-468E-8DF0-3F485F1959A7/0/JusticeforAll.pdf (last visited 30 November 2010).
59 Ibid.
60 As of 23 November 2010, there were 964 lawyers, including 152 women, registered with the Ministry of Justice (phone conversation between ILF-Afghanistan and the Afghanistan International Bar Association).
61 The US budget for indigent defence services is also small: ‘The state and federal governments together allocate over half of their criminal justice spending to the investigation and prosecution of crimes but only about two percent to indigent defence’ (Lee, Kyung M., ‘Reinventing Gideon v. Wainwright: holistic defenders, indigent defendants, and the right to counsel’, in American Journal of Criminal Law, Vol. 31, Summer 2004, p. 373Google Scholar).
