Thank you. I would like to thank the Permanent Missions of South Africa and the United States, the United Nations Rule of Law Resource and Coordination Group, and the International Legal Foundation for organizing this important event. I would also like to thank Mr. Selous for his kind introduction, the Honorable Dustan Mlambo, Ms. Foster, and Ms. Smith for their remarks and to Ms. Monasebian for her able moderation of the event.
Chosroes, the great King of Persia, once said “Do not stay in a country which lacks these five things: a strong rule, a just judge, a fixed market, a wise physician, and a flowing river.” Decades of war and conflict in Afghanistan destroyed all of Chosroes’ five markers except the country’s flowing rivers. The other four, particularly rule of law and justice, were destroyed as a result of sustained violence in my country.
A modern justice system has been part of Afghanistan’s culture and history since the early 20th century, particularly since King Amanullah developed a forward-looking constitutional framework and legal code in the 1920s. However by the 1990s, decades of conflict had rendered Afghanistan’s legal system virtually non-existent. In the dark period of Taliban control, extremists ruled on the basis of their own strict interpretation of Sharia law. Mullahs replaced professional judges and prosecutors and ordered swift and exceedingly harsh punishments. Accused persons did not have the right to legal representation, or more accurately, any meaningful legal representation. The infamous office of the religious police controlled the Taliban’s system of punishment, employing violence in the name of justice. Despite the creation of a Legal Aid Department in 1989, waves of war and chaos prevented the department from providing defense services to the indigent. In fact, the department existed in name only.
Since the fall of the Taliban in 2001 great efforts have been made to reform the justice system. The Constitution of the Islamic Republic of Afghanistan, adopted in 2004, is based upon the supremacy of rule of law and rule by law; securing these values has been one of the highest priorities of the government of Afghanistan since its adoption. Access to legal aid is central to this priority: Article 31 of the Constitution guarantees the right to counsel to all accused persons and mandates the government to provide free counsel to the poor. The article states: “Upon arrest, or to prove truth, every individual can appoint a defense attorney…In criminal cases, the State shall appoint a defense attorney for the indigent.”
Building upon this precedent, the government of Afghanistan has made great strides towards the expansion of access to legal aid with the support of our international partners, civil society and the crucial assistance of legal aid service providers such as the International Legal Foundation and other organizations. I would like to highlight the very important role played by NGOs in providing legal aid and defense lawyers. This has helped reduce violence against women in my country. The achievements that are important include:
- Increased availability of criminal defense services for the poor. This has made judicial proceedings fairer, and has reduced the rate of arbitrary pre-trial detentions in Afghanistan.
- Progress in protecting the rights of accused persons. The rights of the accused are increasingly recognized in the country by defense lawyers, judges, police and the accused themselves.
- Enhanced role of defense counsel in providing legal aid to the accused. Defense lawyers today play an active role in criminal trials, including through efforts to obtain the release of persons that are unlawfully detained, challenge the use of torture, and win acquittals for the wrongly accused. Lawyers are also gaining unprecedented access to arrested persons at police stations. They often access the accused within the first 72 hours of arrest, which helps to protect the accused from unlawful and arbitrary police action and ensures access to justice.
- An increasing number of lawyers. Since the fall of the Taliban the number of defense lawyers has jumped approximately thirty fold: in 2001, defense lawyers were virtually non-existent in Afghanistan. Today there are around 3000.
- An increase in the number of organizations that promote legal aid. These include an independent legal aid board, a directorate for legal aid within the Ministry of Justice, an independent bar association and the development of clinical legal education programs with local universities.
While we have made significant progress in enhancing access to legal aid in Afghanistan, many challenges remain. Financial constraints in the justice sector continue to be severe, which effects the salaries of defense lawyers and justice professionals in general. The country still suffers from a scarcity of qualified justice professionals, particularly at the local and district levels. Disparities exist in terms of access to and awareness of legal aid both by the accused and in terms of police knowledge of their obligations towards those in custody between the cities and the peripheries; justice is often limited to urban centers. Although one of our achievements is that since 2001 justice has expanded to all provinces, access to justice remains weak in district and local centers. In addition, Afghans still lack trust in the justice system.
Corruption continues to be one of the most pressing challenges to our judicial system and across law enforcement in general. It compromises the quality of legal aid service in the country and obstructs the poor and disadvantaged from benefiting from the legal system. Its effects are far-reaching: as Afghanistan’s new President Dr. Ashraf Ghani explained in his inauguration speech, corruption in the judicial branch paves grounds for insecurity.
Moving forward, the new government of Afghanistan will prioritize combating corruption and strengthening the rule of law countrywide. We recognize that improvements cannot happen in a vacuum: a coordinated, effective and sustainable criminal legal aid system depends upon improvements in other areas including accountability and state capacity.
I hope that Afghanistan’s experience sheds light on the importance, as well the challenges, of providing access to effective legal aid in countries emerging from conflict; in many ways Afghanistan’s situation is not unique. Most conflict and post-conflict countries face acute challenges in expanding access to legal aid. Yet the citizens of these countries are often the most vulnerable, impoverished, marginalized and therefore the most in need of legal aid. Moreover, the restoration of public trust in justice, the reinstatement of the rule of law and enhanced access to legal aid will allow these countries to rebuild their nations and find lasting stability and peace.
To this end, it is crucial that governments prioritize enhancing legal aid and access to justice. The sustained support of the international community and organizations like the International Legal Foundation are essential to these efforts. I call on members of the International Community to recognize the challenges I have outlined, and to support countries like mine to promote legal aid.