Afghanistan: New Supreme Court could mark genuine departure

Amin Tarzi 8/13/06

A EurasiaNet Partner Post from RFE/RL

Parliament's recent approval of a new chief justice and eight other members of the Supreme Court could mark a notable step on the road to long-term stability and a democratic society.

While Afghanistan has flirted with real and "kangaroo" parliaments in the past, genuine power has historically been held by the executive – represented by kings, presidents, and commanders of the faithful. However, with few exceptions, the executive branch has had to walk a fine line with the judiciary, a branch that remained to varying degrees independent or even at odds with the executive branch.

The judiciary – formally or informally – also assumed the role of safeguarding Islamic values and character. This prerogative became more entrenched after the communist takeover in 1978 and the invasion of Afghanistan by the Soviet Union a year later.

A Break with Precedent

During the period of resistance to Soviet forces and their surrogates in Kabul, the elements who traditionally controlled and represented Afghanistan's judiciary became a vanguard of the struggle.

In 1992, those same elements took power in the capital, seemingly placing the executive and judiciary branches in the hands of a single group of people: They were the judges and the court functionaries, the ulama (mullahs), the clergy, and important hereditary religious families. Those groups have traditionally preserved their power bases and legitimacy by steering the Islamic sensibilities of the Afghan public in a highly conservative – and unwavering – direction.

To date, Afghanistan's judiciary has remained mostly in the hands of men from conservative religious circles. Since the fall of the Taliban regime in late 2001, conservative circles have been in firm control of the judiciary, most notably the Supreme Court.

The importance of the Supreme Court is boosted by the abysmal state of Afghanistan's formal judicial system. That situation has resulted in increased involvement for the Supreme Court in even minor legal aspects of the country's development.

Moreover, the Supreme Court as envisaged in the constitution holds tremendous power over lower courts – all the way down to district courts. That authority extends all the way to judicial appointments and directives on points of law.

Ray of Hope?

The makeup of the Supreme Court sworn in on August 5 is based less than its predecessor on strong ties to past Islamist governments and to prominent Afghans.

This new court is headed by Abdul Salam Azimi. Azimi is a moderate technocrat with experience in law and education not only in Afghanistan but also in Pakistan, the Middle East, and the United States. He was also among the main drafters of the country's current constitution.

The other eight justices (Mohammad Qasem Hashemzai; Abdul Rashid Rashed; Gholam Nabi Nawai; Bahuddin Baha; Zamen Ali Behsudi; Mohammad Qasem; Mohammad Alim Nasimi; and Mohammad Omar Barakzai) include highly educated technocrats with seemingly moderate views and no obvious ties to conservative Islamist circles. The average age of new members is under 62, with the oldest member (Behsudi) 70 years old and the youngest (Nawai) 46.

Critics accused the previous court of allying itself with conservative elements in the National Assembly in an effort to systematically challenge Afghanistan's generally reform-mined executive branch.

The new court is more likely to seek to establish itself as a contributor to stability. Its justices are arguably more disposed to safeguarding the Islamic character of Afghanistan as enshrined in the constitution while allowing gradual reforms within legal limits.

They might also be expected to seek to respect Afghan traditions while trying not to perpetuate reactionary measures that might impede a march to democracy.

The Afghan Constitution adopted in January of 2004 creates the judiciary branch as an organ of the state independent of the other two branches – executive and legislative.

Chief Justice Azimi and his new colleagues on the bench face a daunting task. They will certainly be tempted to reeducate Afghanistan's judiciary branch from top to bottom. But they will also be expected to work to prevent the various centers of power in Afghanistan – both formal and informal – from grinding progress to a halt.

Posted August 13, 2006 © Eurasianet