15 Mar New AREU Research Paper Assesses the Independence of Judicial Branch in Afghanistan
Kabul, 22 February 2021: The Afghanistan Research and Evaluation Unit (AREU), under its legal studies and constitutional review theme, has launched a research paper titled: “Judicial Independence in Afghanistan: Legal Framework and Practical Challenges” in a virtual event today.
The paper is authored by Mr Shoaib Timory and it discusses the minimum requirements and guiding principles of judicial independence that focus on three key aspects: institutional independence of the judiciary, individual independence of the judges, and the independence of judges from undue influence from inside the judiciary.
The paper states that the history of judicial independence is short in Afghanistan. According to the paper, occasionally, the individual independence of the judges, which is also acknowledged in Islamic traditions, has been respected; however, institutional independence of the judiciary was recognised only in 1964. Soon after, and with the exception of the 1987 Constitution that nominally recognised the judiciary as a separate branch, judicial independence was revoked by every regime that took power in the country.
The 2004 Constitution tried to reverse this culture by offering protection to the judicial branch from outside influence. Key aspects of independence of the judiciary, covering topics such as the appointment and removal of judges, security of tenure, suitable salaries for judges and restriction of judges in selected activities, autonomy of judiciary in preparation of its budget and judiciary related legislations are addressed by the Constitution.
Excluding a number of flaws in legislations, for example on appointment and extension of tenure of judges, the laws in Afghanistan have embedded the key requirements for independence of the judiciary in accordance with international guidelines.
Sixteen years after the adoption of the Constitution, and despite recognition of the majority of elements required for independence of the judicial branch, the judiciary remains a weak pillar of the current constitutional order. Furthermore, the judges in the lower courts are relying too much on the upper level of the judiciary. Performance evaluation of the judges also need urgent attention and should be based on specific and clear criteria.
The absence of a culture of independence in the country makes several recognized elements of judicial independence muted. In this regard, Mr Timory said: “For the judiciary to enjoy full independence, not only the judges need to fully believe in independence of the judiciary, the other actors including the politicians, parliamentarians, members of the executive branch, the media and civil society should also respect judicial independence.”
He added: “Important steps are taken in the recent years and today’s judiciary is more credible than in any other period in its history; however, more should be done to enable the judiciary to perform its constitutional mandates and play as the guardian of the fundamental rights of the citizens.”
Professor Dr Mohammad Hashim Kamali, Founding CEO of the International Institute of Advanced Islamic Studies (IAIS) in Malaysia, the keynote speaker at the event said: “AREU should be congratulated for its sustained focus on issue-oriented research of interest to good governance and justice in the Islamic Republic of Afghanistan. The present research explores challenging issues in the realisation of an independent judiciary in Afghanistan and makes thoughtful practical recommendations toward meeting those challenges.”
Professor Kamali added: “The best way for the individuals and organisations concerned within and outside Afghanistan’s judiciary to show appreciation of this impressive research would be to implement its recommendations as best as they can - and better still if there is a follow-up engagement between AREU and the Supreme Court to indicate any plan of action that may arise as a result”.
Dr Orzala Nemat AREU Director said: “ As part of our constitutional review research, our hope is that both the judicial and the executive branch members of the state read this analysis thoroughly and use its recommendations to bring us closer to rule of law and further strengthening the separation of power which is a critical part of a pluralist and democratic society.”
Representatives of the Government of Afghanistan, international organizations, human rights and civil society activists, diplomats and researchers attended the event and discussed in detail the key findings of the research paper.
Click here to see the full report.
For further information, please contact:
Afghanistan Research and Evaluation Unit (AREU)