AFGHANISTAN: Interview with the chief justice

Kabul, 20 May 2003 (IRIN) - Having imposed a ban on cable television and been accused of curtailing women's rights, the 75-year-old cleric and chief justice of Afghanistan, Fazl-e Hadi Shinwari, is one of the most controversial figures in President Hamid Karzai's administration.

In an exclusive interview with IRIN in the Afghan capital, Kabul, Shinwari spoke of the difficulties affecting the task of reconstructing the judicial system and explained why he opposed cable television. He told IRIN that Islam needed to be given a prominent role in the new constitution, but that women should be free to work and get educated.

QUESTION: Afghanistan has gone through two decades of war, what specific problems do you face in rebuilding the official judicial system in the country?

ANSWER: Our basic problem is the instability of the [new] political system, which is being challenged by defiant warlords. This defiance of the central government by the warlords and their gunmen paralyses key state institutions. Some 60 to 70 percent of the orders and decisions of the central government are being implemented; we are having problems with the remaining 30 percent. Many people pay lip service to the central authority and do little to match their words by action.

Q: But do you have infrastructure such as court buildings and offices in place and, more critically, do you have enough trained judges and lawyers?

A: We have three major challenges at hand. First, the criteria for appointing a person to the judiciary are complicated. Our laws say that a person aspiring for a position within the judiciary should be a qualified law graduate with his credentials being certified by the ministry of higher education. After that, a [judicial] council considers such a case, and people are appointed. We now have a very small number of people meeting such specifications.

Our second problem is that the wages for judges are not sufficient. If we send them to remote areas, they refuse to go, because they think that their salaries will not cover their expenses. I just received a report that the judge in the [southern] Oruzgan province is not working because of security and insufficient resources. It is a similar case for most remote districts around the country.

In some cases, local commanders resist the appointment of judges. This is particularly bad in northern Afghanistan. In other instances, commanders had occupied our buildings and our judges were forced to sit in the mosques. Many of our buildings need reconstruction and repair work. The [members of the former hardline Islamist] Taliban regime were similar to a flood, washing away all we had. Most of our judges do not have basic things such as transportation.

Q: According to the Bonn agreement, the Afghan judicial system was based on the 1964 constitution. What laws provide the basis for your decisions now?

A: We don’t have any major problems with the laws, because most of the laws have been in place for a long time. The bulk of our laws and penal code originate from the former King Zahir Shah’s reign [1933-1973]. These provide an ample basis for dealing with most of legal matters.

Q: Italy is being identified as the lead nation to help in the reconstruction of Afghanistan's judiciary. What kind of international assistance do you need?

A: We need assistance in material form, as well as ensuring the rule of law. The material assistance should include arranging for our staff's salaries to pay them some decent wages. A judge is now being paid some US $35 a month. He also needs to have at least one car to facilitate in transportation. The warlords and their gangs of gunmen are a big challenge to the supremacy of the judiciary and the rule of law. They often reject our judgments and interfere in our affairs.

Q: What role do you see for the judiciary in the new constitution now being drafted?

A: In the Bonn agreement, it was agreed that Islam will continue to be the state religion, and the judiciary will be independent and permanent. In the light of these provisions, none of the future laws in our country should be against Islam.

Q: In your opinion what role should Islam have in this new constitution?

A: If you look at the former constitution [1964] and the make-up of the Afghan society, you will see a very clear role for Islam, and that’s what we are demanding. We are not demanding any new role for Islam, because it’s an integral part of our culture and history.

Q: In the past, the Taliban also claimed to implement Islam, but many Afghans were not happy with their strict interpretations of shari'ah. How do you view that?

A: You must differentiate between claims and reality on ground. The Taliban were only claiming to implement Islam, but we are truly moving ahead on the path of salvation. The Taliban’s interpretation of Islam was wrong, and they had made the religion a tool of imperialism. I do not even recognise their definition of the shari'ah.

Q: After the fall of the Taliban, thousands of Afghan women returned to work and hundreds of thousands of girls have returned to schools. How do you view women's rights in the new Afghanistan?

A: In a recent unanimous declaration of the newly established council of the ulema [Islamic clerics], we addressed the question of women rights. We favour all the women's rights granted under shari'ah, and we also approve of female education. We have also called for their role in politics and they can work outside their homes. However, women should observe Islamic veiling, meaning that should cover their whole body apart from their faces and hands.

Q: A few months back you banned cable television in the country. Why?

A: Cable television was banned after residents of Kabul and [the eastern] Nangarhar Province protested against the obscene TV programmes shown through cable. The government appointed an eight-member commission headed by the vice-president, Ne'matollah Sharani, to resolve the issue by determining whether cable broadcasts were spreading obscenity or they were a source of education, teaching moral values.

I categorically told the commission that we will favour the lifting of the ban on cable television if its transmissions were in line with Islamic teaching and we will oppose anything that promotes vulgarity here.

Q: How optimistic are you about the future of Afghanistan?

A: In my opinion, we have made lots of sacrifices for Islam, and this should not be ignored. Security is our first and foremost concern, and the international community needs to help us improve security around the country.

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