EXCLUSIVE LEGALIST – Armed Taliban fighters interrupted a press conference of Afghan lawyers about to begin at a Kabul hotel early Sunday morning, arresting several of the lawyers present. A group of four women lawyers and two lawyers calling themselves the lawyers of the Afghan Bar Association called the press conference at 10:00 a.m. AFT, inviting the media and representatives of local NGOs and the United Nations to the press conference. Esteghlal Hotel near Kabul Airport in Hear them present their case against the recent Taliban takeover of AIBA and the withdrawal of the AIBA lawyer licensing authority from the Department of Justice. About 40 minutes before the scheduled start of the press conference, armed Taliban fighters arrived in an armored vehicle outside the hotel and surprised the organizers, who had previously obtained permission from the authorities for their event. The lawyers arrested were detained for about half an hour before being released.
A six-page statement in Dari and Pashto intended for release at the lawyers’ press conference and previously obtained by JURIST set out a series of advantages and disadvantages of the forced integration of AIBA into the Ministry of Justice. Justice. The preamble (as translated by JURIST law students in Afghanistan) read in part:
Since the very purpose of lawyers is to strengthen the justice system by delivering justice to the citizens of a country, an independent lawyer is therefore the most important element of a system whose practice is to maintain order. and justice between citizens on the one hand, and between citizens and public services on the other. Independence in any form means that lawyers or the association of lawyers will not be receptive to government; rather, it means that lawyers will be kept away from political pressure and thus will work in the best possible way to ensure justice for the public.
Here is a rough translation (again provided by JURIST law students in Afghanistan) of the substance of the document:
Reasons for the independence of the Association:
- One of the integral bases for forming the structure of a desirable judicial process is the impartiality of the organizations responsible for the investigation and prosecution. Therefore, following the exercise of the principle of separation of powers and the division of governmental power into separate smaller branches, the legal and judicial services within the judicial branch should also be separated with regard to certain structures and responsibilities. .
- We believe that the leaders of the Islamic Emirates of Afghanistan are working for the economic improvement and investment of foreigners in the country. For foreign investors, one of the conditions for investing in any country is the existence of an independent bar. So that in times of emergence of any litigation relating to taxation, disputes relating to the disclosure of business confidentiality, breach of contracts, they can engage independent defense lawyers with great confidence.
- The independence of the Bar Association will prevent structural inflation of government structures in the legal and judicial fields. Obviously, the government’s working approach slows down the speed of procedures compared to independent and private ministries. Thus, the independence of the Bar Association will eliminate this structural inflation and improve the management of lawyers’ cases.
- Fair judgment occurs in the presence of independent defense lawyers. One of the key criteria for the credibility of a country’s judiciary is its independence which directly affects national prestige and international reputation. To the extent that the judiciary conforms to recognized standards and criteria of law and justice, the country’s national prestige will be protected.
- One of the other advantages of the independence of the Bar is to do justice to detainees. Just as defense lawyers defended the rights of prisoners in the Islamic Emirates of Afghanistan under the previous government, prisoners must have the right to choose an independent defense lawyer to deliver justice in the best possible way and increase the credibility of Islam. Emirates of Afghanistan in the community.
- In case the lawyers are independent, their clients can discuss the obscurities of the cases and, therefore, the defense lawyer can better clarify the latent aspects of the cases and play a better role in justice.
- In case the Association is independent, lawyers can take legal action in the best possible way against the government in public rights cases. Whereas, government lawyers cannot file a lawsuit against the government in which they themselves are their members.
- The independence of the Bar Association provides for the employment of experts graduated from law and Sharia law faculties with the simplest procedures. The government has to spend huge sums of money in a certain way on employment, whereas when it comes to independent associations it can be done in a much simpler way.
It should be mentioned that the emphasis on the independence of the Bar does not mean that it must transform itself into a lonely and independent island and exclude any possibility of controlling its activities. Most of the activities of the Independent Bar Association are advocates of governance which is primarily controlled by branches of government. Qausi-legislative powers (codification of rules and regulations in related sections), payment of income tax, and monitoring of the income of defense lawyers in order to apply the tax require intervention and control of the government. Regardless, comparative studies indicate that government intervention in some cases related to independent bar associations is accepted, but the difference is only the scope and approach.
Disadvantages of integration of the association with the government:
- The first and most important reason for not integrating association with government is the principle of Islamic Fiqeh and the law (two opposing things cannot come together). Issues related to crime discovery, investigation and tracking are the responsibility of the government and it is important that the accused convicted or denounced in a criminal case is represented by a lawyer associated with a non-governmental organization. The government cannot take legal action against an individual and at the same time defend him.
- The Association has been an active member of the IBA since 2008, the independence of the association has not only been recognized in national laws, but has also been recognized by the IBA. Therefore, it is not appropriate that the reputation of the Islamic Emirates of Afghanistan be damaged by taking AIBA independent.
- A large number of lawyers have chosen advocacy work because of its non-governmental nature. In the event that the association lost this independence, many lawyers would give up this work and leave the country, raising the problem with other countries.
- The integration of the association will prevent the presentation of impartial legal opinions for the drafting and adjustment of laws since government employees always consider the benefit of the government. In the event of integration, no non-governmental legal association would exist to provide impartial feedback for the improvement of laws and the justice sector.
- As the Islamic Emirates of Afghanistan are under sanctions, if the association becomes part of the government, defense lawyers who work with international organizations cannot receive their salaries. Therefore, there will be a great economic loss for these lawyers.
- In the event that the association is integrated into the government, the client will have less courage to take legal action against his government lawyer who is failing in his duty.
- In the event that the association is integrated into government, it will collapse again and again with the change of each government and defense lawyers will be directly affected by politics even if they are not involved in it.
After the takeover of the government by the Islamic Emirates of Afghanistan, the Independent Bar Association of Afghanistan, as an independent non-governmental and apolitical association, continued its activities alongside the justice departments of the Islamic Emirates. of Afghanistan in light of Sharia law in order to defend human rights and the exercise of justice, and has been a powerful arm of the Islamic Emirates of Afghanistan nationally and internationally. The existence of this independent association demonstrates the guarantee of the promise of the Islamic Emirates of Afghanistan to the principles and laws of the United Nations, and in the current situation, forging relations with the world in order to attract humanitarian aid and to establish the dignity of the Islamic Emirates of Afghanistan as a responsible government committed to upholding accepted international standards and principles is necessary.
The Council of Ministers of the Islamic Emirates of Afghanistan, at its session on November 19, 2021, on the proposal of the Ministry of Justice, decided that the issuance of the license would be done in accordance with the instructions (this is a type of rule of government in Afghanistan in the hierarchy of laws: added by the translator). Whereas over the years this association has been independent and non-governmental, and has served the people. Taking the principle of two opposite things cannot come together taking into account that matters relating to the discovery of crimes, investigation and tracking are the responsibility of the government and it is important that the accused convicted or denounced in a criminal case be represented by a lawyer associated with a non-governmental organization, requires the Independent Afghan Bar Association to remain independent.
At the end of the day, the association has its own statute according to which its affairs are decided according to it. In case the Islamic Emirates of Afghanistan considers the aforementioned reasons insufficient and plans to integrate the association into the government, according to the statutes, the association should hold its general assembly of defense lawyers so that the lawyers can determine their fate. We call on the leaders of the Islamic Emirates of Afghanistan to reconsider their decision taking into account the principle of the separation of powers and the independence of the justice services and in order to protect the reputation and prestige of the Islamic Emirates of Afghanistan at the international level. . We call on the Islamic Emirates of Afghanistan to support the association as an independent, non-political and non-governmental organization.
The Governing Board of the Independent Bar Association of Afghanistan
Taliban fighters took control of the AIBA offices in Kabul on November 23, threatening staff and lawyers inside before evicting them from the premises. They then unilaterally appointed a new president for the Association, originally established in 2008 with support from the London-based International Bar Association. Along with the takeover, the Taliban’s justice ministry announced it was taking control of attorney licenses and has since indicated that attorneys will have to re-qualify under the ministry’s auspices through a yet unannounced process.