JURIST EXCLUSIVE – Armed Taliban fighters broke up a press conference by Afghan lawyers about to start at a Kabul hotel early Sunday morning, arresting several of the lawyers in attendance. A group of four women lawyers and two male lawyers calling themselves the Afghanistan Bar Association Advocates had called the press conference for 10 AM AFT, inviting media and local NGO and UN representatives to the Esteghlal Hotel near Kabul Airport to hear them state their case against the recent Taliban takeover of the AIBA and the removal of lawyer licensing authority from the AIBA to the Ministry 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 held for about half an hour before being released.
A six-page statement in Dari and Pashto intended to be released at the lawyers press conference and obtained by JURIST beforehand set out a series of advantages and disadvantages to the AIBA’s forced integration with the Ministry of Justice. The preamble (as translated by JURIST’s law students in Afghanistan) said in part:
Since the very goal of lawyers is empowering the justice system by bringing justice to the citizens of a country, thus an independent lawyers is the most significant element in a system which its practice is to bring order and justice between the citizens in one hand, and between citizens and public offices on the other. Independence in no shape or form means that the lawyers or the lawyers’ association will not be responsive toward the government; rather it means that lawyers will kept away from political pressure and thus work in the best possible manner toward ensuring justice to the public.
Here is a rough translation (again provided by JURIST’s law students in Afghanistan) of the substance of the document:
Reasons for independence of the Association:
- One of the integral basis of forming the structure of a desirable legal proceeding is the impartiality of organizations in charge of investigations and prosecutions. Therefore, subsequent to the exercise of the principle of separation of powers, and the breakdown of government power into smaller distinct branches, the legal and justice departments inside the judiciary branch should also be separated when it comes to certain structures and responsibilities.
- We believe that the leaders of the Islamic Emirates of Afghanistan work for the economic improvement and investment of foreigners in the country. To foreign investors, one of the conditions of investment in any country is the existence of an independent Bar Association. So that in time of emergence of any tax relating disputes, disputes relating to disclosure of confidentiality of businesses, breach of contracts, they can hire independent defense lawyers with high trust.
- The independence of the Bar Association will preclude the structural inflation of governmental structures in legal and judiciary areas. Obviously, the government work approach decelerates the speed of the proceedings compared to independent and private departments. Thus, the independence of the Bar Association will remove this structural inflation and improves the management of the affairs of lawyers.
- Fair judgement happens in the presence of independent defense lawyers. One of the key criteria of the credibility of the Judiciary branch of a country is its independence which directly affects the national prestige and international reputation. To the extent that the judiciary conforms to the standards and recognized criteria of law and justice, the national prestige of the country will be protected.
- One of the other advantages of the independence of the Bar Association is providing justice to prisoners. The same as the defense lawyers defended the rights of prisoners of the Islamic Emirates of Afghanistan in the previous government, the prisoners need to have the right of choosing an independent defense lawyer to provide justice in its best possible way, and increase the credibility of Islamic Emirates of Afghanistan in the community.
- In case the lawyers are independent, their clients can discuss the obscurities of the cases and as a result, the the defense lawyer can better clarify the latent aspects of cases and have a better role in providing justice.
- In case the Association is independent, the lawyers can fill a lawsuit in its best possible way against the government in cases of public rights. While, the government lawyers cannot fill a lawsuit against government in which they themselves are their members.
- The independence of the Bar Association provides for the employment of experts who are graduated from Law and Sharia faculties with the easiest procedures. The government has to spend huge amount of money in a way when it comes to employment, while when it comes to independent associations, this can be done in a much simpler way.
It should be mentioned that emphasis on the independence of the Bar Association does not mean that it should change into a solitary and independent island and preclude any possibility to monitor its activities. Most activities of the Independent Bar Association are the defenders of governance that is principally in the control of government branches. The qausi-legislative powers (codification of rules and regulations in related sections), paying income tax and monitoring the income of defense lawyers in order to apply tax necessitates the intervention and monitoring of the government. Anyways, the comparative studies indicate that the intervention of governments in some of the affairs related to Independent Bar Associations is accepted, but the difference is only the extent and approach.
Disadvantages of integration of the association with government:
- The first and most important reason for not integrating the association with the government is the principle of Islamic Fiqeh and law (two opposite things cannot come together). The matters related to discovery of crimes, investigation and trail are the responsibilities of the government and it is important that defendant who is condemned or denounced in a criminal issue, should be represented by a lawyer associated with a non-governmental organization. The government cannot file a lawsuit against an individual and at the same time defend him.
- The Association is an active member of the IBA since 2008, the independence of the association has not only been recognized in the domestic laws but has been recognized by the IBA as well. Therefore, it is not appropriate that the reputation of Islamic Emirates of Afghanistan be damaged by taking the independent AIBA.
- A large number of lawyers have chosen the advocacy job because of its non-governmental nature. In case the association loses this independence, many of the lawyers will abandon this job, and will leave the country by bringing up the issue with other countries.
- The integration of the association will preclude the presentation of impartial legal opinions for drafting, and adjusting the laws since the employees of the government always consider the benefit of the government. In case of integration, no non-governmental legal association would exist to give impartial comments for the improvement of laws and justice sector.
- Since the Islamic Emirates of Afghanistan is under sanctions, in case of integration of the association with the government, the defense lawyers who work with international organizations cannot receive their payments. Therefore, there will be a great economic loss for these lawyers.
- In case the association is integrated with the government, the client will have less bravery to file a lawsuit against his governmental lawyer who is breaching his duty.
- In case the association is integrated with the government, it will break down again and again with the change of every government and the defense lawyers will be directly affected by politics although they are not into it.
After the takeover of the government by the Islamic Emirates of Afghanistan, Afghanistan Independent Bar Association as an independent non-governmental and non-political association has continued its activities besides the justice departments of the Islamic Emirates of Afghanistan in the light of Laws of Sharia in order to defend the rights of people and the exercise of justice, and has been a powerful arm of the Islamic Emirates of Afghanistan in the national and international levels. The existence of this independent association manifests 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 relationships with the world in order to attract humanitarian aids and to establish the dignity of the Islamic Emirates of Afghanistan as an accountable government which is committed to the accepted international norms and principles is necessary.
The council of ministers of Islamic Emirates of Afghanistan in its 19 November 2021 session based on the suggestion of the ministry of justice decided that the issuance of license will be done according to the Instructions (it’s a type of government rule in Afghanistan in the hierarchy of laws: added by Translator). While throughout the years this association has been independent and non-governmental, and has served people. Taking the principle of two opposite things cannot come together into consideration that matters related to discovery of crimes, investigation and trail are the responsibilities of the government and it is important that defendant who is condemned or denounced in a criminal issue, should be represented by a lawyer associated with a non-governmental organization, necessitates that Afghanistan Independent Bar Association remain independent.
At the end, the association has its own statute that its affairs are decided according to it. In case the Islamic Emirates of Afghanistan considers the aforementioned reasons as insufficient and expects to integrate the association with the government, according to the statute, the association has to conduct its general assembly of defense lawyers so that the lawyers can determine their destiny. We request from the leadership of the Islamic Emirates of Afghanistan to reconsider its decision taking into account the principle of separation of powers and the independence of justice departments and in order to protect the reputation and prestige of the Islamic Emirates of Afghanistan in the international level. We request the Islamic Emirates of Afghanistan to support the association as an independent, non-political and non-governmental organization.
The leadership council of Afghanistan Independent Bar Association
Taliban fighters took over the AIBA offices in Kabul on November 23, threatening staff and lawyers inside before expelling them from the premises. They then unilaterally named a new president for the Association, originally established in 2008 with the support of the London-based International Bar Association. In conjunction with this takeover, the Taliban Ministry of Justice announced that it was taking over control of lawyer licensing, and has since indicated that lawyers will have to requalify under the auspices of the Ministry by an as-yet-unannounced process.