Justice, Afghanistan Style
There are some things in life you just don’t forget. I remember one summertime conversation with such pristine clarity that it is hard to believe that it happened almost two years ago. My dad, a Florida public defender for over 37 years, announced to my family that he was resigning from his job and moving to Afghanistan to help reform its criminal justice system.
Now, I’m not one to brag, but my dad is somewhat of a criminal defense legend in both my hometown and throughout the state. He defended the “Gainesville Ripper” in the early 90’s, which was the highest profile serial murder case that my hometown has ever seen, he has been five-time president of the Florida Public Defender Association, and was an adored trial practice professor at the University of Florida Levin College of Law.
But more importantly, he’s nobly dedicated his life to representing the underprivileged — serial murderers, sex offenders, you name it; my dad always kept the details of his more colorful cases shielded from my older brother and me. That is exactly why going to Afghanistan just didn’t make any sense to me — why would he leave all of that behind for a war zone halfway across the world? After I got over that initial emotional hurdle (and believe me, it took a while),I realized that what he and the other lawyers in his program set out to do was an incredible challenge, and in many ways Afghanistan needs his expertise more than we do. So, through a contract with the U.S. Department of State and a private entity, Dad was off to Afghanistan for two years.
Afghanistan is one of the poorest nations in the world–its economy relies largely on agriculture, but a devastating drought has made it near impossible to yield anything substantial in the last year. The nation boasts one of the highest mortality rates in the world — the average life expectancy is only 48 years. Between feuds with the Russians, the Taliban and now the United States, the nation has been in armed conflict since 1978; I think it goes without saying that it is a perilous place to be.
As “Senior Criminal Defense Advisor,” my dad is the head of a team of U.S. and Afghan attorneys and translators that work with the Afghanistan Ministry of Justice, the Afghanistan Independent Bar Association and the Independent Legal Aid Board. His team provides training and individual mentoring to both government and private practice criminal attorneys. He also provides technical assistance in the form of advice and recommendations on management, administration and funding.
After three years of study about our legal system, I wondered what system of justice my dad was dealing with in Afghanistan. I did some research and I thought I would share some of my findings.
No surprise: The criminal justice system in Afghanistan is jarringly different than ours. Home to about 30 million people, 99% of whom are Muslim, Afghanistan is an Islamic republic, meaning that there is no separation of church and state. And while there are codified laws, like a penal code and a constitution, the primary authority is the Quran. Even the first three articles of the Afghanistan Constitution which was adopted in 2004, provide that no law shall be in conflict with Islamic law. There is no such thing as common law, or judge-made law like we have in the U.S., but instead, it is a civil law nation where laws are prescribed by statutes and the Quran.
Criminal trials are not heard in front of juries, and prosecutors and defense attorneys are rarely present in court if a defendant is charged with a minor offense; such proceedings are governed by three presiding judges who hear evidence and render a decision.
Yet there are a few aspects of the Afghan system that are rather enlightened. The Quran provides that innocence is the “natural state,” and as here, there is a presumption that a defendant is innocent until proven guilty. Also like here, the burden of proving the defendant’s guilt is on the state, and there are procedural protections similar to our double jeopardy.
Defendants are only convicted of crimes they actually committed; there is no felony murder rule in Afghanistan. So say you and I are both armed and we rob a liquor store. The cashier also has a gun and he shoots at me but misses. I then shoot the cashier and he dies. In the U.S., you and I are both guilty of murder under the felony murder rule, even though I was the only one to shoot. This is because we both took part in an armed felony, with someone being killed deemed to be not an unforeseeable consequence in both our actions. But in Afghanistan, I would be guilty of murder and you would only be guilty of armed robbery.
After familiarizing myself with the basics, I wanted to know more about actual crimes. Being the deeply religious nation that it is, it didn’t surprise me to learn that things like alcohol and abortion are both outlawed. Even its version of adultery — defined as any sex out of wedlock — didn’t shock me. What struck me was the inhumane treatment of women.
For starters, if a woman leaves her home she must be escorted by either her husband or another family member. If she is spotted outside of her home without an escort, it is assumed that she has committed adultery and she will be prosecuted for the moral crime of “running away,” punishable by imprisonment. This extreme restraint on a woman’s free will is even more sickening when you consider that some women who run away are doing so to save themselves from violent and abusive husbands. Other moral crimes a woman may be prosecuted for include refusing to marry, and marrying against her family’s wishes.
There are signs, few but real, that conditions for women are modestly improving. Former Wisconsin beauty queen turned international lawyer Kim Motley was instrumental in consulting for a 2009 case that garnered international media attention where a woman was raped in Afghanistan by her cousin’s husband in her own home. The victim, referred to only as “Gulnaz,” reported the rape and was then convicted of adultery. While serving a 12-year prison sentence, the 21-year-old gave birth to her perpetrator’s child. The president of Afghanistan was initially willing to let her out of prison provided that she marry her rapist, but she was eventually released from prison, free to marry whomever she chooses.
Despite the largely primitive view on women in the country, women are not necessarily precluded from holding positions of power.
Consider Maria Bashir, Afghanistan’s only female prosecutor general, who has seemingly achieved the impossible. But her success has profound costs: she constantly receives death threats and must travel everywhere with six bodyguards provided by the U.S. Department of Justice. A few years ago a bomb went off in front of her house and killed one of her guards, and she lives in constant fear. Even her three children are considered targets and they can no longer attend school – for their safety as well as the school’s. Her achievements are recognized around the world; she received an International Women of Courage award in 2011; see her being honored by Michelle Obama and Hillary Clinton here.
There are profound injustices in the Afghan legal system. Sure, our system of justice isn’t perfect. In fact, there are arguably many things wrong with it. But when I consider the way it is over there, I feel profoundly lucky to have been born here. And when I think about what my dad is doing, I am profoundly proud.