The opportunities for democracy and the rule of law in Afghanistan and the challenges the country faces in regard to these concepts are the focus of a paper published today by the International Bar Association’s Human Rights Institute (IBAHRI). Authored by IBAHRI Director Dr Phillip Tahmindjis AM, Democracy and the Legal Profession in the Afghan Context: Challenges and Opportunities, provides a unique perspective from someone who has worked with the Afghani legal profession since 2004.
In the 19-page paper, Dr Tahmindjis AM considers the role of the legal profession in mediating the challenges that arise in an Islamic nation emerging from conflict where the conceptions of law and democracy are unclear and contested. Having led an ambitious project to establish the first Afghan Independent Bar Association (AIBA) he fully understands the complexity of issues, and commented, ‘The push for democracy is often seen as ideology from the West. The fundamentalists who brand democratisation itself as anti-Islamist exploit this belief fully.’ He added, ‘What we can learn from this is the necessity for international intervention in Afghanistan to take a nuanced and sophisticated approach, encouraging the building of concepts that are accepted by the populace, rather than only the “peace-builders”.’
The thematic paper, the third in the IBAHRI series, argues that tradition is outweighing the fragility of new legislation in Afghanistan and that customary legal systems remain predominant in the provinces. However, the nascent Afghan Independent Bar Association (AIBA), which represents an increasingly organised legal profession, is playing a crucial role in advancing attitudes in favour of the rule of law and a functioning democracy. In relation to the AIBA Dr Tahmindjis AM commented, ‘When the IBAHRI first arrived in Afghanistan in 2004, the words “Bar Association” did not exist in the lexicons of the country’s two main languages. The IBAHRI ran a large seminar in Kabul to discuss key issues with Afghani lawyers, such as: Should a bar association exist? Who should be members? What powers should it have?’ He added, ‘We wanted the Afghani lawyers to build their own consensus on what was needed and how the bar would operate. It was essential that this process came from them, in order to be successful. Since then, the AIBA has made tremendous strides. It has a democratically elected executive committee, membership numbers are increasing consistently and, importantly, it has started to speak out as an independent voice in Afghanistan on controversial cases. However, as one would expect of a fledgling organisation in a challenging environment, there are issues around consensus, communication, education, resources, and the sometimes conflicting observance of traditional values, all of which pose challenges to the Bar. Nonetheless, the AIBA is striving hard to gain public confidence in a legal system new to the general populace which it believes will benefit Afghanistan in the long term.’
Click here to download Rule of Law, Democracy and the Legal Profession in the Afghan Context: Challenges and Opportunities.
Notes to the Editor
The Rule of Law, Democracy and the Legal Profession in the Afghan Context: Challenges and Opportunities is the third in the series of thematic papers following A tale of two cities – The legal profession in China (April 2013) and Human Rights Fact-Finding: Some legal and ethical dilemmas (May 2010).
The IBAHRI has been working in Afghanistan since 2004, supporting the establishment of the AIBA, funded by the Swedish Foreign Ministry and under the auspices of the International Legal Assistance Consortium (ILAC).
The AIBA came to fruition on 30 July 2008 at its first General Assembly in Kabul, Afghanistan. Since that time, the office has been open to business, with a democratically elected executive committee, and many Afghani lawyers now registered. The AIBA is the only bar in the world to have a minimum requirement for the number of women in executive positions in its governing body, and requires all attorneys to conduct three cases on a pro bono basis each year as a condition for registration.
The IBAHRI continues to support the AIBA with the placement of a legal specialist in Kabul, funded by the UK’s Foreign and Commonwealth Office. As well as continuing with capacity building for the bar, there will now be a focus on revising the bar exam, developing legal aid initiatives and supporting a women’s group to look at the particular problems faced by women in the Afghan legal system.
The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership of individual lawyers, law firms, bar associations and law societies it influences the development of international law reform and shapes the future of the legal profession throughout the world.
The IBA’s administrative office is in London. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, US, while the International Bar Association’s International Criminal Court Programme (IBA ICC) is managed from an office in The Hague.
The International Bar Association’s Human Rights Institute (IBAHRI) works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
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