Legal independence has collapsed under the Taliban - Andrew Stevenson

One of the most depressing instances of the snuffing out of human rights and the rule of law has taken place in the last year in Afghanistan, a failed state that enjoyed some progress before suddenly lapsing back into benighted desolation. For at least a while, there existed a legal profession independent of government control or influence. However, despotic regimes make it their business to destroy such institutions and nowhere have the consequences of such a tactic been seen more appallingly than in that country.

Taliban fighters wave flags in a parade to celebrate regaining control of Afghanistan following the withdrawal of US troops
Taliban fighters wave flags in a parade to celebrate regaining control of Afghanistan following the withdrawal of US troops

Afghanistan was invaded by US and UK. forces in 2001 and the Taliban government was toppled. In 2007, the Afghan Parliament passed the Advocates’ Law. This established the Afghan Independent Bar Association, the first such organisation in that country, which acted as a regulator of advocates. Hundreds of Afghan lawyers held a conference in July 2008 where they considered and then adopted a set of AIBA By-Laws.

The AIBA opened its doors in September 2008 and it began issuing licences for lawyers in accordance with the Advocates Law and the By-Laws. The body was independent and non-governmental. To facilitate this, it was self-financing, with members paying fees. It provided education and public awareness programmes and set out professional duties such as avoiding conflicts of interest, maintaining client confidentiality and taking on a percentage of one’s caseload pro bono.

The AIBA was not entirely non-partisan. Its code of conduct required members to implement Islamic instructions, rule of law and social justice and although it required members to fight discrimination based on gender, poverty, disability and ethnicity, the list omitted religion and sexuality. Compared to the position before 2008, however, the situation was greatly improved. The AIBA said its members must defend human rights. It sought to protect and defend the independence of advocates and their professional rights. It promoted free legal services for indigent suspects and accused persons.

Andrew Stevenson is Secretary of the Scottish Law Agents Society

All progress disappeared almost overnight when the Taliban re-took control after the US and its allies cut and ran a year ago. In November 2021, Taliban gunmen attacked the head office of the AIBA in Kabul and seized the association’s property, including its database containing details of thousands of lawyers. The AIBA was merged into the Taliban Ministry of Justice. Since then, the regime has controlled the legal profession, extinguishing its independence and the values espoused by the AIBA.

Whilst we in the West fret about gender neutral pronouns, women living in Taliban-run Afghanistan have found themselves living in The Handmaid’s Tale. Since August 2021 no woman has been licensed to practice as a lawyer and no woman has applied to do so. In addition, all female judges have been removed from office. A similar dismissal en masse occurred in Iran after the Revolution of 1979 but without the level of brutality seen in Afghanistan. Many women judges in Kabul and elsewhere found and continue to find their lives in danger, some were able to flee the country but a large contingent has been unable to do so. Prisoners were released by the Taliban and often vowed vengeance on women judges who had sent them to prison. Policewomen and female prosecutors have been murdered or abducted.

In keeping with its priorities, the Taliban dissolved the country’s Human Rights Commission and disbanded the Ministry of Women’ Affairs.

Terrorists had mounted attacks on the legal infrastructure of Afghanistan even when Western forces were present in the country. In February 2017, a suicide bomber detonated an explosive at the Supreme Court in Kabul. In January 2021, two women judges working at that court were murdered by gunmen whilst driving to their office. Violence escalated after the Taliban took control. In September 2021 Banu Negar, a former member of the police in Ghor province, was beaten and shot dead in front of her children.

It is disturbing that the Taliban clearly had, and continues to have, enough support to enable it to gain such power in a country of 40 million people and larger than France. Its Medieval attitude towards women, human rights and violent retribution was no secret, yet its takeover was swift and largely unresisted.

To end on a positive note; early this year in Islamabad Justice Ayesha Malik became the first female judge of Pakistan’s Supreme Court; alongside 16 male colleagues.

Andrew Stevenson is Secretary, Scottish Law Agents’ Society


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