Trial of Afghan Convert Emphasizes Need for Judicial Reform

(by Patrick Goodenough, CNSNews.com) – The trial of an Afghan accused of apostasy for converting to Christianity is raising questions, not just about Afghanistan’s Islam-based constitution, but also about difficulties in reforming the country’s judicial system, which is dominated by Islamic hardliners.

If Abdul Rahman is convicted, avenues of appeal will include the Supreme Court, one of whose judges has already been quoted in wire service reports as confirming that Islamic law (shari’a) provides for capital punishment for a Muslim who converts to another religion and refuses to revert to Islam.

The Supreme Court is headed by a cleric whose appointment by President Hamid Karzai in 2002 was controversial on several counts.

Chief Justice Fazl Hadi Shinwari was older than 60, the legal requirement of Afghanistan’s 1964 constitution, then in force. He also had no secular legal education, another constitutional requirement.

He was already the head of a Council of Islamic Scholars, a position some critics worried could give rise to conflict.

And Shinwari raised concerns too because he was closely allied to a fundamentalist, Saudi-backed mujahedeen leader and current lawmaker, Abdul-Rabb al-Rasul Sayyaf, who has been implicated by Western campaigners in human rights atrocities.

Soon after his appointment, Afghan media quoted Shinwari as accusing the newly-named women’s affairs minister, Sima Samar, of making “irresponsible statements” after she told a Canadian newspaper she did not believe in shari’a. Shinwari declared that Samar could not hold a position in government and she was summoned to appear on blasphemy charges.

“Fearing for her life, Samar declined her office, even though, under intense U.S. pressure, the charges were dropped,” the Center for Religious Freedom at Freedom House said in a report later that year.

Shinwari evoked memories of Taliban rule with hardline comments in support of shari’a punishments for “crimes” such as apostasy.

In 2003 he banned cable television, calling the programming un-Islamic. He also spoke out against women and men learning together and said in an interview with the U.N.s IRIN network that year that “women should observe Islamic veiling, meaning that should cover their whole body apart from their faces and hands.”

According to the International Crisis Group think tank, Shinwari also put political allies in key judicial positions. The ICG in a 2003 report urged Karzai to request the chief justice’s resignation.

Human Rights Watch, in an open letter to Karzai, said Shinwari and his deputy not only lacked civil law training but had also abused their authority.

“They do not appear to act independently, the first requirement of a judge, instead making political judgments in close collaboration with warlords like Sayyaf,” it said.

Afghanistan’s new constitution, which came into force in January 2004, changed the previous constitution’s upper age-limit requirement for Supreme Court judges, stipulating only that they be older than 40.

On the education requirement, the new document says the court’s judges “shall have higher education in legal studies or Islamic jurisprudence as well as expertise and adequate experience in the judicial system of Afghanistan.”

Afghan researcher and writer Wahid Mojda told the private Afghan station Tolu Television last September that Karzai did not want Shinwari — now 75 years old, according to published reports — to step down because the government did not want to lose the support of religious scholars.

However, under the Afghan Compact — a five-year process of ongoing reform, agreed by Afghanistan and the international community in London early this year — Karzai pledged to reform the judiciary, committing to “a clear and transparent national appointments mechanism.”

“President Karzai has indicated his determination to significantly renew Afghanistan’s Supreme Court,” U.N. special representative for Afghanistan Tom Koenigs told the Security Council last week.

Last month the Christian Science Monitor reported that European diplomats had presented Karzai with an initiative about Supreme Court reform, saying that the court’s composition “will have a significant bearing on the promotion of rule of law, human rights, gender equality, justice reform, and good governance.”

It urged Karzai “to ensure that the court will be comprised of men and women judges with proven intellectual, professional and legal ability, and a reputation for honesty, integrity, independence and impartiality.”

Karzai is expected to name the new court appointees soon, and many will be watching to see whether he is prepared to confront the religious hardliners in doing so.

Reprinted here with permission from Cybercast News Service. Visit the website at CNSNews.com.