There are serious concerns regarding human rights in Afghanistan and their proper protection. A law and order system based on true justice can really support Afghanistan to a large extent in this regard. However, Afghanistan needs a lot of hard work to develop such a system.
Afghanistan’s Independent Human Rights Commission (AIHRC) on Sunday, March 03, voiced its concern over plummeting people's access to justice and law enforcement agencies, claiming 45 percent decline in the access ratio last year. AIHRC chief Mohammad Musa Mahmoudi told a press conference in Kabul that the commission had completed its report on the human rights situation in the country and the findings were being delivered to the authorities concerned. He said their investigations included interviews with jail inmates about their access to defence lawyers, besides gathering information about the activities of courts and prosecutor's offices and illegal armed groups. AIHRC commissioners visited detention centers, women shelters and held interviews with war victims, inmates, eye witnesses and government officials over the past six months across the country, he said.
After President Hamid Karzai’s emphasis last year on good governance and access to justice, wherein he had ordered cases against individuals detained by police or investigated by the Attorney General Office (AGO) disposed of on a fast-track basis, Musa Mahmoudi said that there have been 181 cases of administrative corruption, land grabs and target killings had taken place, with 1,400 cases going unnoticed. He said around 3,554 prisoners in the country’s jails awaited word on their fate. However, unlike last year, primary courts in 86 districts were seen active, another AIHRC member, Fahim Hakim, said, lamenting 22 provinces lacked prosecution offices.
It is a crystal clear fact that no state in the world can maintain its integrity and order if it does not possess and guard justice. Justice is the requirement to maintain law and order and reduce crimes from a society. If a state fails to establish strong institutions that can practice and provide justice, it is bound to be filled with instability and corruption. Therefore, the states and the governments have the organ of judiciary. This organ makes sure that justice is done and people are not deprived of their due rights, while the criminals are punished appropriately. In fact, throughout most part of history, the states have this organ in some form or others. Today, in modern states of the world, they are well-established through the network of courts and judges and law enforcing agencies.
The judiciary is a coequal branch of government. It is the only branch that is supposed to be totally impartial and hence apolitical. The judiciary forms a system of courts which interprets the law in the name of the sovereign or state. It also provides a mechanism for the resolution of disputes. This branch of government is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the ‘supreme court’ or ‘constitutional court’), together with lower courts.
In common law jurisdictions, courts interpret law which encompasses constitutions, statutes, regulations and case law. As magistrates interpret the law, they are not expected to base their decisions on personal preferences; instead they are required by oath to determine the outcome of each case based upon the most reasonable and impartial, though not necessarily literal, interpretation of the text in question as well as on the resolution of prior similarly situated cases i.e. case law. In some instances, common law magistrates do not interpret statutory language per se but case law directly as applicable. The tort of negligence for example is not entirely derived from statute in some rare instances, namely in a case of first impression, do judges set precedent which nevertheless may be overturned by the passage of new legislation on the issue or by yet a latter decision.
In civil law jurisdictions, courts interpret the law, but do not, at least in theory, consider previous outcomes from the same jurisdiction in similarly disputed situation as guiding. Therefore, civil law rulings only apply to the case at hand. The immediate effect of bounded rulings is the great volume of cases with the same merits so that in practice jurisprudence ends up playing the same role in civil law as does case law in common law jurisdictions.
The primary function of the judiciary in a constitutional democracy, therefore, is to protect the constitution – the sacred contract between the citizens and the government and between different branches of the government. It does so by elucidating and defining the content of the constitution while arbitrating between parties. In order to perform their function, the judiciary must logically be empowered with the authority to arbitrate future conflicts over the constitution and to overturn any actions of the government that violate it. The courts’ impartiality and independence from the other branches of the government also needs to be ensured so that the courts can perform their function effectively. Impartiality and independence of the judiciary is not easy to achieve because unlike legislature, court’s authority is based directly in the supremacy of the constitution. And supremacy of the constitution is achieved in minds more than on paper.
In order to achieve these characteristics of the judiciary, developed democracies have relied on ‘the culture of the judiciary’. If each judge swears upon taking office to uphold the constitution and the rights of all citizens, self-integrity, peer pressure, and public scrutiny might combine to induce judges, at least at the highest level, to abide by their oath. By setting these standards for promotion, they can help foster the same behavior in their future peers and at all lower levels. Executive and other government branches also have to learn to accept the role of judiciary in constitutional democracy as the supreme arbitrator of the content of the constitution.
Countries like Afghanistan need to improve their judicial systems so as to strengthen the nurturing democracy in the country. Moreover, it would be also helpful in keeping the actions of members of the other organs of the government in check. It is very likely that they, without such accountability, may use their authorities recklessly. In fact, the overall process of strengthening the judiciary in the country would benefit the common people of Afghanistan, who require justice to a large extent.