In much of Afghanistan, the rule of the gun continues to prevail over the rule of law. After 23 years of war and civil strife, the legal system like nearly everything else in Afghanistan is badly in need of reconstruction. But it is not clear just what shape the law will take in Afghanistan.
Justice in Afghanistan these days is largely a matter of guns and geography. If someone is charged with an offense in an area controlled by the government, they will be tried in a court appointed by the new transitional government, under laws promulgated by interim President Hamid Karzai.
But there are few areas outside of Kabul that are under firm government control. Justice Minister Abdul Rahim Karimi says, in other regions, arbitrary justice is meted out by regional warlords. "We have 481 laws, and all this law is enforced in different parts of the country, except in the places where warlords are still in power, and they have their tyranny and their dictatorship," he says. "In those places, a judge cannot make a fair decision."
The transitional administration has promulgated laws and appointed judges, but international observers have voiced concerns that there are not sufficient legal safeguards, even in these courts.
U.N. Special Envoy Asma Jehangir recently called for a moratorium on the death penalty in Afghanistan, until a legal system is in place that meets international standards of justice. "The lack of capacity in the domestic judicial system has, time and again, been pointed out and indeed been observed by me during a well-publicized trial and you all know that trial of Abdullah Shah, which I attended here," he says. "I am concerned that the safeguards and restrictions according to international standards for imposing capital punishment cannot be observed at this stage."
Abdullah Shah was convicted of multiple murder in Kabul last month by one of the transitional administration's Special National Security Courts. His appeal has failed, and his fate now lies with President Karzai.
A new commission is starting to write a new constitution, and another commission is to deal with reforming the legal system. But the shape of the law is expected to be a thorny issue.
Islamists want to see a legal system drawn solely from Shariat, the Islamic legal code. Justice Minister Karimi says that, as an Islamic country, some 20 percent of Afghanistan's new legal code will be based on Islamic Law. "And when I say Islam, I don't mean a fundamental Islam or the Islam of the Taleban. I mean a moderate Islam," he says. "And 80 percent of the rest of the law will be derived from the international community's experience in the countries who have worked on the law and are well-experienced in this."
Mr. Karimi says Afghanistan should be an Islamic democracy, where there are elections and political parties and where religious and political affairs do not mix. "This is Islam. And this is the politics. If you mix a religion with the politics, then nothing good comes out of it, because religion is true and honest," he says. "But in politics, there is cheating and people are trying to play games with it. So you can't play games with a religion." But, until there is a central government capable of exerting control of the entire country, even a reformed legal system will have little meaning in Afghanistan.