Armed Taliban break up lawyers press conference protesting Afghanistan bar association takeover – JURIST – News

EXCLUSIVE FOR LAWYERS – Armed Taliban fighters broke up a press conference by Afghan lawyers in a hotel in Kabul early on Sunday morning, during which several of the attending lawyers were arrested. A group of four female lawyers and two male lawyers who called themselves “Afghanistan Bar Association Advocates” had called the press conference for 10 pm and invited the media as well as local NGO and UN representatives to the press conference Esteghlal Hotel near Kabul Airport to Hear their arguments against the Taliban’s recent takeover of AIBA and the revocation of AIBA’s license to the Justice Department. About 40 minutes before the scheduled start of the press conference, armed Taliban fighters arrived in an armored vehicle in front of the hotel and surprised the organizers, who had previously obtained authorization from the authorities for their event. The arrested lawyers were held for about half an hour before they were released.

A six-page declaration in Dari and Pashto, which was to be published at the lawyers’ press conference and to be obtained in advance by JURIST, showed a number of advantages and disadvantages of the forced integration of AIBA into the Ministry of Justice. The preamble (translated by JURIST’s law students in Afghanistan) read in part:

Since the ultimate goal of lawyers is to strengthen the judicial system by bringing justice to the citizens of a country, an independent lawyer is therefore the most important element in a system whose practice is to keep order and justice among citizens in one hand bring, and between citizens and offices on the other hand. Independence in any form means that the attorney or the bar association is not open to the government; Rather, it means that lawyers stay away from political pressure and stand up for public justice in the best possible way.

Here is a rough translation (again by JURIST’s law students in Afghanistan) of the contents of the document:

Reasons for the independence of the association:

1. One of the essential foundations of designing a desirable legal process is the impartiality of the investigative and prosecution organizations. Therefore, following the exercise of the principle of separation of powers and the division of state power into smaller sub-areas, the legal and judicial departments within the judiciary should also be separated with regard to certain structures and responsibilities.
2. We believe that the leaders of the Islamic Emirates of Afghanistan are working for economic improvement and investment by foreigners in the country. For foreign investors, one of the investment conditions in any country is the existence of an independent bar association. So that in the event of tax disputes, trade secret disclosure disputes, breaches of contract, they can hire independent defense lawyers with a high level of confidence.
3. The independence of the Bar Association will counteract the structural inflation of state structures in the legal and judicial sectors. Obviously, the government work approach slows down the speed of procedures compared to independent and private departments. Thus, the independence of the bar association will remove this structural inflation and improve the management of legal affairs.
4. A fair judgment takes place in the presence of independent defense lawyers. One of the most important criteria for the credibility of a country’s judiciary is its independence, which has a direct impact on national prestige and international standing. To the extent that the judiciary complies with the standards and recognized criteria of law and justice, the national reputation of the country is protected.
5. One of the other benefits of the bar association’s independence is that it can bring justice to prisoners. Just as the defenders defended the rights of the prisoners of the Islamic Emirates of Afghanistan in the previous government, the prisoners must have the right to choose an independent defender to ensure the best possible justice and the credibility of the Islamic Emirates of Afghanistan in the community.
6. When the attorneys are independent, their clients can discuss the ambiguities of the cases and the defense attorney can better clarify the latent aspects of cases and play a better role in the administration of justice.
7. If the association is independent, the lawyers can take legal action against the government in public law cases. Government lawyers, on the other hand, cannot bring an action against a government of which they are themselves a member.
8. The independence of the bar allows the employment of experts acquired through the simplest of procedures in the law and sharia faculties. The state has to spend a lot of money on employment, while this is much easier with independent associations.

It should be noted that the emphasis on the Bar Association’s independence does not mean that it should turn into a lonely and independent island and exclude any possibility of monitoring its activity. Most of the activities of the independent bar association are the defenders of governance, which is mainly under the control of government agencies. The quasi-legislative powers (codifying rules and regulations in related sections), paying income tax, and overseeing criminal defense attorneys’ income to collect taxes require government intervention and oversight. However, the comparative studies show that government interference in some matters related to independent bar associations is acceptable, but the difference is only in scope and approach.

Disadvantages of Integration of the association with the government:

1. The first and foremost reason not to integrate the association with the government is the principle of Islamic fiqeh and the law (two opposing things cannot come together). Matters related to crime detection, investigation and investigation are the responsibility of the government and it is important that a defendant who is convicted or reported in a criminal matter is represented by an attorney affiliated with a non-governmental organization . The government cannot sue a person and defend them at the same time.
2. The association has been an active member of the IBA since 2008; the association’s independence is recognized not only in national laws, but also by the IBA. Hence, it is not appropriate that the Islamic Emirates’ reputation of Afghanistan should be damaged by the capture of the independent AIBA.
3. Many lawyers have chosen to practice law because of their non-governmental nature. If the association loses this independence, many of the lawyers will leave this post and leave the country, raising the issue with other countries.
4. By integrating the association, the submission of impartial legal opinions for the drafting and adaptation of laws is excluded, since the government employees always take into account the benefits of the government. In the event of integration, there would be no non-governmental legal association that would issue impartial opinions on improving the law and the judiciary.
5. Since the Islamic Emirates of Afghanistan are sanctioned, the defenders who work with international organizations cannot receive their payments in the event of the association’s integration with the government. Hence, a great economic loss arises for these lawyers.
6. In the event of the association becoming part of the government, the client will be less courageous to file a lawsuit against his improper prosecutor.
7. If the association is integrated into the government, it will collapse again and again with every change of government and the defenders will be directly affected by politics, although they are not interested in it.

After the takeover of government by the Islamic Emirates of Afghanistan, the Afghanistan Independent Bar Association, as an independent non-governmental and non-political association, has its activities alongside the judicial authorities of the Islamic Emirates of Afghanistan in order to defend the rights of the people and the exercise of justice in the light of Sharia law was a powerful arm of the Islamic Emirates of Afghanistan on a national and international level. The existence of this independent association is the guarantee of the promise made by the Islamic Emirates of Afghanistan to the principles and laws of the United Nations and, in the current situation, to forge relationships with the world to attract humanitarian aid and to establish the dignity of the Islamic Emirates of Afghanistan as an accountable government that is committed to recognized international norms and principles is necessary.

The Council of Ministers of the Islamic Emirates of Afghanistan, at its session on the 19th, passed laws: added by the translator). Over the years this association has been independent, not governmental, and has served the people. According to the principle of two opposing things cannot come together Take into account that crime-related matters, investigations and investigations are the responsibility of the government and it is important that a defendant who is convicted or denounced in a criminal matter is represented by an attorney who is authorized to do so Linked to a non-governmental organization is that the independent Afghan Bar Association remains independent.

In the end, the association has its own statute, according to which its affairs are decided. If the Islamic Emirates of Afghanistan consider the above reasons to be insufficient and expect the association to be included in the government, the association’s statute stipulates that the association has to hold its plenary meeting of defense lawyers so that the lawyers can decide their fate. We call on the leadership of the Islamic Emirates of Afghanistan to reconsider their decision taking into account the principle of separation of powers and the independence of the judiciary, and to protect the reputation of the Islamic Emirates of Afghanistan at the international level. We ask the Islamic Emirates of Afghanistan to support the association as an independent, apolitical and non-governmental organization.

With regards,

The Leadership Council of the Independent Afghan Bar Association

Taliban fighters took over the AIBA offices in Kabul on November 23 and threatened staff and lawyers there before evicting them. They then unilaterally appointed a new president for the association, which was originally founded in 2008 with the support of the London-based International Bar Association. In connection with this takeover, the Taliban’s Justice Department announced it would take control of the admission of lawyers and has since advised that lawyers will need to re-qualify in an undisclosed process under the ministry’s auspices.

https://www.jurist.org/news/2021/12/armed-taliban-break-up-lawyers-press-conference-protesting-afghanistan-bar-association-takeover/