Monday, November 24, 2014

Ambassador Tanin speaks about Legal Aid in Afghanistan in a Panel Discussion at the United Nations

On 13 November 2014 at the United Nations, the Permanent Missions of Afghanistan, South Africa and the United States to the United Nations, the Rule of Law Unit (on behalf of the UN Rule of Law Coordination and Resource Group) and the International Legal Foundation co-organized a panel discussion on “Enhancing Access to Legal Aid in Criminal Justice Systems”. The panel featured H.E. Ambassador Zahir Tanin, Permanent Representative of Afghanistan to the UN, the Hon. Judge Dunstan Mlambo, President of the Gauteng Division of the High Court of South Africa and Chair of the Board of Directors for Legal Aid South Africa, Judge Lisa Foster, Director of the United States Department of Justice’s Access to Justice Initiative, Ms. Jennifer Smith, Executive Director of the International Legal Foundation. Ms. Simone Monasebian, Director of the United Nations Office on Drugs and Crime, moderate the discussion.

All panellists stressed the importance of access to legal aid. “No justice system can be credible without legal aid”, said the Hon. Dunstan Mlambo. Ms Foster discussed the establishment of legal aid services across the globe, including in Afghanistan.

Ambassador Tanin explained the historical context of the justice system in Afghanistan and the significant achievements made over the past 10 years to expand access to legal aid services. “Decades of conflict,” he said “rendered Afghanistan’s legal system virtually non-existent.” Now, legal aid is available across all provinces in Afghanistan. A mbassador Tanin emphasised the important role played by international partners, civil society and non-governmental legal aid organizations in expanding access to legal aid.

While significant progress has been made in Afghanistan, many challenges remain. These include lack of awareness about defence rights, financial constraints, scarcity of justice professionals, limited capacity in regional areas and corruption, Ambassador Tanin explained. Moving forward, he noted, “the new government of Afghanistan will prioritize combating corruption and strengthening the rule of law countrywide.” However, the sustained support of the international community and non-governmental organizations will remain central to these efforts.

Following individual statements, the panellists answered questions from the audience about legal aid provision in conflict and post-conflict settings, understanding legal aid in the development context, and the challenges of monitoring and evaluation activities. The event was well attended by Government representatives, civil society and staff of various United Nation bodies.

Statement by H.E. Ambassador Zahir Tanin Permanent Representative of the Islamic Republic of Afghanistan to the UN Enhancing Access to Legal Aid in Criminal Justice Systems


Thank you. I would like to thank the Permanent Missions of South Africa and the United States, the United Nations Rule of Law Resource and Coordination Group, and the International Legal Foundation for organizing this important event. I would also like to thank Mr. Selous for his kind introduction, the Honorable Dustan Mlambo, Ms. Foster, and Ms. Smith for their remarks and to Ms. Monasebian for her able moderation of the event.


Chosroes, the great King of Persia, once said “Do not stay in a country which lacks these five things: a strong rule, a just judge, a fixed market, a wise physician, and a flowing river.” Decades of war and conflict in Afghanistan destroyed all of Chosroes’ five markers except the country’s flowing rivers. The other four, particularly rule of law and justice, were destroyed as a result of sustained violence in my country.

A modern justice system has been part of Afghanistan’s culture and history since the early 20th century, particularly since King Amanullah developed a forward-looking constitutional framework and legal code in the 1920s. However by the 1990s, decades of conflict had rendered Afghanistan’s legal system virtually non-existent. In the dark period of Taliban control, extremists ruled on the basis of their own strict interpretation of Sharia law. Mullahs replaced professional judges and prosecutors and ordered swift and exceedingly harsh punishments. Accused persons did not have the right to legal representation, or more accurately, any meaningful legal representation. The infamous office of the religious police controlled the Taliban’s system of punishment, employing violence in the name of justice. Despite the creation of a Legal Aid Department in 1989, waves of war and chaos prevented the department from providing defense services to the indigent. In fact, the department existed in name only.


Since the fall of the Taliban in 2001 great efforts have been made to reform the justice system. The Constitution of the Islamic Republic of Afghanistan, adopted in 2004, is based upon the supremacy of rule of law and rule by law; securing these values has been one of the highest priorities of the government of Afghanistan since its adoption. Access to legal aid is central to this priority: Article 31 of the Constitution guarantees the right to counsel to all accused persons and mandates the government to provide free counsel to the poor. The article states: “Upon arrest, or to prove truth, every individual can appoint a defense attorney…In criminal cases, the State shall appoint a defense attorney for the indigent.”


Building upon this precedent, the government of Afghanistan has made great strides towards the expansion of access to legal aid with the support of our international partners, civil society and the crucial assistance of legal aid service providers such as the International Legal Foundation and other organizations. I would like to highlight the very important role played by NGOs in providing legal aid and defense lawyers. This has helped reduce violence against women in my country. The achievements that are important include:


  1. Increased availability of criminal defense services for the poor. This has made judicial proceedings fairer, and has reduced the rate of arbitrary pre-trial detentions in Afghanistan.


  1. Progress in protecting the rights of accused persons. The rights of the accused are increasingly recognized in the country by defense lawyers, judges, police and the accused themselves.


  1. Enhanced role of defense counsel in providing legal aid to the accused. Defense lawyers today play an active role in criminal trials, including through efforts to obtain the release of persons that are unlawfully detained, challenge the use of torture, and win acquittals for the wrongly accused. Lawyers are also gaining unprecedented access to arrested persons at police stations. They often access the accused within the first 72 hours of arrest, which helps to protect the accused from unlawful and arbitrary police action and ensures access to justice.


  1. An increasing number of lawyers. Since the fall of the Taliban the number of defense lawyers has jumped approximately thirty fold: in 2001, defense lawyers were virtually non-existent in Afghanistan. Today there are around 3000.


  1. An increase in the number of organizations that promote legal aid. These include an independent legal aid board, a directorate for legal aid within the Ministry of Justice, an independent bar association and the development of clinical legal education programs with local universities.


While we have made significant progress in enhancing access to legal aid in Afghanistan, many challenges remain. Financial constraints in the justice sector continue to be severe, which effects the salaries of defense lawyers and justice professionals in general. The country still suffers from a scarcity of qualified justice professionals, particularly at the local and district levels. Disparities exist in terms of access to and awareness of legal aid both by the accused and in terms of police knowledge of their obligations towards those in custody between the cities and the peripheries; justice is often limited to urban centers. Although one of our achievements is that since 2001 justice has expanded to all provinces, access to justice remains weak in district and local centers. In addition, Afghans still lack trust in the justice system.


Corruption continues to be one of the most pressing challenges to our judicial system and across law enforcement in general. It compromises the quality of legal aid service in the country and obstructs the poor and disadvantaged from benefiting from the legal system. Its effects are far-reaching: as Afghanistan’s new President Dr. Ashraf Ghani explained in his inauguration speech, corruption in the judicial branch paves grounds for insecurity.


Moving forward, the new government of Afghanistan will prioritize combating corruption and strengthening the rule of law countrywide. We recognize that improvements cannot happen in a vacuum: a coordinated, effective and sustainable criminal legal aid system depends upon improvements in other areas including accountability and state capacity.


I hope that Afghanistan’s experience sheds light on the importance, as well the challenges, of providing access to effective legal aid in countries emerging from conflict; in many ways Afghanistan’s situation is not unique. Most conflict and post-conflict countries face acute challenges in expanding access to legal aid. Yet the citizens of these countries are often the most vulnerable, impoverished, marginalized and therefore the most in need of legal aid. Moreover, the restoration of public trust in justice, the reinstatement of the rule of law and enhanced access to legal aid will allow these countries to rebuild their nations and find lasting stability and peace.


To this end, it is crucial that governments prioritize enhancing legal aid and access to justice. The sustained support of the international community and organizations like the International Legal Foundation are essential to these efforts. I call on members of the International Community to recognize the challenges I have outlined, and to support countries like mine to promote legal aid.


Thank you.

Statement by H.E. Zahir Tanin Ambassador, Permanent Representative of the Islamic Republic of Afghanistan to the United Nations Third Committee: Agenda Item 61  


Thank you, Mr. Chair. I would like to thank the High Commissioner for Refugees, Mr. Guterres, for his comprehensive report and also the dedicated staff of UNHCR for their commitment and assistance to the world’s most vulnerable populations.

Mr. Chair,


Almost 40 years of war and crisis have forced millions of Afghans to seek safety and security away from their homes in unfamiliar slums, cities, and towns in and outside of the country. Generations of Afghans have been born and raised as refugees. Renewed conflict and security concerns have made this year particularly difficult for IDPs, refugees and returnees in Afghanistan. Currently, over three million Afghans are refugees or IDPs, making Afghan nationals one of the highest populations of displaced persons in the world. This year 124,000 persons were displaced, bringing the cumulative total of the internally displaced to over 700,000 persons.


Mr. Chair,


The government of Afghanistan is committed to securing long-term peace and stability in the country and recognizes that the voluntary return and sustainable reintegration of Afghan refugees and IDPs is central to this goal. President Ghani, the newly elected President of Afghanistan, has made this a central element of his reform agenda, and to this end he called upon Afghan refugees to return to Afghanistan to “rebuild the nation” in his inauguration address.


The government of Afghanistan is dedicated to pursuing sustainable solutions for the repatriation of Afghan refugees who remain in exile. The Ministry of Refugees and Repatriations (MoRR) is the main government body responsible for rebuilding the lives of refugees and IDPs and providing them with reintegration support. Related programs include oversight of encashment centres to facilitate assistance, cash grants, basic health services, mine awareness training and briefings on how to enrol children in school and access legal aid.


In addition, Afghanistan’s national policy on IDPs, endorsed by the government in 2013, provides a framework for the rights of IDPs as well as emergency response. The policy acknowledges the central responsibility of the government to prevent conditions leading to displacement, minimise unavoidable displacement, and mitigate and resolve its adverse effects without delay. It also establishes the government of Afghanistan’s responsibility to provide emergency assistance, longer term support and effective protection of IDPs. The government commenced implementation of the policy in September of this year, with plans for further expansion in 2015.


It is important to note that Afghanistan has one of the largest numbers of returnees in the world. 5.8 million refugees have returned voluntarily to Afghanistan since 2002, increasing the population of my country by 25 percent. In the first seven months of 2014, over 10,000 Afghan refugees voluntarily repatriated to Afghanistan. My government is working closely with UNHCR to continue to promote repatriation through the government’s Solutions Strategy for Afghan Refugees, which provides a framework to facilitate voluntary return and sustainable reintegration of returnees.


Mr. Chair,


I would like to draw attention to the tremendous challenges faced by displaced persons in Afghanistan and around the world: they often lack access to justice and basic services such as healthcare and education and are particularly vulnerable to poverty, unemployment, disease, discrimination, violence, abuse and exploitation. Recognizing these vulnerabilities, I reiterate the obligations of host governments under international refugee law with respect to the protection of refugees, the principle of voluntary return and full, safe and unhindered access for humanitarian relief agencies to provide protection and assistance. It is critical that the rights of refugees and IDPs in both their country of origin and asylum are safeguarded and protected and that they enjoy the same standards of treatment as other nationals or foreign nationals in any given country.

Mr. Chair,


We are certain that the improvement of the security situation in Afghanistan will reduce the numbers of refugees and IDPs and will enable and incentivise them to return to their homes. In the meantime, my government remains committed to facilitating the voluntary, safe, dignified and sustainable return, rehabilitation and reintegration of displaced persons in Afghanistan, and we thank the UNHCR and the international community for its continued support in this regard.  I would like to take this opportunity to express my government’s deep appreciation to those governments that continue to host Afghan refugees, in particular Pakistan and the Islamic Republic of Iran, acknowledging the huge burden they have so far shouldered in this regard.


Thank you.