Afghanistan's Judiciary in peril: Plight of the women judges

The legal fraternity in Afghanistan needs our support and we must clearly express our solidarity with them. The hardest hit are, unfortunately, women judges, but the fear has percolated all across the spectrum. Fortunately, organisations in different parts of the world have highlighted their plight and hopefully something positive will come out of these interventions.

The number of women judges in Afghanistan is not known and the figure varies from about 200 women to about 250 women. It is estimated that many of them have fled the country or are in refugee camps. Those who have remained in Afghanistan are living in constant danger and fear for their lives.

On January 17, 2021, unidentified assailants assassinated two women judges of the Supreme Court while they were on their way to court. While this did send shockwaves all across, till today, the assailants have not been identified either individually or organisationally. This should have given an inkling of the shape of things to come and preventive and protective measures ought to have been taken well in time.

Unfortunately, after the Taliban took control of the administration, the situation has become worse. One of the principal causes (apart from the gender issues) is the general amnesty given to prisoners, many of them owing loyalty to the Taliban. This has generated enormous anxiety and distress amongst judges, particularly women judges, who are apprehensive of revenge killings. In fact, on an earlier occasion, after one such person was convicted and sentenced, he held out a threat of revenge after his release.

Events such as this have led women judges to try and leave Afghanistan. While some of them have been successful, others have had to take shelter in refugee camps in a neighbouring country and will perhaps be rehabilitated after several months of a life of considerable indignity. Those who have been unable to leave the country are staying with friends and relatives, but are constantly on the move. To track them down, some of the fighters have harassed their neighbours and threatened them to reveal the whereabouts of these women judges. Therefore, it is not only the judges who are threatened, but also neighbours, friends and relatives.

Judges have also had their houses searched and bank accounts frozen. They have personally received threatening messages and, on some occasions, have been recipients of physical harassment. Lawyers for the prosecution have also not been spared; they have undergone intimidation in some form or the other.

What crime did the women judges commit? They merely applied the rule of law with the assistance of lawyers, both from the prosecution as well as the defence and upheld the human rights of citizens. The cases that they heard ranged from murder, rape, domestic violence, child custody, divorce and so on. These were not cases that the judges had instituted suo motu, but were brought to the courts by either the State or private citizens. It would have been an abdication of their duties and responsibilities and a travesty of justice if the judges had declined to hear these cases only because the persons involved were Taliban sympathisers.

The international community has taken up cudgels on behalf of the women judges and lawyers. Diego Garcia Sayan, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, has written to the President of the European Commission pointing out that even the Secretary-General of the United Nations Antonio Guterres has described the situation in Afghanistan as a human catastrophe. He has called upon the European Commission to take positive action so that women judges and women lawyers are protected.

The International Bar Association (IBA) and the International Bar Associations Human Rights Institute (IBAHRI) have also issued a statement having taken note of reports of amputations, executions and hunting down citizens who worked with the erstwhile government of Afghanistan. They have recommended swifter and better coordination in providing safe havens, expediting visas for transfer and resettlement of the judiciary, legal professionals and human rights defenders. The President of the IBA Sternford Moyo has called for building respect for the rule of law and individual human rights. The co-chair of IBAHRI Justice Michael Kirby has called for observing and respecting universal human rights, Afghanistan’s international human rights obligations and duty to the rule of law.

The International Association of Judges and International Association of Women Judges have issued a joint statement and the very first sentence of this statement reads: “Judges in Afghanistan are in very grave danger.” The joint statement then goes on to record that these judges have upheld the rule of law in terrorism, security cases and other criminal cases. They ruled against men in a variety of cases. Some of these men were members of the Taliban and that “The Taliban does not accept that women have the right to judge men.”

As members of the legal fraternity, it is our duty to express our solidarity with the judges, lawyers and legal professionals in Afghanistan in these trying times. We must make our voice heard, along with those of others so that the culture of violence is nipped in the bud and not allowed to escalate. Let’s come out of our cocoons and express solidarity with our fraternity. Remember, we too have recently had a judge as a victim of revenge killing in Jharkhand.

Justice Madan Lokur is a former judge of the Supreme Court of India.