Why I intend to go back: An Indian lawyer's experience in Kabul

Bar & Bench June 15 2017

Vismay P Shroff

When I received an email stating that the US State Department had in conjunction with the Ohio Northern University (ONU), Centre for Democratic Governance and Rule of Law, decided to train Afghan Lawyers and that one of the means of doing so would be through an immersive technique known as ‘Moot Courts’, and that they were going to conduct the Philip C. Jessup Moot Court Competition’s Afghan National Rounds in Kabul, in January of 2017, I was hooked from the first line of the mail.

I’d heard all these terrible things about Kabul, most of them through CNN, BBC and NDTV just like you had, but surely it couldn’t be that bad, could it? I intended to find out first hand.

The only detailed information out in the public domain was on their legal system. It ostensibly looked like that of a post colonial state, but with elements which defied evolution and looked clearly transplanted or reactionary, through American import and as a result of Russian occupation, respectively.

To begin with, they had a bicameral legislature. Their lower house or ‘Wolesi Jirga’ and Upper House or ‘Mesherano Jirga’, function similarly to the British Houses on which they were clearly modeled. However, that’s where the similarities seem to end.

The Afghan legal system consists of an incendiary mix of Customary, Islamic and Statutory rules with the Afghan Constitution occupying the status of highest law of the land. In its current avatar, the Afghan Constitution is the result of the ‘Loya Jirga’ or Grand Assembly of 2003, set up under the Afghan Constitution Commission, as mandated by the Bonn Agreement of 2001, consisting of a 162 Articles.

Their Supreme Court or ‘Stera Mahkama’ applies ‘Hanafi Fiqh’, jurisprudence for grey areas which are not covered by Islamic or Civil law, in either of which judges should be trained, and this choice of applicable law is laid out in Article 130 of the Constitution.

There is also a network of High Courts, Appeals Courts and Local and District Courts. The Lower Courts may apply Shia law when dealing with Afghans of like persuasion. Rather unsurprisingly, capital punishment is an accepted element of the criminal justice system, as is death by stoning in the case of adultery, and dismemberment in the case of theft. The upside is, these forms of punishment have reduced appreciably when compared to their application and use under the Taliban.

My experience in obtaining the necessary clearance to reach Afghanistan was an unexpectedly arduous one. The Consulate in Mumbai was very supportive and encouraging of my desire to travel to Kabul and to engage in such a socially inclusive activity, but the actual granting of the VISA was an onerous exercise and a nail biting race against the clock.

While waiting for my VISA interview, I happened to speak with a few students from Afghanistan who were now resident in Pune and they expressed wonder and excitement that someone from India wanted to travel to their country to help improve the legal education system there. They were very warm and friendly.

Indeed, all Afghans I encountered seemed to be this way. After much strife and consternation and in spite of the repeated entreaties of my parents, my in-laws, my wife and quite surprisingly my younger sister, I went ahead and did it. I travelled to Kabul.

My first impressions were of how endearingly uncomplicated the people were and how ethnically diverse they looked. I remember wondering how in spite of great roads and foreign cars, I made it to my hotel in one piece, given the complete absence of traffic signals! Having said that, I also noticed that almost every second establishment advertised the availability of travel agencies and the price of air tickets to international destinations were plastered rather conspicuously on the storefront.

However the majority of industries like Banking and allied fields had Indians running the show. So was the case with my hotel. They recognized me immediately as being Indian and wondered why an Indian lawyer might find himself in Kabul. I explained and they looked at me with deliberately beady eyes, a frown and half a nod. I was not alone.

It was a motley crew of some curious looking international law scholars who were also to serve as judges. They came from countries like Colombia, Mexico and various parts of the USA. For those that came in late, the Jessup Moot Court has spawned something of a cult of former participants, known as the, ‘Friends of Jessup’ or ,'FOJs’ or as we like to call it, ‘The Jessup Mafia’.

The competition is a test of written and oral advocacy and participants that win their country's national rounds advance to the International Rounds in Washington DC. It is conducted every year in the memory of Professor Philip C. Jessup, a Harvard Professor who also sat on the International Court of Justice as a judge.

Speaking from experience, I can vouchsafe that every law student in the English speaking world and well beyond, considers this experience the highlight of his or her legal studies, second only to graduation. So, we settled in and then the event took its course. The students were bright, eager eyed and trying hard to articulate their propositions in English. They were keen to make a mark.

Some teams had no electricity except for an hour a day.

In between scoring students for their oral arguments, we would hear of how some teams had no electricity except for an hour a day and they had to complete all their online research within that time. Did they manage to pull off a full draft?, I thought to myself. Would we, the judges, have persevered had the roles been reversed? These questions confront me still. I don’t think I would have made it had these conditions punctuated my preparatory phase.

These kids had heart. No question. Their access to resources was the issue that needed addressing and I was happy to be a part of this effort to equip and acquaint them in a small way with the international world. A world to which they would have had no access and about which, no instruction, had it not been for the ONU effort.

I returned to India and routine took hold as expected. I went about my grind, to Court and back and poring over documentation for new matters, examining correspondence and generally being a lawyer.

And then, I heard about it. The suicide bombing on Great Massoud Road which claimed 20 lives and left scores injured. It was outside the four story building which housed the Afghan Supreme Court.

I was there. I was just there and I made it home in one piece. But people who lived there and worked there had lost their lives and there was no point in finger-pointing or assessing or score settling. 20 lives had been snuffed out, just like that.

It is at this point that I realized that peace is NOT overrated. We don’t appreciate the oxygen we breathe until we are deprived of it. Such is human nature. We don’t miss the water until it is gone. My mind raced to those students and senior faculty members from Kabul and the risk they had taken in associating with us and participating in the Jessup National Rounds. If this story had heroes, it was them, not us. We were merely the supporting cast.

I remember very clearly, sitting in the airport departure lounge, waiting for my flight back to Mumbai when right across my seat was a little girl shyly twirling her mother’s shawl. She kept looking at me, making eye contact and then looking away. I stretched my hand out to her and said, ‘Hello!’ and she blushed and looked to her mother for instruction.

When she indicated it was alright to shake my hand, she untwirled the shawl, her eyes went large and with a huge smile she ran towards me, jumped into my lap and nuzzled herself against my sweater. In that moment I knew for certain that no matter what this country would be up against, its future had to be salvaged.

In the end, it’s always about the children. They didn’t invent this global arithmetic foisted on them as a legacy. They deserve an honest chance to make their lives better, more meaningful and in turn make their country a better place.

Bomb blasts or not, I will go back. You too should visit. Why? Because we are invested in the Rule of Law. All of us are, and a bomb blast in Kabul is just as bad as one in Kashmir. World peace is elusive, I admit, but let’s not settle for the world in pieces because that would truly be, the saddest thing of all.

Vismay P Shroff is a Mumbai based lawyer and a Professor of Public International Law at the Government Law College, Mumbai. He was a Jessup Moot Court participant in the year 2000 and was amongst the youngest to represent India at the international rounds in D.C. at the age of 19. He is a self confessed international law junkie, and as of date has staved off all efforts at rehabilitation. You can mail him at vismay@shroff.info