The nation's legal system is driven by bribes, and the public's disgust is stoking nostalgia for the Taliban.
By Paul Watson
Los Angeles Times, 18 December 2006
Kabul, Afghanistan — In the halls of justice here, almost everything is for sale.
It can take one bribe to obtain a blank legal form and another to have a clerk stamp it.
Lawyers openly haggle in corridors and parking lots over the size of payoffs. A new refrigerator delivered to the right official might help solve a long-running property dispute.
Court dockets don't exist. The Koran, the basis of Islamic law and also the Afghan legal code, is often the only book on the shelves of poorly trained judges. Even a 93-year-old man depending on the courts to save his family home can be threatened with jail.
As Afghans try to piece their legal system back together after decades of war, many spend long months shopping for justice in the gloomy corridors of Kabul's central courts complex. More than 90% of lower-court cases end up in the capital's appeals court, landing on the glass top of Judge Muzafarddin Tajali's large wooden desk.
A former Supreme Court justice, Tajali fled to Pakistan when the Taliban seized most of the country. Now he's back, sitting in a high-back swivel chair with the Chinese price tag still dangling from the black upholstery, amid a dangerous mess created by incompetence and corruption.
"In the whole country, we may not have even two qualified defense lawyers," Tajali said.
"Everybody has expectations, and of course they get upset," he added. "They don't threaten me inside the courtroom. But when their hopes are broken, they get mad and go and scream outside.
"This kind of justice system, which is not clean and transparent, threatens the government and democracy."
Systematic injustice stokes searing humiliation and resentment, turning many Afghans against President Hamid Karzai's government and his foreign backers. Nostalgia for the ruthless rule of the Taliban is growing as the line between judges and criminals blurs. When they can't find justice in the courts, Afghans are tempted to turn back to what they've trusted most for a generation: their weapons.
Sometimes prisoners in white pinstripes hobble into the carpeted office that serves as Tajali's courtroom. Their wrists shackled to heavy bars, linked by jangling chains to irons padlocked around their ankles, they stand accused of murder, kidnapping, rape and other crimes.
But Tajali spends most of his time trying to settle arguments over land, the legacy of almost constant war that drove millions of Afghans into exile and made squatters out of many of those who stayed. Most government records survive, but forgers have tampered with many of them, Tajali said.
"Houses have been sold to three or four different people while the owners were totally unaware of what was happening," the judge said.
One laborer, Abdul Jamil, spends most of his time in a nasty legal fight with a neighbor who claimed a piece of his family's land and persuaded a lower-court judge to ignore Jamil's deed.
"If I had a gun, I would take it and fire 30 bullets into the judge's head," Jamil said, touching a leathery finger to the center of his forehead. "But I worry about my children because they would suffer. No justice exists in this country. Justice is only for those who have money to buy it."
Real or forgery?
AMONG the disputes that have landed in Tajali's court is the case of Khaliq Dad, the 93-year-old patriarch of an extended family of 30 who all live in a single-story, dun-colored house that Dad says he bought 16 years ago.
A cold, damp draft blows through gaps in the windows. The walls are cracked and the paint is chipped. Dad lives in a front room, his aluminum cane standing in a corner by the door. He keeps a 1990 deed to the property tucked under the corner of his mattress.
But Maliha Ali, a refugee returned from Canada, says the house belongs to her and has gone to court to get it back. Her photograph and thumbprint, along with those of Dad and two witnesses, are on Dad's copy of the deed, but she insists she only leased the property to him.
The witnesses can't be found, nor can a copy of the deed filed with the Treasury Department. Ali doesn't have documents to prove her side of the story. But she says that Dad's copy is a forgery.
"He is a gangster," sneered Ali, who brought a relative named Wahidullah, a tall, thick-necked man with a booming voice, to court as her bodyguard. "I have not given them any documents, so it is all made up."
A senior Supreme Court official who reviewed the deed at The Times' request said he was confident the document was authentic. The official spoke on the condition he not be identified because the court had not ruled on Dad's appeal.
But in separate trials, three lower-court judges declared Dad's copy a forgery. Dad said they also rejected a letter from Karzai's palace asking for a Supreme Court review of the case.
One judge sentenced the old man to a year in prison, which will stretch to three years if he doesn't give up his court battle.
Dad, wearing lenses as thick as magnifying glasses, says he can see just one logical reason justice would turn against him.
"I think the woman has paid all of the judges who worked on this case," he said. "She has also paid the police."
Dad says he refuses to bribe anyone because it would dishonor him before God. He doesn't have much money anyway. One of his sons is a driver for the government. The other, a guard at a children's hospital, lost a leg in a land mine blast.
He doesn't have a lawyer, but his opponent does: She hired Ahmad Shah, an edgy young man in a black leather cap and matching jacket. Shah said he didn't want to talk about the case.
"Don't drag me into these problems," he said with a sheepish grin. "I am a poor guy working to earn some money for my children."
'Give me $4,000'
WHEN Kabul pharmacist Nader Naderi fled Afghanistan's civil war in 1992, a warlord named Gulabuddin Shirzai took over the family home.
Naderi returned briefly to find a tank parked outside, and recalls that Shirzai told him, "If you like your life, leave and don't come back."
The arrival of foreign troops five years ago made it safe for Naderi to return more permanently. By that time, Shirzai was renting out the three-room house for $10,000 a year. Naderi spent the next several years trying to persuade numerous judges to return his property, but they kept telling him his file was lost.
Naderi started treating them to lunch. Suddenly his documents surfaced.
"One day when I was sitting with the judges and some other people, one of them was complaining that his washing machine wasn't working," he said. "Then another guy sitting there told me, 'He is talking to you.' "
The next day, Naderi said, he delivered a new washing machine to Abdul Wakil Amini, a prosecutor involved in his case.
"Later, when some monitors came from the court, the police station and other departments to see my house and to gather all my documents, the same guy asked for a refrigerator," Naderi said. "So I bought a fridge for him."
But after paying off every clerk, prosecutor and judge who held out a hand, Naderi said, he still didn't have his house. So this year he went to the justice minister's office and stood his ground.
"Every morning when he was coming in, I said, 'Good morning, minister,' and every afternoon when he was leaving I said, 'Good afternoon, minister.' Then finally, after 10 days, he said, 'Do you work here?' "
Naderi explained his predicament. The justice minister listened and wrote an order to the court to give him his house back.
"The next day, when I went to the court with his letter, the guy there told me: 'Give me $4,000, because you have direct orders. For others, it costs a lot more,' " Naderi said.
He estimates it cost $11,000 to reclaim what was his in the first place. Amini, the prosecutor, was fired this fall, but he still lives in a luxurious villa. He denies taking bribes.
Like many Afghans, Naderi feels betrayed by the promise of freedom and wants to leave his homeland again.
"You can never have democracy if you can buy justice," he said.
Lack of training
KABUL'S central courts are housed in a complex of dilapidated buildings called the Wulayat, where hundreds of people squat in the dirt parking lot or sit on broken chairs in dingy hallways, waiting to see a judge. Many have spent several years trapped in this legal labyrinth.
Most of the courtrooms are small offices, where judges preside at rickety desks decorated with fake potted plants. Among those seeking justice recently were half a dozen women covered in full-length burkas who sat on the floor, waiting in the shadows for resolution of marital disputes. Children nestled quietly beside them, looking worried but unable to make eye contact with their mothers through the heavy mesh that covered their faces. An argument erupted when a family court judge's tea bearer offered to sell them quicker access to the court.
"Shame on you, you old man!" one woman shouted as the angry servant retreated into the court. "You're demanding a bribe. I'll go tell the judge."
Nearby, another lower-court judge, a soft-spoken Muslim cleric in a dark, tent-shaped hat, sat at a splintering desk in an office with no heat or power. He admitted taking at least $100 a month in bribes. But the judge, who spoke on condition he not be named, insisted that he had no choice because after working 30 years in the justice system, his monthly salary was only $140.
The real crooks are in the higher courts and the department that assigns cases to each court, where the big money changes hands, he said. "There is no justice for judges themselves," he griped.
Karzai promised foreign donors in January that he would fix the justice system by 2010, part of a package of reforms demanded in exchange for billions of dollars more in aid.
Tajali was appointed head of the appellate court this fall. Several people who brought appeals to Tajali said he was a big improvement over his predecessor, who was removed after complaints that he was taking bribes.
The Supreme Court also has removed about 80 lower-court judges. But most will be shifted to new courtrooms after they take retraining seminars, officials said.
An international effort to clean up Afghanistan's courts, led by Italy, has sputtered from the start.
"Most of the training courses that we've had from the government of Italy lasted 10 to 15 days, and that isn't enough time to train a judge or a lawyer," Tajali said.
Before Afghanistan collapsed into a generation of war, university graduates received oral and practical training in the courts for a year, he said.
Six weeks after Tajali was appointed, a man in a shabby gray suit accompanied by a man in traditional Afghan clothing entered his chambers with a bulging shopping bag. They left empty-handed but happy. The men became nervous when a reporter asked what was in the bag. They said they had given the judge a gift but wouldn't say what it was.
"We only wanted to congratulate the judge for getting his new position," one said as the pair rushed off.
Tajali confirmed that he had received several gifts, including cloth for a new suit and a tall artificial plant with white flowers from the provincial governor. The judge said he hadn't broken any rules because they came from friends and relatives who didn't have cases in his court.
Missing the Taliban
MANY Afghans lay the blame for widespread injustice on the president. Karzai backed an elderly, hard-line cleric who had been appointed chief justice by the transitional government that followed the Taliban.
When the new parliament refused to confirm the judge's reappointment, Karzai chose a U.S.-educated moderate. But by that time, Chief Justice Fazl Hadi Shinwari had stacked the courts. Appointees such as Abdul Rahman, a gruff, long-bearded man, praise harsh Taliban rule for eliminating theft and corruption.
"Now," Rahman said, "you see thieves stealing whole banks in the cities."
But in the view of one impoverished man, a ruling by Rahman sanctioned just such a theft by a man of power and prestige.
Jamil, the poor laborer, is trying to protect his land from a retired army officer who lives next door. He said Rahman ruled against him even though he provided the judge with a decades-old deed, tax receipts and supporting letters from local elders and a mullah.
The Supreme Court finally reassigned the case, but only after Jamil went to court every day for 2 1/2 months, losing the little money he could have earned doing odd jobs.
In this conservative Muslim country, many also regard Karzai's refusal to put murderers, rapists, adulterers and others to death as a grave insult to God. When the Taliban ruled Afghanistan, executions were a public spectacle for cheering crowds in Kabul's Olympic Stadium.
Since the mullahs were ousted, the only Afghan put to death has been Abdullah Shah, a member of a militia loyal to warlord Faryadi Sarwar Zardad that manned a notorious checkpoint on the road from Jalalabad to Kabul during the 1990s civil war. Known to most Afghans as "Zardad's dog," he was found guilty of killing 20 people, including his wife, and executed with a bullet to the back of the head in 2004.
Zardad escaped Afghan justice. He was convicted of kidnapping and torture in Britain, where he is a refugee. Britain has banned the death penalty.
About 500 people sentenced to die have not been executed because Karzai hasn't signed the orders, said Rasheed Reshaad, a Supreme Court justice. European governments that are major aid donors to Afghanistan strongly oppose the death penalty.
But Karzai also has the authority to seek alternatives to executions, such as asking a murder victim's family to pardon the killer in return for compensation, said Reshaad, a former California resident. Karzai has upheld at least a dozen death sentences in the last few months.
Reshaad was among the thousands of educated Afghans who fled after the 1979 Soviet invasion. He lived for more than 20 years in San Francisco, where he worked as a paralegal, then returned to Kabul after U.S. and Afghan forces overthrew the Taliban five years ago.
This year, parliament appointed him to the Supreme Court, where he is in charge of some of the most dangerous public security cases, including those involving narcotics and terrorism.
Karzai's defenders maintain that some of the president's worst mistakes in rebuilding the justice system, such as making former warlords police chiefs and putting them in other powerful positions, were forced on him by foreign backers, led by the United States.
"He was put in this unfortunate position that even his mistakes were made for him," said Jawed Ludin, Karzai's chief of staff.
"There were different ways of doing things, and he would have chosen the way that the Afghan people wanted. There would have been a clean slate. He would have acted decisively, gotten rid of troublemakers and had a fresh start.
"But then he had to draw up another strategy, a strategy of inclusion giving everyone a right — criminals, gangsters, the Taliban," Ludin said. "Everyone had a right to be part of this process."
Still fighting
TAJALI passed the case of Dad, the patriarch, back down to officials for another review on Nov. 12. But the same day, police took Dad from his home to an interrogation room at the courts complex, where he was grilled by prosecutors and his opponent's lawyer.
He emerged trembling with rage, on the verge of tears. He walked slowly to the street, through mud and cold winter rain, trying to steady himself with his cane.
"It is brutal, it is really brutal. There is no justice. Now I will have to kill them," he said, glancing over his shoulder at the glaring prosecutor and police.
But the next day he was back in the fight, appealing to the Supreme Court. During an argument in a hallway, the lawyer beat Dad, bruising the elderly man's forehead and hands.
The next day, several police officers with assault rifles were at Dad's gate. The prosecutor, who refused to identify himself, shouted death threats.
They finally backed off after senior officers intervened.
The Supreme Court sent the case back to Tajali, leaving 30 people wondering whether the police would come again to kick them out in the middle of winter.
Dad, a proud, battered man shamed in front of his family, doesn't blame his government, the foreign advisors who are trying to help it rebuild the country or the thousands of foreign troops who are fighting the resurgent Taliban. While the corrupt and powerful tilt the scales of justice in their favor, he said, ordinary Afghans also have been poisoned by greed.
Taliban-led insurgents exploit the disenchantment to recruit new fighters, and a fragile democracy hangs in the balance.
"The government has tried everything. Why should other countries lose their sons fighting here?" Dad asked. "There is no justice. We just chase after the money."
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Citation: By Paul Watson. "In Afghanistan, money tips the scales of justice," Los Angeles Times, 18 December 2006.
Original URL: http://www.latimes.com/news/nationworld/world/la-fg-justice18dec18,1,6521701.story?track=rss
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