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Judge Writes First Benchbook for Afghanistan
Books have shaped history. The book Judge Abdul Saboor Hashimi of Afghanistan is writing may help shape his country’s legal system.
From May to August 2008, Judge Hashimi spent four months at the Federal Judicial Center under the auspices of its Visiting Foreign Judicial Fellows Program. He arrived with a general idea of learning more about judicial education and researching the U.S. criminal trial process. He soon decided to focus his Fellowship on a benchbook for Afghanistan judges, with guidance on how to prepare for and conduct criminal trials. It would be the first educational resource of its kind in Afghanistan.
The FJC’s Visiting Foreign Judicial Fellows Program offers foreign judges, public officials, and scholars an opportunity to conduct research at the FJC for a period of one to six months. Candidates must be fluent in written and spoken English, secure independent funding, and plan a specific research project relating to the U.S. legal system, judicial practice, or court education. Since the program’s inception in 1992, judges, lawyers, and court officials from South Korea, China, Uganda, Brazil, Russia, Japan, and now Afghanistan, have participated as Visiting Fellows.
Hashimi had been a primary court judge in Afghanistan for six years and he was a member of the Chamtal Court in Balkh province when he was selected for the FJC Fellowship. In the Afghan judicial system, judges are selected from the best law graduates, who then take intensive courses on the courts and law. Judicial appointments are made on recommendation of the Chief Justice and the President.
In his home country, Hashimi participated in seminars, workshops, and English language courses supported by the U.S. Agency for International Development’s Rule of Law Project. He also earned several certificates from judicial education programs, including certificates for a judicial seminar on human rights from the Afghanistan Human Rights Organization, a judicial seminar on civil and criminal procedures codes, and a seminar on reformation of justice and judiciary and court management. He was one of 16 Afghan judges who passed the language tests demonstrating fluency in English. “Then my dream came true,” he said, “and I was here in Washington doing research.” Hashimi is the FJC’s first Visiting Fellow from Afghanistan.
The Center provides Visiting Fellows with an office, computer access, assistance with their research, and arranges meetings with U.S. judges, court staff, and others in the Judiciary community. The program is under the direction of Mira Gur-Aire, head of the FJC’s International Judicial Relations Office. During his Fellowship, Hashimi attended the Center’s National Sentencing Institute and its national workshop for district court judges. He also traveled to Louisiana where he observed court proceedings and visited a local law school. Throughout Hashimi’s stay, many federal judges gave generously of their time and experience to explain the U.S. judicial system.
Hashimi chose to develop a benchbook for Afghan judges because, although a body of law exists, its implementation by the courts is sometimes criticized. He cited, as an example, the length of time it might take to go to trial. “What is a speedy trial?” he asked. “We don’t have a guide. And every judge has his own perspective. We need an integrated way of proceeding.”
With the FJC’s encouragement, Hashimi modeled his benchbook on the Center’s Benchbook for U.S. District Court Judges.
“It fills a gap in my own country where a benchbook could facilitate a system for court procedures and the penal code,” he said.
The benchbook for U.S. district judges is described as “a quick, practical guide to help trial judges deal with situations they are likely to encounter on the bench.” It is a manual that offers judges “immediate guidance on how to proceed.”
“My aim is to make it even more comprehensive than the U.S. benchbook,” said Hashimi of his project. “Now it’s just criminal cases, but perhaps it could be expanded. With reconstruction and people returning to the country, there are a lot of disputes and the civil caseload is really high. The benchbook should be beneficial to the people and to judges.”
“Judge Hashimi’s planned benchbook is different in some ways from the Center’s publication,” said Gur-Aire. “It will have practical information on the responsibilities of new judges and reference court rules, but the role of judges is very different.”
Gur-Aire points out that the Afghan system follows the inquisitional rather than adversarial civil law model, and is also guided by Sharia law. The defense bar is relatively underdeveloped in Afghanistan and this imposes additional burdens on judges.
Hashimi completed his FJC visiting fellowship at the end of summer, but he is still hard at work. He is now the first Afghan candidate in the Visiting Scholars Program at Whittier Law School in Orange County, California, where he hopes to put the finishing touches on Afghanistan’s first benchbook for judges. After completion, the benchbook will be reviewed by an advisory committee of experienced Afghan judges and, finally, be submitted to the Chief Justice of the Afghan Supreme Court for approval.