The Colgate Scene
September 2003

Lessons in nation building
Alumnus leads effort to revamp Afghanistan's legal system

Michael Smith '70 with Afghani expatriate Mariam Nawabi and Ishaq Shahryar, Afghanistan's former ambassador to the United States. Nawabi, an associate of the law firm Dechert LLP, invited Smith to help draft a new labor and employment code for her homeland. [Photo by Mark Abraham]

Mariam Nawabi and her family fled from Afghanistan in 1978 and relocated to the United States when the Soviet Union invaded and executed her grandfather, a well-known general in the Afghan army. This past February, Nawabi, an associate in my law firm, Dechert LLP, told me that she had been selected to head a team of attorneys drafting a wholesale revision of Afghanistan's commercial code to create a legal system that protected the rights of citizens and businesses alike. She told me that Afghanistan's labor and employment law code was to be revised as part of that project and asked if I would lead the team that would do that work. I enthusiastically signed onto the pro bono project and recruited a group that included law professors, a representative of a public interest think tank and other attorneys from my firm.

Our first task was to obtain copies of any labor and employment laws that Afghanistan may have already enacted. We spent nearly two months, however, finding the laws and then translating those statutes to English from Dari, the country's official language. Our search was complicated significantly by the fact that the Taliban had destroyed all of the law school libraries in Afghanistan, virtually no judges or attorneys had copies of the statutes and no bar association exists. In fact, only 10 attorneys currently practice in Kabul, a city of two million residents!

We asked whether we should use the laws of neighboring Muslim countries as models for the revised code. Interestingly, Afghan government officials told us not to refer to those laws, because from Afghani-stan's perspective, they were not sufficiently progressive. The officials wanted a code that was liberal and that would convey a message to the international community that Afghanistan was on the forefront of modern legal thought. (A draft of the new commercial code was submitted to the Afghan government for review and comment in August. After review, the code will be finalized for submission to President Hamid Karzai and his cabinet, which can implement it by decree.)

After the team began its work, I realized that we were operating at a serious disadvantage because we lacked firsthand knowledge of the culture and the business and working conditions in Afghanistan. I also felt that we should confer more closely with the Afghan government about what they thought was appropriate in their war-ravaged country. I believed that we shouldn't simply deliver a finished set of laws without such consultation. I would resent such an approach if I were in the officials' shoes.

In early May, Nawabi, nine team leaders and I met at the Newark airport for the journey to Kabul, a city of 2.2 million people situated in a valley 6,000 feet above sea level, surrounded by snow-capped peaks. The streets of Kabul presented a picture of striking contrasts. Afghans dressed in traditional robes and headgear, Massoud hats for the men and burkhas for the women, walked quickly through open-air bazaars shopping for everything from spare parts for automobiles to watermelons, tomatoes, almonds, raisins and produce grown on the small family-owned farms just outside the city. You also see sides of mutton and beef hanging in un-refrigerated shop windows located adjacent to new and bustling Internet cafes.

While moving around Kabul, we saw the widespread devastation caused by the wars fought since the Soviet Union invaded in 1979, which had left office buildings and entire neighborhoods in rubble and walls pock-marked with thousands of bullet holes. (Our hosts were quick to point out that none of the devastation had been caused by the American military during combat against the Taliban.)

We also saw merchants operating their shops, kids playing soccer in fields recently cleared of land mines and attending schools with roofs or windows blown out by bombs and artillery shells and Afghanis working, laughing and praying. Everywhere we went, the Afghanis expressed in words and actions relief that they were free of the overwhelming and pervasive oppression associated with the Taliban regime. Indeed, we witnessed none of the anti-American attitude reported in the media. We were told that Afghanistan's biggest fear was that the international community -- and the United States in particular -- would prematurely disengage from their country.

The Rolex Test
During our six days in Kabul, we met government officials for intensive discussions that covered the political and business climate, the substance of the new legal code and the condition of Afghanistan's courts and administrative agencies. We learned that the country's judicial system had been dismantled by the Taliban, that uneducated mullahs had filled the resulting vacuum and were now meting out justice based on their own idiosyncratic interpretation of Islamic law.

I met with the deputy minister of labor in a rundown office furnished with a dilapidated couch with springs that goosed me regardless of where or how I sat. I left the meeting feeling depressed because the deputy minister (a phlegmatic bureaucrat who held his position because he was related to an influential tribal leader) had obviously lied about a variety of topics, including the prevalence of child labor and enforcement of existing laws.

Even a blind man would have known by walking through the streets of Kabul that hundreds, if not thousands, of young children were working in unsafe conditions to support their families. Some of these kids develop arthritis in their hands by age 15 because they work long hours at the tedious task of hand weaving the rugs that Westerners love to display in their homes.

When I commented to the minister of finance about the disheartening meeting, he promptly arranged for me to talk with the minister of labor (who, like most other ministers, had not been paid his $50 a month salary for several months). That meeting went much better, as we talked for nearly three hours about the new code and about the economy, working conditions, industries and labor unions in Afghanistan.

The contrast between my meetings with the deputy labor minister and his superior could not have been more striking. I had expected some resistance from the labor minister to a law expressly prohibiting employment discrimination based on religion, gender, political beliefs and tribal affiliation. The finance minister stated emphatically that discrimination in the workplace should not be tolerated and that he wanted the law to address that issue head on.

Our group managed to meet with President Karzai for about 45 minutes, and he expressed his appreciation and total support for our efforts. We came away impressed by Karzai's intelligence and commitment to bringing his nation out of its long ordeal.

I would not want to live Karzai's life, residing in a heavily bunkered "palace" guarded by tanks, machine gun emplacements and heavily armed special operations forces. For the time being, however, he is the symbol that holds together Afghanistan and the fragile coalition that temporarily rules the country. His survival is critical.

Meetings with other government officials also left me with a very favorable impression. A member of our group coined what he called the "Rolex Test" as the litmus test to determine the integrity and commitment to public service of government officials. All too often, officials in developing nations are seen wearing expensive clothes and jewelry, driving fancy cars and feathering their nests at the expense of their impoverished citizens. Each of the Afghan officials we met passed the Rolex Test with flying colors -- no signs whatsoever of greed or avarice on their part, only dedication and patriotism in the best sense of the word.

I left Afghanistan with the information that my team needed, several preconceptions about the country and a Muslim society dispelled and guarded optimism that it can rebound from the aftermath of a generation of war. When an Afghan American businessman asked me why I was optimistic, I told him that the resilience and basic decency of the Afghanis whom I had met and seen was the primary basis for that sentiment. I have never seen more resilient people. Whenever I think of Afghanistan, that trait comes to mind.

R. Michael Smith '70 is counsel in the Washington, D.C. office of the law firm Dechert LLP.
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