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Viewing cable 09KABUL361, KABUL APPEALS COURT: 20 YEARS IN DARI KORAN CASE

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Reference ID Created Released Classification Origin
09KABUL361 2009-02-17 15:57 2011-08-24 01:00 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Kabul
VZCZCXRO4489
PP RUEHDBU RUEHPW
DE RUEHBUL #0361/01 0481557
ZNR UUUUU ZZH
P 171557Z FEB 09
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC PRIORITY 7417
INFO RUCNAFG/AFGHANISTAN COLLECTIVE PRIORITY
UNCLAS SECTION 01 OF 02 KABUL 000361 
 
SIPDIS 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: KPOL PREL PHUM AF
SUBJECT: KABUL APPEALS COURT: 20 YEARS IN DARI KORAN CASE 
 
REF: A. KABUL209 
     B. 08KABUL2833 
 
1. (SBU) Summary. On February 15 an Afghan appellate court 
ordered 20-year prison sentences for Ghous Zalmai and Mullah 
Qari Mushtaq in connection with their publication and 
distribution of a Dari language Koran. (Reftel A) This 
decision affirmed the primary court's September 2008 order. 
Zalmai and Mushtaq immediately appealed to the Afghan Supreme 
Court, which has five months to decide the case.  Human 
rights actors widely but privately condemned the decision and 
are strategizing over how best to respond. 
 
------------------------- 
The Judge's Justification 
------------------------- 
 
2. (SBU) The judge anchored his decision on Article 130 of 
the Afghan Constitution which states, "if there is no 
provision in the Constitution or other laws about a case, the 
Courts shall, in pursuance of Hanafi jurisprudence, and, 
within the limits set by this Constitution, rule in the way 
that obtains justice in the best manner."  Thus, the judge 
did not identify a specific crime the two had committed under 
the Afghan penal code.  In his summation of the case, the 
judge stated Zalmai and Mushtaq erred by publishing the book 
without accompanying Arabic verses and by using allegedly 
irreverent language in Zalmai's one page introduction to the 
book.  The judge did not identify or allege errors in the 
Dari translation. He spoke for about 30 minutes in his 
condemnation of Zalmai and Mushtaq, at one point quoting from 
a Pakistani legal text, stating "those who commit this type 
of act shall be treated, if crazy, and shall be killed, if 
not crazy." 
 
3. (SBU) The verdict against Zalmai and Mushtaq was not a 
surprise.  The judge, Salaam Qazizada, sentenced Sayad Perwiz 
Kambakhsh to 20-years' imprisonment for allegedly downloading 
and distributing an article on women's rights in Islam. 
(Reftel B) Zalmai's attorney told poloff the decision was 
anticipated and characterized the proceeding as solely 
political. 
 
---------------- 
Procedural Flaws 
---------------- 
 
4. (SBU) The Afghan Independent Human Rights Commission 
(AIHRC) and Norwegian poloff identified several flaws with 
the proceeding: the judge did not allow defense lawyers to 
call witnesses or question prosecution witnesses; the judge 
ignored the defense lawyer's argument that the two did not 
translate the book, but rather only financed its publication 
and distributed it; the 20-year sentence is arbitrary and not 
based on any provision of the Afghan penal code; there was no 
clear application of Sharia law in that the judge did not 
consider the defendants' apologies (a widely understood 
principle of Sharia law is that those who apologize must be 
forgiven); there was no systematic use of witnesses; and 
there was evidence of political pressure. 
 
5. (SBU) Poloff identified several other procedural problems 
relating to the 2/15 testimony of two prosecution witnesses. 
An associate judge read the witnesses' statements, but did 
not permit the defense lawyers to question the witnesses. 
The witnesses' statements were suspiciously identical in 
content and phrasing.  Third, the judge identified a 
contradiction between Zalmai's and Mushtaq's testimony: 
Zalmai claimed Mushtaq reviewed and approved the text before 
it was published;  Mushtaq denied he had done so.  However, 
the judge did not resolve this contraction, but simply 
flagged it as a difference.  Finally, the judge behaved as if 
he were the prosecutor throughout the hearings, showing a 
clear assumption of the defendants' guilt. 
 
---------- 
Next Steps 
---------- 
 
6. (SBU) AIHRC assigned a team of three lawyers to analyze 
the case's history, identify procedural flaws, and compare 
the judge's basis for decision with established Sharia 
law.  AIHRC will forward the results in a letter to the Chief 
Justice of the Supreme Court, President Karzai, and the 
media.  AIHRC also plans to organize radio and television 
programs with sympathetic religious leaders and AIHRC 
representatives to elaborate on the legal 
irregularities and raise public awareness of the true facts 
of the case. 
 
7. (SBU) The Europeans are developing a strategy and have 
organized several meetings to identify an appropriate 
 
KABUL 00000361  002 OF 002 
 
 
response.  A public statement is unlikely as AIHRC has warned 
them it would negatively affect the chances of success in the 
Supreme Court.  Zalmai's brothers asked poloff for Embassy 
assistance in raising the case with the government.  Without 
additional international pressure, Zalmai will never receive 
a fair hearing, his brothers argued. 
WOOD