College Lawyer in a Land of Few Laws

Jay Premack for The Chronicle

R. Michael Smith continues to provide legal services to the American U. of Afghanistan from his home in Maryland.
September 19, 2010

Some people might call a place with few laws and hardly any lawyers Paradise. R. Michael Smith calls it Afghanistan.

Mr. Smith is fresh off a nearly yearlong stint as general counsel of the American University of Afghanistan. Not only was this his first job in higher education, but his work as a legal adviser was in a country where civil laws and their applications are still evolving under a new government.

Three decades of military strife and civil turmoil have taken their toll on Afghanistan's legal system, says Mr. Smith. As a result, regulations are relatively few, practically no case law or legal commentary exists to interpret what laws there are, and well-trained lawyers and judges are scarce. To make matters worse, social norms and religious standards sometimes conflict with civil laws. And corruption is rampant.

While lawyers for colleges in the United States kvetch about a mountain of federal and state regulation, Mr. Smith, who continues to provide legal services to the university from his home in Columbia, Md., compares his job to keeping order in the Wild West. In Afghanistan there is no gender-equity law like Title IX, no Clery Act requiring the disclosure of campus crimes, no equivalent of the Americans With Disabilities Act.

"Sometimes I feel like Judge Roy Bean," he says, referring to the storied saloonkeeper and justice of the peace on the Texas frontier of the 19th century.

The American University of Afghanistan opened its doors to students in 2006, with $15-million in seed money from the U.S. Agency for International Development and strong backing from Laura Bush, then the first lady. Four years later, the campus in Kabul has already seen turnover in its leadership but has continued to grow. It now enrolls about 400 undergraduates in its handful of degree programs. A new campus in the city is planned.

Like most college lawyers, Mr. Smith acted both as a sort of risk manager, seeking to prevent problems, and as a troubleshooter. In Afghanistan, however, ordinary decisions and advice can be fraught with uncertainty because it's so hard to figure out what the law is.

It took him some six months to find the Afghan laws that govern the basic relationships between employers and employees, and even then different interpretations from the Dari language, in which they were written, gave varying definitions of those relationships.

For example, one provision of Afghan law requires employers to give employees a food allowance. "Do you give them more money in their pay, or a meal at work?" Mr. Smith says he wondered. "Does the amount differ for single people and those who have dependents?" He had seen government offices where workers were provided with cooking equipment.

The university eventually decided that the best answer was to let staff and faculty members eat free of charge at the cafeteria, he says.

Another problem in Afghanistan is that court decisions, which are generally not published or studied, can hinge on an array of local practices by judges who are often poorly educated, says Erik G. Jensen, co-director of the Rule of Law Program at Stanford Law School and a senior adviser for governance and law at the Asia Foundation.

Those several layers of law and custom can create odd dichotomies. For example, Mr. Smith says, the Afghan legal code prohibits discrimination of any kind. "I'm not going to have a male working as a locker attendant for the women's locker room," he says, "but if you read the Afghan code strictly, I couldn't make that distinction."

Even so, when an Afghan staff member wrote a job description to advertise for an administrative assistant, he specified that the position was for a woman. "I went to him and said, 'We can't designate any job for specific genders,' and he said, 'But it's a woman's job,'" Mr. Smith recalls. "He finally relented."

Both the university and the women who work and attend classes there face risks greater than job discrimination. About 20 percent of the students are female, but years ago, under Taliban rule, women were not allowed to be educated. They still are in danger of reprisals from religious extremists.

Some women attending or working at the college tell only their immediate families what they do, Mr. Smith says. Those who come from rural villages far from Kabul are sometimes so fearful of retribution from the Taliban that they don't tell even their families.

In order to advertise to women, the American University has had to tailor its marketing materials to include female students without showing their faces. At the most recent graduation ceremony, the news media were required to pledge not to show the faces of female graduates.

Corruption is an even more pervasive problem for university officials, Mr. Smith says. Amid the country's recent history of civil strife, "people's ethical norms have deteriorated to the point that whatever helps you survive from day to day is OK."

Afghans associated with the university regularly try to promote business for their family members, and vendors will occasionally offer bribes or kickbacks.

The schemes are sometimes quite elaborate. On one occasion, the university solicited bids for a company to provide diesel fuel. In reviewing the bids, the chief financial officer discovered that one of the lowest bidders had offered an extra enticement: "He said he would submit a dummy bid, based on a nonexistent company, and offer kickbacks to us," Mr. Smith says.

"There's nothing that I know of in the legal code that says you can't do that, and, frankly, this is the way Afghans have been doing this for quite a while."

Naturally, the university disqualified the bid. After all, lawyers don't always need a law to know what to do.