On Monday 4 October 2021 Mrs Justice McGowan spoke to Naga Munchetty about the position women judges in Afghanistan are currently in. A full transcript of the interview is available below.
You can also listen to the interview until 1 November 2021 through BBC Sounds (link, opens in a new tab), the interview takes place 33:40 into the recording.
Naga Munchetty (NM) Mrs Justice McGowan, welcome. Thank you very much for talking to me.
Mrs Justice McGowan (MJM): Thank you very much for inviting me.
NM: One of the things I learned actually is all female justices are Mrs. Why is that?
MJM: It’s to avoid the unhappy combination of Miss and justice, which sounds like ‘mis-justice’ or ‘mistrial’. So we’re all Mrs Justice, whether we’re married or single, or use that title in any other way.
NM: And that’s one … of those bizarre facts you never expect to learn. It’s a privilege to be able to speak to you. We very rarely get to speak to a judge at your level, and for obvious reasons. Why is it so important to you that we are talking today?
MJM: The problem that the women judges from Afghanistan are facing — those who are still there, those who are on their way here, or trying to get to some other country of safety — is so acute, and so serious, that the powers that be — the very senior judges here — are content that I come on your programme, and talk about such an important topic.
NM: Why on a personal level, does this affect you?
MJM: It affects me because I am a woman, and a judge — but it affects everybody. These are people who’ve trained, who’ve worked hard to do the best they can — the best for the system, the best for their own country. And they’re now having to leave — fleeing for their lives, because they are so scared of what might happen to them.
NM: And what is the threat that they face — the immediate threat right now?
MJM: They’ve been in a very insecure situation for quite some time. Two women judges were killed on their way to court earlier this year, back in January. And ever since then, the women judges have been very nervous, and concerned for their own safety.
In the immediate past, since the Taliban began to take over the country, they, as you have said, have been told that they can’t continue to work. But they fear that they will be tracked down and punished, for what they’ve done in the past — for sentencing men, for sitting in judgement on men.
And so they fear physical violence and death — to the extent that one of them told me a little while ago, that one of the things she was doing as she left court, when the word about how quickly the Taliban was taking over the various cities and towns went round … she was going home to burn her books. So they wouldn’t find law books in her home. And the idea that somebody burns their books has a very deep resonance for all of us. But it just shows you how terrified they were.
NM: How many women in Afghanistan — Afghan judges — have you had contact with?
MJM: We set up a group at the in the early part of this year, which was effectively a sort of buddying system — a woman judge here, in regular contact through WhatsApp, with a woman judge there.
We got to 11 — because we could only really work with those people who had quite good English. I’m afraid we don’t speak Dari, so we couldn’t broaden it beyond that — although obviously, the ones we were in contact with, were in contact with their own friends. So they knew about it.
So we’d built up a group of 11, with whom we are in regular contact. And they’re the ones that we’ve been working with closely, since the situation there has changed so dramatically.
NM: What surprised you from what you’ve heard, just in in that WhatsApp group?
MJM: One of the things that’s surprised me — and worries me more than perhaps many other things — is that it wouldn’t be enough to keep these women safe, for them simply to say, “Well, alright, I will not work as a judge anymore, I will abide by the new rules.”
Because they fear genuinely fear that they will be hunted down for what they have done in the past. And so they worked as judges at a time when they were allowed to — when their country wanted them to.
But now that the system has changed, they will be punished for what they did in the past. And that is obviously very, very worrying.
NM: So this woman who went home to burn her books — that probably wasn’t enough?
MJM: Almost certainly not enough — because people will know who the women judges are. They’re moving, and have been moving from house to house in hiding, since this all started, to avoid being tracked down.
But everybody — or not everybody, but a lot of people — knows who they are. They fear not simply that they will be found, but that others will give them up — either because they genuinely don’t think they should have been judges, or in order to protect their own interests.
NM: The women on your WhatsApp group, and the ones that you have heard from through those… talk to me about the level of their education: their passion, and their commitment to justice in Afghanistan — under the Afghanistan they thought they would be living in?
MJM Well, some of them were educated in Afghanistan, some of them did their degrees abroad. They are all highly intelligent, articulate, well-trained women, who believed that they were doing the right thing, and doing a good thing for their system.
They have a level, I think, of intellectual ability, which might put them ahead of some of their contemporaries in Afghanistan, because they had to do better to reach the positions they did.
And so, for example, of the five women judges here in the UK ready, two have already been accepted by universities to study transnational law, because they are highly intelligent, well-educated women.
They’ll need more English classes, they’ll need to improve their spoken and written English, but they’re very bright, very clever women.
NM Would they have a future here?
MJM: I think so. I don’t personally see that necessarily they could, as it were, become judges very quickly. Apart from anything else, they’re really quite young, compared to me, and my colleagues, because they have a career judiciary — rather than being lawyers first, then becoming judges.
But I think they could become lawyers here, they could become legal academics. And in due course, if they wanted to retrain completely, it may be that they could become judges. But I can certainly see them working as lawyers, or legal academics.
NM You must have thought about this. Can you imagine what it’s like? We’re in a country where the rule of law is accepted. It’s part of our way of life. I mean, we have a fair, genuine fear of being … you know, breaking the law and going to prison — going to court, let alone going to prison. Can you imagine the commitment you must have to the rule of law, in a country that has was for so long … I don’t want to say lawless … but without the construct we have?
MJM I’m not sure that personally I would necessarily be brave enough to have done what they did. I’d like to think I would be, but we simply don’t know. We’ve never been faced with that level of fear for physical or personal safety.
That being said, I suppose judges in Northern Ireland lived with similar fears, not the same, I don’t think — but similar fears. And many, many people having qualified as judges continued to work, despite living with that level of risk.
So I find it difficult to imagine. But as I say, I hope that I and my colleagues would have a similar level of courage and determination, if we were ever faced, God forbid … that we might ever be faced with anything like that.
NM Does it make you wonder about the cynicism there is towards our legal system here, when you look over there?
MJM It does, but nobody really appreciates what they’ve got until they see how far it could be threatened, or how far it could be undermined. We take one of the world’s best legal systems for granted sometimes.
We don’t, I think, always recognise how lucky we are, because, as you say, almost everybody in this country buys into … agrees [with] the social contract that means that we all operate under the rule of law.
Now obviously people don’t sign up to go to prison, they don’t want to go to prison — but they recognise the system that sends convicted criminals to prison. And that’s the way the system works here. It is part of the fabric of society.
NM And also, the fact that I think largely we can say we feel secure in society. With that in mind — can you imagine being hunted down by someone you’ve put away?
MJM I can’t. I think it’s it’s beyond my imagination — to live with that level of fear, to not be able to go home … or you go home, and you collect your things, and you move and you go and stay in a house for one night, two nights … then you move again, then you move again.
You never know who’s going to give you up — whether somebody who knows where you are, will tell whoever it is that’s trying to get you where you are, just to protect themselves, or out of some misguided sense of loyalty.
I can’t imagine even living like that for a week or two, never mind contemplating living like that for the rest of your life.
I mean, these women … I wondered in some ways, whether or not they might simply say, “Well, alright, I’ll stop being a judge. I’ll wear what you want me to wear. I won’t go out without a male escort. But I want to stay living in my own home, surrounded by my extended family — the only country I’ve ever lived in, the only language I really speak.”
And I wondered whether or not some of the women would would say, “Well, that’s what I’ll do. This is where I want to be, where my parents are.” But they can’t even do that. They won’t be safe, even by staying and giving up work, they have to leave, because they genuinely and honestly believe they’ll be tracked down and killed.
NM Have you kept an eye on what the Taliban’s now saying, in terms of — what is law? I’ll give you an example. We understand the Taliban has said that executions will begin again, amputations will begin again. It’s almost part of part of your job that you do not show emotion. You know, when you’re handing down a sentence, or you know, in media interviews, or even general conversations … there is a level of behaviour and composure you have to keep. When you hear that, though?
MJM: Again, it’s difficult to begin to imagine how we would cope with that level of punitive element, if you like.
NM: It’s the change as well, isn’t it, after the promise?
MJM: Absolutely. A lot of the judges who are here are, as I say, comparatively young — they’re women in their 30s and 40s.
So all their adult life has been spent under the the regime that’s been there for the last 20 years or so.
So they have memories from childhood, of what life was like then — but they have no experience as adults of what it was like, and they are now watching their country go through a complete transformation.
I think they find it difficult to imagine — let alone us trying to imagine it.
NM: You’ve mentioned that some are here. There are some that are trying to get here. Can you tell me about that effort?
MJM Well, there are five here. As we speak, there are we think, probably 30, maybe 40, who’ve got out of the country to different places, some have gone to Europe. Some got across land, to Pakistan, some are in Qatar. Different countries have taken people in … which leaves 230, 240 still there … they have been trying to get flights out.
There’s the hope of a flight, or there has been the hope of a flight, over the last few days. Some flights have left, bringing people who have worked with the British or the American governments, under the ARAP scheme, because they were employed by those governments. But many of those people have left already. Some are still coming out.
There are still women judges, they’re waiting to come out, and they don’t know from one day to the next, whether there is a plane, whether they’ll get a seat on the plane, if there is one.
NM Are any of these women on that WhatsApp group you’re part of?
MJM Yes, we have five women on our original group who are still there.
NM: Can you offer any words of comfort to them?
MJM: They know through the work that the International Association of Women Judges, the UK Association of Women judges, and the International Bar Association, and many, many other organisations … those women know that all those organisations are working hard, to try and help to try and get them out.
An awful lot of work, effort, money is going into it.
But there are stumbling blocks, not least, of course, the fact that the airport in Kabul closed.
And so now they’re having to use different airports, which means travelling across country, which is dangerous, because they have to go through checkpoints.
They wiped a lot of the information off their telephones, so that they’re not found with that information, if they’re stopped and searched. But some of that information is what they might need to get onto the aeroplane.
So they’re in that awful dilemma of trying to clear some of the correspondence, for example, in WhatsApp and Signal, with some of us.
But at the same time, they need some of that to prove that they are women judges at the airport.
NM: It’s like — how much of your life do you delete?
MJM: Yep. And for them, they have deleted all their professional life, their certificates, their degree certificates, their qualifications, their textbooks.
You know, you can joke about wanting to burn your textbooks at the end of a course, or at the end of a series of exams.
But those books were really precious, really valuable to them in every sense, not just financial — and they’ve had to burn them.
NM: Can you imagine it?
MJM: I can’t. I really can’t imagine what that must be like.
NM: What specifically do you want to see done now? Because we’re weeks on … weeks on now … where we heard about the ARAP programme … we heard about the efforts of various countries around the world, the international community … to bring people out. What do you need to see?
MJM: Well, I think we need to see as many of the women … and male judges too .. because some of the male judges are in a very dangerous position … not simply, well, not as with the women, simply because they had the cheek, if you like the temerity, to be judges … but because some of them will have sentenced Taliban … will have imprisoned people who have now been released.
So I would like to see us reaching a stage, whereby those people who need to come out, in order to be safe to continue living their lives, find some way of getting out of the country. Not many of them seem to be aiming to come here; they want to go to all different parts of the world. I would hope to see them resettled safely, as soon as possible.
NM: How often do you talk to these women, or communicate on the WhatsApp group?
MJM: The women have gone back to the one-to-one contact, because that’s safest. And so the women here are in daily contact with the women there.
Much of it is reassurance, you know. It’s effectively saying, look, we know you thought you might fly out at the weekend, and you haven’t gone yet. But we believe there will still be a flight at some stage. There’s not an awful lot more that we can do at the moment.
The ones who are here are, I think, also in contact, and of course, that provides genuine reassurance to them — the women, who are here who are safe, who are trying to work out what to do next. As I say, two of them have got university places. One of them gave birth last week, to a beautiful little girl.
And so there’s, there’s hope — it’s encouragement and reassurance. But that’s about as much as we can give at the moment.
NM: We spoke about their determination, in a situation where you yourself said it would be difficult to imagine kind of fighting those barriers. And you’ve have faced your own barriers, as I’m sure you’ve discussed many a time — to become a woman judge.
Do they look at our system with admiration, I don’t know, or respect, because a lot of what they were working on was based on the Western system?
MJM They do, as far as I can tell at the moment, and they are very much finding their feet. But they do look at our system with respect.
They are deeply grateful for all that’s being done for them.
We’ve got various schemes going at the moment.
So Middle Temple, for example, has bought them a laptop each.
The Slynn Foundation is giving money, as a bursary, to help some of them do university courses, or English language courses.
The Council of Circuit Judges has made some very generous donations, we almost ended up with more prams and baby clothes and toys than we knew what to do with, when the baby arrived. So we managed to moderate that.
But the women are touched and grateful. And they are trying to rebuild their own sense of personal security and safety.
A couple of them have children with them. So that’s a big part of what they’re concentrating on — working out when they’re going to get their children in schools, and things of that sort.
But they’re very, as I said before, well-educated women. Once they’ve got the language better sorted or or improved, they’ll make a real contribution — and they want to give back. They’re very grateful for the fact that they’ve been taken in and given safety, and they want to make a contribution,
NM You must be determined that the talent there … there is a pool of talent [that] cannot be wasted.
MJM: There is a pool of talent, there’s a pool of experience that we don’t have here.
NM In what sense?
MJM: In the sense of qualifying and working as a judge, under that level of adversity. Because although things were very different for the last 20 years, there was still a large section of the society who didn’t recognise women as judges. They didn’t think women should be doing that work, and doing those jobs.
So they can bring knowledge to us, and share with us the benefit of that experience.
And we don’t want to live through that experience — but there’s always stuff to be learned from somebody else’s experience.
And equally, they have knowledge of a system of law that worked in combination with a system that was much more like the Western system, but was still of course based in part on Sharia law.
And that’s an area that we don’t have that level of expertise, so we can all learn from one another.
NM: Thinking about your experience over the past few months and your contact with these women … what have you learned that you’re taking into your role, when you sit down and you are doing your job now? This must have affected you, or at least permeated some part of your brain, your emotion, your sense of purpose.
MJM: I suppose we, I, have learned that you don’t really know how lucky you are until it comes into contrast, or is shown up, against the life that somebody else lives.
There are inefficiencies, inequalities, shortages in our system.
I jokingly said to somebody a while ago, “Well, I’m not going to moan about my pension ever again.”
It’s that sort of thing: you realise, actually, that an awful lot of what goes wrong in our system is trivial, by comparison.
The IT doesn’t always work as well as it should, you know; the bus doesn’t always turn up on time; the rain always comes on the day, when you haven’t got the umbrella.
Those sorts of things are just so insignificant, and so petty, in one sense, compared to what these women have had to deal with.
It’s one of those great life lessons that you we all see in different aspects and are reminded from time to time, by how we see other people’s suffering around us.
NM: It’s almost like we’re coming back full circle to our justice system. There will always be frustrations around our justice system, and I’m sure you’ve had them. But this must all have been put into perspective?
MJM: Completely. Completely. I mean, the point at which the IT doesn’t work, and you feel that you want to throw the computer against the wall — it’s nothing compared to any of this.
And no system is perfect. And everybody would like to have more money, or better kit, or whatever.
But when you look at what we do here, and the way in which we do it, and the way in which we’re treated, it bears no comparison at all, to how these women have worked, and what they’ve been through more recently.
NM: Does that make you love your job more?
MJM It makes me appreciate my job more. I do love my job, actually. So I’m not sure whether I could love it more. I don’t know. But it certainly makes me appreciate my job, and appreciate the world in which I live in the broadest sense.
NM: Mrs Justice McGowan — Maura — thank you so much for spending some time with me. Good luck with those women you are trying to help. We wish them very well.
MJM: Thank you very much.