Afghanistan’s Justice System
February 4, 2009
A key function of any state is to establish a monopoly over the legitimate use of physical force and ensure the security of its citizens. In order to do this the state needs to apprehend those who use violence illegally and commit crime. This is the job of the law enforcement and security forces. Once apprehended, the state must then hold offenders to account for their actions. This is done through the justice system. Thus there is a clear link between the justice system and the core law and order functions of the state.
In Afghanistan, however, dispensing justice is complex because, unlike in other states which generally have a single justice system that is prominent or dominant, Afghanistan has two systems: the formal state system and the informal traditional system. These systems have emerged and coalesced at different historical junctures and draw on various traditions, yet they have evolved to become a part of the same continuum.
Traditional justice mechanisms in Afghanistan operate through two key informal institutions – jirga and shura. The jirga is an institution unique to the Pashtun people. It is a community-based process for collective decision-making and is often used as a dispute settlement mechanism, including imposing agreed sanctions and using tribal forces to enforce its decisions. Scholars who have studied jirga have pointed out its democratic principles (the caveat however being that in general it includes only men). The term shura refers to a group of elders or recognised leaders who make decisions on behalf of the community they represent. A quarter of a century of civil strife in Afghanistan weakened not only the central state but also its various systems such as the formal justice system, which meant that people relied more on the informal justice system to resolve their disputes. The weakness, if not virtual non-existence, of state systems during this period ensured the continued salience of the informal traditional system. The use of shura to dispense justice at local levels was also endorsed by the Taliban during their period in power (1996-2001).
Pre-colonial states, more often than not, had their own judicial systems. In regions that were colonized, a uniform judicial system evolved with indigenous legal systems being subsumed under the colonial state justice system. For instance, in British India, Hindu law and Muslim law were subsumed under the British model of personal law, while criminal law was applicable to all, irrespective of religious allegiance. In countries that were not formally colonized, indigenous jurisprudence – based on a combination of religion and local customs – was generally formally endorsed by the state. In Afghanistan the indigenous legal system was a combination of Islamic and tribal jurisprudence. Indeed, scholars have pointed to the rich legal traditions in Afghanistan where the laws of the land before the onset of modernization drew from various sources. What is known as “customary law” in Afghanistan was, in fact, an amalgamation of historical traditions, local understandings of Islam and Sharia and the spiritual role of the Sufi leaders. In Nepal, another country not formally colonized in the region, the indigenous legal system was a combination of Hindu law and local customs. From the second half of the twentieth century onwards, as states that were not formally colonized began to modernize (for instance in Thailand, Nepal, and Iran to mention a few examples in the region), legal systems were streamlined; the process eventually leading to the refinement, revision and assimilation of the indigenous legal system under the modern state system. This process was also begun in Afghanistan. The 1964 Constitution and various modernization initiatives undertaken during the 1950s and 1960s are testimony to this. However, for various reasons such as political instability (that began with the ousting of the monarchy), the Soviet occupation and the subsequent civil war, the momentum was lost. The geographic terrain, with its rugged mountains and the lack of road networks that can ensure the reach of the state to remote areas, also played a role in delaying this process. Thus, unlike other non-colonized states which eventually came to have a unified justice system, Afghanistan continues to have a dual system, albeit one in which the two systems have a relationship with one another and are not mutually exclusive.
Just as the traditional justice system draws from a multitude of sources, so too does Afghanistan’s formal justice system reflects the various regimes that have controlled the state apparatus in different periods of Afghanistan’s history and sought to introduce their own variants of state law. The formal state system reveals influences of French legal thought, moderate Islam, Marxism, and radical interpretations of Islam. Various initiatives undertaken during the 1960s and which received a new lease of life after the Bonn Conference of December 2001 furthered the process of relative secularization of the formal justice system of Afghanistan. Moreover, in the post-Taliban era, attempts have been made to integrate the fundamental principles of human rights and international standards of procedures into the Afghan justice system, while simultaneously forging a stronger and more transparent relationship with traditional justice mechanisms. The 2008 Asia Foundation survey sought to measure public perceptions and experiences of both the formal and informal justice systems. What the data broadly suggest is the association of the modern state judicial system with the urban milieu, and local shura and jirga with rural locales. This is elaborated in the following sections.
Read more of “Institutionalization of the Justice System” in State Building, Security, and Social Change in Afghanistan: Reflections on a Survey of the Afghan People.
Sudhindra Sharma is the Executive Director of Interdisciplinary Analysts, a research and consulting organization based in Kathmandu, Nepal. Pawan Kumar Sen is a Consultant-Researcher at Interdisciplinary Analysts in Kathmandu, Nepal. Below is an excerpt from their chapter, “Institutionalization of the Justice System” in the recently released State Building, Security, and Social Change in Afghanistan: Reflections on a Survey of the Afghan People.
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