KABUL - Afghanistan's latest National Human Development Report has called for a new and hybrid justice system that will bring together modern formal justice systems and the local traditional shuras and jirgas that have functioned as dispute-resolution mechanisms.
The proposal for a collaborative model is a radical departure from the current efforts to expand the reach of the modern formal justice system, an effort that has met with limited success so far. The differences in the two justice systems, both in law and in principle, are also likely to stir up some controversy, especially among purists.
Proposing the launch of a pilot project of the hybrid model in five provinces by mid-2008, the report, released on Wednesday, argues that the current formal justice system does not reach the majority of Afghans, with more than 80% of the cases throughout Afghanistan settled through traditional decision-making assemblies. By acting in isolation, state and non-state institutions of justice are missing an opportunity to improve the delivery of justice significantly, the report states.
The justice sector is an area that is commonly accepted to have lagged far behind others in the efforts at reconstruction of the country. Despite sporadic efforts at reform, the changes have not been far-reaching. Severe constraints in capacity, including basic training and education of judicial staff, have severely hampered uniform delivery of justice through the formal court systems, and public perception of corruption of the courts is also high.
The report notes this, saying the judiciary suffers from severe deficiencies: "Most judges cannot access legal textbooks, procedures and practices." Only a little more than half of the judges (in a random survey) were holders of university degrees in law or sharia. "Allegations of corruption within the formal justice system have tarnished its legitimacy and made the informal justice sector more appealing in the eyes of the many citizens."
The formal court system, however, does represent Afghanistan's attempts to evolve a secular interpretation of law, based on international law and Western jurisprudence, elements that are missing in some aspects of the traditional justice system.
The traditional mechanism relies on customary law, or orf, that is delivered through the shuras or jirgas to settle disputes. The customary law varies according to region and ethnic group. While the main principle of customary law is to restore balance and order in a community, this order can sometimes be achieved by means that are considered to be brutal or violative of internationally recognized principles of humanitarian and human rights laws.
"Although the restorative aspect is a positive concept in itself, the way crimes and disputes are settled has an extremely harmful impact on the lives of women," a recent report by the United Nations Office on Drugs and Crime states.
Baad, for example is identified as one of the four main principles of justice applied by traditional jirgas and shuras by the report. It "gives" a woman from the family of the accused to the victim's family as compensation. Though the underlying principle may be to create family ties and resolve the dispute, the outcome is the barter of a woman as a commodity. Other practices such as badal, forced marriages to settle disputes and forcing a widow to marry someone from her husband's family, however unsuitable, are part of the customary practices.
The report points out that such practices as baad are of serious concern and adds, "Women are almost totally excluded from participating in the decision-making of jirgas/shuras, resulting in serious consequences for their status and the protection of their rights."
The report argues that the hybrid model will harness the positive aspects of non-state dispute-settlement institutions while ensuring that their decisions are compatible with the Afghan constitution, Afghan laws and international human-rights standards. The report argues that unlike the state justice system, which creates winners and losers, the jirgas/shuras reach community-led decisions that promote restorative justice, helping to restore peace and dignity among the victims, offenders and other key stakeholders.
While arguing that the proposed collaborative system would make justice more widely accessible, efficient, cost-effective and humane, the report recognizes the challenge of reconciling inherent tensions between the formal and informal justice system while nurturing the respective strengths of these sometimes competing and conflicting approaches to the rule of law.
Though the proposal of the hybrid model is likely to evoke some controversy, what is undisputed is the urgent need for justice-sector reform and justice delivery systems. The judicial system is a first line of defense to many social ills in any democracy, especially in war-ravaged societies. The report's data on human development indices paint a dismal picture, showing that Afghanistan's human-development indicators are actually lower than earlier assessments.
The National Human Development Report for 2007, the second since the ouster of the Taliban, reveals a literacy rate of 23.5%, down from the 2004 assessment, which put it at 28.7%. Life expectancy is also lower at 43.1 years compared with the estimated 44.5 in 2004, according to the report released by President Hamid Karzai in New York on Wednesday. (The 2004 National Human Development Report was based on data collected in 2003, while the latest one is based on data collected in 2005-06.)
Analysts familiar with the figures, however, caution that no comparison should be made with the earlier-cited figures, since the methodology used is significantly different. Aiso Vas, technical adviser to the Ministry of Rural Development and the Central Statistical Organization of Afghanistan, which jointly carried out the National Risk and Vulnerability Survey of 2005, the basis for much of the report, is emphatic on this point, saying the sampling frame has changed.
Collection of data is difficult in Afghanistan, which has yet to see its first fully fledged census. Notwithstanding the risks of comparison, the current data reveal that Afghanistan remains among the poorest countries in the world, despite billions of dollars in aid over the past six years.
Positive trends in the report include an increase in gross domestic product and a drop in infant mortality, which has fallen from 165 to 135 per 1,000 live births, though maternal mortality figures remain constant at 1,600 per 100,000 live births.
The report also refers to another area of major concern, the increase in violence. In 2006 alone, it points out, the number of civilian deaths was twice as many as in 2005. Vested criminal interests preclude the Afghan judiciary from operating independently, free of intimidation and in accordance with the constitution and international human-rights standards.
The report states that a climate of impunity still prevails in Afghanistan and political resistance within the government and other state institutions to address past human-rights violations and war crimes persists.
"The judiciary, police and legislature are failing in their mission to meet the changing needs of Afghan citizens. Under-resourced with a limited reach, the formal state institutions of justice require a renewed and more coherent strengthening and restructuring effort," the report states.
Aunohita Mojumdar is an Indian journalist who is currently based in Kabul. She has reported on the South Asian region for 16 years and has covered the Kashmir conflict and post-conflict situation in Punjab extensively.
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