Asia Times
By Aunohita
Mojumdar
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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