USIP's Hamid Khan, senior program officer for the Rule of Law Center, discusses the challenges Afghanistan faces in instituting a formal system of justice.
An essential ingredient to a stable and vibrant Afghanistan remains adherence to the rule of law. Much of the international support to the justice sector has been poured into the formal system of justice—institutions controlled by the state such as the courts, prosecutors and the police. But for the vast majority of Afghans, traditional forms of justice are seen as more accessible and legitimate.
The barrier between these two systems of justice is more than just geographic: it involves two systems of legitimacy. On the one hand, the formal system of justice takes its cues from the 2004 Constitution, and includes collections of statutory laws passed at different times over the past 30 years. These laws have an avowed adherence to Islamic law and are enforced through the formal bodies of the state.
On the other hand, informal dispute resolution bodies, which handle the bulk of disputes across the country, involve a blend of customary and tribal norms along with interpretations of Islamic law that are often enforced through local tribal bodies and regional power-brokers.
To protect the rights of vulnerable populations in Afghanistan, USIP is not only examining where the fault lines exist between customary practice and religious law in resolving disputes, but also examining ways in which contemporary views of Islamic law may enter into the resolution of such disputes so that Afghans may achieve sensible, just and religiously acceptable solutions. This project is supported by the Department of State's Bureau for International Narcotics and Law Enforcement Affairs.
The reasoning behind this project is that in Afghanistan, tribal codes such as the Pashtunwali, which trace their origins back a millennia, are often conflated with Islamic legal norms, which trace their origin to the seventh century. And while one system precedes another by centuries, Islamic law has long been seen as a transcendent source of legal authority in Afghanistan, a position carved out in the Constitution, which states that "no law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan."
Even among Afghanistan’s religious scholars, however, it is unclear where the fault lines between culture, customary law and religious law lie. This point was highlighted by a decree issued on Women’s Day 2012 by the Ulama Council—the presidentially appointed religious body of Afghanistan—which declared, "men are fundamental and women are secondary." While no such unconditional notion exists in either classical or contemporary Islamic jurisprudence, it is a sentiment bolstered by Pashtun customary norms but cloaked in a veil of Islamic legitimacy.
The Council’s decree also demonstrates why, at the fault-lines of custom and Islamic law, the rights of women, minorities and those accused of crimes are all at risk in Afghanistan. The reasons include a lack of in-depth knowledge of Islamic law or a narrow interpretation that curtails the rights of the already disadvantaged.