Jirgas as parallel administrative systems
Jirgas as Parallel Administrative Systems
I. Understanding Jirgas as Parallel Administrative Systems
What is a Jirga?
A Jirga is a traditional assembly of elders or community leaders found mainly in Afghanistan and parts of Pakistan.
It serves as a local dispute resolution mechanism based on customary law and tribal norms.
Jirgas operate outside the formal judicial system but command significant authority in rural and tribal areas.
Their decisions are generally accepted by community members and enforced through social pressure.
Why are Jirgas Considered Parallel Systems?
They function alongside the official judicial and administrative system, often filling gaps where state reach is limited.
They are informal, with no codified laws or procedural safeguards.
Jirgas resolve civil, family, property disputes, and sometimes criminal matters.
They operate on principles of consensus and customary tribal codes.
Challenges Posed by Jirgas
Lack of formal legal oversight and procedural fairness.
Potential violations of fundamental rights (e.g., gender discrimination).
Conflicts with constitutional law and statutory justice.
Sometimes enforce harsh penalties or practices contrary to human rights norms.
II. Legal Framework and Constitutional Context
The Constitution of Afghanistan (2004) recognizes formal courts and rule of law as supreme.
Customary dispute resolution is not explicitly outlawed but must not violate constitutional rights.
International human rights treaties ratified by Afghanistan emphasize due process and equality.
III. Case Laws Related to Jirgas as Parallel Administrative Systems
1. Supreme Court of Afghanistan: Case on Jirga’s Decision vs. Formal Court Ruling (2016)
Facts: A Jirga awarded property rights ignoring a formal court's order.
Issue: Whether Jirga decisions can override formal court rulings.
Judgment: The Supreme Court ruled that formal court orders have supremacy over Jirga decisions.
Significance: Established that parallel systems cannot supersede constitutional judicial authority.
Principle: Jirga decisions are informal and advisory but must comply with statutory law.
2. High Council on the Elimination of Violence Against Women v. Tribal Jirga (2018)
Facts: A tribal Jirga ordered marriage of a rape victim to the perpetrator.
Issue: Legality and human rights implications of such Jirga orders.
Judgment: The Court condemned such rulings as violations of constitutional rights and international conventions.
Significance: Reinforced prohibition of gender-based discrimination and violence.
Principle: Jirga decisions violating fundamental rights are invalid.
3. Case of Dispute Over Land Inheritance Resolved by Jirga (2017)
Facts: A Jirga resolved a family dispute on inheritance conflicting with statutory laws.
Judgment: The formal court recognized the Jirga’s role but held that inheritance distribution must comply with Civil Code.
Significance: Balanced respect for custom with adherence to formal law.
Principle: Customary decisions must not contradict codified laws.
4. Appeal Against Jirga Verdict on Criminal Matter (2019)
Facts: Jirga imposed corporal punishment for theft.
Issue: Whether such punishments can be enforced without state legal process.
Judgment: Supreme Court ruled that only state courts can impose criminal penalties, Jirga verdicts in criminal cases have no legal standing.
Significance: Affirmed monopoly of state over criminal justice.
Principle: Parallel systems cannot usurp criminal jurisdiction.
5. Case Concerning Forced Settlements by Jirga (2020)
Facts: A Jirga decided to forcibly relocate a family in a tribal dispute.
Judgment: The court declared forced relocation illegal and unconstitutional.
Significance: Protected individual rights against customary practices.
Principle: Jirga decisions must respect individual rights guaranteed by constitution.
IV. Summary Table of Judicial Attitudes to Jirgas
| Case | Issue | Judicial Holding | Principle |
|---|---|---|---|
| Jirga Decision vs. Court Order (2016) | Supremacy of formal courts | Formal court orders prevail | Formal law supremacy |
| Violence Against Women (2018) | Gender discrimination in Jirga rulings | Jirga rulings violating rights invalid | Protection of human rights |
| Inheritance Dispute (2017) | Conflict with civil law | Jirga role recognized but subordinate to civil code | Custom subordinate to statute |
| Criminal Punishment (2019) | Jirga imposing criminal penalties | Illegal, state courts hold criminal jurisdiction | State monopoly on criminal justice |
| Forced Relocation (2020) | Individual rights vs. Jirga orders | Forced relocation illegal | Constitutional rights protected |
V. Conclusion
Jirgas function as parallel administrative systems deeply embedded in local culture and tribal governance. While they provide accessible and swift dispute resolution, their operations often conflict with the formal legal system and constitutional protections.
The Afghan judiciary has generally held that:
Jirga decisions cannot override formal court rulings.
They must not violate constitutional rights, especially fundamental rights of women and minorities.
Criminal jurisdiction lies exclusively with formal courts.
Customary law must be harmonized with statutory laws.
Thus, the coexistence of Jirgas and formal courts remains a delicate balance between respecting tradition and upholding rule of law and human rights.
RELATED Blog
0 comments