A Hybrid Model of Formal and Informal Justice in Afghanistan

A Hybrid Model of Formal and Informal Justice in Afghanistan Presented by: Prof Wardak Date: 16 June 2023 Introduction: A 'South Asian Criminology'? - 'South Asian Criminology' is an umbrella phrase that refers to differing forms of criminological knowledge that have developed in different countries in South Asia. - As there is little scholarly dialogue among the countries in this region, there does not exist a coherent body of South Asian criminological knowledge, or 'South Asian Criminology'. - In fact, criminological knowledge in South Asian countries is strongly influenced by criminology in the Global North, mainly by criminological thinking and practices in the UK and the USA. - Nevertheless, the regular publication of the International Journal of Criminal Justice Sciences in India, the Pakistan Journal of Criminology, and the recent publication of the Routledge Handbook of South Asian Criminology, have resulted in the production and dissemination of original criminological research in different countries of the region. - Despite all this, indigenous criminological perspectives are yet to emerge in South Asia. - Colonial legacies, strong influence of Western criminology, low level of confidence and co-ordination among criminological scholars, and lack of strong financial resources are key reasons for the absence of indigenous criminological perspectives in South Asia - The hybrid model of formal and informal justice in Afghanistan is a small contribution towards the southernisation of criminological knowledge in the region. Post-Taliban Justice in Afghanistan - Afghanistan's State justice system mainly based on French conception legality and Islamic Jurisprudence - was vastly destroyed by a long war that - started with invasion of the country by former USSR in 1979. - Since the overthrow of the Taliban regime in 2001, according to US Special Inspector General for Afghanistan's Reconstruction report, the USA alone spent over $ 1,000,000,000 on rebuilding the Afghan state justice system until 2015 (SIGAR 2015). This investment has resulted in some tangible achievement: Capacity building and professional training of justice officials, physical reconstruction and refurbishment of many key justice institutions/facilities, legislation, legal reform with an emphasis in human and women's right (Wardak 2016). - Despite all this huge investment, Afghanistan's formal sate justice system still suffers from widespread corruption, and lack of public trust (SIGAR 2015; De Lauri 2013). As a result, most Afghans take their cases/disputes to informal justice providers (Wardak 2016; Coburn and Dempsey 2010). - But what are the main justice providers in Afghanistan? Multiplicity of Justice Providers and Level of Formality - State Justice - MOWA - AIHRC - Intern. NGOS - National NGOs - Wakil-e- Gozars (Cities) - Jirga/Shura (Rural Villages) - Ulama and Religious Institutions - Taliban Justice and Mobile Courts Informal Justice: Strengths & Weaknesses - Strengths • Accessibility, 'Restorative ownership, cost-effectiveness, peacemaking and Justice', flexibility, speed, community relative transparency, confidentiality and protection of women/children's reputations (Wardak 2016; Coburn and Dempsey 2010). - Weaknesses • Exclusion of women, occasional violation o human rights principles and Afghan law, some influence of local strongmen, non-binding nature of decisions, more emphasis on community harmony than on individual rights. (Braithwaite and Wardak 2013; Gaston, Sarwari, Strand, 2013). Policy Options - Option One: Abolition (or suppression and gradual marginalization) of informal justice institutions. - Option Two: Co-option of informal justice institutions by bringing them under a strict control of the State justice system. - Option Three: Reform through multi-agency engagement that - allows informal justice institutions continue to develop, while seeking means to promote their orderly administration, gender equality, monitoring of illegitimate influences and violation of Afghan laws, children's and human rights. - Option Four: Non-interference by allowing informal justice institutions to continue to operate independently as in the past. Legal Hybridity - The concept of 'hybridity' in sociology of law and legal anthropology is closely connected with 'legal pluralism' that (Merry 1988: 870) referred to as '...a situation in which two or more legal systems coexist in the same social field. The phrase 'legal systems' in this context also involves informal 'law-like' systems that coexist alongside with the state legal system. - When the coexistence of 'legal systems' is not formally defined and/or problematic, the need for institutionalized hybridization between 'legal systems' (or their elements of them) arises (Swenson 2018; - Different countries in the world have followed different models of engagement with informal justice systems (Swenson 2018; Forsyth, 2009). Impact and Challenges of Putting the Hybrid Model into Practice - Although the 2007 Afghanistan Human Development Report (Wardak et al 2007) was banned by the Afghan Supreme Court in 2014, I conducted further field research in Afghanistan that focused on the links between formal and informal justice in civil matters only. - In co-ordination with the UNDP and Afghanistan's Ministry of Justice, this research provided the basis for the 2016 draft "Law on Conciliatory Jirgas in Civil Disputes' in Afghanistan that is waiting for approved by the country's Parliament. - While the draft law is a step forward to the provision of more inclusive, accessible, cost effective and restorative justice to ALL Afghans, its politicization only partially translates the original hybrid model into practice. Bridging Criminological Scholarships in the Global North and the Global South - Other than a contribution towards the 'indigenization' of the French-inspired Afghan laws, the hybrid model has also contributed to criminological knowledge in the Global North: nomination for the 2018 Times Higher Education Awards, and the wining the BJC's 2013 Radzinowicz Prize jointly with John Braithwaite. - More importantly, while roots of modern restorative justice can be traced to communities in the Global North, they are also traceable to jirga and shura in Afghanistan. However, whereas there is 'formidable 'venularization' of restorative justice discourse into Afghan thinking about reconciliation and violence prevention, but sadly little venularization of Afghan wisdom into Western restorative justice thinking' (Wardak and Braithwaite 2013:200). - In our increasingly globalized world, the way forward towards 'southernizing criminology' is bridging criminological scholarships developed in the Global North and in the Global South.