Publicação
Factors of informal justice in Afghanistan
| Resumo: | Afghanistan has been suffering from war, political instability, a lack of rule of law, administrative corruption, and human rights violations for more than four decades. The above-mentioned factors as well as the lack of government sovereignty throughout the country have caused most of the population to refer their disputes to informal justice mechanism (Jirgas /Shuras). The country's informal justice mechanism (Jirga) is made up of tribal leaders, elders, and religious scholars who make decisions based on customary law and interactive rules (codes). In addition to the people, even the governments of Afghanistan have also referred some cases to the mentioned institutions during the history. For centuries, Afghanistan has relied on Jirgas to settle disputes at the local, regional, and national levels. In terms of dialogue through Jirgas, Afghanistan has been the old fortress of dispute resolving Jirgas and Loya Jirgas, with a history of around 5000 years.1 Jirgas, because of their long history, are generally considered Afghan customs and are not associated with any location or tribe. Jirgas are addresses where Afghans usually resolve their social, legal, and political disputes. Therefore, because of their widespread and continuous use, Jirgas can be recognized as unending and pervasive positive institutions in Afghanistan, whether by Sharia Law or the country's formal justice system. At the locality and tribal levels in the country, the problems and disputes are usually resolved in small local or tribal Jirgas, which are different from locality to locality and tribe to tribe. On national and political levels, Afghans usually resolve their problems in a great council called Loya Jirga. There are different kinds of Loya Jirgas in Afghanistan, for instance, traditional Loya Jirga, constitutional Loya Jirga, consultative Loya Jirga, and so on. There are many examples of Jirgas convened in critical situations in the country as well as for the resolution of people’s disputes throughout Afghanistan's history, although in some cases (mostly in criminal cases), their decisions have not been based on the rulings of Islamic Sharia, the applicable laws of the country and the principles of human rights. Anyway, these Jirgas have mostly been able to make sound decisions, and the consequences of their decisions have generally been positive and acceptable by the parties to the dispute. This PhD dissertation discusses customary law, the structure of Jirgas and their legitimacy, and the ways of dispute resolution in the mentioned mechanism. In addition, the efficiency of the Afghan formal justice system and the reasons why most Afghans were going to resolve their disputes in the mechanism during the Islamic republic of Afghanistan will also be discussed in this dissertation. |
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| Autores principais: | Hakimi, Baryalai |
| Assunto: | Code Customary Law Elder Jirga Marakah Tribal Leader Ancião Direito Consuetudinário Líder Tribal |
| Ano: | 2024 |
| País: | Portugal |
| Tipo de documento: | tese de doutoramento |
| Tipo de acesso: | acesso aberto |
| Instituição associada: | Universidade do Minho |
| Idioma: | inglês |
| Origem: | RepositóriUM - Universidade do Minho |
| Resumo: | Afghanistan has been suffering from war, political instability, a lack of rule of law, administrative corruption, and human rights violations for more than four decades. The above-mentioned factors as well as the lack of government sovereignty throughout the country have caused most of the population to refer their disputes to informal justice mechanism (Jirgas /Shuras). The country's informal justice mechanism (Jirga) is made up of tribal leaders, elders, and religious scholars who make decisions based on customary law and interactive rules (codes). In addition to the people, even the governments of Afghanistan have also referred some cases to the mentioned institutions during the history. For centuries, Afghanistan has relied on Jirgas to settle disputes at the local, regional, and national levels. In terms of dialogue through Jirgas, Afghanistan has been the old fortress of dispute resolving Jirgas and Loya Jirgas, with a history of around 5000 years.1 Jirgas, because of their long history, are generally considered Afghan customs and are not associated with any location or tribe. Jirgas are addresses where Afghans usually resolve their social, legal, and political disputes. Therefore, because of their widespread and continuous use, Jirgas can be recognized as unending and pervasive positive institutions in Afghanistan, whether by Sharia Law or the country's formal justice system. At the locality and tribal levels in the country, the problems and disputes are usually resolved in small local or tribal Jirgas, which are different from locality to locality and tribe to tribe. On national and political levels, Afghans usually resolve their problems in a great council called Loya Jirga. There are different kinds of Loya Jirgas in Afghanistan, for instance, traditional Loya Jirga, constitutional Loya Jirga, consultative Loya Jirga, and so on. There are many examples of Jirgas convened in critical situations in the country as well as for the resolution of people’s disputes throughout Afghanistan's history, although in some cases (mostly in criminal cases), their decisions have not been based on the rulings of Islamic Sharia, the applicable laws of the country and the principles of human rights. Anyway, these Jirgas have mostly been able to make sound decisions, and the consequences of their decisions have generally been positive and acceptable by the parties to the dispute. This PhD dissertation discusses customary law, the structure of Jirgas and their legitimacy, and the ways of dispute resolution in the mentioned mechanism. In addition, the efficiency of the Afghan formal justice system and the reasons why most Afghans were going to resolve their disputes in the mechanism during the Islamic republic of Afghanistan will also be discussed in this dissertation. |
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