Negotiating justice sector reform in Afghanistan

After almost 25 years of war, the formal justice sector in Afghanistan is dysfunctional, and comprehensive reform of both laws and institutions have been high on the Western-supported agenda for reconstruction. This article examines the post- 2001
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  Negotiating justice sector reform in Afghanistan Astri Suhrke & Kaja Borchgrevink  # Springer Science + Business Media B.V. 2008 Abstract After almost 25 years of war, the formal justice sector in Afghanistan isdysfunctional, and comprehensive reform of both laws and institutions have beenhigh on the Western-supported agenda for reconstruction. This article examines the post- 2001 justice sector reforms in Afghanistan, which appear as a case of  problematic legal transplants in a context of legal pluralism and intense politicalcontestation. While Afghanistan ’ s legal traditions are characterized by diversity andconstant negotiations between Islamic principles, customary law and Western legaltraditions, recent reforms lead by Western donors and Afghan legal modernists haveaccentuated the conflictual aspects of justice sector reform. The extreme dependenceof the Afghan state on Western powers has reduced the element of choice in thereforms and limited the possibility for developing a syncretic (uniting what isdifferent or opposing) and inclusive system. Building on fieldwork from ruralAfghanistan, the second part of the article examines the views of village mullahs in a rural Pashtun heartland of the central region, a presumptive conservative religiousconstituency that wields moral authority and helps dispense justice at the local level.The fieldwork finding supports the limitations on the legitimacy and efficacy of simple legal transplants. To be legitimate and effective, legal reform needs toseriously engage with the foundations of justice in Afghan, i.e. Islamic law, as wellas Afghan traditions, or what the mullahs describe as islamiyat and afghaniyat. Crime Law Soc ChangeDOI 10.1007/s10611-008-9154-0The research for this article was supported by financing from the Norwegian Ministry of Foreign Affairsand the Ford Foundation. The authors wish to thank Ali Wardak, Anne Sofie Roald and Howard Adelmanfor comments on an earlier version of the manuscript.A. Suhrke ( * )Chr. Michelsen Institute, Bergen, Norwaye-mail: Astri.Suhrke@cmi.noK. Borchgrevink PRIO, Oslo, Norwaye-mail:  Reform of the legal system has been high on the agenda of Western support for thereconstruction of Afghanistan since 2001, when the US-led military interventiondrove the Taliban from power. “ Justice sector reform ” has been come to meancomprehensive reform of laws and institutions. A 10-year plan for reform workedout by the Ministry of Justice with substantial aid from the donors identified four main areas: (i) legal reform to streamline existing laws and introduce new ones tosupport the development of  “ a modern, rule of law democracy ” , (ii) institutionaldevelopment, including reform of the Ministry of Justice, the court system, legaleducation and infrastructure, (iii) extension work to provide legal aid, assistance tovictims and monitoring of judicial assistance, and (iv) consultations with institutionsof traditional justice [17].It was a formidable undertaking. On one level, it entailed “  bridging modernityand tradition ” , as the title of a major 2007 assessment of the enterprise was called[7]. It also meant negotiating differences between various legal traditions. The 10-year plan stipulated that the reforms must learn from “ legal frameworks of modern,market-based democracies, ” observe international human rights standards, and not contravene the constitutional requirement that no Afghan law must be contrary to principles of Islam [17]. Not surprisingly, perhaps, change was contested and camevery slowly. By late 2007, it was commonly observed that the justice sector inAfghanistan was among the most significant but also the most problematic areas of reform.This article examines current justice sector reforms in the light of similar efforts inthe past. One main difference, as we shall see, is the present heavy foreign advisoryhand and the emphasis on rapid introduction of Western-based legal norms and practices at the expense of serious efforts to engage Islamic law and principles. The challenge of legal transplants A basic fact conditioning justice sector reform in Afghanistan is the national context of legal pluralism, defined by Islamic law, customary law, and Western codes and practices. Legal pluralism has been created by centuries of a complex historicaldevelopment where local and imported traditions have mixed. Legal pluralism initself, however, does not necessarily mean conflict, either in terms of legal reasoningor in the consequences of their application. Indeed, in the liberal political tradition, pluralism is viewed as an essentially harmonious texture, whether it refers to ethnic pluralism in a sociological sense, as understood by Amartya Sen [25], or value pluralism in a philosophical sense, as laid out by Isaiah Berlin. In Berlin ’ s view —  which has become paradigmatic of contemporary philosophical liberalism - pluralism consists of a core of common human values that  ‘ allow agreement on at least some moral issues ’ ; this core is surrounded by a field of diverse values that isdelimited only by a common ‘ human horizon ’ beyond which it is morallyimpermissible to go [8]. Within this horizon, the appropriateness of a particular value or identity would be determined by context.It might appear that the same logic would apply to matters of law. Different legaltraditions could apply to separate jurisdictions. Alternatively, the various traditionscould be synthesized into a coherent, though plural, body of law and practice. A. Suhrke, K. Borchgrevink   However, more simply said than done. “ Legal transplants ” , David Nelken hasobserved with reference to criminal justice, “ is as much about changing as preserving existing patterns of society and culture ” [19]. This is very much thecase in Afghanistan, where past rulers hoped that foreign legal imports wouldgenerate social change as if they had “ something ‘ magical ’ about them ” [19]. Over time, diverse legal traditions came to coexist, although not blending easily, andsudden reforms of the legal system typically involved conflict. Change not only juxtaposed and sharpened potential tensions among legal norms; change hadmaterial consequences for the relationship between the ruler ( amir  ) and the clergy( ulama ). The enterprise of legal transplants showed the limitations of the assumeduniversal, validating Nelken ’ s emphasis on the importance of social and culturalvariables in determining the efficacy of institutions of justice.The period initiated by the 2001-intervention accentuated the conflictual aspectsof justice sector reform. Western donors were the principal architects of the designfor the new order in matters of law as well as other public policy areas, and theemphasis was on reform - not reconstruction. To support this agenda, the donorsassigned numerous advisors to Afghan government institutions, and provided practically all the required funding even after the Afghans were formally in chargeof the process. By 2007, the Afghan state remained extraordinarily dependent uponforeign assistance. Overall, around 90% of official funds expended annually camefrom foreign transfers. Some three-quarters of the aid was not even channelledthrough the Afghan government but disbursed directly in the field by aid agenciesand their contractors [7,26]. The highly unequal relationship generated resentment on the Afghan side, and,among Western donors, encouraged an approach that was not always ‘ liberal ’ inIsaiah Berlin ’ s sense of being inclusive and accommodating. This was particularly problematic in the field of justice because of the centrality of law to the legitimacy of the state and the cohesion of society. The problems surfaced in many ways. TheItalian government had taken the lead responsibility among Western donors for assistance to the justice sector and in 2003 assigned an Italian legal professional todraft a new criminal procedure code. The existing law dated from the 1960 ’ s, and, aslater amended by an authoritarian president (1974) and the Afghan communist party(1979 and 1981), gave sweeping powers to the Attorney General and the secret service that European legal experts found ‘ most disturbing ’ [15].The Italian expert, who drafted a law closely patterned on the Italian code, failedto consult with Afghan officials, who strongly resented the exclusion; they askedPresident Hamid Karzai not to sign the draft. The Italian government neverthelessstood by its expert and threatened to withdraw funding for related projects unless thedraft was approved. 1 The incident was symptomatic of a broader problem. Westernapproaches to the substance of law were narrowly focused on Western legal 1 Telephone interview with an international aid official who was close to the process, 18 May 2007. AnItalian consultant later commented: “ The text of the interim criminal procedure code was prepared byGiuseppe Di Gennaro, an Italian anti-mafia magistrate and former executive director of UNDOC (UNOffice for Drug Control and Crime Prevention) assisted by US consultants. The code has been the sourceof some controversy, arising out of the relatively limited input into or support for the initial draft from theAfghan justice institutions, which only adopted it under strong external political pressure [29]. ” The lawwas issued as an interim decree, pending parliamentary approval. Negotiating justice sector reform in Afghanistan  traditions and did not engage with Islamic law. Assessing 5 years of aid to the justicesector, an international panel led by the distinguished legal scholar, Cherif Bassiouni,concluded that donors had failed to link reforms to ‘ the foundation for justice inAfghanistan ’ —  i.e. Islamic law. ‘ Internationally supported rule of law programstend to ignore or avoid issues of Islamic law. This negatively impacts the acceptanceof these programs by Afghan society ’ [5].The inclination of Western donors to fasten onto its own legal tradition within thetexture of Afghan law was hardly surprising. It reflected the ideological division between Islam and the West that had justified the US-led intervention in the first  place. The ideological underpinnings of  ‘ the war on terror  ’ continued to frame thesubsequent international engagement of reconstruction, and divisions hardened asthe armed conflict between militant Islamists and NATO forces escalated from 2005onwards. Both sides ideologized the differences between Islamic and Western values toserve their respective struggles. Taliban leaders presented the star-like symbol of NATOas the cross of the crusaders and called for  jihad  against the ‘ foreign infidels ’ . NATOofficials claimed the future of Western democracy and the alliance itself were at stakein the fight against Taliban and Al Qaida in Afghanistan (see [27]). The voices of reformers who argued for a syncretic, vision of Western and Islamic values - and, byextension, legal traditions - were hardly heard above the din of the battle.The growing military conflict undermined the case for liberal legal reforms (inIsaiah Berlin ’ s sense) in other ways as well. Lack of an effective formal justicesystem was increasingly cited as the main reason why villagers turned away from thegovernment and supported the Taliban - which had sharply brought down crimeduring its rule - and in some parts of the south accepted the Taliban version of  justice. The international aid community consequently made greater efforts toestablish ‘ the rule of law ’ , mainly by pledging more financial aid, more consultants,and stronger measures to ‘  professionalize ’ the judiciary (through training in Westernlegal procures, higher salaries and anti-corruption measures). There was littlerecognition of the call from the expert panel led by Bassiouni to engage withsubstantive issues of Islamic law. 2 In what follows, we trace the history of legal reforms before discussing present issues and political alignments. Alignments often involved mixed membership of nationals and internationals, or what Bertrand Badie calls importers and exporters of change, which formed under the labels such as ‘ modernists ’ (or  ‘ reformers ’ ), and ‘ traditionalists ’ (or  ‘ conservatives ’ )[2]. When Western officials visibly intervened on central issues of Islamic law, however, an overarching distinction betweenAfghans and non-Afghans tended to emerge as the Afghans coalesced on grounds of religion and nationalism. 2 See e.g. speeches at the international conference in Rome in October 2007. The Bassiouni report was presented to this conference. Some Muslim countries were represented at the conference (Pakistan, Iran,Egypt, Saudi Arabia), but most participants were Western donors.A. Suhrke, K. Borchgrevink   Legal traditions and previous legal reforms Legal traditions are the sinews of a society, described by one legal scholar as ‘ a set of deeply rooted, historically conditioned attitudes about the nature of law, about therole of law in the society and in the polity, about the proper organization andoperation of a legal system, and about the way law is or should be made, applied,studied, perfected and thought. The legal tradition relates the legal system to theculture of which it is a partial expression ’ [16]. In principle, the legal system is both a mirror of society and an authoritative guide for its development. Societies withsegmented or plural legal systems, however, face a hall of mirrors that can makelegal reform quite difficult.Bythe timethe post-Taliban,Western-ledreforms started inAfghanistan,the countryhad several distinct traditions. There was customary law, among the Pashtun populationknown as Pashtunwali, and its counterparts in other tribal configurations and ethnicgroups (Tajik, Uzbek, Hazara). Above customary law —  at least in principle and asaffirmed by most of the country ’ s several constitutions - was Islamic law and two of itsschools of jurisprudence (Hanafi and Jafari, associated with the majority Sunni and theminority Shi ’ ite populations respectively). Positive law drew heavily on the Napoleoniccode,andwasalsoinfluencedbyEgyptianmodernistswhoassistedAfghanmonarchsinthe mid-20th century to codify legal principles. During the second half of the 20thcentury, a left-leaning president and the Afghan communist party (PDPA) introducedsocialist principles in constitutional law and decrees. A little later the Taliban regimeestablished another set oflegal decrees and practices basedona restrictive interpretationof Islam as well as their particular vision of state and society.In the past, legal reforms were driven by governing groups or individuals whosought to strengthen the state and/or put it in the service of social change —  whether Western-modern, Islamist, or Marxist in inspiration. Reforms typically entailedchanges in the nature of law, its enforcement, the jurisdiction of courts, and thequalifications of legal personnel.The first reform period in the modern era started in the late 1800 ’ s with measuresto establish a centralized legal system. These efforts continued in the early 20thcentury and produced conflicts along the axis of centralized state power versusreligious scholars and tribal authorities in the provinces. 3 All parties to some degreeinvoked sharia law as legitimizing principle; the distinction was rather between what Etling calls the ‘ ruler  ’ s law ’ (laid down by the amir  in Kabul) and the law as pronounced by the ulama and tribal elders outside [11]. Building on an early Islamicunderstanding of the relationship between the ruler and the law, Amir AbdulRahman (r.1880  –  1901) based his regime on the idea of the ruler as the upholder of sacred law [20]. In itself this did not fundamentally challenge the traditionalunderstanding of Islamic legal systems. The ruler is granted the right to issue decreeswhich are in the public good, provided the laws are not in the violation of Islamic principles. The power to interpret these principles and resolve disputes arising fromthe meaning of the law rests with the ulama —  the clergy. In this tradition, the ulama and the ruler are mutually dependent but also competitive. The state needs the 3 The earliest attempt by Amir Shir Ali (r. 1869  –  1879) was only partly successful because the amir  couldnot control the ulama outside the urban centers [28,31].  Negotiating justice sector reform in Afghanistan

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