Afghanistan's three legal systems

Last month, in the wonderfully reported Honor Among Them, the Economist asked "how the Pushtuns' ancient tribal code is fighting for survival against radical Islam"? The author notes that "By one estimate, jirgas settle over 95% of Afghanistan's disputes, civil and criminal." I'm not sure what estimate they are referring to here, but the author argues that people shun both sharia and legal courts "not just because the regular courts are incompetent and corrupt...(but) where authority is contested by a well-armed citizenry, the jirga's verdicts, delivered with the warring parties' consent, tend to be more enforceable than off-the-peg legal or Islamic judgments."

The irony is that while the West see Taliban-style sharia as backwards, their code looks almost progressive compared to Pashtunwali. Sharia guarantees to women certain rights of inheritance and does not recognize the exchange of women as a means to end disputes or the Pashtun habit of wife inheritance.

Some try to finesse the differences... MORE

Photo: A pashtun jirga breaks for lunch from a murder trial. Pakistan, Feb 2000. Credit: T. Kurosaki  

 

“The sharia and jirga systems are not opposed,” said Maulvi Sayeed, a member of the Muslim council, or shura, in Kandahar, capital of southern Afghanistan. “To solve a problem through the use of a shura, a council, is the aim of both." Nevertheless, conflicts exist between the ancient tribal code and the religious code. The conflict over ultimate authority is part of the friction in Pakistan, where "jihadist assassins have killed several hundred Pushtun elders, ensuring that sharia, not Pushtunwali, is the law." 
The Economist notes that despite being deeply religious, Pashtuns tend to favor tribal law, except in times of duress, when there was a need to rally disparate tribes behind Islamic unity. It concludes that:

If history is any guide, many Pushtuns in northern Pakistan and southern Afghanistan will continue their drift to Islamist militancy until they are defeated, which looks impossible, or the Pakistani and Western forces are withdrawn. They are then likely to return to their simmeringly murderous tribal ways. That would be better than the current mess. But it would also leave millions of people outside the writ of Pakistan and Afghanistan.

The entire article can be accessed online here.

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[Mujeeb]

check this article out.