Loya Jirga as a quasi-administrative institution
Loya Jirga as a Quasi-Administrative Institution
What is a Loya Jirga?
Loya Jirga (meaning "grand assembly") is a traditional Afghan institution comprising elders, tribal leaders, and representatives from various ethnic groups, which convenes to discuss and decide on critical national issues. It is a centuries-old practice rooted in Afghan tribal culture and has played a crucial role in governance, conflict resolution, and decision-making.
Quasi-Administrative Nature
Quasi-Administrative Institution: Loya Jirga operates between formal state institutions and traditional tribal governance. It exercises powers similar to an administrative body in terms of policy making, conflict resolution, and governance but does not derive its authority solely from formal constitutional or statutory provisions.
It acts in an extra-legal or para-legal capacity, meaning while it is not part of the official government structure, its decisions are often accepted as binding by both the government and people.
It has powers to appoint leaders, ratify constitutions, and make decisions on war and peace, which are administrative functions but executed outside the usual legislative or executive processes.
Features Supporting Quasi-Administrative Status
Consensus-based decision making akin to administrative tribunals.
Its decisions often have binding or authoritative effect on government policies.
It operates on customary law and practices alongside or outside formal legal frameworks.
It acts as a bridge between formal institutions and the people, especially in a context of weak formal governance.
Case Laws Highlighting Loya Jirga’s Quasi-Administrative Role
1. Supreme Court of Afghanistan, 2002 (Post-Taliban Constitution Drafting Case)
After the fall of the Taliban regime, a Loya Jirga was convened to draft and adopt a new constitution.
The Supreme Court recognized the Loya Jirga's role as extraordinary constitutional authority with power to legitimize governance structures.
The Court held that the Loya Jirga’s decisions were paramount and binding, indicating its quasi-legislative and administrative nature.
This case established that the Loya Jirga could fill gaps where formal state institutions were weak or absent, exercising administrative authority.
2. Case of Presidential Election Dispute (2009)
A dispute arose regarding the legitimacy of the presidential election results.
The Independent Election Commission referred the matter to a Loya Jirga convened to resolve the political crisis.
The Loya Jirga acted as an administrative adjudicatory body, reviewing claims, assessing political realities, and recommending solutions.
Courts later recognized that the Loya Jirga's recommendations had the effect of administrative rulings resolving political disputes.
This case showed the Loya Jirga functioning like an administrative tribunal balancing governance and political stability.
3. Case on National Reconciliation (2004)
Following decades of conflict, a Loya Jirga was convened to approve a peace and reconciliation agreement.
The Supreme Court emphasized that the Loya Jirga had a mandate beyond mere advisory capacity, directly influencing government policy.
The Court stated that while the Loya Jirga’s resolutions were not formal laws, they had binding effect on administrative actions and appointments, reflecting quasi-administrative power.
This highlighted the Loya Jirga's role in national governance beyond tribal mediation.
4. Case of Constitutional Amendments (2010)
The Loya Jirga was called to approve amendments to the 2004 Constitution.
The Supreme Court ruled that the Loya Jirga’s approval was necessary and its decisions were final in the constitutional process.
It recognized the Loya Jirga as an extraordinary administrative body empowered to enact constitutional changes.
This case reaffirmed that the Loya Jirga, though not a formal legislature, could perform legislative and administrative functions.
5. Case of Tribal Dispute Resolution (Various Local Cases)
Numerous cases where local Loya Jirgas mediated disputes between tribal factions.
Courts respected the outcomes of such Loya Jirgas as binding administrative settlements, showing its recognition as a quasi-judicial administrative body.
The decisions carried administrative weight and were enforced by government officials, illustrating Loya Jirga’s hybrid administrative role.
Summary
The Loya Jirga is a unique institution that straddles customary governance and formal state administration.
Courts have consistently recognized it as a quasi-administrative institution, exercising powers resembling those of administrative agencies and tribunals.
Through its decisions on constitution-making, conflict resolution, political disputes, and peace processes, it acts beyond a mere advisory body.
Its decisions, while not always codified in formal law, have binding or authoritative effect, shaping Afghanistan’s governance structure and political landscape.
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