wazhmafrogh – Legal Drift

Does justice look this monstrous?

wazhmafrogh 1 Comment Afghanistan terror force, ajmal kasab, approach towards terrorists, injustice india, justice in india, kasab terrorist attack, kasab's trial, laws in india, media and kasab, media's role in kasab's case, mumbai terror attack, pakistan terrorism, reasons for becoming a terrorist, terrorism in india, terrorist attack, young terrorists

Whatever little bit of respect I had for some of the ‘mainstream’ media, is shrouded in agitation today. Almost every channel from one of the acclaimed ‘world-democracy’ flashed the news of ‘ Kasab sentenced to death – justice served’. It is of great misfortune that common brains are being fed with such contaminated views and disdain prevails in our thoughts and comprehensions. I do not want to get into the legal implications of the trial or the verdict and nor the sentence is of much of sensation as almost everyone knew the outcome of the trial. But the larger question seems to be that would we ever be able to see justice beyond injustices and retribution? While I agree that law enforcement has to fulfill its responsibilities to protect the citizens of a country, at the same time I think the civil society of a ‘democratic nation’ should deconstruct the given rhetoric that is made to believe as absolute legal truth and should shed light on the unseen and untold and at least attempt to free the incarcerated notions of justice.

Can justice be this monstrous? I do not think so. There are two debates, the former is the carnage instigated by the so called ‘terrorists’ on 26/11 in Mumbai and the latter is the debate on how to find solutions and solidify the concept of justice for the ones who suffered and the ones who will suffer. However, the enraged, disillusioned and infected brains seem to have sacrificed the latter over the politics of the former. I have to admit that I have no relationship with the person in question, but have huge stakes in how the concept of justice is formed and reformed through misdeeds of individual’s predatory acts. However, if we go beyond the individuals, we will be able to explore the bouts of mistrust, agony and contingent injustices that exist in systems and social spaces in which these individuals are socialized, poised and monopolized.

There is no doubt that we live in the times of increased contentions and violence among diverging agendas and politics, but we are tempted to victimize the victim rather than curbing the agenda and politics that create and recreate violence and culminate the end of humanity. I can never reconcile the two, that by sentencing a young victim, we will scare anyone else who would plan to do the same. Ironically, the same argument can be used by the fathers of terror to attract more young voices in avenge. Indeed, some of our experiences in Afghanistan reveal that militants have been able to gin up support from youth when the youth were emotionally provoked after seeing the injustices and violence of the government systems and their allies.

I could not believe to hear Haroon Hamid of the DAWN Media Group replying to an audience question on NDTV show (6th May 2010) with Barkha Dutt that ‘terrorism is created in Afghanistan and Pakistan is a victim of it as well as India’. I wondered what happened to the media ethics of the news channels that he run, if nothing else matters to him including the truth. He didn’t even try to unravel the systematic, political and social space that gave birth to discontent and violence transformed into terrorism through the weapons of the same system in Pakistan and the region rather than indulging into a merely political blame game. While the political agendas of some groups and factions entail creating terror and monopolize on religious and nationalistic sentiments of masses, there is an enabling environment that embraced and accepts the invitation and both the agenda and the enabling environment have a symmetrical relationship with the terror and violence that we see in Afghanistan, India and Pakistan. Let’s also not forget and not trivialize the dynamics of social spaces in which we live and see others live, that foster reprisal and revolt by witnessing chronic poverty, famine and increased gaps between different members of the same society. The fragmentation of social spaces within the feudal society as a creation of the capitalist market paradigm that embodies injustice and tremendous rage among youth that not only created Kasab but hundreds of Kasabs in the making. However, for sure any struggles to absolve the process would be trying to rupture the status quo, something that the gatekeepers of the feudal society and their political agenda’s will not allow or approve of and we will be getting used to death sentence of one after another and would have accepted that justice is rendered. Unfortunately, the emerging trajectories do suggest that in quest of conformity with the popular imagination of our ‘independent’ media, we will not be able to recognize the just face of justice anymore but will seek satisfaction in more resentment, discontent and retribution.

Social Issues World

Different faces of prostitution in Afghanistan

wazhmafrogh 2 Comments article prostitution afghanistan, child prostitutes, drug rehablitation centre afghanistan, drugs and prostitution, father forced daughter into prostitution, girl prostitute, illegal prostitution, laws in afghanistan prostitution, muslim society prostitution, prostitution afghanistan, protitution world issue, real life story prostitution, reasons for becoming a prostitute, selling of women, views prostitution afghanistan, women prostitutes

Prostitution is not an easily accepted reality in our society. Most of the time, we are in denial that in Muslim societies women do not sell their bodies for money, even if they do, no one will buy. It is actually the opposite, even if a woman does not want, the societal miseries make her do anything for survival and livelihood of the family. While Prostitution in many other parts of the world could be understand as a woman’s sexual desire and of her immoral character; the truth behind it is hardly explored.While prostitution is illegal and anyone found guilty would be punished severely, but the law only punishes the woman rather than removing societal pressures that make women embrace prostitution as means of survival.

In my work on women’s issues in Afghanistan, I came across many women who have at least once sold their bodies to earn a living either forced by a family member or in secret. However, I chose to write about these three women I met three years ago in an old city of Kabul. These three different women have at least one thing in common, that even in a closed traditional and religious society, they were made to be prostitutes, either in public or in secret.

A couple of years ago, I was on a monitoring visit to a rehabilitation center for drug addicts and during the distribution of medical kits for the rehabilitated patients, noticed three women getting the medicine who didnt seem as patients. They were quiet well-dressed and the red lipstick was shining on the faces. When asked about their addiction, I found out that these three are not addict, they come to take the medicines because it can help them overcome the mental trauma they are going through….and someone whispered to me”these three are prostitutes”….. I tried to probe into their life stories and after almost two weeks of talking to them, here is a short summary of their stories :

Rahima, the eldest of the three women was 38 years old and mother of 4 daughters and a son. She returned from Iran in 2004 and has been living in her in laws house. The house was big, scary and ruined during the civil war. Her husband was an iron smith but when they were in Iran, he became a drug addict and could no more provide any living for the family. Rahima remembers the first time that she knew her body could earn her a living was the offer of her husband’s friend, when he came as a guest to their home. That was when Rahima had two of her daughters in the hospital because awild dog had bit them. She said that the clinic asked her to buy two vaccines worth of 6,000 Afghanis to save her daughters and when she sought assistance from her husband’s old friend, he offered her 5000 Afghanis for one night and a promise to find more clients as she earns more experience in this field. Rahima had no other options and accepted and she said, he was the only man she knew who was so loyal to fulfil his promise.

Negine, was the tallest and the most beautiful of the three women. She was around 35 years old and had been living with her father. Initially, I couldnt believe that it was her father who made her a home-based earning prostitute. She said, he died in a fortunate suicide attack last year in Kabul but she continued paying attributes to his legacy. Negine’s father was a cook in a Police Teaching Academy in one of the central provinces and whenever he came home, he used to bring a high ranking police official to their home and she was made to stay with that prestigious guest and entertain him. In his lifetime, Negine could never get out of the house and it was the father who bought her beautiful clothes and make up and encouraged her to look attractive to his superiors. Negine said that her father’s sudden death left a big shop that was built on her money and she could live a better life with that income,but after so many years of entertaining the high ranking police chiefs, she is kind of used to this way of life. She said, she likes when a high rank officer obeys her orders.

Shahperai, the youngest of the three was around 15 years of age. She said, she found herself on the streets since she remembers. Shahperai was a very outgoing, and loud young girl. She used to make fun of everything and it seemed that she had nothing to regret in her life. Shahperai recalled her first experience of using her body to earn money in the busy streets of the expat bazaar, Chicken street of Share Naw, Kabul. She said some three years ago, while cleaning a car in a car park, two men came closer to her and said ” we will pay you – if you show us….” and since then she has been earning through displaying and selling her body.

These were the three women with a summary of their stories. I am sure there are many other untold similar experiences fearing the hypocratic society. We need to accept these realities and be able to confront these injustices inflicted on women.

Legal Mirror Social Issues

Is law the problem or the solution?

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In classic terms and times Bodin said “Sovereignty is supreme power over citizens and subjects unrestrained by laws”. Only the sovereign can create and execute laws. This was a classic notion of state from Luther to Bodin to Hobbs and Austin. But in current literature and reality, sovereignty seems a failed attempt of independence hijacked by the globalization project. While studying law, we often do not bother to understand sovereignty nor question the sovereignty of law shadowed by the Black Law. We don’t question that what happens to the legal thinking and theories when sovereignty is diminished?

As the corporate project continues to dominate our lives, our dependency on the law has increased drastically. While, we seek legal protections in everything from our employment contract to the home rental – the law enjoys its monopoly over commodified forms of human beings. It seems there is a competition going on between sophisticated forms of crime and changing laws, or maybe the former is a product of the later. Never before we got legal protection for virtual cyber interactions, and never before we had cyber crimes at its peak. While the law and crime continue their marathon, we need to set back and question our assumptions of the law- especially the legal experts and lawyers who have a larger stake in the corporate project of the law.

Commodification of values and beliefs is the first attempt of any legal intervention however, worse is our expectation of justice through litigation. While litigation might be needed for a later stage – we need to overcome the increase ratio of crime in our society which is the product of legal plunder through social means. If any criminal is able to rent out the law and hire a qualified lawyer, he buys justice eventually through the blind woman statue that symbolizes justice in the courts.

If we ask any ordinary person on the streets about the governance issues, the first issue would be lack of law enforcement. We have misinterpreted law enforcement as more laws rather than justice and fairness. More laws, more courts, more lawyers and less and less justice because the needy isn’t able to move beyond the layers of laws and lawyers attached to the notion of justice. By now – we have almost forgotten how would justice look like- a naked justice.

While court-based litigation might be one way of accessing justice, and eliminating an ad hoc crime, we need to create an enabling environment, promoting culture of justice and fairness. Our education system needs to revive such values, and beliefs but at the same time our families and societies have a greater responsibility to educate ourselves and our children on the values for humanity. Values of being fair in transactions and relationships to each other without the fear of being punished. Punishment is only an outcomes but prevention is a process of transforming societies to make them a better place to live.

Public institutions are increasingly becoming sites of harassment and exploitation and the remedy is often said to be the in Civil Servants Policies as a punishment for the perpetrator and most of the time the victim is never able to file a complaint because the perpetrators usually happen to be the boss or a senior officer. We need to create preventive mechanisms and awareness raising on the prevention mechanisms so that those mechanisms can be trusted. Today even our language is production and reproduction of violence and domination, victimizing the victim and perpetuating the perpetrators.

Politics Social Issues World

Dispute Resolution Mechanisms in Afghanistan:

wazhmafrogh 0 Comments human rights afghanistan, insurgency in afghanistan, jirgars, judicial reform in afghanistan, judicial system in afghanistan, land disputes in afghanistan, National Policy on Traditional Dispute Resolution Mechanisms, non state actor laws, rule of law in afghanistan, shura law, taliban commander, taliban leaders, Traditional Dispute Resolution mechanisms, wardak province afghanistan, woloswal afghanistan

An Insight Story

“We had a land problem with another villager and it was the 5th year that due to the dispute we weren’t able to work on the field, this dispute had taken the life of my elder niece as well. We spoke to woloswal (district attorney) many times and he said that take the case to Kabul – and sometimes said talk amongst yourselves and reach to some conclusions, we are busy with the ongoing insurgency don’t have the means to settle your disputes.

One day he sent someone maybe a judge to find out about our dispute and he also asked for so many papers and we said we don’t have any papers for this land, its our ancestors lands and we have lived here our whole lives. He said you couldn’t get use this land because you don’t have any documents. No one has documents for their lands in our village, its our lands from forefathers, we don’t need papers to prove this for us.

This year my brothers and I decided that we will seek the assistance of a Talib commander – so we went towards Ghazni and late in the evening located a well known commander near Qarabagh district and asked him to come and help us. He was such a generous man. He came and listened to our situation and then called the villager with whom we had the dispute and put the gun on his head and asked him to say the truth.

The man scared for his life, said that this piece of land doesn’t belong to him at all but he wanted to take advantage of having his land just next to us and especially that the canal comes directly to our fields. He even called in the witness who had witnessed that his father had sold that piece of land to my grand father many years ago. He asked for forgiveness and we all forgave him and the issue was closed. Since then we started planting back in our fields. The Talib commander solved a 5 yearlong dispute in one day. This is what we need”.

A family from a village in Jalrez, Wardak Province. ( December 2009)

Conflict

Disputes, such as the one described above, are typical in Afghanistan, but the mode of resolving the conflict is unique to Afghanistan. If one goes back historically to Afghanistan’s traditional roots, civil and even criminal matters have been resolved through community based structures, called Jirga’s and Shura’s. This has much to do with the absence of a central responsive government more than any other reasons. The past 30 years or more conflict has paralyzed the formal mechanisms of dispute resolution in Afghanistan. In any case, they were fragile and ineffective structures and were not even fair to the people of Afghanistan.

Judicial Reform Projects Afghanistan

Since 2001, millions of dollars were poured into various judicial reform projects. Although access to formal structures have improved a bit, still the system is not responsive nor effective, therefore communities especially in the rural areas prefer their original, quick and effective dispute resolution mechanisms.

Current Scenario

However, while analyzing the long-standing conflict of Afghanistan, one can see that the power dynamics of the actors in the communities has changed so that warlords hold the power. This power dynamic fueled by community power brokers enjoying a feudal culture, has contaminated these traditional structures with other features of conflict, from drugs to Taliban control. Local Jirga’s and Shuras are mostly dominated and driven by political factions, warlords, guns and money. Therefore, these structures cannot be called people’s structures for resolving disputes, but most of these, are platform for exercise of non-state actors monopoly over rural communities. Although there are a number of studies carried out in various provinces in Afghanistan to prove the effectiveness of these structures, there credibility as people’s consented decision making bodies still remain a valid question.

Understandably, after the national elections and establishment of an elected central government, such parallel structures need to be either abolished or merged into the formal judiciary system of the country. However, unless the insurgency and ongoing armed militancy is stopped it is hard to imagine that rural communities will get access to government judicial structures. In the cases that they do get to court it is unclear whether they will get proper resolutions from these government judicial systems. Since those systems are corrupt, ineffective and time consuming nature.

The government of Afghanistan attempted establishing connecting frameworks between the Traditional Dispute Resolution mechanisms and the formal judicial system since last year, calling for a National Policy on Traditional Dispute Resolution Mechanisms. But the fate of this policy is now unclear since there is a new Minister of Justice who is not in favour of bolstering the informal justice system.

In the past few years, debates around supporting and strengthening the Traditional Dispute Resolution mechanisms have dominated the rhetoric for justice in Afghanistan, especially by the international experts of the subject. Some of them disqualify any efforts to promote formal judiciary while others are advocating for linking both systems and increase the formal system’s efficiency. This discussion isn’t only about solving national or communal disputes but is about legitimacy of an Afghan state; promoting any parallel structures mean creating other state regimes eventually.

To solve the problem, the discussions on Traditional Dispute Resolution Mechanisms should not be categorized as a ‘rights issue’ only but as a structural challenge. While the biggest challenge of these structures that violate basic human rights of every individual remains much of concern. There have been a lot of studies that portray how women and children are sacrificed and oppressed by these structures. Just adding women into the Jirga’s system or providing them with trainings on human rights issues cannot alter such oppression.

Any rapid generalized analysis of Traditional Dispute Resolution mechanisms will reveal the fragility and inconsistence of these structures as well. The members are not the same every time in any village, nor they are trained in any of legal or investigative skills, or hardly a literate member can be found in the Jirga’s that can read and write. There are no set rules but decisions are taken contextual however, they do refer to previous decisions from the same place or other places if that meets the conditions of the context. The decision is usually made by the most powerful individual present in the Jirga and easily accepted by the rest and the victim at times the accused person has no voice in most of the instances but is considered to be embarrassed and silent in order to be forgiven.

What must be done?

Afghanistan needs institutions before any rights are promised to its citizens. Having a progressive constitution does not resolve community disputes and issues when even the parliament isn’t able to interpret the constitution objectively. Rule of law requires enforcing mechanisms that people can trust and only then state judiciary can be trusted by the local population. If the formal judiciary system is responsive enough, no other culture can prevent people from seeking justice, because it is the victim can understand the value and definition of justice.

The efforts should also be directed towards integrating the Traditional mechanisms into the state judiciary system with the paradigm of state being constitutionally precedent on the customary laws. However, no matter how ineffective the state judiciary, it should not be equally juxtaposed with the Traditional Dispute Resolution mechanisms, as the latter will easily replace the former.