Editor in Chief: Moh. Reza Huwaida Friday, December 15th, 2017

Loya Jirga from Legal Perspective

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Loya Jirga from Legal Perspective

In tribal belts, the issues are resolved by tribal council consisting of elders and influential figures, this tradition held strong sway in the past. Loya Jirga (Grand National Assembly) roots in this deep-seated custom of Afghan nation and the heads of tribes convened Jirga to decide about political issues or legitimize the past regimes.
Tribal system rules Afghan culture and tribal leaders played a key role in terms of social, cultural, and political issues in the past. They were even appointed by kings to represent a group in Jirga. So, Loya Jirga is basically a tribal code which has been changed into a legal institution. It was the first Afghan Loya Jirga that appointed Ahmad Shah Durani as king and it was Loya Jirga that approved a written constitution for the first time during Amanullah Khan’s regime. Before having legal basis, Loya Jirga had no specific members and mostly tribal leaders and influential figures attended the Jirga. Gradually, it was inserted in Afghan constitutions and defined as the highest manifestation of the public will. Loya Jirga was tasked to approve or reform constitution and decide about political issues, national security, etc.
The current constitution, which was approved in 2004, recognizes Loya Jirga as the highest manifestation of the public will and specifies its members consisting of: members of National Assembly and presidents of the provincial as well as district assemblies. Likewise, ministers, Chief Justice and members of the Supreme Court as well as the attorney general shall participate in the Loya Jirga sessions without voting rights. The authorities of Loya Jirga is stated in article 111 as, “The Loya Jirga shall convene in the following situations: To decide on issues related to independence, national sovereignty, territorial integrity as well as supreme national interests; amend provisions of this Constitution; impeach the President in accordance with the provisions of Article 69 of the Constitution.”
To view the past, Jirga was convened to resolve social and political issues and it was one of the significant political custom in tribal culture. Initially, Loya Jirga was convened by kings to confirm their regimes and sultanate and justify their acts. For instance, the first Loya Jirga was convened in 1747 to appoint Afghan King and establish Afghanistan as a state. The second was convened in 1924 to approve the first written constitution. After the downfall of the Taliban’s regime, a Loya Jirga was convened based on Bonn agreement and established an interim government and appointed its leader. This Loya Jirga was unique in Afghanistan’s history since nation’s representatives were considered on the basis of population and all ethnic and political groups and factions participated in the Jirga. In the past, Loya Jirga was held by kings’ order, but this Loya Jirga reflected the real will and idea of the nation for being conducted on people’s will.
Considering the above issues, Loya Jirga is no more a traditional custom belonging to a certain tribal or ethnic group but it has changed into a political tradition with legal basis. Similarly, members of Loya Jirga are no more appointed by the head of state rather they are elected by people. Loya Jirga is now a legal institution with high authorities and can play more pivotal role than ever before. It is the highest manifestation of the will of people rather than reflecting the will of leaders.
Constitutionally, the president and National Assembly have the right to convene Loya Jirga for the issues which were mentioned above. That is to say, the executive and legislative powers can call for holding Loya Jirga.  Nonetheless, some political figures and factions are calling for convening Loya Jirga. For instance, the former president of Afghanistan Hamid Karzai frequently called for holding Loya Jirga with the view that the National Unity Government (NUG) is not based on law or cannot meet the needs of the public.
Although the heads of the NUG agreed to convene Loya Jirga in 2016 for establishing the post of executive officer/prime minister, it did not take place. In fact, the mutual agreement which allowed the establishment of the NUG was violated and now the government says that convening Loya Jirga is not confirmed by Constitution. Believing that establishing the NUG was not supported by constitution, the government opposition groups say that convening Loya Jirga for legitimizing the NUG is necessary. Whether or not convene Loya Jirga, it is the government to answer reasonably.
To sum up, Loya Jirga has originated from traditional custom of Afghan people and has been inserted in constitution. Loya Jirga, which is introduced the highest manifestation of public will, plays a crucial role in social and political arenas. Since many countries have an institution for making decision about important political issues, Loya Jirga is a reasonable and necessary institution.

Hujjatullah Zia is the permanent writer of the Daily Outlook Afghanistan. He can be reached at zia_hujjat@yahoo.com

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