The Position of the Traditional Loya Jirga in the Constitution of Afghanistan (Dari)

Abstract

This article discusses the role of the Loya Jirga in the Afghan Constitution. The Loya Jirga can be classified into two general types: democratic and non-democratic. Democratic Loya Jirgas can be further distinguished between Constitutional Loya Jirgas and Customary Loya Jirgas. The article firstly seeks to define the Constitutional Loya Jirga and analyses its organizational structure, the scope of its jurisdiction and its strengths and weaknesses. The article secondly focuses on the Customary Loya Jirga and its organization, referring to historical examples. It argues that such Loya Jirgas should be classified as local rather than customary. It assesses the use of such Loya Jirgas in emergency situations. Finally, non-democratic Loya Jirgas are those organized by high-ranking office holders. The article first uses historical examples then discusses the legitimacy of non-democratic Loya Jirgas, particularly the claim that their legitimacy is rooted in the customs of the country and that it can be considered as a legal State practice.