Afghanistan's Agenda for Action - Economic Growth - usaid

More documents

Recommendations

Info

Afghanistan’s Agenda for Action: Developing the Trade & Business Environment – August 2007by an authorized body. Thus the laws of Afghanistanare reviewed for Sharī’ah compliance by the Taqnin,and all judges are trained in Sharī’ah. Donors canenhance the acceptability of support by assisting Afghancounterparts in applying Sharī’ah analysis to reforms todemonstrate their compliance with the requisitestandards of justice and equity. This can be furtherenhanced by greater use of experts and reform modelsfrom other Islamic countries, as appropriate, ratherthan rely solely or primarily on Western consultantsand orientations, which are inherently suspect in theMuslim world.In addition, this cultural proclivity requires greaterinput from the community, to ensure that their veryappropriate need for inclusion is adequately addressed.Such inclusion builds legitimacy, but also builds bettersystems that can be implemented more effectively.Finally, it should be noted that all reforms should bebuilt as much as possible with national input. There is adanger of Kabul-based reforms being rejected in otherregions, especially if people feel that the changes arebeing imposed, are foreign to the culture, or both. Thissuggests that commercial arbitration should be piloted– perhaps simultaneously – in all of the principlecommercial centers of the country.There is and will be substantial resistance to courtreform. The current system has allowed a high level ofrent-seeking behavior. This must be met with bothpositive and negative incentives. On the positive side, itis clear that current salary and benefits packages cannotmeet the basic subsistence needs of an individual judge,much less those of a judge with a family. This mustchange. But salary increases alone do not stopcorruption. Corruption flourishes in non-transparentsettings, especially where there is ignorance of the roleand obligations of the judiciary. Extensive publiceducation is needed in Afghanistan to create newexpectations for an accountable, professional judiciary.This must be coupled with mechanisms for reportingand sanctioning incompetence and corruption.Recommendations• The legal professional lacks an adequate supply oflegally-educated practitioners, including attorneysand judges. Efforts to bolster legal educationshould be supported, including law schools, judicialtraining centers, etc. This education should includespecific and targeted education on commercial law.Relatedly, a bar association is needed to supportsuch efforts as well to more generally bolster thelegal profession.• There is a need to increase staffing at primarycourts to alleviate the need for courts of appealsto also act as courts of first instance.• Legal limitations on arbitration, while often notenforced, should be removed from the law toavoid future conflict between accepted practiceand the law on the books.• The length of legal proceedings are unreasonableand as a result do not provide fair protection of aparties economic interests. Delays existthroughout the system, from basic functions ofcourt administration to execution of judgments,for reasons including rent-seeking behavior,administrative inefficiencies and lack of education.The Supreme Court needs to continue and expandits work in carefully establishing internal strategies,goals, procedures and regulations for the ongoing,permanent professionalization of the courts,judges, clerks and administrators. Ongoing reformefforts in this regard must be supported.• The fee structure for bringing claims isinappropriate and will need to be amended, soonerrather than later. Fees are not based on the costsof the services rendered and are only assessed atjudgment. If the parties withdraw a case beforecompletion, fees will likely not be paid, or will onlybe so after a period of years. the courts cannoteffectively predict budgetary needs based on thissystem of contingent fees assessed againstunknown future awards. At the same time, thepercentage based accounting creates inappropriateincentives for the courts to award higher fees tomake up for shortfalls in budgetary resources. Allof these factors serve to discourage legitimate useof the judiciary.• Judge’s salaries should be increased to attract wellqualified judges and staff.85
Afghanistan’s Agenda for Action: Developing the Trade & Business Environment – August 2007• Written judicial decisions should be required in allcases.• The Supreme Court should therefore set a longtermstrategy for providing tenure to qualifiedjudges as they indeed become qualified. This mayinclude a system of testing all judges dismissingthose who fail, or setting performance andeducation levels that judges must meet in a certainperiod to obtain tenure.• International donors are providing long-termtechnical assistance with respect to courtadministration to help introduce effective courtmanagement and case management, includingcomputer-based case management systems basedon improved manual procedures that comportwith the recently redesigned civil and commercialprocedures. Human resource capacity is thenumber one challenge to these efforts. Physicalinfrastructure (including lack of reliable supply ofelectricity) is also an impediment in many cases,but the low educational level of court staff make itparticularly difficult to rebuild. Efforts in thesecases should be supported as substantial assistancewill be needed for a number of years as the newsystems are established, piloted, revised and rolledout on a national basis.• While the Haqooq have been successful at providealternative dispute resolution services similar tocourt-annexed mediation, the role, jurisdiction, andfunctions of the Hoqooq need to be more carefullyestablished and limited by law and regulation andresponsibilities such as execution of judgmentsbrought under the independent authority of thejudiciary.• As an integral and respected part of Afghanistan’sdispute resolution system, the functions of theshuras, and their relationship between to theformal system of courts should be more formallyrecognized and managed, including thejurisdictional relationship, methods ofenforcement, and appeals from shura decisions.• Efforts to reform both administrative and appellatepractice should be supported.• Formal institutions for mediation and arbitrationshould be created.86
Page 1:
AFGHANISTAN’SAGENDA FOR ACTIONDev
Page 5 and 6:
Afghanistan’s Agenda for Action:
Page 7:
Page 10 and 11:
Page 12 and 13:
Page 14 and 15:
Page 16 and 17:
Page 18 and 19:
Page 20 and 21:
Page 22 and 23:
Page 24 and 25:
Page 26 and 27:
Page 28 and 29:
Page 30 and 31:
Page 32 and 33:
Page 34 and 35:
Page 36 and 37:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44: Afghanistan’s Agenda for Action:
Page 63: Afghanistan’s Agenda for Action:
Page 144 and 145:
Page 147 and 148:
Page 149 and 150:
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
Page 171 and 172:
Page 174:
Nicholas Klissas, USAID/EGATTel: 20
show all

Afghanistan's Agenda for Action - Economic Growth - usaid

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?