Afghanistan dispatches: ‘It is not the application of Islamic criminal law that frightens us, it is that it is applied without due process…” Dispatches
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Afghanistan dispatches: ‘It is not the application of Islamic criminal law that frightens us, it is that it is applied without due process…”

JURIST EXCLUSIVE – Law students and lawyers in Afghanistan are filing reports with JURIST on the situation there after the fall of Kabul to the Taliban. Here, a law student in Kabul offers his latest observations and perspective. For privacy and security reasons we are withholding his name and institutional affiliation. The text has been only lightly edited to respect the author’s voice.

If you look at extremist regimes, a very disturbing pattern emerges—they all violated their own laws. This is brilliantly depicted by George Orwell’s classic novel “Animal Farm”. There, the pigs were the firsts ones to violate the rules and keep privileges for themselves.

More of the same is happening with our “pigs”/rulers in Afghanistan, with an exceptionally idiotic medieval ideology of retribution for someone’s crimes. In their last attempt to do good for Islam and Muslims, they recently hanged a couple of alleged kidnappers in public with chains and cranes. From the look of the men’s clothes it was obvious that they were beaten and tortured before being hanged.

On the other hand, the chief of “امر بالمعروف و نهی المنکر” (which roughly translated means Directorate to Order Good and Hinder from Bad, or as some call it Directorate of Control) has basically become concerned with the beards of men, sleeves of women and (god forbid) the sound of music. He has said that the 1996 punishments of criminal actions, i.e. the Islamic Sharia retributions against criminals, will return. These laws—or any laws for that matter with a terrorist/extremist interpreting them—should be a feast for the minds of academics, especially people who have devoted their lifetimes to understanding justice and restorative justice theories.

There are three kinds of punishment in Islam; first, Retribution for death (Qesas), second, the Prescribed punishments (Hudud), and third, Discretionary punishments (Taazirat).

Qesas means if a murder is committed the murderer will be killed and heir of the deceased has the right to do it, or rather give consent for the state to do it on her behalf.

There are seven types of Hudud.

• apostasy (ارتداد)—means leaving Islam and the punishment for it is death.
• revolt against the ruler (البغاوه)—the punishment for it is death.
• theft (سرقه)—punishable by amputation of the arm.
• highway robbery — (قطاع الطریق) in this crime, if someone is killed during a robbery without robbing him the punishment is death, if only robbery is committed the punishment for it is amputation of the right arm and the left leg, if both robbery and murder is committed the punishment is death (some give discretion to the state to amputate a leg and an arm and then publicly hang him till death)
• adultery (زنا)—if the person is married the punishment is to be stoned to death, and if unmarried the punishment is to be lashed 100 time and then exiled for a year.
• slander (قذف)—means falsely accusing someone of adultery, which is punishable with 80 lashes.
• drinking alcohol—is punishable by 80 lashes.

All that being said, my whole point in this article is this: these punishments are almost never applicable and if due process is adhered to no one will ever be convicted of these crimes, as their conditions are so stretched that even if a single one is not fulfilled the punishment would be dropped. Thus Islamic law is mainly (to my understanding, according to most of modern Islamic criminal law academics) the Discretionary punishments. Not only do these apply to the crimes that falls outside of the Rrescribed punishments and punishment for murder, but they also apply to the prescribed punishable crimes when their conditions are not fulfilled.

In Discretionary punishments the judge—referring here to the state as whole—has the discretion to decide punishment for a crime which in no circumstance can be more severe than the Hudud and Qesas. In simple terms the Discretionary punishment in Islam and almost all the modern criminal law theories meet each other and agree—which is how the predominant part of Muslim world views criminal justice.

In Islamic criminal law, due process is like a wall to hinder the state from abusing the prescribed punishments and applying sadistic physical punishments. These retributions would be dropped in a heartbeat if a single condition is not fulfilled and the criminal would be sentenced to jail. These conditions are so broad and unreachable that in proving a prescribed punishable crime one would have to ask a helping hand from god himself. There is a lot of talk about why these punishments with their severity should exist at all. Maybe it is to ensure  that potential criminals are terrified and even the state itself is prompted to soften them by due process.

Extremist regimes like the Taliban’s, however, very much like extreme retributions for criminal actions and have very loose—if any—due process requirements. This enables them to use these laws whenever they like as a tool against others, and inevitably keep privileges for themselves.

It is not the application of Islamic criminal law that frightens us, it is that it is applied without due process and with an interpretation that pushes against the spirit of Islamic law. The Taliban are not only disregarding the Discretionary punishments; rather, forcefully and without any legal ground they are applying the textual and literal interpretation of Islamic law which only exists to intimidate perpetrators and to set an unreachable goal and prompt an extremely precise process of law.

Notwithstanding the spirit of the Islamic jurisprudence the Taliban have and are executing and amputating alleged criminals with little or no due process. The very existence of lawyers, judges, prosecutors and the whole justice system is to ensure that due process exists, so no innocent person is punished and no criminal is punished more than what is proportional and necessary. The notion of acting within a system does not exist in the minds of the Taliban and a judicial system does not exist while these punishments are being carried out. Instead a state of vigilantism and sadism has taken over some 35 million people. Human beings are tortured and then hanged in public by one party as judge, jury and executioner.

This brings to mind a quote from Fyodor Dostoyevsky “A society should be judged not by how it treats its outstanding citizens, but by how it treats its criminals”. The Taliban in their first regime in Afghanistan brought horror to the people, with cities resembling butcher shops as hands and bodies were hung time and again in public, all in the name of fulfilling Islam. But we know now that that was only to satisfy the sadistic minds of a few and their innate need for butchery of their own kind. Contrary to what Dostoyevsky said, I think Afghans today should be judged not by what is done to alleged criminals, but rather by our outcry for rule of law and for true justice.