The Taliban introduced its new Penal Code of the Taliban Courts as a replacement for Afghanistan’s national penal code. Unfortunately, it lacks even the most basic formal and substantive standards of legal rules. As well, it cannot be considered a law from the standpoint of its issuing authority. A law, by definition, is a binding set of legal norms enacted by authorized institutions to regulate and organize society. Yet in the very first article of this code, the Taliban present a completely independent and unusual definition of the term “law.” This author argues that their version of “law” refers to anything endorsed by the Taliban leader, Mullah Hibatullah Akhundzada. From this definition, one can infer that the new Penal Code of the Taliban Courts is nothing more than a legislative decree because Hibatullah Akhundzada is not an institution but the leader of a ruling group.
The purpose of assigning lawmaking authority to a specific institution is rooted in the pursuit of justice: In modern states, legislative bodies are composed of representatives of diverse social groups who can exercise oversight over the lawmaking process. Thus, we see that the first article of this code contradicts the very concept of a legal code.
The Taliban have never shown a belief in law, and, after seizing power, they annulled all existing laws. Although many legal scholars, whether supporters or opponents of the Taliban, argued for the necessity of having a legal framework to govern Afghanistan, Taliban officials repeatedly insisted that Islamic societies need only the Quran and Sunnah as their laws, and that human beings cannot legislate. Yet now, having introduced a major legal code for the first time, they have proven that they do not recognize values such as social justice and human rights.
Furthermore, the civil rights of Afghan citizens, which were relatively well protected by laws enacted in previous eras, have been systematically violated under Taliban rule. This includes the Constitution, the Civil Code, and the old Penal Code of Afghanistan: laws that were created based on modern legal standards and values such as equality and justice. These very values are explicitly and openly attacked in the new version of the penal code presented by the Taliban Courts.
One of the most essential substantive principles that must be observed when drafting laws is the equality of citizens before the law. Article Nine of the Taliban’s penal code flagrantly and unmistakably violates this principle by dividing the citizens of the country into four distinct classes: scholars, elites, the middle class, and the lower class.
Nowhere in the world are citizens categorized into hierarchical ranks in this manner, even in any of the 56 Muslim-majority countries. It is also obvious that each of these social categories is subject to different punishments: religious scholars get mere advice delivered over the phone while those in the lower class will be subjected to corporal punishment and imprisonment.
Unfortunately, the hierarchical division of Afghan society does not end here. The code further differentiates between Hanafi and non-Hanafi individuals, and between men and women. In one provision, husbands are given the authority to impose ta’zir (discretionary) punishments on a “misbehaving” wife. In principle, those sorts of punishments should only be issued by an impartial court. Similarly, Clause Five of Article Four grants the power of ta’zir punishment to an “owner” or “master,” which implicitly validates the idea of owning slaves and servants within society.
One of the main justifications for having law in any society is to guarantee the broadest human freedoms for ordinary people. A society built on equal citizenship and where the government serves its people is not one in which, as the code itself implies, it rules over them as a “master.” Yet this penal code will become a tool of repression and arbitrary enforcement by the ruling group against ordinary citizens. Every article of the code carries the unmistakable scent of restrictions imposed on citizens. Rather than simply identifying criminal offenses and their penalties, it has been turned into an instrument of political domination.
A legal code should ensure fair trial standards, human rights, and the rights of citizens. Instead, this code extinguishes any hope for such principles and transforms the legal system into a rigid and oppressive mechanism against anyone who opposes the ruling group. For example, in two separate sections, the death penalty is prescribed for those who oppose the Taliban’s ideological framework. Even expressing verbal disagreement with Taliban officials can result in imprisonment of up to two years.
Laws must also meet certain formal standards of legal writing. For example, the correct and appropriate use of legal terminology is one of the essential features of a sound legal system. But terminology alone is not enough; structure and organization are equally crucial. A logical sequence of chapters and sections helps both citizens and officials apply the law correctly. Yet none of these standards are observed in this code.
The Taliban’s penal code contains no table of contents, perhaps because it is extremely brief and thus might not require one. Instead of following conventional formatting, the footnotes on each page provide lengthy and nonstandard citations of religious sources. This reinforces the impression that the code is a disorganized compilation of scattered jurisprudential notes rather than a coherent legal document.
Criminal laws must also be clear and unambiguous. They should contain no complexity that could lead to misunderstanding or misinterpretation. The law should be sufficiently clear, general, and comprehensive so that each crime has a specific, proportionate punishment. This clarity is essential to preventing the state from committing injustice against any person, including the accused.
However, discretionary punitive authority (ta’zir) is granted to judges in several articles of the Taliban’s penal code. This creates a serious risk of systematic abuse as the code effectively enables judges to impose punishments based on personal views and preferences. By contrast, if we look at the penal code of the Republic era, we can see that most of these principles were largely observed, and opportunities for judicial exploitation of legal gaps were significantly limited.
Another fundamental principle of criminal law is the proportionality between crime and punishment. In the previous era, punishments were assigned with regard to the gravity of the offence. Now, there is no proportionality between the offense committed and the proscribed punishment in many cases in the new penal code.
For example, execution is the punishment for a “sorcerer,” a political opponent of the Taliban, or someone who adheres to non-Islamic beliefs. Meanwhile, only five years of imprisonment is given for the crime of murder carried out by poisoning. The code also offers notable immunity to judges themselves. If a judge knowingly issues a ruling contrary to the facts of a case, the punishment is merely 10 days in jail. Yet failing to report the whereabouts of Taliban opponents can result in a two-year prison sentence, which seems extraordinarily harsh for an ordinary, possibly innocent individual.
Even if we compare the Taliban’s penal code to the previous Afghan penal code solely from a structural standpoint —setting aside considerations of substance and quality — the contrast is deeply discouraging. The former national penal code consisted of a preamble, two books, 16 chapters, 112 sections, and 916 articles, which spanned 785 pages. In contrast, the Taliban version of the penal code has one preamble, three chapters, 10 sections, and 119 articles, which take up just 58 pages.
The Taliban version is shorter than the 63-page table of contents of the previous code. This simple numerical comparison shows that the previous penal code was vastly richer and more functional both in form and substance. It also fulfilled the objectives of a criminal justice system far more effectively.
Earlier, we noted that the Taliban annulled the former national penal code for reasons of their own and introduced this brief document after four years in power. It is important to examine where this brevity comes from, and what parts of the former criminal justice system have been removed.
Some provisions eliminated from the national penal framework include:
– Crimes related to nuclear activities
– Crimes against humanity
– Insults against followers of other religions and beliefs
– Torture
– Money laundering
– Prohibitions on the recruitment of children into military units
– Prohibitions on child labour in hazardous occupations
– Protections against depriving children of their fundamental rights, such as the right to education (even as the Taliban closed school doors to teenage girls)
If that wasn’t bad enough, provisions have been casually removed in order to leave room for judges to apply qiyas (analogy) and thereby expand their discretionary power over citizens to the greatest extent possible.
Habib Islami is a legal scholar and former university professor.
