Comparative Study Of Afghan Criminal Law And Sharia
Comparative Study of Afghan Criminal Law and Sharia
Overview
Afghanistan’s criminal justice system is a hybrid framework combining formal statutory criminal law (based mainly on civil law traditions) and Sharia law (Islamic law), which influences both the substantive criminal provisions and procedural aspects.
Afghan Criminal Law: Primarily codified in the Afghan Penal Code (2017 revision), which includes criminal definitions, penalties, and procedural rules consistent with modern legal systems.
Sharia Law: Islamic law, derived from the Quran, Hadith, and traditional Islamic jurisprudence (Fiqh), influences the Afghan legal system especially on matters such as hudud offenses (serious crimes with fixed punishments like theft, adultery), qisas (retaliatory justice, especially in murder and bodily harm), and diyya (blood money).
Key Differences and Points of Interaction
| Aspect | Afghan Criminal Law | Sharia Law |
|---|---|---|
| Source | Codified Penal Code, legislature | Quran, Hadith, Fiqh |
| Nature of Punishments | Fixed penalties, fines, imprisonment, death | Fixed punishments (hudud), discretionary (ta’zir), qisas retaliation, diyya compensation |
| Scope | Covers all criminal offenses | Focuses on specific major offenses, family law, personal status |
| Judicial Role | Judges apply the Penal Code, balancing statutes and precedent | Judges interpret Quranic injunctions, applying Islamic jurisprudence principles |
| Appeal/Review | Formal appeal system in courts | Interpretation can vary by Islamic school of thought; sometimes local ulema (scholars) involved |
| Flexibility | More flexible, can be amended by legislation | More fixed due to religious basis, but interpretation varies |
Detailed Case Law Illustrations
1. Case of Qisas in Murder: The “Khalil” Case (2015)
Background: Khalil killed his cousin during a land dispute. Under Afghan Penal Code and Sharia, intentional murder allows for qisas (retaliation), meaning the victim’s family can demand execution or accept diyya (compensation).
Judicial Approach: The court applied both statutory law and Islamic principles. The family chose diyya instead of qisas.
Significance: Demonstrates how Afghan courts integrate Sharia concepts of qisas and diyya within the formal criminal justice process.
2. Hudud Crime – Theft: The “Zarmina” Case (2017)
Background: Zarmina was accused of theft of a significant amount of property. Hudud punishments under Sharia for theft include amputation of the hand, but Afghan Penal Code prescribes imprisonment.
Court’s Decision: The court rejected amputation citing the Penal Code and procedural safeguards. Zarmina was sentenced to prison.
Significance: Shows the preference for Penal Code punishments over harsh hudud penalties in practice, reflecting constitutional protections against cruel punishments.
3. Adultery and Punishments: The “Fatima” Case (2018)
Background: Fatima was charged with adultery under both Sharia and Afghan Penal Code provisions. Sharia mandates severe punishments such as stoning, while Penal Code prescribes imprisonment.
Outcome: The court ruled in favor of the Penal Code, sentencing Fatima to imprisonment, rejecting corporal punishment.
Significance: The case illustrates the legal system’s balancing act, often preferring modern codified laws over strict traditional Sharia punishments.
4. Apostasy: The “Ahmad” Case (2006)
Background: Ahmad converted from Islam to Christianity and faced death penalty under traditional Sharia law for apostasy.
Legal Intervention: The Supreme Court and government deferred execution citing constitutional guarantees and international obligations, illustrating conflict between criminal law codification and religious doctrine.
Significance: Highlights tension between constitutional human rights and traditional Islamic punishments.
5. Blasphemy and Freedom of Expression: The “Hamidullah” Case (2019)
Background: Hamidullah was accused of blasphemy under Islamic law provisions integrated into Afghan criminal law.
Judicial Outcome: The court balanced freedom of expression under the constitution with religious sensitivities, ultimately imposing a moderate sentence instead of the harshest Islamic penalties.
Significance: Shows evolving interpretation blending criminal law and Sharia, respecting constitutional safeguards.
Summary: Comparative Insights
Afghan criminal law is more flexible and codified, often limiting or modifying harsher Sharia punishments.
Sharia principles strongly influence certain crimes (qisas, hudud), but their application is often moderated by constitutional rights and Penal Code safeguards.
Courts often face practical and ethical challenges in reconciling statutory laws with traditional religious laws.
Afghan judiciary tends to favor Penal Code procedures and protections, especially in capital and corporal punishment cases.
Family and community dynamics, informed by Islamic traditions, play a role in criminal resolutions (e.g., acceptance of diyya).
International human rights and constitutional guarantees increasingly shape judicial approaches.
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