Role Of Sharia In Afghan Criminal Law Compared To Gulf States
I. Introduction: What is Sharia in Criminal Law?
Sharia (Islamic law) plays a significant role in the criminal justice systems of many Muslim-majority countries, but the degree and manner of application differ based on legal tradition, constitutional structure, and political governance.
II. Sharia in Afghan Criminal Law
Historical Context:
Pre-2001 Afghanistan: Sharia applied through tribal and informal courts.
2004 Constitution (Islamic Republic): Recognized Islam as state religion, but also guaranteed rights and separation of powers.
Post-2021 (Taliban takeover): Full implementation of Deobandi-Hanafi interpretation of Sharia law.
Current Status:
No formal penal code under Taliban.
Punishments (hudud, qisas, tazir) implemented based on strict Sharia interpretation.
Limited due process and lack of written law.
Judges are Islamic scholars; no separation of powers.
III. Sharia in Gulf States’ Criminal Law
General Features:
Gulf states (Saudi Arabia, UAE, Qatar, Kuwait, etc.) apply Sharia selectively, integrated into codified laws.
Legal systems are dualistic: Civil codes + Sharia-based penal laws.
Some (like UAE) allow non-Muslims alternative courts.
Greater legal clarity and formal appeal mechanisms compared to Afghanistan.
Variation Among Gulf States:
| Country | Sharia Role in Criminal Law |
|---|---|
| Saudi Arabia | No codified penal code until recently; direct Sharia |
| UAE | Codified penal code; Sharia governs family/hudud |
| Qatar | Codified laws + Sharia influence |
| Kuwait | Codified penal system; Sharia mainly in personal law |
| Bahrain/Oman | Mix of civil and Sharia-based rules |
IV. Types of Crimes Under Sharia
| Category | Description | Applied In |
|---|---|---|
| Hudud | Fixed punishments (e.g., theft, zina, apostasy) | Afghanistan, Saudi |
| Qisas | Retaliation in kind (e.g., murder) | All Sharia-influenced systems |
| Tazir | Discretionary punishments | All systems |
V. Detailed Case Law (6+ Cases)
✅ Case 1: Theft Punishment in Afghanistan vs. UAE
Afghanistan (2022, under Taliban):
A man was publicly sentenced to hand amputation for stealing livestock.
No written penal code referenced.
No legal defense or formal trial.
Decision by Taliban "Islamic court" applying Hudud.
UAE (2019):
A man charged with theft was imprisoned for 3 years under Federal Penal Code, with consideration of Sharia principles.
No amputation due to lack of full evidentiary requirements (witnesses, intent, threshold value).
Trial held with defense counsel.
Legal Comparison:
Afghanistan applies classical hudud without due process.
UAE uses a codified, moderated Sharia system, incorporating evidentiary standards and procedural protections.
✅ Case 2: Zina (Adultery) in Afghanistan vs. Qatar
Afghanistan (2023):
A woman was stoned to death for alleged adultery.
No formal accusation or witnesses.
Based on confession under duress.
No appeal allowed.
Qatar (2021):
A foreign woman accused of extra-marital relations.
Court required 4 eyewitnesses or confession without coercion (Sharia standard).
No such evidence: case dismissed.
She was deported under immorality laws, not zina.
Key Legal Insight:
In Qatar, Sharia rules are codified and procedurally constrained.
Afghanistan (under Taliban) applies traditional punishments without procedural guarantees.
✅ Case 3: Apostasy and Blasphemy: Iran vs. Saudi Arabia vs. Afghanistan
Afghanistan (2022):
A man accused of blasphemy was executed within days by Taliban religious authorities.
No trial, no legal defense.
Decision based on local Islamic judge’s ruling.
Saudi Arabia (2018):
A Twitter user accused of insulting Islam.
Formal charges filed.
Case reviewed in Sharia court; sentence of 10 years imprisonment, not death.
Appealed and sentence reduced.
Iran (2020):
A blogger accused of apostasy; sentenced to death, but conviction later overturned by Supreme Court due to insufficient evidence.
Comparison:
Afghanistan applies extrajudicial or summary punishments under Taliban.
Gulf states (and Iran) follow formal judicial process, albeit with Sharia-based criminal provisions.
✅ Case 4: Alcohol Consumption: UAE vs. Afghanistan
UAE (2020):
A non-Muslim foreigner found drinking alcohol publicly.
Fined and warned under civil law.
No flogging or criminal record.
Afghanistan (2023):
A Muslim man caught brewing alcohol sentenced to public flogging and imprisonment by Taliban.
No appeal process.
Legal Note:
UAE applies Sharia for Muslims, but recognizes exemptions for non-Muslims.
Afghanistan applies Sharia uniformly with no legal exceptions.
✅ Case 5: Murder and Qisas in Iran vs. Afghanistan
Afghanistan (2022):
Taliban court ordered public execution of a murderer under qisas law.
Victim’s family opted for death rather than forgiveness.
No formal trial transcript or legal counsel.
Iran (2021):
Murder case allowed victim’s family to choose between execution or diyat.
Court oversaw negotiations.
Compensation agreed; execution stayed.
Legal Difference:
Both apply qisas, but Iran provides judicial oversight and delay mechanisms, while Afghanistan allows instant, tribal-style justice.
✅ Case 6: Role of Judges – Secular vs. Religious
Afghanistan:
All judges under Taliban are Islamic scholars (ulama) without formal legal training.
Their authority derives from Quran and Hadith interpretation.
Kuwait (2020 Case):
A judge ruled against a husband in a domestic abuse case using both Sharia-based family law and civil criminal code.
Decision grounded in codified law and judicial precedent.
Difference:
Afghanistan lacks legal pluralism.
Gulf judges often operate within a hybrid legal system, trained in both civil and Islamic law.
VI. Summary Table: Key Differences
| Legal Element | Afghanistan (Taliban) | Gulf States (Generalized) |
|---|---|---|
| Codification | Uncodified, oral Sharia rulings | Codified laws referencing Sharia |
| Judicial Process | Informal, cleric-led, no appeal | Formal courts, right to appeal |
| Hudud | Applied directly | Rarely applied due to strict conditions |
| Tazir | Harsh, often disproportionate | Codified, discretionary but regulated |
| Apostasy/Blasphemy | Death sentence often enforced | Rare, mostly imprisonment or fines |
| Gender Equality | Lacking | Improving; still unequal but procedurally protected |
| Non-Muslim Rights | No recognition | Limited protections in civil law |
VII. Conclusion
The role of Sharia in Afghan criminal law under Taliban rule is absolute, uncodified, and applied without procedural protections. In contrast, Gulf States, while applying Sharia, do so within codified, regulated legal systems, often combining civil and religious elements. This makes their legal systems more predictable, reviewable, and moderate in enforcement, even if some human rights concerns remain.
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