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Afghanistan: More Moderate System Of Islamic Law To Return

  • Charles Recknagel

One of the most striking features of the Taliban's rule in Afghanistan was the militia's harsh interpretation of Islamic law. That interpretation saw criminals routinely punished by amputation and execution, with the sentences carried out in front of crowds forced to attend. With a new Afghan interim administration due to take office on 22 December, legal experts in Kabul say the country will now return to a more moderate interpretation of its religious-based laws.

Kabul, 19 December 2001 (RFE/RL) -- One of the first tasks of Afghanistan's new interim administration after it assumes power this Saturday will be to rehabilitate the country's judicial system after the excesses of the Taliban regime.

The new administration will have to formally reappoint many of the judges the Taliban fired from their posts after taking Kabul in 1996. At the same time, the interim government -- which will run for six months -- is expected to review the lists of currently serving judges in the country, to weed out any who retained their jobs under the Taliban at the price of excessively close cooperation with the militia and whose future performance now may be questionable.

Legal experts here expect the result of this process will be to return Afghanistan to the more moderate system of Islamic law that was prevalent before the Taliban era. That era saw the fundamentalist militia impose its own harsh interpretation of Koran-based law, or Shariat, upon the country, including the routine use of public amputations and executions to punish criminals.

Zalmay Payenda is a supreme court judge who was fired from his post by the Taliban and now is back at work in his chambers. He is still awaiting official reappointment to his post, and he has yet to be paid a salary again. But already he and many other returning judges are looking forward to issuing their first court verdicts and bringing Afghanistan closer to the mainstream of Muslim legal systems.

Payenda says Afghanistan will always have a legal system based upon the Koran, which, along with the sayings and traditions of the Prophet Mohammad, is the primary source of the country's laws. But he says that the returning judges will interpret those laws far more humanely than the Taliban would have tolerated.

"Afghanistan is a Muslim country, so we have two principal sources for our law. These two sources are the Holy Koran, which will always be applicable in Afghanistan, and the traditions and sayings of our Prophet Mohammad," Payenda said. "After those two sources, we have secular-based laws, which are adapted to conform to the Koran and the words and traditions of our prophet."

"But the interpretation of all these laws depends on the judges, the Islamic judges," he added. "Koranic law can be severe, but there are solutions [that permit more lenient interpretations]. You can always try to transform a penalty of amputation, for example, into a prison sentence."

The judge says that flexibility comes from the fact that while Islamic law prescribes amputation of the hand for theft, for example, the Prophet Mohammad also said the guilty should be helped to mend their ways. That means that judges can look for the best ways to rehabilitate a criminal and take that into consideration when passing sentence.

Payenda says this does not mean that public executions will disappear entirely in Afghanistan. Many judges here believe in the need for such executions -- usually by hanging -- to set a public example of the penalties for the most severe crimes. But he says such executions will be far rarer than during the time of the Taliban, which used them to punish both criminals and political opponents and to terrify the public.

Similarly, he says judges may continue to sentence thieves to amputations, but only as the maximum sentence and in the absence of extenuating circumstances that would usually reduce the penalty to imprisonment. The stoning to death of those suspected of committing adultery is likely to disappear altogether, as courts return to requiring that there be four male witnesses or eight female witnesses to the act of adultery. That requirement, set by Islamic law to prevent false accusations, is almost impossible to meet legally, though this was regularly ignored by Taliban courts.

Hamid Karzai, the man chosen to lead Afghanistan's interim government, today said he would apply tough Islamic law to common criminals as part of his efforts to restore peace and security in the war-torn country. Karzai, speaking in Rome where he was meeting with former Afghan King Mohammad Zahir Shah, said he would urge greater compassion in Afghanistan but that the rule of law must be enforced.

"I hope all Afghans will see to it that revenge is forgotten, that we become compassionate, that we become kind but just," Karzai said. "We must be kind, but we must have justice. And justice means criminals must be taken for trial and punished accordingly."

Former supreme court justice Payenda served prior to the Taliban, during the government of then-President Burhanuddin Rabbani. He says that during those years and before, Islamic law was not harshly applied. He says judges and other government employees were educated people trained in Afghanistan or abroad, who found amputation penalties disquieting. Payenda himself pursued his law studies partly in France and, like other top Afghan judges, has a thorough knowledge of Western civil law.

One reason Afghanistan is now likely to return to a more moderate system of Islamic law, Payenda says, is that the public has no more patience for harsh Taliban-style justice. He says he believes most people, even those from traditional segments of society, now want moderates in the government and moderates in the courts.

"The traditional people in the population have seen the [Taliban's] punishments and their shaming of women in the streets. We were all kept in an open prison for five years," Payenda said. "They have had all the experience of that sort that anyone could want."

The supreme court justice himself suffered from the Taliban's excesses as much as most. Fired by the Taliban, who replaced judges with mullahs and religious school students, Payenda spent the last five years struggling to make ends meet for his family of six children. Two of his sons worked as shop assistants or laborers, while he found part-time work with the Afghan football federation establishing the rules and regulations for its various tournaments. The position only paid him a salary occasionally, but he continues it in his free time today. The location of the job is Kabul's municipal football stadium -- the same place where the Taliban carried out public amputations and executions on most Fridays of their five years in power.