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Interpreting Sharia Law in Afghanistan

Afghan President Hamid Karzai has added his voice to those condemning the Taliban-orchestrated execution by stoning of a young couple charged with adultery.

The stonings in the northeastern province of Kunduz on August 15 are considered the first such executions ordered by the Taliban since their overthrow from power nine years ago.

The executions, carried out in a village under Taliban control, have been widely condemned by Afghan civil society representatives, international human rights watchdogs, and prominent Muslim scholars in Afghanistan and beyond.

In a statement, Karzai termed the killings an "unforgivable crime." He said "the ruling to stone the two young Afghans by an illegal armed group without a fair trial runs contrary to all human and Islamic principles."

The man and woman, both in their twenties, were reportedly tricked into returning to their native village last week after eloping recently. The Taliban seized them upon arrival and convened a council of the local mullahs to sentence them to death.

The executions bring into focus a burgeoning debate on the meaning of Shari’a-based law in Afghanistan. Last week 350 Islamic clerics gathered in Kabul and called for the implementation of a strict Islamic criminal code, or Hudood. The demand came despite the fact that the nation’s current constitution already stipulates that all laws should comply with Shari’a.

At issue is whether Shari’a is a set of specific rules or the ethos behind a complicated tradition that is subject to different interpretations.

Were the assembled clerics calling for a fundamentally different system of justice from what the drafters of the Afghan constitution understood as Shari’a? The question is not academic. How it is answered will determine whether a broad-minded understanding of Shari’a that is largely consistent with universal notions of human rights will prevail over the most hard-line interpretations of Islamic law.

Guarantee of human rights

While affirming Islam as the state religion and affirming that all Afghan laws will be consistent with Islam, the Afghan constitution also guarantees the observance of the Universal Declaration of Human Rights and other global human rights conventions.

Speaking to Radio Free Afghanistan, Maulvi Abdul Nasir, a prominent cleric in Dasht-e Archi, where the executions took place, condemned the stoning. Nasir said he did not know anything about the specific execution, but that handing down such judgments was wrong in principle.

“According to Islamic injunctions and Shari’a, a person can be convicted for adultery if the accused confesses to his or her crime on four different occasions, and only if four eyewitnesses saw the accused committing the crime,” Nasir explains. “Without that, even their testimony cannot be accepted. All the witnesses should be of just reputation and have never been accused of any wrongdoing.”

Nasir said that such witnesses could testify only if a Qazi, an Islamic judge, summoned them. “Without fulfilling these conditions, a stoning verdict can be considered a matter of force and is devoid of all legal basis, according to Shari’a," he added.

Maulvi Siddiqullah Muslim, head of the decree department at the Afghan Supreme Court in Kabul, sees no contradiction between Shari’a and Afghanistan’s commitment to human rights.

Muslim tells RFE/RL that together with the Quran and Sunnah -- the words and deeds of the Prophet Muhammad -- Shari’a clearly recognizes the consensus of Islamic scholars. This means, in his view, that only a state authority can implement Islamic law.

“Islamic scholars, through a lengthy debate spanning the ages, have proved that to implement the Islamic penal code, all the cases should be referred to the administrative and judicial organs of the state, which will then come to a decision,” Muslim says.

Muslim says that Afghan court decisions in such cases are implemented through a decree from the Afghan president.

No legal authority

Professor Hamid Mohammad Abu Talib, a former dean of the Shari’a faculty at Al-Azhar University in Cairo, agrees. Speaking to Radio Free Afghanistan, he said that a group of armed individuals cannot try people or carry out Islamic punishments, even when their crimes are proved.

“Applied to the situation in Afghanistan, the internationally recognized government of President Karzai is the binding authority,” Abu Talib says. “Therefore, it is not allowed for those who have seized control of some place [within Afghanistan] to set up a court and issue sentences. This is because they cannot be considered an organized and recognized government. They are only a group of people who have forced their control over a particular place. And they do not have the legal sanction to rule, and nobody recognizes them.”

Abu Talib says the Islamic penal code can only be implemented in an Islamic state where “the situation is stable, citizens and their properties are safe, and their economic sustenance in ensured.”

For the Taliban and other armed groups in Afghanistan, establishing an Islamic utopia remains a cherished goal. But the model they once established and want to revert to now is based on fear rather than citizens’ voluntary participation -- something most Islamic scholars strongly reject.

By. Noor Mohammad Sahim and Sultan Sarwar

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