Role of Islamic Jurisprudence in the Penal Code of Afghanistan Mohammad Saleem Karemzai

Assistant professor, Department of Islamic law, Syed Jamaluddin Afghan University, Kunar, Afghanistan. Abstract The Penal Code of Afghanistan was enacted in 1387 with 916 articles. The enactment of this code led to the annulment of previous Penal Code code. The role of the Islamic Jurisprudence is clearly visible in this code. Crimes in the new penal code are divided into two parts- Tazir crimes and determinate crimes (these crimes are being discussed in full details below). The third article mentioned that determinate crimes such as Hudud and Qisas and Diyyat shall be dealt with on the basis of Islamic Sharia, Hanafi School. And punishments for Tazir crimes have been specified in a manner, where there is maximum and minimum limit for judges to decide between. Moreover, the specified punishments in this law for Tazir crime, in general, are in agreement with Islamic Sharia, which I will discuss in details. Finally, we have reached the conclusion that the Penal Code does not contradict Islamic Sharia. Research questions: Some of the questions which have been answered in this article To what extent the Islamic jurisprudence is included in the New Penal Code? What are the types of punishments classified in the Penal Code? Does the new Penal Code include the implementation of Hudud crime? What are the arguments which tell us about the role of Islamic jurisprudence in the Penal Code? Method of research It is a comparative study. This article comparatively discusses Afghanistan’s Penal Code and Islamic Sharia by analyzing the role of Islamic Jurisprudence in Afghanistan’s Penal Code.

Introduction Afghanistan is one of the Islamic states, ruled by different regimes with contrasting ideologies. Changes in the political order led to changes in the legal systems in Afghanistan over the course of time. Every regime implemented laws compatible with its policies because every regime after overseeing its policies and goals would bring changes in the legal system. Afghanistan as an Islamic country with a 99% Muslim population, people always preferred to live under the Islamic legal system. In 2001 when a democratic government came into being after ousting the Taliban, Afghanistan legal system witnessed considerable changes. One significant change was the enactment of the Afghanistan New Penal Code which nullified and voided previous Penal Code. Mainly two questions compelled me to write an article on the role of Islamic jurisprudence in the new Penal Code. Firstly, some people have doubts about whether the New Penal Code contradicts and contravene Islamic Sharia or not? Also, what is the role of Islamic jurisprudence in the new Penal Code?

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© 2019 JETIR June 2019, Volume 6, Issue 6 www.jetir.org (ISSN-2349-5162) In this article, I will thoroughly discuss the role of Islamic Jurisprudence in the Afghanistan Penal Code. Whether this code contravene Islamic Sharia or not? Also, will discuss different punishments prescribed for crimes Penal code During the seventh century, Islam reached Afghanistan, and with the passage of time slowly and gradually people converted to Islam. However, it was during the reign of Hisham ibne Abd al-Malik and Umar bin Abdul-Aziz of Umayyad Caliphate that the majority of Afghans converted to Islam, but it was Mutasim Billah who connected Afghanistan to the Islamic world. In 977 Ghaznavi empire was founded in Afghanistan. Under the Ghaznavi Empire, people would solve their problems under the rulings of Islam, especially under Islamic jurisprudence. When in 1800 Amir Abdul Rahman became the ruler, for the first time he initiated the process of legislation of Islamic jurisprudence which led to the codification and enactment of certain laws. Later on, Amir Habibullah Khan accepted Serajul Ahkam as a legal code, which is the interpretation of the principles of the jurisprudence of “Mujalatul Ahkam 99”. These principles were, in reality, part of the Usmani Empire’s legal system, in which Islamic jurisprudence had been codified in principles. These principles were originated from the thoughts of the Hanafi School’s scholars. In addition, during Habibullah khan’s reign, a code called “Nizam Nama” also existed which was a credible source of laws. Moreover, during the reign of Amanullah Khan, some laws were enacted, which eventually paved the way towards the inclusion of Islamic jurisprudence in laws. In 1355 (lunar year), for the first time, the penal code was enacted and implemented across the country. The first article clearly says that this law contains punishments for Tazir1 crime and other crimes. All the transgressors shall be punished according to the rulings of Islamic Jurisprudence (First article:3). The first article in the penal code signifies that the Islamic jurisprudence has been included and the code is based on it. However, after sometimes, Afghanistan was in turmoil and faced different problems- from external aggressions to civil wars. Therefore, the implementation of Penal Code was not an easy task and had faced various challenges. Also, in the former Penal Code financial punishments for Tazir crimes were determined on the basis of the value of old Afghan currency. When Hamid Karzai became the president of Afghanistan in 2001, the new Afghan currency replaced old Afghani banknotes. It was not possible to fine criminals on the basis of currency which did not exist and had lost its value. Also, new crimes which did not exist earlier became prevalent in the country. The former Penal Code had not included and estimated the new crimes that arose after some time. Therefore, a need was felt to include punishments for new crimes which the former Penal Code did not expect to happen. The new penal code was passed by both houses of parliament, which comprises 916 articles. This code, in general, does not have any contradictions with the Islamic jurisdiction. The third article clearly says that this code, like previous code, includes Tazir crimes and punishments for them. Punishments for Hudud2, Qisas3 (retaliation in kind) and Diyyat 4crimes are included and transgressors of these crimes are punished on the basis of Islamic jurisprudence. (64:4)

1 Tazir: refers to punishment for offenses at the discretion of the judge (Qadi) or ruler of the state

2 Hadud: under Sharia, are rules stated in the Quran and the Hadiths, and whose violation is deemed in Islam as a crime against God, and requires a fixed punishment. 3 Qisas: Qisas means retaliation, this principle is available against the accused, to the victim or victim's heirs, when a Muslim is murdered, suffers bodily injury or suffers property damage 4 Diyyat: is an arabic word which means “blood money”, Diyyat is the financial compensation paid to the victim or heirs of a victim in the cases of murder, bodily harm or property damage. JETIR1907F88 Journal of Emerging Technologies and Innovative Research (JETIR) www.jetir.org 654

© 2019 JETIR June 2019, Volume 6, Issue 6 www.jetir.org (ISSN-2349-5162) The aforementioned article specifies the role of Islamic jurisprudence in the new Penal Code, by delineating punishments for crimes such as Hudud, Qisas and Diyyat based on Islamic jurisprudence, Hanafi School. Also, punishments for Tazir crime have been determined in detailed manner. Classification of Penalties of Afghanistan Penal Code on the basis of determinate and indeterminate penalties First, those specified or fixed punishments which are mentioned under the Penal Code of Afghanistan. These punishments are Hudud Punishment, Qisaas punishment, and Diyyat. We will explain these punishments one by one in the following lines: Hudud: the word Hudud or Had is an Arabic term which means those punishments that are specified in Sharia or Islamic Law. It is called Hudud because the amount of punishment is determined and there is no judge or judiciary can change it either by increasing or decreasing. Under article 5 of the Penal code stipulates that Hudud punishments shall be implemented according to the Hanafi school of thought or jurisprudence. In Hanafi school there are five types of crimes which have determined punishments or Hudud punishments. These include punishment for drinking alcohol (had shrub Khamr), the punishment of prostitution (Had Zinna), punishment of slandering (had qadaf), punishment of theft (Had Sariqa), and punishment of robbery (Quta ul Tareeq). Therefore, in the above-mentioned crimes, if the conditions are fulfilled, determined punishment or penalty shall be inflicted on the offender. Qisaas: It is also one of the physical punishment for the offender who inflicted any bodily injury to another person or killed someone else without lawful justifications. In Qisas the offender is given the same and reciprocal punishment as he did with someone else. For example, if someone cut an organ of another person or kill someone else, his/her same organ shall also be cut or be killed if (s)he found guilty. There are some conditions for the punishment of Qisaas, that the crime of Qisaas should be done with the intention of the offender, the second condition is that the punishment should not be severed or more than what the perpetrator has inflicted on the victim. For example, if someone cut the hand of another person intentionally, then a judge can order the cutting of his hand too as he did with the victim. Diyyat: this is a monetary penalty on the one who injures or kills someone else, but not with the intention of doing so. The difference between this type of crime and the previous one is that in the previous there is always the intention of the offender, but in later one there is no intention of the accused even though in both the cases the harm would be the same. Why this type of punishment comes under the category of the fixed punishments because they are fixed the Sharia law and the judge can’t have discretionary power to alter, modify, or change it(89:8). With regard to these fixed or identified punishments, Dr, Abdul Qadir Awdah writes in his book ‘Implementation of Punishments in Islamic Law and Man-Made Law’ that “There are fixed punishments for certain crimes under sharia law because these crimes are considered as crimes everywhere and all the times, while there are some other crimes which don’t come under this category because they are identified as crimes everywhere they are committed and all the times. Therefore, the judge is given a discretionary authority to decide and punish as (S)he deems fit by looking into the circumstances of the case(80:8). We have briefly analyzed Section 2 of Afghanistan Penal Code that provides for Hudod Crimes and its Penalties. The above discussion suggests that the main source for Afghanistan’s Penal Code is the Hanafi jurisprudence. Though there are many other Islamic schools of thoughts also and they do not have significant differences with Hanafi Jurisprudence over the criminality and punishment of Hudud, Qisas (retribution or retaliation in kind) and Diyyat (blood money) crimes discussed in Section

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© 2019 JETIR June 2019, Volume 6, Issue 6 www.jetir.org (ISSN-2349-5162) 2 of Afghanistan Penal Code. The reason that the legislature has preferred Hanafi Jurisprudence over others was that the absolute majority of Afghan citizens follow the Hanafi jurisprudence. Second: Indeterminate penalties (or which are called Tazir in Islamic jurisprudence) Tazir penalties are those penalties where the texts of Islamic Sharia (Quran and Hadith) has not specified a punishment, but it has been left to the discretion of the State or the judge. Tazirat: Section 2 Paragraph 1 provides that the current Penal Code is limited only to the crimes of Tazir and its punishments, which connotes that the law has given much importance to Tazirat (plural: punishment left to the discretion of State) and for that reason, Tazir crimes and its punishments have been formally codified. This part will first define Tazir, and then it will discuss why Penal Code has fixed or determined the punishments for Tazirat, where the discretion of fixing it is left to the Judge in the Islamic Jurisprudence. The word Tazir means punishment. It has been used for the punishments or penalties of those crimes where the Islamic law has not specified or fixed punishments. Therefore, for the crime where there is no specific or fixed punishment, State or judge has been given the discretion to determine and fixed punishment of it. The State or the judge has the discretion to set upper and lower limits on the severity of penalties that may be imposed on a given offender. The discretion of State or the judge is not absolute, and they have to take into account the national security of State, ensure social security, and comply with the general principles of Islamic Law(80:8). The following section answers the question of why the Penal Code has fixed the punishments where the Islamic law has given the discretion to the judge to determine the punishment according to the crime committed. First: Islamic law has proposed penalties for those acts which are crimes in all circumstances, irrespective of the place, time, and conditions, and it will remain crimes in any case. However, those acts which may be criminalized or decriminalized in the span of time has been left for the Penal Code, so that the State according to the time and situation decide its criminality or non-criminality and then to fix an appropriate punishment for it, because many acts losses the characteristics of crime in the span of time and every act may not be called a crime in anytime. If an act is a crime, the law will determine and fix its punishments; however, if it loses the characteristics of being a crime later, then the punishments will be withdrawn. It is also based on the principle of Islamic Jurisprudence which says that ‘changes in rulings due to changed circumstances should not be objected to (353:5). The above principle expressly provides that the State or ruler can change those provisions of law where analogical deduction or ijtihad is permitted. Second: The second reason for the codification of Tazir crime is too close to the door for corruption. Because if an absolute discretion to determine the punishment is given to the adjudicators or the judiciary, they may, due to many reasons, misuse its discretion. They may not implement the law on some people and may give harsh punishments to others. For this reason, the discretion of the judge has been limited in determination and fixing of penalties. Third: the absence of capable judges is another problem in the legal system of Afghanistan. As time passes by new crimes, appear in new forms, and the ratio of crime is increasing. The knowledge of judges about the Islamic jurisprudence is not enhanced and upgraded, considering the appearance of crimes in new forms. Also, the judges have not reached the position to punish criminal by using their discretionary power based on Ijtihad5. Considering the aforementioned problems, punishments

5 Ijtihad: process of legal reasoning and hermeneutics through which the jurist-mujtahid derives or rationalizes law on the basis of the Qur'an and the Sunna. JETIR1907F88 Journal of Emerging Technologies and Innovative Research (JETIR) www.jetir.org 656

© 2019 JETIR June 2019, Volume 6, Issue 6 www.jetir.org (ISSN-2349-5162) for Tazir crimes have been specified and determined. A judge is bounded in the Penal Code to determine the sentence for criminals mentioned in the code(24:9). Secondly, the intention of criminal, the state of crime and situation of criminal are deciding parameters to acknowledge the severity and minority of crimes. To differentiate Tazir from Hudud, severity and minority of crimes should be taken into consideration. The severity and minority of crime are also considered in Islamic sharia. Also, the Islamic texts mention that severity and minority of crime should be considered while sentencing criminals. Prophet Mohammad (PBUH), once upon a time said that it is advisable that mistakes of persons with good morale and past shall be exempted (428:6). It signifies that there should be relaxation in punishment for persons who never committed a crime before or committed a crime by mistake. Afghanistan Penal Code considered this principle and gives discretionary power to judges to decide the amount punishment by taking into consideration severity and minority of crimes. What are the Arguments which shows that the Penal Code does not contradict Islamic Jurisprudence? The first thing to consider is that the Penal Code of Afghanistan had been enacted after the new constitution was passed in 2004. The third article of the Afghanistan constitution says that “no law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan”. If this law contradicted the basic tenets of Islam and Islamic jurisprudence then it would have gone against the third article of the constitution and would lose its legal status as law. Second, the Penal Code in its second article clearly mentioned the need for Islamic jurisprudence, because both the Afghanistan penal code and Islamic jurisprudence have divided the punishments into two parts which are determinate crimes such as Hudud, Qisas, Diyyat and Tazir crimes. In penal code, we can observe the importance of Islamic jurisprudence from the point that it has not brought changes in determinate crimes, but instead it has accepted Islamic jurisprudence, Hanafi school thoughts on determinate crimes. And the second article of the penal code mentions it. Third, the second chapter of penal code which includes general principles and regulations is similar to Islamic jurisprudence; these principles are translated and interpreted in Afghani languages in simple words. Few examples are given below: The fifth article of the penal code says that a person cannot be convicted until the court has not convicted him (71:4) Above article is similar to following jurist narration: “Acquittance is the rule”.(50:2). Similarly, article number six also talks about equality before law. And says that all people have equal rights and shall be treated equally without discriminating among them. Equality among people is the main motto of Islamic Sharia. Many Islamic scriptures have focused on this in different capacities. Prophet peace be upon him said: All people are similar and equal like the teeth of a comb. So no person superior to another person (189:7). There are similar other narratives in the scriptures which talk about equality of all human beings in the sight of Allah and also the application of the rule of law is same for all. Besides, there is also mention about non-Muslims, they have same rights as Muslims have, and there is no difference between Muslims and non-Muslims when it comes to rule of law. In the penal code seventh article says that no act can be considered crime except in the case when the law where law included and expected that crime (72:4). An incident which punishment is not prescribed for in the penal code cannot be considered criminal, and the transgressor cannot be held responsible. JETIR1907F88 Journal of Emerging Technologies and Innovative Research (JETIR) www.jetir.org 657

© 2019 JETIR June 2019, Volume 6, Issue 6 www.jetir.org (ISSN-2349-5162) Dr Abdul Qadir Awdah has written that Islamic Sharia has emphasized that no act is considered as a crime unless the Sharia considers it as a crime, and no criminal can be punished unless the court proves him guilty(154:8). Article nine talks about personalisation of crimes. Consider crime as a personal act, and punishment for a crime committed by one person cannot be transferred to another person. It is a fundamental principle in Islamic jurisprudence that the responsibility of a crime is personal. Therefore no one can be held responsible for a crime committed by another person. There is a verse in the Holy Quran in Chapter 6:164 as following: “Should I seek a lord other than Allah while He is the Lord of everything? And nobody does anything but to his own account, and no bearer of burden shall bear the burden of another. Then to your Lord is your return. Then He will let you know what you were disputing about.”(164: Surah Inam) This verse clearly mentioned that no one is responsible for crimes committed by others and you cannot put the responsibly on others. Every person who commits a crime should be sentenced as per rule of the law. These were only a few examples among many in which we acknowledge that the penal code of Afghanistan is in accordance with Islamic jurisprudence and there is nothing clear which contradicts or oppose Islamic principles. Suggestions: Members of the Academy of Sciences of Afghanistan should collectively comparatively investigate the punishments included in the Penal Code with Islamic jurisprudence. Also, investigate the jurist analysis of this law. The Ministry of Justice should conduct seminars on public awareness under the title “penal code in Conformity with Islamic Jurisprudence”. Through public awareness programs via media through jurists should be aired and people be informed about the code, so crime rate could be reduced, and their doubts regarding the Islamic aspects of the code can be removed. References: 1. Al-Quran, the holy book of Muslims 2. Ibne Najem, Zain al-Abidin bin Ibrahim, 1980. Al Ishbah Wa Nazayar. Lebanon: Beirut Darul Ketab Al- Alamia. Second edition 3. Ministry of justice, (1355), Penal Code, the official gazette. 4. Ministry of justice, (1396), Penal Code, the official gazette. 5. Al-zahili, Mohammad Mustafa, 2006, principles of jurisprudence and its modern implementation, first edition, Damascus: Darul- fikr. 6. Sajistani, Abu Dawood Sulaiman ibn al-Ash‘ath, 2009. Suanan Abu Dawood, 6th edition, Darul Resala Al-alamia. 7. Al-Sanghani, Mohammad ibne Ismail (1919). Sablul Islam, 2nd edition, Darul Hadith. 8. Awdah, Abdul Qadar, Al Tashrih Aljani Al-islami Maqarana Balqanon Al-Wazi. 9. Alqrafi, Abul Abbas shahabuddin Ahmad Ibne Abdurahman, 1994. Alzakhira, 9th edition, Beirut.

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