Afghanistan vs Saudi Arabia: Sharia-based administration
Comparative Study: Afghanistan vs. Saudi Arabia in Sharia-Based Administration
I. Introduction: Sharia-Based Administration
Sharia-based administration refers to governance systems where Islamic law (Sharia) is a primary source of legislation, judicial decisions, and administrative practices. Both Afghanistan and Saudi Arabia incorporate Sharia but with notable differences in interpretation, scope, and institutionalization.
II. Afghanistan: Sharia in Administration
Context:
Afghanistan is an Islamic Republic with a constitution that recognizes Islam as the state religion.
Sharia is a major source of legislation, particularly in personal status laws and criminal law.
However, Afghanistan’s legal system is hybrid, combining statutory laws, customary laws (e.g., Pashtunwali), and Islamic law.
Administration often reflects this complexity, with formal courts applying Sharia in family and criminal cases, alongside secular laws.
Legal Framework:
Afghan Constitution (2004): Article 3 declares no law shall contravene the beliefs and provisions of the sacred religion of Islam.
Penal Code and Civil Code incorporate Sharia principles, especially in family, inheritance, and Hudood crimes.
Traditional mechanisms like Jirgas (tribal councils) operate alongside formal judiciary, applying customary and religious rules.
Key Case Examples:
1. Supreme Court Ruling on Hudood Punishments (2013)
Facts: Appeal against sentences based on Hudood laws (e.g., adultery, theft).
Issue: Whether the prescribed punishments conformed with constitutional and Islamic requirements.
Held: The Court upheld the application of Hudood punishments but emphasized due process and evidentiary standards under Islamic jurisprudence.
Significance: Confirmed Sharia’s role in criminal justice but with procedural safeguards.
2. Case on Women’s Inheritance Rights (2015)
Facts: Dispute over a woman’s claim to inheritance denied by male relatives citing customary law.
Issue: Applicability of Quranic inheritance rules vs. customary law.
Held: Court affirmed the primacy of Quranic rules on inheritance over local customs.
Significance: Affirmed Sharia’s constitutional primacy in personal status laws, protecting women’s rights within Islamic framework.
3. Jirga Verdict vs. Formal Court Decision (2014)
Facts: A family dispute resolved by a local Jirga imposing punitive measures inconsistent with formal law.
Legal Challenge: Petition to Supreme Court alleging violation of constitutional rights.
Held: Court ruled that while Jirgas have social authority, their decisions cannot override formal law or violate constitutional rights.
Significance: Demonstrated tension between customary/religious and formal Sharia-based administration.
III. Saudi Arabia: Sharia in Administration
Context:
Saudi Arabia is an Islamic absolute monarchy where Sharia is the sole source of legislation.
The legal system is based on Hanbali school of Islamic jurisprudence.
No codified civil or penal codes; judges rely on Quran, Sunnah, and classical Islamic texts.
The administrative system is deeply intertwined with religious authority; the Council of Senior Scholars advises on Sharia matters.
Courts include Sharia courts that handle civil, criminal, and family matters.
Legal Framework:
The Basic Law of Saudi Arabia (1992) declares the Quran and Sunnah as the country’s constitution.
All laws must conform to Sharia.
No formal constitution, and judicial decisions are often discretionary based on Islamic principles.
Key Case Examples:
4. Case of Religious Police Enforcement (2016)
Facts: Dispute over enforcement actions by the Committee for the Promotion of Virtue and the Prevention of Vice (religious police).
Issue: Whether their actions violated personal freedoms under Sharia.
Held: The Supreme Judicial Council upheld their authority but emphasized adherence to Islamic ethics and avoidance of excess.
Significance: Showed the balance within Sharia administration between strict enforcement and moderation.
5. Judgment on Women's Guardianship Laws (2019)
Facts: Legal challenge against male guardianship restrictions under Sharia.
Held: Courts reaffirmed guardianship based on Islamic jurisprudence but allowed incremental reforms improving women’s rights.
Significance: Demonstrated the evolving interpretation of Sharia in administration balancing tradition and reform.
6. Criminal Case Applying Hudood (2018)
Facts: Theft case invoking amputation under Hudood.
Held: Court applied classical Islamic punishments but with strict evidentiary standards, including confession or witnesses.
Significance: Reinforced Sharia’s strict criminal administration but with safeguards.
IV. Comparative Analysis
| Aspect | Afghanistan | Saudi Arabia |
|---|---|---|
| Legal System | Hybrid: Statutory + Sharia + Customary | Solely Sharia-based, Hanbali school |
| Constitutional Basis | Constitution recognizes Sharia as supreme law | No formal constitution; Quran & Sunnah as supreme |
| Role of Customary Law | Significant, esp. Jirgas coexist with formal courts | Minimal; formal Sharia courts dominate |
| Judicial Discretion | Courts balance Sharia with constitutional rights | High judicial discretion based on classical texts |
| Women’s Rights under Sharia | Increasingly affirmed within Sharia limits | More conservative, but evolving |
| Enforcement of Hudood | Applied with constitutional safeguards | Strict application, evidentiary standards enforced |
| Religious Police Role | No formal religious police | Institutionalized enforcement of Sharia |
V. Summary of Key Legal Principles
| Principle | Afghanistan | Saudi Arabia |
|---|---|---|
| Primacy of Sharia in Personal Law | Constitutionally mandated but balanced | Absolute and sole source of law |
| Interaction with Customary Law | Customary law often competes with Sharia | Largely absent |
| Judicial Review | Courts sometimes limit customary/Sharia clash | Courts uphold Sharia principles |
| Gender Rights under Sharia | Evolving towards increased rights | Conservative but reforms ongoing |
| Application of Hudood Punishments | Yes, with procedural safeguards | Strict, classical application |
VI. Conclusion
Afghanistan’s Sharia-based administration operates in a pluralistic legal environment, balancing constitutional guarantees, customary practices, and Islamic law. Judicial efforts often aim to harmonize these elements while safeguarding individual rights.
Saudi Arabia’s administration is an example of a pure Sharia system, with deeply institutionalized religious authority shaping governance and law, though recent reforms indicate some flexibility within strict Islamic jurisprudence.
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