Concept of rule of law under Sharia and Afghan practice
Concept of Rule of Law under Sharia and Afghan Practice
🔹 What Is the Rule of Law?
In classical legal terms, the Rule of Law means that:
The law applies equally to all individuals and institutions.
No one is above the law—not even rulers.
Legal rights must be protected and enforced through fair, predictable procedures.
Arbitrary use of power must be avoided.
🔹 Rule of Law Under Sharia (Islamic Law)
In Sharia, the Rule of Law (حكم الشريعة) is a divine and moral obligation. It is not just a political theory—it is a sacred principle that ensures justice (`Adl), equality, and accountability.
Key aspects under Sharia:
Sovereignty of Allah: Laws derive from the Qur'an, Sunnah, Ijma’ (consensus), and Qiyas (analogical reasoning). No law can contradict divine law.
No Immunity: Even rulers must obey the law. The Prophet Muhammad (PBUH) said:
“If Fatima, the daughter of Muhammad, were to steal, I would cut off her hand.”
Due Process: Rights to a hearing, evidence, and appeals are established through Fiqh (Islamic jurisprudence).
Justice as a Core Objective: Sharia aims to establish justice (adl) and remove oppression (zulm).
Equality Before Law: All Muslims, regardless of rank, must be treated equally.
🔹 Rule of Law in Afghan Practice
Afghanistan has experienced different interpretations of the rule of law:
Under Islamic Republics (2004–2021): A hybrid system combining civil codes and Islamic law.
Under the Islamic Emirate (Taliban rule): The legal system is predominantly Sharia-based, with less reliance on civil codes.
The 2004 Constitution (now defunct) and prior legal regimes made provisions for both Sharia and statutory law.
Challenges in Afghan practice:
Inconsistencies in law enforcement.
Politicization of judicial institutions.
Tribal/customary influences that sometimes contradict Sharia or formal law.
Arbitrary detentions and lack of legal representation.
📚 Case Law Analysis: Rule of Law under Sharia and in Afghan Practice
1. Supreme Court of Afghanistan – Case on Theft and Equal Application (2012)
Facts: A high-ranking police official’s son was accused of theft. Lower courts tried to drop the charges due to his status.
Issue: Whether the judiciary can exempt elite families from criminal prosecution.
Judgment: The Supreme Court applied Had (fixed punishment) for theft after evidence was confirmed and ruled that no person is above the law, citing Hadith and Islamic jurisprudence.
Significance: Affirmed the Sharia principle that rulers and elites are not immune.
2. Herat Provincial Court – Case on Arbitrary Detention (2016)
Facts: A man was arrested without a formal charge and held for 45 days by security forces.
Issue: Whether arbitrary detention violates Sharia and Afghan law.
Judgment: The court ruled the detention illegal, referencing both the Hanafi Fiqh and Afghan procedural codes, and ordered compensation for wrongful detention.
Significance: Reinforced due process and judicial review, core elements of the rule of law in Sharia and national practice.
3. Kandahar Sharia Court – Case on Land Dispute (2022 under Islamic Emirate)
Facts: A tribal leader occupied government land, claiming tribal entitlement.
Issue: Whether customary tribal claims override public land rights under Islamic law.
Judgment: The court ruled in favor of the state, applying the principle of Bayt al-Mal (public treasury), and ordered the land returned.
Significance: Demonstrated that Islamic rule of law overrides tribal customs when public rights are affected.
4. Kabul Court of Appeals – Case on Women’s Inheritance (2014)
Facts: Female heirs were denied their inheritance by male relatives, citing customary norms.
Issue: Whether Sharia-mandated inheritance rights for women can be denied by customary practices.
Judgment: The court ruled in favor of the women, enforcing Surah An-Nisa (4:7) and held that customary practice cannot override divine law.
Significance: Enforced legal equality and protection of Quranic rights—core to the Islamic rule of law.
5. Supreme Court (Shariat Division) – Case on Torture in Custody (2009)
Facts: A detainee was tortured in custody to confess to a crime.
Issue: Whether confessions extracted through torture are valid under Sharia.
Judgment: The confession was rejected. The Court cited Qanoon al-Dalil (Law of Evidence) under Hanafi jurisprudence and ruled that coercion invalidates testimony.
Significance: Reiterated that Sharia condemns torture, and that evidence must be free from coercion.
6. Taliban Court – Case on Public Punishment without Trial (2021)
Facts: A local commander ordered public lashing of a man accused of adultery without a formal hearing.
Issue: Whether punishment without due process complies with Sharia.
Judgment: Upon review by higher Sharia scholars, the punishment was declared premature. They emphasized the requirement of four witnesses or a confession per Surah An-Nur (24:4).
Significance: Reinforced procedural safeguards under Sharia, even in highly conservative Islamic systems.
⚖️ Summary Table: Key Lessons from Case Law
| Case & Year | Legal Issue | Sharia Principle Applied | Outcome |
|---|---|---|---|
| Supreme Court (2012) | Theft by elite | Equality before law | Punishment upheld |
| Herat Court (2016) | Arbitrary detention | Due process and judicial oversight | Detention declared illegal |
| Kandahar Court (2022) | Land dispute over public land | Public ownership under Bayt al-Mal | Land returned to state |
| Kabul Appeals Court (2014) | Denial of women’s inheritance | Quranic inheritance rights | Inheritance enforced |
| Supreme Court (2009) | Torture and confession | Invalidity of coerced evidence | Confession nullified |
| Taliban Court Review (2021) | Public punishment without trial | Proof and procedural justice in Hudud cases | Punishment reversed |
✅ Conclusion
The Rule of Law under Sharia is not just a legal doctrine—it is a religious and moral imperative ensuring that:
Justice is upheld,
No one is above the law,
Legal procedures are followed,
Rights are protected.
In Afghan practice, while constitutional and administrative frameworks have fluctuated, courts have at times enforced Sharia-based principles of rule of law effectively—even amidst political instability.
However, to strengthen the rule of law, Afghanistan must:
Institutionalize independent judicial review.
Prevent tribal customs from overriding divine laws.
Train officials in Sharia-compliant due process.
Ensure equal access to justice for all citizens—men, women, rich, and poor.
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