Implementing Sharia as Judiciary in Afghanistan – AISSC solution to Taliban Govt


Al-Quran, as a guide for Muslims in the outline, contains the basics of faith, morals, and sharia or law for the survival of creatures in this universe. The Prophet Muhammad SAW described the contents of the Koran as the interpreter of the Kalamulah throughout his life. When he was alive, someone could immediately know every case that arose as the answer based on the text of the Koran and the explanation and interpretation, which became known as his Sunnah. However, in the next period, people’s life experienced a very rapid development along with the development of Islam throughout the world. Contact between Arabs and other nations outside of Arabia with various cultural features has led to new cases that require immediate solutions and alternatives to answer them.

In the context of Afghanistan, empirically and historically there is no doubt that Islamic law is one important element in the formation of national law (positive law). Also, sociologically, Islam as a religious doctrine is to have religious values that have been believed by Muslims to be a system of life that is regarded as the law derived from religion by Afghan people. Judging from the scope of realistic politic or ideological-empiric, there is a serious debate in the formulation of the basic constitution of the country is currently taking place by the interim government of the Islamic Emirate of Afghanistan led by the Taliban.

Advanced implications of the ideological polemics are the pros and cons in the middle of the people in the realm of law regarding the implementation of Islamic law in Afghanistan. Socio-politically, faced with the reality of the plurality of the Afghan society is very complex, the response of Muslims themselves against the implementation of Islamic law in Afghanistan, there are at least 3 (three) polarization.

  • There are most of Muslims who want that Islamic law is substantive-formalistic enacted in regulation and legislation.
  • There are others who believe that what an important is the values (moral ethics) of Islam entered in national law.
  • While others, they just refuse altogether implementation of Islamic law.

Social response, in reality, has given birth to the diversity pattern of the struggle among Muslims such as a radical-psychic-physical approach demanding implementation of Islamic law in totality (kaaffah) with terror manner and acts. Even though when considering various aspects, such as the persistence of the variations and mosaic of thought Muslims on the relationship of the sharia and the state, there are many law schools of thought (madzahib fiqh) related to the products of Islamic law, the configuration of socio-political determining the implementation of Islamic law, there are variables of social, cultural, political and history are diversities that influenced the formation of the law in various Islamic countries the different practical application of Islamic law, and depend on who ruled government authority in the formulation and decision making.

Departing from these reasons, AISSC would like to propose a recommendation that the actual implementation of Islamic law in Afghanistan can be approached from a law politic approach of Islamic as a public policy-making process and not by means of terrorism.

Sociologically and culturally, Islam as a religious doctrine is to have religious values that have been believed by Muslims in Afghanistan have been used as a system of life that is regarded as the law derived from religion by the Afghan people. It is reasonable considering Islamic law is the law that flows and has been deeply rooted in the culture of Afghan society, therefore, an Islamic legal is classified as the law that lives in the community (the living law). Not merely because Islamic law is the religious entity professed by the population of Afghanistan, but in the action dimensions of Islamic law has become part of the tradition of (indigenous) communities that are sometimes considered sacred.

The applicability of Islamic law in Afghanistan underwent a long dialectic that cannot be separated from interest groups concerned that influence the -implementation of- policies incorporated. Policymaking Islamic law as a state law actually getting chances and opportunities in line with the process of forming the state of Afghanistan. But in reality, as the colonies got new independence from Western colonialism such as Turkey, Egypt, Sudan, Morocco, Pakistan, Algeria, and Malaysia, Afghanistan is also facing problems in the context of the proper relationship (visible) between Islam and politics, between sharia and country.

Whereas in the context of Afghan society, empirically and historically cannot be denied that when discussing the implementation of Islamic law in Afghanistan, actually Islamic law has been applied, which is a key element in the formation of national law (positive law) besides customary law and western law. That implementation has not the totality (kaaffah), it is something that must be pursued. But the core issue which is very important is to realize the implementation of Islamic law, how it is taken.

Related to the implementation of Islamic law in Afghanistan, there is no doubt that among Muslims themselves there are diverse perceptions and attitudes.

First, the group wants Islamic law can apply in Afghanistan to set its adherents.

Second, there are groups who want the unity and uniformity of the law. The Islamic religion is only raw material in the formation of national law. This group wants to maintain a balanced relationship between sharia and state. In certain circumstances do the formalization of Islamic law in legislation, while in others, Islam is a source of ethics-moral.

Third, groups that do not want Islam law is institutionalized and there is even a tendency to get rid of Islamic law. This group represents a small fraction of Muslims wing nationalist-secular. Their outlook can be called liberal-secularistic.

The Taliban government of the Islamic Emirate of Afghanistan can choose among the 3 (three) approaches of structuralist thinking, which emphasizes transformation in social and political order so that Islamic patterned, while the cultural approach focuses on the transformation in social behavior in order more Islamic. Both are highly synergistic relationships, for transformation through structural approach intended to influence the transformation of social behavior so that more Islamic. Instead, the transformation of social behavior is expected to affect the transformation of institutions and political-social intuitions become Islamic anyway.

Structural Approach – is characterized as formalistic-legalistic stating that Islamic law must go through state institutions. Under this approach, the passage of Islamic law must be formulated in a constitution. The structural approach requires a political approach, lobby or through the dissemination of Islamic ideas, then become input for public policy.

Culturalist Approach – that requires socialization and internalization of Islamic sharia by Muslims themselves without direct support from the political authorities and state institutions. Through this approach, the Taliban government can make Islam the source of ethics and morals, as a source of inspiration and motivation in the national life even as a complementary factor in the formation of the social structure. This approach makes Islamic law a moral imperative rather than a legalistic-formalistic structure.

Substantial-applicative Approach – This thinking was born from theoretical Islamic teaching that dogmatic and applicable. Its application is submitted to the Muslims themselves, whether it should be based on the authority of the state or structural, cultural, substantial, individual, or collective pattern.

Various perceptions, thoughts and attitudes above clearly not devoid of polemics and political interest in determining the position of sharia in the country. In theory of the political power analysis, all the disputes cannot be separated from political interests, whether the authorities, pressure groups and or interests, political elite and society.

The differences of view are clearly visible when there is an interaction between the centers of power both at the supra-structure and infrastructure in the midst of society, such as government, political parties, the military, civil society organizations, religious organizations, NGOs, the Muslim community and non-Muslims, even the mass media and social media in the process of implementation of Islamic law in Afghanistan.

  • The Taliban government must understand and avoid that law is the product of politics so when discussing the politics of law tends to promote political influence or political systems to the construction and development of the law. Sharia law should not be the attraction result of various political forces that manifest in the laws.
  • The Taliban should not make the law as the instrumentation of the decision or political will so that the rulemaking laden with particular interests. Lawmaking is become the clash area of interests.
  • Legislature shall reflect the strengths and interests that exist in Afghan society. Besides that, configuration, the Taliban leadership must ensure that there should be no interventions of external and internal governance even the global political interests must not indirectly participate to influence in the formation of legislation.
  • The Taliban should avoid using of force by coercion in championing the interests of an individual or a group, as a worldview and actions, nothing else shall based on the definition and meaning of politics is ‘the fight and maintain power’.
  • The Government of the Islamic Emirate of Afghanistan must follow the principle in Islam that teaches his people, that in order to realize and achieve a certain goal does not automatically justify whatever means done, then the glorious purpose is to be taken with the right ways and means.
  • The Taliban lead government should not use physical force -including the using of weapon- to commit acts of terror on public to make them behave on Islamic law enforcement demands.
  • The violent acts committed by the Taliban fighters, or various other terror or rebel groups must not treat their crimes and abuses as a justification to save certain Islamic groups that the efforts of Muslims in the implementation of Islamic law to the state should be done with a physical struggle, even if identified with the armed opposition.
  • The Government of the Islamic Emirate of Afghanistan must make act of terrorism punishable offence, considering the actions destroying public facilities, disrupting security and public order and causing loss of life and property of the people, which according to Quran chapter al Maaidah verses 33, the offender must be given the big punishment (capital punishment), in the perspective of Islamic Sharia Laws such actions are categorized as major sins (al kabaair).

The right and ideal choice for the Taliban to embody the implementation of Islamic law in Afghanistan is through the political process of Islamic law.

In the policy-making process which is expected to be able to bring a legal product that is Islamic law and national law in which there is Islamic law, of course, social and political configuration that growing concerned.

  • Sociologically and culturally, religious values of Islam and Islamic law itself must be internalized in each individual, group and Muslim families and socialized in the middle of the Afghanistan’s Muslim community effectively.
  • A Muslim and the Muslim society are required to believe, appreciate and practice the teachings of Islam in various aspects of their life.
  • Perspectives, attitudes and behaviors that Islamic when they are personified in the figures of Muslim person and the Islamic community, it will establish commonality of their feelings and needs to Islamic law.
  • The Taliban leadership without ignoring some of the obstacles and difficulties faced by political and technical implementation of Islamic law in Afghanistan, at least the needs and interests of Afghans to practice Islamic law in totality can be accommodated by the political process and structures ruling. With a hope that Afghan society can run obedience and adherence to their religion so that do not leave the view that the previous government rejected the full implementation of Islamic law in Afghanistan.

Written by Hon’ Executive Board Member of AISSC – Syed Shah Fahad Hussain

AISSC reserves all the rights for reprinting & republishing

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