Akmal Dawi
VOA News
September 28, 2023

In cities and villages across Afghanistan, men with no formal legal training but with membership in the Taliban and a rudimentary grasp of 8th-century Islamic jurisprudence wield unprecedented power over the fate of defendants and the resolution of civil disputes.

Under this summary judicial system, most cases are resolved swiftly, often receiving a verdict on the very first appearance before a tribunal. Plaintiffs and defendants make brief presentations, and a judgment is rendered.

Even in the most serious criminal cases, the absence of prosecutors investigating and presenting the facts to a jury or court means that thorough judgments are a rarity.

The Taliban dismantled Afghanistan’s attorney-general office in 2021, deeming it an unnecessary bureaucratic appendage that fostered corruption and inefficiency.

Under the new system, every aspect — from assigning cases to charging and sentencing — must be carried out in the presence of a judge without the involvement of public prosecutors, according to Abdul Malik Haqqani, the Taliban’s deputy chief justice.

“A judge cannot base his decision on a prosecutor’s investigations. This is our Sharia principles,” Haqqani told a local television channel this week.

Farid Hamidi, Afghanistan’s former attorney-general who now lives in the United States, described the dissolution of the attorney-general’s office as a mortal blow to justice in the country.

“A prosecutor’s only job is to help judges have all the facts before issuing a verdict on a case,” Hamidi told VOA. “This is a widely accept principle all over the world, which aims to ensure only justice is served.”

When the Taliban seized power in 2021, they not only dismantled the attorney-general’s office but persecuted former prosecutors who had previously built criminal cases against thousands of Taliban insurgents.

Thousands of prisoners the Taliban set free from jails across Afghanistan in 2021 have sought to carry out reprisals against prosecutors and judges resulting in the killings of more than a dozen former prosecutors, the U.N. human rights body reported in January.

Speed

What sets the Taliban’s justice system apart is its speed.

Unburdened by bureaucratic red tape, Taliban judges have resolved more than 200,000 cases in the past two years, including thousands that had been backlogged in the previous government’s judiciary.

However, critics argue that expeditious verdicts should not come at the cost of true justice.

“They are sacrificing justice for speed,” said Hamidi.

Afghans, who often complained about the sluggishness and bureaucracy of the former government’s courts, have praised the Taliban’s swift justice.

“Sometimes justice delayed is justice denied and sometimes it is most important to move incrementally and achieve a result based on better information,” Neal Davins, a professor of law at William & Mary Law School, told VOA.

The United Nations and human rights bodies have denounced the Taliban’s criminal justice system as brutally harsh.

While the Taliban defend public displays of corporal punishment as consistent with Islamic law, the U.N. deems them inhumane and violations of international conventions against torture.

The Taliban also claim effective enforcement of court orders, contrasting it with the reported shortcomings of the former Afghan government in implementing justice over powerful individuals.

In a bizarre event in November 2015, Khalilullah Ferozi, a banker sentenced to jail for financial crimes, walked out of his cell to sign a multi-million-dollar real estate contract with the Ministry of Urban Development.

In another widely reported incident in November 2016, a former vice president who was accused of detaining and sexually assaulting a tribal rival in Kabul brazenly bore no legal or penal responsibility.

Absolute monarchy

The Taliban have suspended Afghanistan’s constitution guaranteeing the political and administrative independence of the judiciary.

There is also no written document stipulating the appointment of judges, their authorities and judicial accountability.

“We are only accountable to our leader…matters related to authorities of Sultan and King are referred to our leader,” said Haqqani, the deputy chief justice.

There is no limit to powers of the mysterious Taliban leader.

That the judiciary is accountable only to the Sultan, according to Haqqani, is a testament to its independence from both internal and external interventions.

For decades, the Taliban fought the previous Afghan government, accusing it of being a puppet regime serving foreign interests.

While they claim total independence in the way they now govern Afghanistan, the Taliban have widely been reported as a proxy of the Pakistani military — accusations both Pakistan and the Taliban reject.

“The powers and limits of every public institution must be enshrined in a public document or a constitution. Without that the independence of judiciary has no actual meaning,” contended Hamidi.

The absence of written laws has left judicial verdicts open to varying interpretations of broad Islamic rules.

That legal ambiguity has led to serious human rights violations, such as the indefinite detention and torture of individuals without specified charges or the right to a court hearing.

The Taliban’s intelligence agency, for instance, has indefinitely detained and tortured individuals on charges not specified in any law without giving detainees a right to a court hearing, according to independent human rights organizations.

Matiullah Weesa, an activist for girls’ education, has been languishing in Taliban detention for about six months without charges.

Backed by the United States, the former Afghan government had a progressive constitution, which, although symbolic and marred by allegations of violations, sought to distribute power democratically with equal rights for all citizens, regardless of gender.

“A constitution is only as good as the people who interpret/enforce it. It typically serves a useful purpose in constraining government and protecting individual rights — but only if it is treated with respect,” said Davins.

Like other parts of the Taliban’s government, women are excluded from work at the judiciary and there are not any female judges to address disputes among female plaintiffs and defendants.

Called the world’s only gender-apartheid regime, the Taliban definitely claim they have given Afghanistan a better justice system than the one built with large international support.