Abstract: There is a special phenomenon that has been affecting Afghan society during past years that requires legal and cultural attention i.e. – girls and women running away from home without the permission of their families or husbands. These girls and women are often not only expelled from their families violently because of their actions, but also face severe criminal charge, based on some controversial judicial procedures and Sharia interpretations adopted by the Afghan prosecutors and judges. The current research paper will discuss whether any legal authority exists for the arrest, prosecution, conviction and punishment of a woman for running away under the current state of the law in Afghanistan
and from a Sharia‐based criminal justice perspective. This paper will also discuss the Afghan community’s reaction to this issue and the social impact and stress on women if who run away from home.
Author: Mohammad Yahya Massoudy *
Editor: Dr. Michael Kilchling
2. II
Abstract
There is a special phenomenon that has been affecting Afghan society during
past years that requires legal and cultural attention i.e. – girls and women
running away from home without the permission of their families or husbands.
These girls and women are often not only expelled from their families violently
because of their actions, but also face severe criminal charge, based on some
controversial judicial procedures and Sharia interpretations adopted by the
Afghan prosecutors and judges. The current research paper will discuss whether
any legal authority exists for the arrest, prosecution, conviction and punishment
of a woman for running away under the current state of the law in Afghanistan
and from a Sharia‐based criminal justice perspective. This paper will also discuss
the Afghan community’s reaction to this issue and the social impact and stress on
women if who run away from home.
Author: Mohammad Yahya Massoudy * Editor: Dr. Michael Kilchling
I am most grateful of Professor Dr. Dr. h.c. Hans‐Jorg Albrecht Director of
Criminology Department of Max‐Planck Institute for Foreign and International
Criminal Law for his support in offering me the Scholarship to do this research
under Max‐Planck Institute during Summer 2011 in Freiburg Germany, and
thanks to Dr. Volker Grundies for his assistance in all administrative support
through this academic visit. I would also specially thank my dear friends Dr.
Hassan Rezaei and Lisa Rousso for their technical support in early drafting of
this paper. Any remaining shortcomings are mine.
3. III
Content Pages
Acknowledgment and Abstract…………………………………….. II
I. Introduction……………………………………………………...... 1
II. Social and cultural aspects of violence against women……… 1
III. Legal and judicial framework………………………………….. 4
a) The Constitution…………………………………………………… 4
b) Afghan Positive Criminal Law……………………………………. 6
c) The Supreme Court Directive……………………………………... 9
IV) The Sharia perspectives……………………………………….. 10
V. Conclusion……………………………………………………….. 12
References…………………………………………………………… 14
4. 1
I. Introduction
Afghan women have limited freedom to escape the norms and traditions of male
dominance, which include exchanging girls as property, using them as slaves and
engaging in early or forced marriages, justifying the practices by improperly applying
Sharia or domestic law. It has been estimated that as many as one in three women across
the world has been beaten, raped or otherwise abused during the course of her lifetime.
The most common source of such violence comes from within the family.1 The United
Nations Mission in Afghanistan (UNAMA), in a special report of violence against
women, concludes that violence against women is widespread throughout Afghanistan
today and is deeply‐rooted in Afghan culture, customs, attitudes, and practices.2
Sometimes in response to such violence and sometimes for other reasons, girls and
women3 run away from home. Females who run away from home without permission
from their families are often not only expelled from their families violently, but also face
severe criminal charges, based on controversial judicial procedures and Sharia
interpretations adopted by the Afghan prosecutors and judges. By following cases of
runaway girls and women in post‐conflict settings like Afghanistan, one can explore
their longing for freedom, their hopes for a brighter future and their bitter experiences
of a discriminatory justice system while living with society’s double standards
pertaining to gender rights. There are many indicators showing the issue of running
away to be a major problem for the Afghan justice system. In my view, this issue provides
necessary insights into the current justice system of Afghanistan and explains the relationship
between religious and judicial norms in the Afghan Constitution as well as their compliance
with human rights standards.
To explore and analyze this important issue, this paper will: (1) describe the social and
cultural background of violence against women that contributes to the running away
issue; (2) address the legal and judicial basis of “running away” ‐as an offense‐ in the
Afghan legal system, in particular the Afghan Penal Code, and (3) analyze the issue
from a Sharia‐oriented criminal justice perspective.
II. Social and Cultural Aspects of Violence Against Women
The problem of women suffering abuse at home and running away from intolerable
situations is neither new in Afghanistan nor confined to particular sections of this
1
Part of the Statement by the UN High Commissioner for Human Rights, Navi Pillay, International Women’s Day 8
March 2010,
2
UNAMA, Human Rights Unit Report “Silence is Violence, End the Abuse of Women in Afghanistan”, published in
Kabul/Afghanistan, 9 July 2009,
3
In this research paper, the word girls refer to unmarried women and the word women refer to married women
5. 2
society. It is a deep‐rooted phenomenon, but until recently was shrouded in secrecy and
silence, and ignored by the authorities. The ravages of Soviet occupation, a decade of
civil war, and the Taliban regime have left Afghan women with enormous suffering and
deprived of some basic human rights.
Research also reveals that in traditional societies like Afghanistan male dominance is
one of the key values that naturally give men absolute authority in family life. As a
result, girls and boys are not equally treated in most Afghan families, which girls unable
to enjoy the same social rights as male family members. Women also traditionally abide
by this negative cultural dimension and most women are unable to enforce or are
unaware of their rights in the family. This negative family rule affects girls in families as
well as women.
In Afghanistan today there are many cases of women’s rights violations that contribute
to this problem, including forced/early marriage; honour killing; family violence;
exchange of women in payment/settlement of debt or financial conflict; abduction; rape;
treatment akin to slavery; various forms of discrimination; vulnerability to false charges;
and judicial neglect and corruption. These cases reflect women’s continuing unequal
status with men in society, exacerbating their vulnerability.4 Furthermore, in many
cases, women are victimized because they are considered to have acted against social
morals.
Illiteracy and lack of awareness of men and women in the family about their rights are
major problems causing different types of domestic violence. The UNAMA Human
Rights Report, Silence is Violence, End the Abuse of Women in Afghanistan, 9 July 2009,
indicates that only “12.6 percent of females in Afghanistan are literate.5 In rural areas,
where 74 per cent of Afghans reside, it is estimated that 90 percent of women cannot
read or write.6”
Post‐Taliban Afghanistan is changing fast: regular old rules and boundaries are
breaking down, but the new ones are either not created yet or are hazy and fragile. In
the post‐Taliban environment there is a wider social space for women to actively
participate in public life. Women have access to public media and do not feel traditional
patriarchal pressures mobilizing their intellectual forces against social inequalities, at
least in major cities like Kabul, Herat and Mazar‐e‐Sharif. There are numerous women’s
rights awareness campaigns supported by donor countries providing a message to the
4
Deniz Kandiyoti, The Lures and Perils of Gender Activism in Afghanistan, Anthony Hyman Memorial
Lecture, School of Oriental and African Studies, University of London, 2009.
5
See, Afghanistan Human Development Report 2007.
6
UNAMA press conference at launch of Education for All, Global Action Week, 20 April 2009, see:
http://unama.unmissions.org/Default.aspx?tabid=1761&ctl=Details&mid=1892&ItemID=3584
6. 3
oppressed woman that she can change her situation by changing her place. This element
has been intensifying the issue of runaways in many parts of country. In big cities new
generations of educated girls are conscious about their rights and are no longer
prepared to put up with domestic abuse. However, the traditional and rural‐based
structures of life dominate its exigencies on women’s lives. Women still have few rights
outside of the family; men still see themselves as ”watchdogs” vis‐à‐vis their own sisters
and as ”wolves” vis‐à‐vis other girls; and the judiciary continues to be administered by
the mandates of powerbrokers, which puts men in control of women.7
Girls seeking refuge from abusive families in a society where there is no law to protect
them are risking their lives. They are usually charged with adultery by the prosecutor’s
office and convicted by the court of that offense. There are some NGOs working on
non‐criminal methods to resolve the problems behind “runaway girls.” But in a society
where family honour is defined through the behavior of its women, reconciliation is
possible only when the girls are still ‘intact’ (salem), i.e. virgins. The detained girls
undergo virginity tests before being charged either by the police or by the court. The
unlucky ones who fail the test are treated as ‘offenders’ whose loss of virginity is taken
as proof that they committed the crime of Zina (illicit sex).
Unfortunately, despite the seriousness of the situation, there exists no experimental
social research explaining the root social causes of running away, and how cultural
dimensions and the reaction of the Afghan community affect the issue. It is widely
reported that there are many examples of girls who are murdered by family members
because they demand to choose the person who they will marry. In some remote areas
local elders and Mullahs completely bypass the district judicial organs and usurp their
authority by issuing verdicts for stoning or killing the girls who run away. Such cases
demonstrate how girls who violate the so‐called norms are held in such contempt so as
to justify extreme violence against them. It also highlights the deeply rooted causes of
violence against women and ongoing challenges to establishing the rule of law. When
social and cultural circumstances do not allow women and girls to oppose harmful
traditional practices, or to escape violence, they sometimes run away from home8.
In Afghanistan, most running away cases seem to be caused by early/forced marriages,
exchanging of girls for property and other forms of domestic violence. Often girls are
charged and convicted of this offense because of their refusal to accept early/forced
7
Decisions, Desires and Diversity: Marriage Practices in Afghanistan, Deborah J. Smith, AREU, Feb. 2009 /
http://www.areu.org.af/Uploads/EditionPdfs/905E‐Marriage%20Practices‐IP‐web.pdf
8
See also (Decisions, Desires and Diversity: Marriage Practices in Afghanistan, Deborah J. Smith, AREU,
Feb. 2009) / http://www.areu.org.af/Uploads/EditionPdfs/905E‐Marriage%20Practices‐IP‐web.pdf
7. 4
marriages. Reportedly half of all girls in Afghanistan are married before the age of 15.9
Child marriages, exchanging of girl as baad – giving girls away to settle disputes – are
examples of severe violence against women and harmful traditional practices in
Afghanistan. Additionally, many women also flee their homes because they are victims
of domestic violence. “Domestic violence typically involves punches, kicks and slaps, or
assaults with objects or weapons. It also frequently involves persistent belittlement and
humiliation, and often includes the isolation of women from traditional supporters such
as other family members and friends. Sometimes it may involve forced participation in
degrading sexual acts, rape and homicide”.10 Women become more vulnerable when
they are detained and are sometimes exposed to rape or sexual abuse while in police or
prison custody.
Those who runaway from a violent home situation are often confronted with rape. The
issue of honour is another socio‐culture norm that is central to the issue of running
away. In most of rural areas runaway cases end with rape or honour killing of the girls
or women who struggle to fight domestic violence and try to escape from the violent
situations. Women and girls are at risk of rape in their homes and in their communities,
in detention facilities and as a result of traditional harmful practices to resolve family or
community feuds. In some areas, alleged or convicted rapists are, or have links to,
powerful commanders, members of illegal armed groups, or criminal gangs, as well as
powerful individuals whose influence protects them from arrest and prosecution.11
III. Legal and Judicial Framework
In Afghan justice the runaway issue presents the complexities of rule of law in the post‐
Taliban legal system very well. In the vacuum of a clear law, the conservative judiciary
uses all possible legal and judicial tools to respond to runaway cases, including some
vague phrases in the constitution, positive criminal law as well as Sharia criminal
rulings.
a. The Constitution
Under the Afghan penal code, where adultery and “violation of honour” are included in
the same provision, there is nothing criminalizing running away. Nevertheless, several
studies report that half of the country’s female prison population (almost 300 women) is
9
No official figures are available, but studies cited by UNAMA reports about that widely. See “Harmful Traditional
Practices and Implementation of EVAW Law” Report, December 2010.
10
UNAMA, HR Unit Report, July 2009
11
UNAMA, HR Unit Report, July 2009
8. 5
detained for “moral crimes and charged as runaways.”12 To criminalize this issue,
judicial authorities are mostly rely on Article 130 of the Afghan Constitution that
stipulates “[I]f there is no provision in the Constitution or other laws about a case, the
courts shall, in pursuance of Hanafi jurisprudence and within the limits set by this
Constitution, rule in a way that attains justice in the best manner.” This clause opens
some legal space for judges to refer to Sharia (Hanafi School) Law. Moreover, Article 130
clearly states that a court shall refer to Hanafi jurisprudence only when a court is dealing with a
case in which “no provision in the Constitution or other laws” apply. Still, there is a heavy
discussion about the content of Article 130 of the Afghan Constitution.13 The scope of
application of article 130 Paragraph 2 seems to be limited to pending civil cases, simply
because it is against the principle of legality,14 which is fully accepted by traditional
Sharia understandings. The principle of legality, representing fundamental principles of
criminal justice, is vital in post‐conflict societies.15
There is a strong argument that charging someone for an act like running away, which is
not based on Afghan statutory law, is unconstitutional. Because such indictments are
obviously against Article 27 of the Constitution, they violate the principle of the rule of
law as well as the fundamental rights of the accused. Article 27 of the Constitution
clearly states, “No act shall be considered a crime unless ruled by a law effective prior to
commission of the offense. No one shall be pursued, arrested, or detained without due
process of law. No one shall be punished without the decision of an authoritative court
taken in accordance with the provisions of the law, promulgated prior to commitment of
the offense.”
In reality, judicial authorities in Afghanistan do not consider the runaway as a
manifestation of domestic violence against women. These authorities rely on Article 130
of the Afghan Constitution. However, facing criticism from human rights organizations,
some judicial officials stress that ‘running away from home’ is a crime under Afghan
law. Despite the fact that there is no crime defined as running away in Afghan criminal
law, all over the country, there are an increasing number of girls and women are
charged with the Sharia concept of adultery (Zina) or “intention” to commit Zina as a
criminal sanction for their actions. Courts usually justify their sentencing by treating the
12
UNAMA, HR “Harmful Traditional Practices and Implementation of EVAW Law” Report, December
2010.
13
See Max Planck Manual on the General Part of the Afghan Criminal Law / Mohammad Sadr Touhid‐
Khaneh / Fourth Edition, July 2011
14
Nullum Crimen, Nulla Poena Sine Lege, for more discussion on the place of the principle of legality in
Islamic Law see T. Kamali, “The Principle of Legality and its Application in Islamic Criminal Justice,” in:
M.C. Bassiouni (ed.), The Islamic Criminal Justice System, 1982
15
Cassese and etal (eds), the Rome Statute of the International Criminal Court: A Commentary, Volume I,
Oxford 2002,, p.p.733‐4.
9. 6
girls as if they had committed adultery. Most law enforcement officials believe that
couples who ‘run away’ with the intention to marry do not commit a crime, but if the
couple spends a couple of days together instead of coming straight to the Court or
Judiciary organs upon “running away,” the police are required to arrest them and to
investigate the matter as an adultery case. However, when entering their sentences,
judges do not follow the special criminal procedures required under Sharia and national
criminal law. As a result, judges only punish the girls for running away from home and
set the boys free.
b) Positive Criminal Law
The Afghan positive criminal law is largely modeled by the continental law, i.e. mainly
French model. The Afghan criminal law in this sense is secular lawmaking. The penal
code of 1976,16 which is in force today, is very similar to the Egyptian penal code which
itself was inspired by the French Code de Napoleon. In this body, as said before,
“running away” is not defined as a crime, at all. There is, however, an unusual article in
the penal code that has been working as a source of contradictory thoughts among the
Afghan lawyers and religious scholars on the issue of running away. Many judges and
religious scholars in Afghanistan believe that courts and judges are legally authorized to
use Sharia rulings based on the first article of the penal code in addition to Article 130 of
Afghanistan Constitution. While for unmarried girl runaway cases the positive criminal
law gives no clear ruling, in case of married woman, this category of judges and
religious scholars require that the married woman who runs away should be sentenced
to adultery (Zina) or intent to commit adultery, which is punishable based on Afghan
Penal Code, article 427(1).17
Human rights activists and lawyers have been criticizing Article 1 of the Penal Code as a
basis for introducing Sharia criminal law. This article regulates the Ta’zir crime and
penalties. Those committing crimes of Hodud, Qesass and Diat shall be punished in
accordance with the provisions of Islamic religious law (Hanafi religious jurisprudence).
It appears that Penal Code Article 1 makes a distinction between crimes and penalties
covered by the Penal Code and those uncovered. According to this article no one can
apply Hanafi jurisprudence for any Ta’zir crime. Since running away is not listed in the
Penal Code as a crime, the court has no authority to punish someone for running away.
The only Ta’zir offenses (discretionary crimes) are those acts specifically made crimes by
the articles of the Penal Code.
16
Decree 910 published in the Official Gazette No. 347; for English translation see under
http://www.idli.org/AfghanLaws/Laws%201921_todate.htm>.
17
Penal Code, Article 427(1): “A person who commits adultery or pederasty shall be sentenced to long
imprisonment.”
10. 7
On the other hand according to Penal Code, Article 2 “no act shall be considered [a]
crime, but in accordance with the law.” Penal Code, Article 3 states: “No one can be
punished but in accordance with the provisions of the law which has been enforced
before commitment of the act under reference.” Based on the plain language of Penal
Code, Articles 2 and 3, only those crimes specifically enumerated in the Penal Code can
be prosecuted as a crime under Afghan law18.
Under the Law of Court Organization, a court is not allowed to turn to Islamic
jurisprudence unless it first determines that there are no constitutional provisions or
statutory laws that apply to the case.19 When this notion is considered together with the
language of Article 27 of the Constitution, that “[n]o deed shall be considered a crime
unless ruled by a law promulgated prior to commitment of the offense [,]” it is clear that
unless an act is specifically enumerated by one of the criminal statutory schemes of
Afghanistan, the police and prosecutors cannot lawfully initiate a prosecution for such
act in the criminal courts of Afghanistan.20
Recently some progressive development has been made in advancing women’s rights
and women’s access to justice. Noticeable improvements include the adoption of a new
law on EVAW (Elimination of Violence Against Women), adopted in 2009. This law
obliges Law Enforcement and Justice Institutions (the Criminal Investigation Division
(CID) Police, the Prosecutor’s Office and the Court) to bring women rights’ violators and
perpetrators to justice and punish them according to the law. This law explicitly
criminalizes rape, as well as under age and forced marriage, and other forms of violence
against women. Analysis by both international and domestic observers, however,
reveals that from a technical perspective the law could fail to meet many of its stated
aims. Ambiguities relating to unclear definitions that are gender‐neutral, not clarifying
the issue of criminalizing girls and women running away as well as inadequate
reference to existing laws such as the Penal Code, could lead to problems in its
implementation.21 As the law is new, in many rural and remote areas, police and the
judiciary are unwilling or unable to apply to this law to protect women’s rights.
Furthermore, in some areas Government Officials do not know about the EVAW law
and it remains unimplemented.
18
See JSSP Legal Memorandum on Runaway, (March 2009).
19
See also Law on the Organization and Authority of the Courts (2005), Article 7 [“The courts shall resolve
cases in accordance with the Constitution and other laws of the Islamic Republic of Afghanistan. If there is
no clear legal provision for the case, the case shall be handled in accordance with articles 130 and 131 of
the Constitution.”]
20
See also Constitution, Article 94 [“Law shall be what both houses of the National Assembly approve and
the President endorses, unless the Constitution states otherwise.” (Emphasis added)].
21
See Report of the UN‐HCHR on the situation of human rights in Afghanistan 2009
11. 8
There is, however, one statutory provision that is commonly understood as a basis for
prosecution for running away by Sharia educated judges. Pursuant to Civil Code,22
Article 122: “The wife shall not be entitled to maintenance for the necessities of life from
her husband in the following cases:
1. If she leaves the domicile without being permitted by her husband or with no
grounded intents;
2. If she does not obey the spousal affairs;
3. If there is an obstacle hindering from her being taken to her husbandʹs house.”
Maintenance for the necessities of life is a legal right belonging to a married woman
under the laws of Afghanistan. Civil Code, Article 119 states: “Where the husband
refuses to give maintenance for the necessities of life, or when it is proven to be the
husband’s fault in failing to provide maintenance for the necessities of life, the
authoritative court shall order the husband to give or pay maintenance for the
necessities of life.” The legal right to maintenance remains even if the husband is
sentenced to prison and he has no means to pay for his wife’s necessities of life.23
In fact, other than the Civil Code, Article 122, no law references running away and no
law provides a statutory authority for criminalizing running away. No article of law
authorizes the arrest, prosecution, criminal conviction, or imposition of any other kind
of legal sanction on a woman for running away from her husband. The only lawful
restriction that the courts of Afghanistan can impose on a woman for running away
from her husband is to terminate her right to maintenance for the necessities of life.24
Afghanistan is also a party to a number of international human rights treaties,25
including the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), which it acceded to without reservation in 2003. CEDAW requires
the State to protect and promote the human rights of all Afghan women and girls. The
Government has yet to submit its initial state report required by the Convention and
was due in 2004.26 With the support of the donor community, UNIFEM signed a
22
Afghanistan Civil Code (1977).
23
Civil Code, Article 120 [“Imprisonment of the husband shall not discharge his responsibility to provide
maintenance for the necessities of life to his wife even if he is destitute.”]
24
See JSSP Legal Memorandum on Runaway and also Civil Code, Article 122, supra.
25
Including: the International Convention on Civil and Political Rights, International Convention on Economic, Social
and Cultural Rights, Convention on the Elimination of All Forms of Racial Discrimination, Convention on the
Elimination of All forms of Discrimination against Women, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and the Convention on the Rights of the Child.
26
The implementation of the provisions of this Convention is monitored by an expert committee, the Committee on
the Elimination of All Forms of Discrimination against Women (CEDAW). Under the Convention, Afghanistan has an
obligation to report regularly to the Committee on the implementation of its obligations.
12. 9
memorandum of understanding with the Ministry of Foreign Affairs (July 2009) to
support the drafting process of this initial report, as per the request of the Government.27
Where norms are contradictory, criminal defense institutions and legal aid services can
help promote justice. But in Afghanistan the criminal defense services on the national
and local level are still generally non‐existent, especially for poor persons, women,
children and other vulnerable classes of society. In particular, Afghan women as a
vulnerable group have been affected much by three decades of war in Afghanistan.
c) The Supreme Court Directive
In 2010 the Supreme Court issued a controversial directive which looks like a traditional
Fatwa on running away of girls and women. The directive describes that runaway cases
can happen in two ways: I) The permissible/recommended way, i.e. escaping from an
oppressive situation by going to a Mahram (relative’s) house or judicial/police organs;
and II) The impermissible way, i.e. escaping from an oppressive situation by going to
the house of a non‐relative (Ajnabi).
If the runaway woman chooses the impermissible way, then she will be punished by
Ta’zir (discretionary punishment that includes a range of sentences from reprimand or
one day imprisonment or long term imprisonment). Why is this sentence required? The
Supreme Court refers to an old principle/ruling in Islamic Law Theory (Usul Figh) which
is called Sadd Al‐Zaria. Under traditional Islamic law approaches, mainly Hanbali and
Maleki Schools, this rule can be used as an alternative source of legislation when there is
no clear text from the Quran or sound Traditions of the Prophet.
Based on the Sadd Al‐Zaria ruling, the Supreme Court Fatwa explains that when a
runaway girl/woman, despite being a victim of oppression and torture, goes to the home
of a Non‐Mahram, it expected that she will engage in Haram acts like Zina (Adultery),
which is strictly prohibited by law. In other words, this kind of runaway will most
certainly lead to an offense. Therefore, this type of runaway action should be
criminalized.
In issuing this directive, the Supreme Court not only disregards the principle of legality
guaranteed by Art. 27 of the Constitution, it does not even respect Article 130 of the
Constitution in this ruling since, according to Hanafi jurisprudence that is authoritative
in Afghanistan and decisive for the case at hand, the Sadd Al‐Zaria ruling constituting
the basis of this directive is not regarded as a valid source of rule making and
interpretation of Sharia. The decision only shows that in the Supreme Court, there are
27
See, UNAMA HR Report, July 2009
13. 10
Sharia scholars who are well aware of potentials in Islamic legal theories in order to
expand or restrict women’s rights. Of course the end result of this kind of debate in the
Supreme Court depends on the composition of the Fatwa Council. If they are more
conservative/traditionalist they will use/misuse these potentials against women’s rights.
If not, they might do the opposite. In this case it seems that those conservative scholars
are dominating the Fatwa making process.28
IV. The Sharia Perspectives
The word Shari’a actually means “way,” originally describing a “path to water.” The
term ‘Islamic Law’ although generally refers to Sharia too, but precisely means the
entire system of textual law (shari’a) and Muslim jurisprudence (fiqh).29 The
interpretation of the shari’a is determined by Islamic legal scholars (fuqaha). This
jurisprudence of the shari’a established by inferring from and applying shari’a is called
fiqh, literally “understanding” or “insight.” Hence it is important to differentiate
between shari’a and fiqh. Sharia sources are the word of God as laid down in the Qur’an
and the normative praxis of the Prophet Mohammad – the sunna.30 Qur’an and Sunna
don’t give you answers to every single life and legal question that you are going to
encounter.31 As a result, the jurists—the legal scholars within Muslim societies—
developed a science of interpreting those texts to come up with specific legal
conclusions. Islamic legal scholars belong to different legal schools or jurisprudences
(madhhab) predominant in different parts of the Islamic World. These legal schools are
equally orthodox.
The official reading of Sharia in Afghanistan is based on traditional Fatwas of major
Hanafi jurists. There is, however, no fixed criminalization in traditional Sharia that
covers the case of a runaway. There is only a possibility for making running away a new
offense under the Taʹzir category (discretionary crimes and punishments) if the judge
discovers that escaped boy and girls committed a non‐Islamic relationship (i.e. touching,
kissing and so on), so the judge can sentence the accused to punishment according to
his/her discretion. Unfortunately, it is a common belief among officials in the criminal
justice system of Afghanistan that when a married/unmarried woman leaves her
residence without her husband’s/family’s permission, the woman has committed the
criminal offense of “running away”.
28
UNAMA RoL Unit, Comments on Runaway Directive, an Internal Document, written by. Hassan Rezaei (Feb 2011)
29
For more discussion on Islamic Sharia, see Weal B. Hallaq, (2009), Sharia Book, Cambridge: Cambridge University
Press, see also; Islam in the World Today, (2009), Werner Ende and Udo Steinbach
30
For an indepth analysis of Islamic Law in English see J. Schacht, An Introduction to Islamic Law, 1964
31
Quraishi, A. (2008). Who says Shariʹa Demands the Stoning of Women?: A Description of Islamic law and
Constitutionalism.
14. 11
As noted above, most courts hold the view that if a person is charged with a crime that
meets the requirements of hodud, qesass or diat, and that crime cannot be proven by the
specific requirements of Islamic law, the court may nevertheless punish the offender by
using traditional forms of punishment such as imprisonment.32
There is a widespread misperception among Afghan judges as if the Islamic texts
(Qur’an and Sunna) are regarded as direct source of legislation and sentencing. They
perceive Qur’an as book of law, crime and punishment. The Qur’an itself denies that by
stressing on its guiding principles. Qur’an is basically not a book on crime and
punishment. It is a book of moral guidance and belief in God. Those few rulings on
crime and punishment in Qur’an are mostly local and accidental.33 Since the Qur’an was
revealed in a society where there was a complete vacuum and there were no laws, legal
or state institutions, no courts or judicial system, the believers sought the Prophet’s
guidance in every question they were confronted with. In order to guide people the
Qur’an came out with answers at different levels. At times it provided answers that
were normative and went beyond the immediate situation i.e. of eternal nature and at
times it provided answers that applied to the immediate situation by upholding or
reforming the existing custom or tradition.34
For instance, in Qur’an there is a verse that initially could be misinterpreted as Allah
gave husbands the freedom to punish their women inside the domicile and also let
husbands personally make decisions against women. The verse literally says: “When a
conflict happened between husband and wife, and if you fear a breach between them twain,
appoint (two) arbiters, one from husband family and the other from wife family; if they wish for
peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with
all things”.35
Based on this verse, a group of Islamic clerics believes physical assault is a kind of
punishment for disobedience in which the husband is in a position to identify the
offense and apply punishment himself. But if we accept that Qur’an firmly underlines
the principle of legality which is a rule in Islam, giving the right to the husband to
physically beat the wife, is not acceptable. The principles of justice and fairness are
fundamental in Qur’an. Considering that, how we can accept that under any
circumstance, even for the purpose of family system protection, that Islam can allow a
32
See JSS Legal Memorandum on Runaway, (March 2009).
33
Refer to Abdulkarimm Soroush Book on Reason……published by Oxford 2000.
34
See Engineer, A. A. (2007). Adultery and Qurʹanic Punishment. See also Professor M. Cherif Bassiouni, (Crime and
Punishment in Islam) draft chapter on forthcoming book on Islam, 2006
35
Sura Nisa, verses 34 (Almezan Fe Tafseerul Quran (Almezan Quranic Interpretation), by Mohammad Hussain
Tabatabyee, edition 4 for all the interpretations)
15. 12
husband to apply physical punishment to a woman inside the domicile where the wife
does not have access to justice or a judiciary?
The author believes that Qur’an’s approach to most of crimes especially sexual crimes is
not a judicial approach. The Holy Qur’an approach is a way to promote a morality and
a sense of forgiveness: “If two men among you are guilty of lewdness, punish them both. If
they repent and amend, Leave them alone; for Allah is Oft‐returning, Most Merciful.”36
It is obvious that the content of this verse is not a legal order but a moral instruction and
the message is addressed to the family, not legal scholars. It is also obvious that on
family issues, the Holy Qur’an recommends reticence and concealment and prohibits
disclosure which may lead to interrupt correction. Based on that, the holy Qur’an
recommends a disgusting behavior against bad conduct in order encourage correction
and does not recommend the issue to be dealt with in the legal process. However this
should not be compared with discovery of crime and proceeding to punishment which
totally is a judicial process. Islamic law is very restricted on judgment and prosecution
circumstances that are known to Islamic scholars. Islamic policy is to limit negative acts
and not to promote it.
Those verses in the Qur’an that talk about illegal sexual affairs of men and women,
explicitly says that if a young boy and a girl engage in illegal sexual act and there is high
chance of regret, the issue should not be disclosed and opened to all.
V. Conclusion
The Afghan Constitution allows a criminal prosecution only for an offense specified
under the laws of Afghanistan. Criminal prosecutions and convictions under Islamic
law are limited to only those offenses that are either specifically listed in the statutory
laws of Afghanistan or are incorporated by reference in the statutory laws of
Afghanistan. In other words, there is no legal authority to file a criminal prosecution or
obtain a criminal conviction for an act prohibited by Islamic law unless that offense is
also a criminal offense under the statutory laws of Afghanistan.37 The only Tazir offenses
(discretionary crimes) are those acts specifically made crimes by the articles of the Penal
Code. Under the Constitution or other statutory laws, running away from home is not
recognized as a crime. Unlike Hanbali/Saudi Arabian jurisprudence, running away can
not also become an offence under Hanafi jurisprudence (shari’a) which is the
36
Sura Nesa, Version 16, also See Dr. Sayyed Muhammad Muhaqiq Damad, Principals of Feqh
37
See Part I: Legal Issues, supra, pp. 1‐2 [discussing Constitution, Articles 27, 130, 131, Penal Code, Articles
1, 2, 3, and Law on the Organization and Authority of the Courts, Article 7].
16. 13
supplementary source of law in Afghanistan. In addition, according to Article 130 Para.
2 of the Constitution, recourse to Hanafi jurisprudence must be within the limits of the
Constitution and positive law.
The justice reform cannot succeed without cultural change. To culturally and socially
pave the way for justice reform in dealing with runaways, the civil society and
government of Afghanistan should work in partnership to roll back violence against
women. Afghan society is extremely religious. Hence improving awareness activities to
enhance people’s meaningful understanding of women’s rights, family rights and all
human rights through local Shuras, NGOs and Ulamas from an Islamic perspective is a
must. Furthermore government is responsible for improving the educational level of
women and men in rural areas by increasing the number of schools in rural areas and
encouraging local communities to send their children to the schools, and campaign for
them regarding the importance of education for their own and children’s future lives. A
campaign that can bring Islamic and human rights perspectives together can be more
persuasive and effective.
On the legislation aspect, there is still here a heavy discussion about the content of
Article 130 of the Afghanistan Constitution. The scope of application of Article 130
Paragraph 2 seems to be limited to pending civil cases, simply because even in Sharia
the principle of legality has been fully accepted. Afghanistan only would bypass this
problem by adopting the Sharia principles as statutory law and following the example
of the Islamic Republic of Iran. This would ensure compliance with article 27 of the
Constitution. However, violations of Afghanistan’s obligations under international law
would linger.
18. 15
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• Weal B. Hallaq, (2009), Sharia Book, Cambridge: Cambridge University Press.
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19. 16
• Engineer, A. A. (2007). Adultery and Qurʹanic punishment.
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