Hibatullah Akhundzada, the leader of the Taliban, has issued an order to cancel and re-examine thousands of criminal and legal cases that had been closed by the previous government. This procedure has been signed by Akhundzada and sent to the civil courts for implementation, with the stipulation that any decisions made by the courts of the previous government that are not in line with Sharia are not valid and must be re-examined. The Taliban have declared the judges of the previous government to be “corrupt,” and have removed them from their duties. A “Dar ul-Ifta (House of Fatwa)” has been created in each province to evaluate the decisions of the previous government’s courts through the Sharia lens and make decisions accordingly, with a one-year jurisdiction period granted by the Taliban leader. The name of the country’s Attorney General’s Office has been changed, and the authority to investigate and file lawsuits has been taken away from this institution. Former judges have expressed concern that the fair courts have been closed, and that thousands of people who had been found guilty by the previous government may now take revenge. They argue that the earlier cases had been finalized by the previous regime, and that the Taliban do not have the right to cancel and reconsider them in terms of jurisprudence and law.
After regaining power, the Taliban have closed down several government institutions as “unnecessary”. As an extension of the institutions’ closure, the Taliban are now attempting to bring about a great revolution and transformation in judicial institutions. Recent events demonstrate that Hibatullah Akhundzada, the leader of this group, has changed the name of the Attorney General’s Office from “Loi Saranavali (Attorney General’s Office of Afghanistan)” to “the Directorate of Supervision and Prosecution of Decrees”. Therefore, this and other similar orders from the Taliban leader indicate that the authority of investigation, supervision, and litigation has been removed from this institution.
Hasht-e-Subh has obtained a document which reveals that the Taliban leader has ratified and endorsed a protocol concerning the closed cases by the judges of the courts in the former government. This document has been disseminated on social media, and Hasht-e-Subh has corroborated it with reliable sources. The protocol consists of 17 articles approved by Hibatullah Akhundzada, the leader of the Taliban, who sanctioned it under the title “Procedure of the Closed Cases in the Previous Administration Against Which the Convicted Requests Re-examination.” According to this protocol, the majority of the decisions of the former courts are liable to judicial reoperation.
The Hasht-e-Subh document indicates that the design has been officially dispatched to the relevant departments in Kabul via a letter from the Taliban Supreme Court. The document was signed by Abdul Qadir Rahmani, chief of the Supreme Court of Kabul Province. Further details of the procedure are outlined in the written appendix No. 124/185, issued on Saturday, 3rd September 2022.
The procedure has been replicated in other courts of this group based on the Directorate of the Supreme Court of the Taliban’s Letter No. 15, issued on Sunday, May 8, 2022. This letter states that the procedure was prepared in accordance with the order of the Taliban leader and Letter No. 388 Volume 1, issued on Thursday, March 10, 2022, to review the decisions of previous courts against which the condemned person has requested a re-examination of the case.
Hibatullah Akhundzada’s argument in the text of this procedure is as follows: “This procedure has come with 17 articles, which have been mentioned above. May God bless you! I am pleased that you have done what was requested of you.” Based on this procedure, Sardar Mohammad (the head of the Supreme Directorate of the South-West Supreme Court), Maulawi Lal (one of the members of the Central Dar ul-Ifta), Sheikh Azizullah Al-Mahdhani (the head of the Dar ul-Ifta of the Taliban Supreme Court), and Sheikh Zafarani (the Deputy of the Kandahar Ulama Council) were the board members of this establishment.
The committee of this establishment has presented its opinion regarding the former judges as follows: “The judges of the Republic era have been deemed corrupt, leading to their removal or appointment. According to the interpretations of the judges, when corruption gains control over a region, honorable justice cannot be declared unless the corrupt judges are removed and new ones are appointed. Similarly, if corruption is dismissed, new judges are selected and justice is restored, and the decisions of the corrupt judges are automatically annulled. This is because the removal and selection of corrupt judges is linked to power and domination, unless they are reappointed by the Imam.”
It has been stated in this procedure that the case will be reopened due to the failed decisions of the previous courts. The document states that either the condemned party can demand the implementation of the decision or the defendant can request to violate the previous verdict in order to continue the case, should they present the unimplemented decisions of the judges of the previous administration to the respected judges of the Taliban.
If the primary court of the former government has made a decision, it will be referred to the court of the Islamic Emirate for consideration. If the decision is in accordance with Sharia, it will be approved; otherwise, it will be rejected and sent back to the primary court. If the decision of the previous court has been issued by the pleading court, it will be transferred to the Supreme Court of the Taliban. The Supreme Court must review the previous verdict, confirm that it is in accordance with Sharia, and process it in the same manner as other cases.
If a decision has been finalized in the previous administration and the condemned party requests the implementation of that decision, the case will be submitted to the Supreme Court of the Taliban. It will then be assigned to a member of the Dar ul-Ifta to review the verdict and, if it is based on Sharia, implement it. If not, the case will be investigated first and then sent to the Supreme Court for execution.
According to the new regulation, a Dar ul-Ifta will be established in each province, with the authority belonging to the leader of the Taliban. At the center, the head of Supreme Court’s Dar ul-Ifta and provinces will be given the authority to investigate and decide the matter, which will be considered the final verdict. This is necessary in order to avoid offending Muslims who have suffered for years under the previous corrupt administration, should the jurisdiction not be given to them and the matter be re-evaluated from the beginning.
Article five of this procedure states that if political matters are demanded to be implemented while the convict has served some imprisonment, such matters shall not be extended and must be closed. Article six implies that any legal issues that have not been finalized and not implemented in the previous administration, whether related to a condemned or a convicted person, shall be sent to the head of the Dar ul-Ifta of the Supreme Court in the center. Additionally, if necessary, unimplemented legal judgments of the previous administration that have been finalized and are related to the condemned (the unsatisfied side) will be sent to the Supreme Court or southwest area by the judicial deputy.
The document indicates that two committees have been established, one in the center and the other in the southwest region, in order to simplify the process of reviewing the files. The purpose of these committees is to evaluate the process of prior cases and provide their respective opinions. This board is still responsible for the alteration of the files. It has been ordered that the files which have gone through the initial process should be sent for pleading, plead files should be directed to the Supreme Courts for finalization, and finalized cases should be classified as legal and criminal. Furthermore, the responsible person should terminate the punishment, and other aspects should be referred to the appropriate authority, with the legal files being sent for assessment.
In this procedure, former judges are referred to as “judges of the corrupt administration”. An excerpt of the document states that “if the previous corrupt judge’s decisions are based on the Hanafi jurisprudence, which are generally correct, they should not be violated, but implemented”. Therefore, orders issued according to non-Hanafi religion will be referred to the leader of this group or the Supreme Courts, if the Dar ul-Ifta of the Taliban deem it necessary.
According to this procedure, if the claimant or defendant is a member of the Taliban group, the relevant institutions must formally send their representative to Dar ul-Ifta to a specific person who has been granted judicial deputyship. This will enable them to advance the lawsuit and the relevant authority can take it forward in their presence.
If the judges of the previous government have determined that some of the imprisonment has been served in criminal cases and the convict wishes to serve the remainder of the sentence, it should be terminated in accordance with the order of the Taliban leader. If the order is based on the reasons for the judgment, such as confession, evidence, and oath, and there is no Sharia obstacle, it should be implemented.
The Taliban leader has mandated that cases based on the investigation of the prosecutor or the law should be assigned to the head of Dar ul-Ifta of the Supreme Court in the center and to the mufti of Dar ul-Ifta who has been granted jurisdiction in the provinces. Dar ul-Ifta is obligated to investigate the cases, as per the procedure which states that “the earlier decision based on the investigation of law should be transmitted to the head of the Supreme Court in the center as well as to a designated individual in each province for review and Sharia investigation. The Taliban appointed members, in contrast, should investigate and make a Sharia decision, not simply accept the investigation of law”.
In one of the articles, it was stated that in cases of the previous corrupt administration, where the judge’s ruling is an explicit confession, should be sent to the Supreme Court in the center and to the person with deputy judiciary in the provinces. Furthermore, decisions of the commercial courts should be transferred to the primary court, like other decisions. Lastly, it was insisted that the document be sent to the Taliban leader in Pashto, and the General Directorate of Dar ul-Ifta of the Taliban Supreme Court translated it into Farsi.
The judges of the previous government evaluated the Taliban’s actions in regards to jurisprudence and law, and concluded that the Taliban had no understanding of the jurisprudential issue mentioned in the document, and had acted according to their own will.
A judge from the previous government spoke to Hasht-e-Subh, stating, “Let us suppose that the previous rulings were incorrect, however, once the decisions have been finalized, according to legal principles and its specifics, the Taliban do not have the authority to overturn them.”
The former judge stated that, according to the laws mentioned in the Taliban document, the judgments of previous courts are valid, but the Taliban have inferred against its meaning. He explained that when the Ahl Baghiya (rebellious – referring to the previous government’s) judges issue a decision, and their decision is final, the Just regime does not have the right to violate and invalidate the previous decisions or resume its flow. He further noted that the Taliban’s Sharia laws included in their resolution do not mean that the Ahl ul-Adl (Just – referring to Taliban) judges violate the verdict of Ahl Baghiya (rebellious) judges, as this is a misunderstanding of the issues they have mentioned. He concluded that the decisions of the previous courts are also final from the Hanafi jurisprudence’s point of view.
The former judge, who is also a religious scholar, has accused Taliban judges and muftis of illiteracy. He further stated that the individuals appointed to the posts of the courts and Dar ul-Ifta are not qualified professionals, and lack knowledge of the law. He noted that they are unable to differentiate between the claimant and the defendant, and are unable to comprehend the nature of the case, let alone review the decision of the previous courts from a civil point of view.
The former judge, who has experience with the Taliban’s judicial system, stated that the Taliban judges often sought advice from previous judges due to the fact that those appointed to Dar ul-Ifta had no knowledge of the judiciary. They were so illiterate that they could not even write a well-crafted letter or inquiry, and had no comprehension of jurisprudence. The judge went on to say that if the beard and turban were removed from these judges, there would be nothing left of them, as they were unable to read the words of a book when it was placed in front of them.
He also criticized the decision to appeal to the Taliban, stating, “If someone wishes to appeal, the appeal should be approved by the Amir ul-Mu’minin of the Taliban. However, as the Minister of Interior and Defense cannot meet the Amir ul-Mu’minin, how can a helpless citizen submit their appeal? This is impossible. Even if the petition is read, how can the file be reviewed without the applicant being present to explain their reasons? This does not ensure justice.”
During her discussion with hasht-e-Subh, Narges Hafidzada, a former judge, stated that the Taliban have accused the judges of “corruption” in this process. Hafidzada asserted that it is not possible to invalidate decisions with accusations.
This former judge states that the earlier judges were educated and had reached the point of making decisions based on the law, adhering to the principles of jurisprudence. The judges worked in the legal government with the title of Islamic, and their decisions were legally binding and enforceable.
Hafidzada views the Taliban, who were rebelling against the Islamic system and the legitimate government, as “corrupt”. She believes that “the former republic government of Afghanistan (former regime) was legitimate. It was the Taliban who acted against the lawful government. Therefore, the insurrection can be attributed to them. The judges (of the former government) are not corrupt, but the Taliban are.”
The judges from the Republic era believe that the Taliban lack a basis on which to make a judgement and have difficulty understanding legal terminology. Citing an excerpt from the Taliban procedure, she states, “This procedure states that the convict of criminal cases should request imprisonment, but why would they ask for an extension? They do not know the correct legal language to express their desired outcome. Who would want to be sentenced in criminal cases? The Taliban do not know what to base on.”
Hafidzada clarified that the Taliban have also stated that if the verdicts of the previous courts are punitive, the judgments should be declared null and void. She went on to explain that criminal justice is often punitive in nature, as the principles of crime are typically punitive in accordance with the provisions of the law. There are, however, rare cases based on jurisprudence, and judgments are based on the previous penal code and other related laws.
She stresses that, according to the issued document, the Taliban also wish to adjudicate legal matters in accordance with the rulings of Hanafi jurisprudence. However, the family issue is quite clear, and taking into account the legal principles, citizenship, and civil rights of each individual belonging to each country, it is necessary to apply the rules of legal status. According to her, this approach undermines other systems. In this case, those who have made decisions based on the laws of other systems will face dark and dangerous consequences.
The former judge expressed her particular concern regarding cases concerning women. She believes that if the decisions based on the effective laws of the previous government had been beneficial to women, the new directive may cause them great harm.
Hafidzada states that this action of the Taliban will lead to further chaos, tension, and discord in the country. From a legal standpoint, it undermines the impartiality of the court system as the ruling party is disregarding the law and its legal principles. She believes that the new law is in opposition to the principles of a fair court.
She emphasizes that the actions of the ruling group have caused significant harm to the impartiality of the courts. The detrimental effects of inequality, lack of access to civil rights, and failure of justice have resulted in chaos and further legal issues in society.
Despite all this, several judges have stated that the Taliban are engaging in administrative and political corruption by issuing this document. This includes breaking the final court laws to gain material and spiritual benefits from previous convicts, blackmailing political figures, and acquiring their properties.