HashimKamali

Wednesday, 19 October 2022 14:12

Taliban reneges on inclusive govt pledge with Sharia decree for Afghanistan

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On Oct 15, 2022 the Afghan Taliban ruler, Mulla Hibatullah Akhundzada, sent another message from his headquarters in Kandahar to call for the nullification of all existing laws in the country and enforcement only of the Sharia, adding that the existing laws be repealed and replaced and that Afghanistan's relations with other countries should also be based on the Sharia.

This is not the first time he has said this and the reason for repeated emphasis is probably the difficulty of implementing a sweeping order of this nature.

Rumour also has it that some internal dissension in the Taliban ranks in Kabul is developing due to Hibatullah's unruly decrees. This order to enforce only the Sharia throws the country, its government and justice system into an unprecedented legal vacuum.

Afghanistan's government and court practice are entrenched in its previous constitutions, its Civil Code 1976 (over 2,300 articles) and its Criminal Code 1977 (over 523 articles and a large number of other statutes). Setting all these aside at a moment's notice is irresponsible especially for a government that lacks professional background and experience.

The order is also oblivious of history in that past governments normally enforced the Sharia side-by-side with government decrees and policy decisions. These had existed in various names such as Nizamnama, Firman, Qanun, etc. Hibatullah's decree insisting that only the Sharia and nothing else should apply in Afghanistan is, therefore, ill-informed and unrealistic. 

Except for some banking laws that are also changing due to the progressive introduction of Islamic banking, all the laws of Afghanistan are either Sharia based or Sharia compliant. Besides, most of Afghanistan's constitutions contain the so-called Repugnancy Clause, providing that no law in Afghanistan may be contrary to the Sharia and basic principles of Islam.

At a time when Afghanistan is grappling with poverty and economic problems, the Taliban are focused on religious and gender issues that are oblivious to the people's needs. Many of Mulla Hibatullah's previous decrees have similarly been problematic.

The Taliban decision over a year ago to close secondary schools for girls blatantly violated their fundamental right of education. The girls' schools remain closed to this day despite persistent public demand to reopen them.

The general public, including religious leaders, parents, women and girls, have emphasised education as a basic right and an Islamic requirement - all of which have fallen on deaf ears.

The UN Secretary-General Antonio Guterres, the European Union, Afghanistan's neighbours and numerous other countries have urged the Taliban to reopen the girls' schools immediately – all to no avail.

Earlier on July 29, 2022 (7 Thawr 1401 of the Afghan calendar), the Afghan people celebrated the National Flag Day of Afghanistan with the traditional tricoloured (black, red and green) flags, but contrary to expectations, the Taliban government ceremonially raised their own white coloured flag and the matter became a media issue.

Commentators noted that the Taliban government should have also celebrated the public event together with the people. But they followed their own agenda regardless. It was publicly emphasised that the tricolour flag was not changed by any other government ever since its adoption under Amir Habibullah in 1899 CE.

Afghanistan had many regime changes from monarchy to republic to communism, Mujahidin, Islamic Republic and now Islamic Emirate. None had attempted to change the national flag which had become part of the Afghan identity and had much sentimental attachment. No country has officially recognised the Taliban government. It has become public knowledge in Afghanistan and abroad that official recognition will not happen unless the Taliban grant the legitimate demands of their own people, open the girls' schools and set up an inclusive government that also includes women.

The Taliban have not only turned a deaf ear to these calls but have, on the contrary, taken an obsessive focus on women's rights, their public appearance on the screens and their role in television and the media - not only introducing veils for all but surprisingly also specifying that women should wear only black attire.

These specifications have not been welcomed by the people and appear to follow the Iranian model. The fact that the Taliban have not changed the composition of their Taliban-only government violates their own initial promise that they will introduce an inclusive government.

Then, the Taliban government also abandoned the constitutionally mandated practice of presidential election that Afghanistan had practised in recent decades. As soon as the Taliban took office on Aug 15, 2021, they abolished the Ministry of Women Affairs and introduced a new ministry of Promotion of Good and Prevention of Evil.

On July 28, Mulla Hibatullah announced that all the existing laws of Afghanistan were man-made and have no credibility - only the divinely-ordained Sharia was the applied law of Afghanistan. The Taliban reconfirmed what they had practised that there will be no democracy and only the Sharia will apply.

Afghanistan has traditionally subscribed to constitutional and parliamentary government, initially introduced under King Amanullah in 1923, and subsequently elaborated and reformed under the 1964 constitution. Although almost every subsequent regime change in Afghanistan was espoused with a new constitution, most of these retained a participatory government model.

Democracy was also upheld side by side with the Sharia. The Taliban regime have abandoned that, it has no Constitution nor has it declared as to what type of government or political system they are applying.

Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.

Published in: The New Straits Times (online), Tuesday 18 October 2022

Source: https://www.nst.com.my/opinion/columnists/2022/10/841586/taliban-reneges-inclusive-govt-pledge-sharia-decree-afghanistan%C2%A0

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