This blog continues the author’s prior analysis of the Penal Code of the Islamic Emirate by examining some of its key ambiguities and omissions. Part 1 of this blog can be accessed here.

“Innovator”: A Label That Can Be Applied to Anyone

Article 2, paragraph 8 of the Penal Code of the Islamic Emirate introduces the concept of “innovator” (mubtadi‘) as one of the key terms. In some analyses, this term has been portrayed as a tool for excluding sects such as the Shia or the Ismailis. However, in the Hanafi jurisprudential tradition, the concept of bidah (innovation) does not necessarily imply from Islam or belonging to a separate sect; rather, it often refers to doctrinal or practical innovations within a religious tradition itself. For this reason, in some official statements by Taliban spokespersons, it has been suggested that the term is primarily aimed at Salafi or Wahhabi movements, rather than other Islamic sects.

Nevertheless, legal analysis cannot rely solely on the declared intent of the drafters; it must instead focus on the interpretive capacity of the legal text. The absence of a precise definition of bidah in the Penal Code of the Islamic Emirate creates the possibility for this concept to be interpreted expansively in practice. Under such conditions, the label “innovator” can become a flexible tag whose scope extends far beyond the lawmaker’s original intent.

Historical experience shows that the concept of bidah has always been contested and open to interpretation. Because there is often no clear boundary between “tradition” and “innovation,” its identification typically depends on the theological or jurisprudential perspective of the interpreting authority. As a result, when such a concept is incorporated into a legal text without a precise definition, there is a risk that the label “innovator” may be used as a tool for excluding or marginalising different groups.

From a legal perspective, the central issue is not merely the intention of the legislator, but the structure of the legal text and the breadth of its interpretive scope. Even if the original aim of the drafters was limited to addressing certain intra-Sunni movements, the lack of a clear definition of bidah leaves open the possibility that, in practice, the concept could be applied against a much broader range of religious or intellectual groups. For this reason, the historical use of accusations of bidah in religious conflicts serves as a cautionary lesson: a concept that has repeatedly been used for doctrinal boundary making, when introduced into law without a clear definition, can become a tool for expansive interpretation and discriminatory application within a legal system.

Which Class Do You Belong To? Punishment Based on Social Status

One of the notable aspects of the Penal Code of the Islamic Emirate is the way crimes and punishments are classified. In modern legal systems, offences are typically categorised based on the severity of punishment, such as felonies, misdemeanours, and infractions. However, such a classification is not found in the Penal Code of the Islamic Emirate. Instead, Article 9 reflects a form of classification based on the offender rather than the nature or gravity of the crime.

In the footnotes, classical jurisprudential sources are explicitly cited, including Al-Fatawa al-Hindiyya (compiled during the reign of Aurangzeb in 1667) and Radd al-Muhtar by Ibn Abidin (19th century). These references suggest that the drafters sought to base the regulation of criminal life in a society of roughly 40 million people in 2026 on legal opinions formulated 300 to 400 years ago, within a social context in which hierarchical structures, such as the Hindu caste system, played a significant role.

The reference to Al-Fatawa al-Hindiyya indicates that the model for structuring punishments emerged within a specific historical context where social stratification and distinctions were deeply embedded. Transposing such models into contemporary Afghan society, without rethinking modern concepts of justice, equality, and citizenship, may lead to the reproduction of structural inequality within the criminal justice system. The issue here is not merely a single provision, but rather a legislative method that imposes the past onto the present without critical adaptation.

What brings the Penal Code of the Islamic Emirate closer to a caste-like system is not superficial similarity, but a shared theoretical and structural foundation: in both systems, an individual’s social status serves as a basis for determining their rights and punishments.

Moreover, terms such as “scholar,” “elite,” “merchant,” or “common people” appear in the text, yet no clear or codified criteria are provided for identifying these categories. This ambiguity may give law enforcement authorities broad discretion, opening the door to subjective interpretation and potentially discriminatory application.

Dancing Is Forbidden, But What Is “Dancing”?

Conceptual ambiguity in certain provisions of the Penal Code of the Islamic Emirate is such that it can lead to an unchecked expansion of judicial discretion. For example, Article 59, which criminalises dancing, illustrates a case of vague criminalisation. In this provision, not only dancers but also organisers and even spectators are considered offenders, yet no clear definition of what constitutes “dancing” is provided. In a multicultural society like Afghanistan, such ambiguity can result in restrictions on the cultural rights of different ethnic groups.

Similarly, in relation to “immoral and sinful gatherings”, Article 40 provides that any individual present at such a gathering, even without criminal intent or active participation, may be treated as an accomplice. Such a rule conflicts with the principle of individual criminal responsibility and the presumption of innocence.

Silence Is a Crime: A Society with Ever-Watchful Eyes

Article 24 of the Penal Code of the Islamic Emirate stipulates that if a person is aware of consultative meetings or subversive actions by opponents of the regime and fails to report them or take action against them, they shall be subject to tazir punishment.

In practice, this provision treats silence as a crime and creates a kind of general duty to report. Such an approach can have wide-ranging social consequences, including the spread of distrust and the weakening of social bonds.

Rights Lost in the Law

One of the most significant shortcomings of the Penal Code of the Islamic Emirate is the absence of key guarantees of fair trial. In this document:

• The right to remain silent is not recognised.
• The right to access a lawyer is not provided.
• The concept of a “suspect” does not exist within the criminal process.

As a result, within this system, an individual is effectively classified either as an “accused” (under Article 2, paragraph 12) or as a “criminal” (under Article 2, paragraph 13). Moreover, in some cases, the attribution of an offence may be based solely on the testimony of a single “just” (‘adil) individual, even though the criteria for determining such “justice” are not defined.

Every Muslim a Judge: The Court in the Street

In some provisions of the Penal Code of the Islamic Emirate, the enforcement of punishments is envisioned in a decentralised manner. For example:

• The execution of tazir punishments by ordinary Muslims
• Direct action against opponents under Article 24
• The authority of a husband to discipline (Article 32)

Such provisions can lead to the fragmentation of penal authority and weaken the state’s exclusive control over the use of coercive force. Under these conditions, the boundary between formal justice and private violence gradually becomes blurred.

What the Law Does Not Say

Critiquing a law is not limited to examining what is written in the text; it must also consider what has been omitted. In the Penal Code of the Islamic Emirate, there is no reference to many contemporary crimes, including:

• Cybercrime
• Money laundering
• Tax offenses
• Environmental crimes
• Violations of intellectual property
• Crimes against humanity

These silences suggest that the primary focus of the Code is more on social and normative control than on addressing complex economic and organised crimes.

Conclusion

And now we return to the initial question: was 5 January 2026 the end of a dream, or the beginning of a nightmare? The dream of a people who have endured more than four decades of war is nothing more than to live in a country where laws are written based on equality, where rich and poor, scholar and layperson, women and men are equal before the law. The dream of Afghanistan was a society in which silence is not a crime and “discipline” is not a pretext for violence.

The Penal Code of the Islamic Emirate, however, paint a different picture: fatwas from 400 years ago as the law governing the lives of 35 million people; social classification at the heart of justice; elastic concepts like bidah in the service of power; and a line between discipline and torture that is only millimetres apart.

Is this the end of a dream? Perhaps. The end of the dream of a law that protects citizens from power. The end of the dream of equality before the law.

Or perhaps it is the beginning of a nightmare. A nightmare in which anyone, in the name of “enjoining good,” can impose punishment. A nightmare in which silence is a crime and neighbours must watch one another. A nightmare in which crimes such as torture, money laundering, and crimes against humanity are absent from the legal framework, because the priority is not justice, but control.

Now, the judgment is yours: the end of a dream, or the beginning of a nightmare?