Tag: human rights

Afghanistan’s new Penal Code: Whether or Not to codify Hudud and Qisas

by Murtaza Rahimi

Afghanistan, in an attempt to modernize and unify the statutes regulating crimes and their punishments, enacted a new Penal Code in May 2017.[1] Problematically, article 2 of the new Code permits judges to rule on certain Islamic crimes and decide the punishments of such crimes in accordance with Hanafi jurisprudence of the Islamic law. The inclusion of these offenses and punishments undermine fundamental principles of criminal law, and are inconsistent with Afghanistan’s 2004 Constitution.

The Code could be praised for several reasons. First, it defines crimes that were absent in the previous Penal Code like cyber, environmental, international, electoral, corruption, cultural, and intellectual property crimes. Second, the Code attempts to more realistically adhere to the principle of proportionality, allowing for fines rather than incarceration for misdemeanors and petty crimes, and offering a range of alternatives to prison that were absent from the previous Penal Code.[2] Further, the long-term imprisonment is increased from 20 years to 30 years in order to restrict the death penalty to very serious crimes namely murder, crimes defined in the Rome Statute, terror and suicide attacks, crimes that seriously affect the territorial integrity, kidnapping/abduction, hostage taking, highway robbery that results in murder, and group rape. Finally, the new Code introduces much-needed nuance into the range of mitigating circumstances, accounting for gender issues and mitigation for those who commit crimes under a threat to their personal safety.

That said, the Code is not immune from criticism. One of the main criticisms is that the new Penal Code, like the 1976 Penal Code, only defines punishments that fall under the Tazir, which are punishments that are not defined in the Quran or Sunna and are executed under the discretionary power of the judge, in article 2(1). Further, in article 2(2) it states that Hudud, Qisas and Diyyah (blood money) will be implemented in accordance with the Hanafi Jurisprudence of the Islamic Law. Hudud offenses are crimes against God whose punishment is clearly specified in the Quran and the Sunna (prophetic traditions), and Qisas are physical assault and murder punishable through retaliation by the victim or heirs of the victim or through the payment of blood money.

Although legislators had first sought to include Hudud and Qisas in the new Penal Code, they later decided that this inclusion contradicted the spirit and the principles of the Penal Code and excluded them. However, the Code still gives judges the authority to implement such punishments in accordance with Hanafi jurisprudence of Islamic Law. This raises serious concerns and criticisms among legal scholars, human rights organizations like Human Rights Watch, and activists. Human rights activists oppose the incorporation of Hudud and Qisas in article 2(2) because they see these punishments, like stoning and lashes, as “cruel, inhuman or degrading punishments” prohibited in international human rights law, particularly article 7 of International Covenant on Civil and Political Rights and article 16 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and note that the prohibition against torture is considered as a jus cogens norm. Afghanistan is a party to the above conventions since 1983 and 1987, respectively. In addition to these central human rights concerns, the inclusion of article 2(2) raises other legal concerns, which are briefly listed below.

First, section 2(2) of the Penal Code is incompatible with article 2 of the Constitution from an originalist point of view. The 2004 Constitution, unlike the 1964 and 1976 constitutions, only recognizes Islam generally as the state religion regardless of Sunni and Shiite sectarian differences. In drafting the new constitution, representatives agreed not to follow the 1964 and 1976 constitutions, which regarded Islam with Hanafi jurisprudence (a Sunni school of jurisprudence) as the state religion. This was done mainly to prevent regimes from declaring other sects infidels or to systematically violate their freedom of religion. Both the Abdul Rahman regime in the late 1800s and the Taliban in 1990s had relied on fundamentalist interpretations of the state official sectarian religion to announce the Shiite sect followers infidel and conducted, arguably, genocide against them. The 2004 Constitution, thus, served to respect the Sunni and Shiite sects within Afghanistan. Therefore, the codification of article 2(2) of the Penal Code—that gives preference to Hanafi jurisprudence over, for example, Jaffari, Maliki, Shafi‘i, Hanbali and Ismaeli jurisprudence—is inconsistent with the Constitution. It, arguably, is not justifiable to say that the new Penal Code only followed the 1976 Penal Code, for the latter was adopted when the 1976 constitution was in force, while the former was adopted under the 2004 Constitution.

Second, the Constitution, to overcome sectarianism, only admits Islam alone as the official religion . It clearly means that no sectarian law, like Hanafi or Jafari, shall be considered the law or “the” source of law. Consequently, any Islamic norms including sectarian jurisprudence can become law only if they are approved by both houses of the National Assembly and endorsed by the President.[3] Therefore, referring generally to a sectarian law ignores explicit constitutional norms that not only violates the non-sectarian nature of the Constitution, but also undermines the rule of law.

In addition, article 2(2) of the Code undermines the principle of nullum crimen, nulla poena sine lege [no crimes and punishments without law]. According to this principle, the crimes and their punishments shall be prescribed clearly so that all citizens can predict what actions/omissions are crimes and what exact punishments they may face if they commit certain crimes. By including a general reference to Hanafi jurisprudence, where there is usually more than one interpretation regarding the punishments, the Code permits judges to sentence the offenders to punishments that are not prescribed clearly. Punishments will be much more serious if the offender is a non-Hanafi Muslim or a non-Muslim citizen; the freedom of religion of the offender will be violated if they are punished under a religious law to which they do not adhere.

Finally, the lack of regulation prescribing the procedure for the execution of Hudud and Qisas has resulted in multiple practices. There are at least two concerns regarding this argument. First, although under article 129 of the Constitution, only “final decisions of the courts shall be enforced,” there are instances in which the orders of the primary courts regarding Hudud are carried out before the defendant has an opportunity to appeal them; once a punishment like lashing is executed, or when the hands of a person convicted for serious theft are cut, the request for appeal is meaningless. Thus, like death penalty punishments, the Hudud punishments shall be enforced when the decision is finalized and is not subject to any further appeal(s). Second, under article 303 of the Criminal Procedure Code, it is the Prosecution and Police who shall execute the courts’ decisions. However, the execution of the Hudud and Qisas are routinely carried out by the judiciary. For example, in cases where an unmarried person engages in a form of adultery, it is the judge who both decides and executes the lashing. To illustrate, in 2014-15, at least the primary courts in Bamiyan, Uruzgan and Ghor provinces convicted young unmarried men and women for committing adultery and sentenced each of them to 100 lashes. Later the same judges who decided the cases, executed the 100 lashes against the offenders; their judgments were subject to appeal despite the punishment already having been carried out.

The parliament should effectively respond to the concerns raised by human rights activists and organizations and related legal critiques, and bring the Code in line with the state’s obligation under the Constitution, particularly article 7 of the Constitution, to observe and adhere to the international human rights instruments to which Afghanistan is a party.

[1] The new Penal Code replaced the 1976 Penal Code along with 34 other statutes. See article 916 of the new Penal Code. see Afghanistan Official Gazette No. 1260, (May 15, 2018).

[2] Articles 148-168: The alternatives for prison is applicable only for crimes that are punishable by less than five years imprisonment and includes home confinement, community control, community service, and temporary deprivation from social rights.

[3] In accordance with article 94 of the Constitution.

Murtaza Rahimi is a LLM at the University of Texas School of Law. He is a member of the 2017-2018 Working Paper Series Committee and a Fulbright Scholar from Afghanistan. 

The Need To Increase Participatory Mechanisms at the Inter-American Court of Human Rights

by Karina G. Carpintero

27 MAR 2017

The Inter-American Court of Human Rights has been subject to significant criticism regarding the absence of participatory mechanisms that allow societal actors to intervene in the inter-American process.  To some extent, these critiques reflect a similar demand that is occurring in the domestic realm.  Latin-American constitutional democracies present a scenario in which social movements, among many different types of other relevant stakeholders, aim to move forward toward more participatory schemes. Societies are beginning to challenge governments and institutions with demands for more transparency, accountability, and concrete deliberative mechanisms.

The Inter-American Court of Human Rights has just one available method for outside actors to participate in its international process: amicus curiae briefs. The process entails submitting a written brief before the hearing of an individual case or advisory opinion takes place. Unfortunately, the impact these briefs have is almost null. There is not necessarily any consideration of what the amicus argues, which can be understood as the ‘claim of society’ in an individual case. Because this is the only road to make societal voices heard, there is clear difficulty in accessing “inter-American justice.”

However, realizing how narrow access to this international process is, and debating about it, does introduce an opportunity to start thinking about ways to improve it. The Court should reconsider its procedures in order to enact fruitful strategies that lead to more active participatory methodologies. In fact, there are some alternatives that the Court could take as steps towards that aim. One effective reform could be using a virtual platform, like the internet, as an accessible tool that aids in shortening distances and reducing the economic costs of international actions. Another pathway for reform could be holding an open call for hearings, not only for the parties of individual cases as it does in its ordinary period of sessions, but also to individuals, advocates or organizations that participate in amicus briefs. A bolder method of reform could be considering formal changes to the Court’s rules of procedures to encourage more democratic practices.  Without doubt, engaging in effectively increasing the level of participation at the international order is a difficult challenge to implement, but it is clear that amicus curiae briefs are insufficient as the sole available tool.

All in all, if the Inter-American Court assumes the role of informing the regional consensus about how human rights should be interpreted, protected and guaranteed, more clarity on how these consensuses are reached should be guaranteed. So, the next step for the Inter-American Court, and human rights advocates generally, is to search for more participatory mechanisms to legitimize the creation of conventional meaning.

Karina G. Carpintero is an LLM student at Texas Law, concentrating in Human Rights and Comparative Constitutional Law, and member of the 2016-2017 Working Paper Series Editorial Committee.

The Human Right to Education and Economic Inequality

by Samantha Chammings

19 NOV 2015

Craig Lauchner’s working paper was written as part of the Fall 2015 law school class and Rapoport Center Colloquium on Inequality and Human Rights. The Colloquium brought together scholars, academics, practitioners, and students from the UT Law School and LBJ School of Public Policy to ask the question: can human rights do anything to alleviate economic inequality?

The answer to this question was often a resounding “no”: human rights law does not have the tools to close the wealth gap between rich and poor. Indeed, the “age of human rights” has coincided with the entrenchment of neoliberalism, to paraphrase Samuel Moyn. Lauchner’s paper also comes to this conclusion, through an in-depth study focusing on one particular human right—access to education—in one particular region of the world: the Mercosur Region (which includes Argentina, Brazil, Paraguay, Uruguay and Venezuela). In fact, his paper concludes that not only have human rights policies failed to alleviate economic inequality in the region, but they have also, in some instances, perpetuated those very inequalities. Lauchner provides a compelling account of the ways in which human rights policies can actually entrench existing power, and by extension economic, inequalities.

In particular, Lauchner describes a policy developed in 1998 by the Sector Educativo de Mercosur (SEM) to ensure that university degrees obtained in a SEM country are recognizable in every country in the region. While this aimed at decreasing inequality between countries, in actuality it had the unintended consequence of forcing smaller countries with less well-established university institutions to invest money into subsidizing university attendance by wealthier segments of society. Focusing policies on tertiary-level education, Lauchner argues, rather than on primary and secondary education, has disproportionately benefited elites and perpetuated existing inequalities in society. While many governments are spending the same on university-level education as on primary and secondary-level education, the preexisting privileges of those individuals able to attend university means that human rights policies, which by definition are applied indiscriminately, result in a fundamentally unjust outcome.

For Lauchner, the SEM case is an example of how human rights policies are blind to inequality. They seek to raise everybody above a certain minimal threshold, but, as Moyn concluded, place no limits or ceiling on wealth. Lauchner gets to the crux of this when he notes that in Latin America, the right to education is enforceable by the courts, but this does not signify a right to equal education. And by definition, those who are poor are less able to enforce those very same rights. However, Moyn argues that it is by virtue of a small elite amassing unrestrained wealth that other people are forced to go hungry. Human rights policies, if not a part of this system, at the very least sit idly by and allow economic inequality to exist and even increase.

In Lauchner’s account of the right to education in Latin America, human rights policies do at least have the capability to decrease inequality and do provide some benefits to the poor. However, he argues that the specific policies have also resulted in furthering inequality. Unlike Moyn, he does not conclude that human rights are fundamentally incompatible with efforts to decrease inequality, but rather, they simply may not be the best tool to do so, at least in relation to access to education within Latin America.

Samantha Chammings is an LL.M. Human Rights and Comparative Constitutional Law graduate from the University of Texas School of Law. She was a Rapoport Center Scholar in Spring 2016.