The Taliban have given their judges broad discretionary powers under a newly endorsed penal code that legal experts say blurs key distinctions in Islamic law and risks unequal application of justice based on social status.
An analysis of the first two chapters of the Taliban’s penal code, reviewed by Amu TV and examined with the help of two legal specialists who requested anonymity due to security concerns, shows that the document provides limited clarity on when fixed Islamic punishments should apply and when judges may impose discretionary penalties.
Under Islamic jurisprudence, hudud are fixed punishments prescribed by religious texts, while ta’zir penalties are left to the discretion of a judge. Legal experts said the Taliban code fails to clearly define the boundary between the two, granting judges wide latitude that could result in harsh penalties for relatively minor offences.
“The scope of judicial discretion is unusually broad,” one of the experts said. “The lack of clear limits increases the risk that judges could impose severe punishments in cases where they would not normally apply.”
The penal code, endorsed by the Taliban’s supreme leader, consists of a preamble, three sections, ten chapters and 119 articles. A copy of the document has been seen by Amu TV and first reported by human rights organization, Rawadari.
Legal analysts said provisions in Chapter Two also raise concerns about discrimination. The code divides society into four categories — religious scholars and people of rank, elites, the middle class and the lower class — and allows discretionary punishments to vary accordingly.
According to the experts, ta’zir penalties for senior religious figures and elites are generally limited to advice or questioning, while punishments for those in lower social categories may include corporal punishment such as flogging.
“This formalises a class-based approach to punishment,” one expert said, adding that the provisions could enable selective or politically motivated enforcement.
Criticism has also come from public figures and rights advocates. Abdul Rab Rasul Sayyaf, a former leader, said in a written statement that the code misrepresented Islamic principles.
“Islam is a religion of justice and fairness,” he said, urging the authorities in Kabul to uphold equality before the law.
Human rights activist Sima Noori said the code weakened legal protections and entrenched inequality.
The rights group Rwadari has previously warned that the penal code risks reinforcing social divisions and undermining justice by concentrating authority in the hands of Taliban judges.
The Taliban, who returned to power in 2021, say their laws are based on Islamic jurisprudence. They have not publicly responded to the legal critiques of the penal code’s early chapters.
