Mahbooba Faiz

After nearly four years of legislative opacity and rule by decree, on 4 January 2026, the Taliban issued a new legal document in Pashto language titled the “Criminal Procedure Code for Courts”, signed by their supreme leader Hibatullah Akhundzada.

The document is circulated to provincial-level courts across Afghanistan for implementation. It is compiled in three sections, 10 chapters, and 119 articles. The Code is presented as a framework for criminal adjudication.

The document amounts to a far-reaching instrument that reshapes criminal justice in the country. It expands judicial discretion, tightens ideological control over belief and expression, and establishes unequal treatment in sentencing based on social status rather than legal imperatives.

Although the code is described as “procedural”, the document contains provisions that regulate religious identity, authorise certain categories of punishment, and ignore certain types of crimes. It assigns enforcement powers not only to state authorities but — under some circumstances — to private individuals.

The Code does not explicitly recognise some key safeguards associated with fair trial standards, such as access to defence counsel, the right to remain silent, equality before the law, and the right to compensation for unlawful detention or wrongful punishment.

Confession and testimony prioritised over investigation

One of the most consequential shifts outlined in the Code concerns proof of guilt. The document eliminates independent investigative procedures as a required component of establishing criminal responsibility and instead elevates “confession” and “testimony” as primary means of proof. The Code also does not set minimum and maximum penalties for many offences.

The combination of open-ended sentencing and proof mechanisms entered on confession and testimony increases the risk of coercion and arbitrary outcomes. The document disregards the role of documentary and forensic evidence, especially in a legal system already with extremely limited defence representation and no independent bar association.

Sunni Islam exclusivism

The Code also makes explicit claims about religious identity. Clause 8 of Article 2 describes followers of the Hanafi school of jurisprudence as Muslims while characterising followers of other Islamic sects and beliefs that differ from or oppose the Sunni Islam as “mubtadeh” — a term often translated as “innovators” or “heretics”.

Afghanistan is home to Shias (both Twelvers and Ismailis) and adherents of other Islamic orientations, including Ahl-e-Hadith, as well as non-Muslim minorities such as Sikhs and Hindus. Such classification entrenches discrimination and exposes minority groups — the already marginalised community — to extreme legal and social vulnerabilities.

The Code criminalises changes of religious affiliation within Islam. Article 26 states that followers of the Hanafi Sunni Islam school are not permitted to abandon their belief and, if the matter is proven before a judge, may be sentenced to two years’ imprisonment. However, the law does not criminalise changes of religious affiliation from one religious affiliation to Hanafi Sunni Islam. In practice, these days, the Ismaili Shias in Badakhshan province are coerced and targeted to convert to Hanafi Sunni Islam and are rewarded if they convert.

“Public interest” killings

Perhaps most alarming is language that appears to authorise lethal punishment in expansive terms. Article 14 stipulates that to serve the “public interest”, the killing of offenders, including individuals who “defend false beliefs contrary to Islam” or invite others to such beliefs, may be deemed permissible with the permission of the “Imam”. Although Imam is not defined in the code, it generally refers to the leader of the Taliban or authorised representative of the leader.

Separately, Clause 11 of Article 2 defines a “baghi” (rebel) as someone who opposes the Islamic state, stating that “their harm is public” and that they “cannot be reformed without being put to death”. The use of such terms is vague and elastic, and could be deployed against opponents, critics, and civil society actors, especially where due process protections are absent.

Private punishment

The Code also appears to expand enforcement beyond formal institutions. Clause 6 of Article 4 reportedly states that every Muslim, when witnessing sinners committing a sin, is permitted to proceed with their punishment. The provision risks legitimising vigilantism by enabling ordinary individuals and the Taliban’s morality police to punish others without judicial process.

The Code criminalises certain cultural practices and employs undefined moral terms that can broaden enforcement. Article 59 criminalises “dancing” and “watching it” and all other acts of immorality. However, the Code does not clearly define what constitutes immorality.

That sort of vague criminal categories weakens the principle of legality and enables selective or politically motivated prosecutions.

Four-tier social hierarchy

One of the Code’s most explicit departures from equality norms appears in Article 9, which divides society into four categories: ulama (religious scholars), Ashraf (elite, dignitaries, tribal elders), middle class, and lower class. According to the provision, in cases where the same crime is committed, the type and severity of punishment are determined not by the nature of the offence but by the offender’s social standing.

Examples as stated in the code, a religious scholar may receive only advice, and the judge can only remind him that you have committed this act. An elite person may be summoned and advised. A middle-class person may be imprisoned and those deemed lower class may face both imprisonment and corporal punishment.

Slavery terminology

The Code also uses terminology associated with slavery and assigns punitive authority to household figures. It mentions the word “slave” in several sections and differentiates between “free” and “enslaved” persons.

Article 15 of the code states that where no hadud (specific fixed punishments under Islamic law, such as execution, amputation, flogging, stoning etc.) punishment is specified, discretionary punishment (ta’zir) applies whether the criminal is free or a slave.

Paragraph 5 of Article 4 authorises execution of hadud punishments by the Imam and ta’zir punishments by the husband and the master. This provision normalises coercive domestic power and recognises prohibited legal status.

Flogging, speech restrictions, and forced reporting

The Code prescribes flogging in broad terms. Article 18 and other articles include extensive provisions for lashes. It also contains speech-related offences.

For instance, Clause 2 of Article 17 punishes “mockery” and “ridiculing” of Islamic orders or rulings with two years’ imprisonment and Clause 2 of Article 23 sets a penalty of 20 lashes and six months’ imprisonment for insulting Taliban leaders.

Meanwhile, Article 24 obligates citizens to inform Taliban departments about meetings and activities of opponents of the regime if they see or have the information, prescribing up to two years’ imprisonment for those who fail to act or report.

Women and children

Provisions relating to women and children have also drawn scrutiny. Article 30 prohibits only some forms of physical violence against children by teachers, specifically those resulting in fractures, torn skin, or bruising. The teacher will only be fired if commits such acts. The Code does not explicitly ban other forms of physical, psychological, or sexual violence. Article 48 allows a father to punish a 10-year-old son for abandoning prayer and other acts deemed against his interest.

For women, Article 32 provides that if a husband beats a woman with a stick, causing fractured bones, severe injury such as a wound or bruising, and she can prove it before a judge, the husband may receive 15 days’ imprisonment only. Other forms of violence are not explicitly prohibited. Article 34 criminalises repeated visits by a woman to her parental home without her husband’s permission and penalises not only the woman but also relatives who prevent her return to her husband’s house.

The expansion of repression

In aggregate, the Code represents a significant step toward codifying the Taliban’s approach to governance and punishment. It will most likely expand repression, discrimination, deepen sectarian and gender-based control, and increase the risk of arbitrary detention and violence, particularly where there is no independent oversight.

For ordinary Afghans, the most immediate impact may be heightened legal uncertainty. Broad offences defined by moral terms, heavy reliance on confession and testimony, and an enforcement model that allows both authorities and private individuals to punish sins, all under a system that formalises unequal treatment based on religious identity, gender and social status.

The Ministry of Justice of the Taliban announced that the criticism of the Code is a crime.

Mahbooba Faiz is an Afghan-born lawyer and women’s rights advocate based in Ireland, currently working in law firm RDJ LLP in Cork. She holds two master’s degrees, including one from UCC.