An Examination of the Muhtasib’s Discretionary Ta’zir Authority

Violation of Fair Trial in the Taliban’s Law on Promotion of Virtue and Prevention of Voice (PVPV)

Author: Blossoms of Hope [1]

Introduction

Following the Taliban’s return to power in Afghanistan in 2021, one of the revived institutions in their governmental structure was the Ministry known as “Enjoining Good and Forbidding Evil.” This body, inspired by the Islamic jurisprudential concept of the muhtasib, claims its mission is “to reform social behavior and safeguard Islamic values.”

In practice, however, this institution has become a tool for imposing sweeping restrictions on individual and social freedoms. The issuance of taʿzir (discretionary) punishments and the application of penalties by its officers without following due legal and judicial procedures have raised serious questions about the compatibility of this approach with the principles of fair trial and the rule of law.

The system of fair trial is one of the foundational pillars of human rights and the rule of law. In Islamic societies, the institution of hisba and the person of the muhtasib have historically been responsible for supervising public conduct and preserving social morality. At times, the muhtasib would impose taʿzir punishments based solely on personal suspicion or social custom, without a judge’s ruling. Although ostensibly carried out to maintain public order, this practice raises significant concerns about violations of fair-trial principles.

Under the Taliban regime, the enactment and enforcement of the Law on Promotion of Virtue and Prevention of Voice (PVPV) have expanded the muhtasib’s powers to such an extent that he may arrest and punish individuals without a court order. This not only conflicts with traditional Islamic jurisprudential foundations but also directly violates core principles of fair trial, including the presumption of innocence, the right to defense, and the prohibition of torture.

Accordingly, examining the relationship between the muhtasib’s discretionary taʿzir authority and the violation of fair-trial standards within the framework of Taliban law is of particular importance, as the issue lies at the intersection of jurisprudence, law, and politics.

Discussion and Analysis

The Law on Promotion of Virtue and Prevention of Voice (PVPV) enacted by the Taliban government in Afghanistan refers in several articles to the powers of the muhtasib. One key provision states that ministry officers “have the right to question individuals upon observing a manifest evil and, if necessary, to impose taʿzir punishment.” This article effectively grants the muhtasib direct authority to arrest and punish without any requirement for judicial proceedings or a court ruling.

According to the text published in the Official Gazette, muhtasibs are empowered to question individuals upon observing a manifest evil and, where necessary, to administer taʿzir punishment, which may include “detention for one hour to three days in public prisons.” Furthermore, Article 13 of the law makes full-body covering mandatory for women and classifies women’s voices—especially when amplified through loudspeakers or in public spaces—as ʿawra (private) and therefore prohibited.

These provisions conflict with the fundamental principles of fair trial, because the muhtasib simultaneously assumes the roles of complainant, judge, and executor of punishment. Under both Islamic jurisprudence and contemporary legal systems, taʿzir punishments may only be imposed through a court and by order of a judge. Granting such powers to executive officials without judicial oversight violates core fair-trial principles, including the right to defense, the presumption of innocence, and the prohibition of torture.

Examination of the Provision in Light of Islamic Sharia Principles

The legal article that authorizes the muhtasib to arrest or punish individuals upon observing a manifest evil appears, on the surface, to serve the purpose of enjoining good and forbidding evil. In reality, however, it contradicts the foundational principles of Islamic Sharia.

The Principle of Justice

Justice in Sharia is the foundation of governmental legitimacy and the execution of rulings. The Noble Qur’an states: “Indeed, Allah orders justice and good conduct…” (al-Nahl: 90)

In Islamic jurisprudence, justice requires that no punishment be carried out without proof of guilt and without hearing the accused’s defence. When the muhtasib imposes taʿzir without judicial proceedings, the principle of justice and the legal balance between the state and the individual are undermined. Even in the enforcement of hudud (fixed) punishments, Sharia mandates proof of guilt and respect for the right to defence; taʿzir punishments, which fall entirely within the discretion of a just judge, are subject to even stricter safeguards.

The Principle of Human Dignity 

Islam recognizes the inherent dignity of every human being. No individual or institution has the right to undermine a person’s honor and dignity without a legitimate Sharia-based reason. When a muhtasib punishes or humiliates people in public view, the act violates the human dignity emphatically affirmed in the Qur’an and the Sunnah of the Prophet ﷺ. The Prophet Muhammad ﷺ said: “A Muslim is one from whose tongue and hand other Muslims are safe.”

Thus, arbitrary taʿzir punishments that cause humiliation or harm are contrary to the spirit of human dignity in Islam.

Preservation of the Objectives of Sharia The objectives of Sharia rest on five fundamental principles: protection of religion, life, intellect, lineage, and property. Any ruling that leads to corruption, injustice, or humiliation of human beings conflicts with these objectives. Granting taʿzir authority without a judicial order undermines these goals because: • the dignity and security of individuals are endangered; • justice is removed from the judicial path; • religion is transformed into an instrument of coercion and fear rather than guidance.

Therefore, the provision in question is incompatible not only with justice and human dignity but also with the spirit of Sharia, which is based on mercy, gradual reform, and guidance. Islamic Sharia entrusts the administration of justice to an independent and fair judicial system that fully safeguards the rights of the accused, not to unsupervised executive agents.

Examination of the Provision in Light of International Human Rights Instruments

• Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and Convention on the Elimination of All Forms of Discrimination against Women

The article of the Taliban’s Law on Promotion of Virtue and Prevention of Voice (PVPV) that permits the muhtasib to arrest or punish individuals without a court order not only contradicts Islamic Sharia principles but also clearly violates states’ international human rights obligations. Three primary international instruments provide clear standards for protecting human dignity, prohibiting discrimination, and guaranteeing fair trial:

Universal Declaration of Human Rights (1948) 

Articles 5, 9, and 10 emphasize the core principles of dignity and justice: 

• Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 
• Article 9: No one shall be subjected to arbitrary arrest, detention or exile. 
• Article 10: Everyone is entitled to a fair and public hearing by an independent and impartial tribunal.

The muhtasib’s practice of arrest and punishment without a court order constitutes a clear violation of these universal principles of fair trial and the prohibition of torture. In particular, public corporal taʿzir is a manifest example of degrading treatment and contravenes the spirit of Article 5.

International Covenant on Civil and Political Rights (ICCPR, 1966) 

Afghanistan is a party to this Covenant and is bound to uphold its provisions. The relevant articles are: • Article 7: Prohibition of torture and cruel, inhuman or degrading treatment or punishment.

• Article 9: Right to liberty and security of person; no one shall be subjected to arbitrary arrest except on grounds and procedures established by law with judicial oversight.
• Article 14: Right to a fair trial, presumption of innocence, and the right to defence against charges.

Granting arrest and taʿzir powers to non-judicial officials such as the muhtasib simultaneously breaches these three articles, as it involves:

1. arbitrary arrest;
2. absence of fair trial; and
3. denial of the right to defence and legal representation.

This constitutes a direct conflict with the Covenant and amounts to systematic human rights violations.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979) 

Although the Taliban do not recognise the legitimacy of this Convention, Afghanistan acceded to it in 1980, and under international law the commitment remains binding. Articles 2, 5, and 7 require states to eliminate gender-based discrimination in laws, policies, and enforcement institutions.

In practice, enforcement of the Law on Promotion of Virtue and Prevention of Voice (PVPV) by muhtasibs disproportionately affects women, as most taʿzir cases relate to dress, public presence, voice, or movement. This constitutes a clear violation of the aforementioned articles, depriving women of equal rights to personal freedom and human dignity.

Conclusion

The granting of extensive taʿzir powers to the muhtasib under the Taliban’s Law on Promotion of Virtue and Prevention of Voice (PVPV) not only conflicts with the fundamental principles of Islamic Sharia justice, human dignity, and the objectives of Sharia but also constitutes a clear violation of fair-trial standards, the prohibition of arbitrary detention, and the human rights protections enshrined in international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the CEDAW Convention.

This approach, which transforms the muhtasib into the simultaneous roles of complainant, judge, and executioner, has created the conditions for systematic repression—particularly against women—and fostered an atmosphere of fear and humiliation throughout society. To achieve genuine justice and protect citizens’ rights, the enforcement of punishments must be entrusted exclusively to an independent judicial system that fully respects the right to defence.

References

1. United Nations Assistance Mission in Afghanistan (UNAMA). (2023). Human Rights Situation in Afghanistan: Implementation of Taliban Moral Laws.
2. United Nations. (1966). International Covenant on Civil and Political Rights.
3. United Nations. (1979). Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Footnote: [1] Graduates of the Legal Education Program, FTD-N