Afghan Gov’t will change law

And sometimes things get better.  From CNN

“Now I have instructed, in consultation with clergy of the country, that the law be revised and any article that is not in keeping with the Afghan constitution and Islamic Sharia must be removed from this law,” [President] Karzai said.

The law  would have allowed very restrictive measures to be imposed on the Shia minority women. 

For ealier posts on this blog about the law, see here.

5 thoughts on “Afghan Gov’t will change law

  1. this is good news! (somehow i missed it yesterday.) but, i’m sort of wary of his wording: “any article that is not in keeping with the Afghan constitution and Islamic Sharia must be removed”. are the afghan constitution and sharia law robustly inclusionist, such that being in keeping with them guarantees not being anti-woman? i mean, the US constitution and english law together wouldn’t do it, under many people’s interpretations of the two. i guess i just don’t know enough about sharia and the new afghan constitution to know how to take this.

  2. Good point, elp. I think that’s worrying. The context makes it clear he’s against legalizing marital rape, but there are other very restrictive practices promoted by the law.

    I’m not sure, of course, exactly why he said that. It may not have been announcing a procedure for deciding what has to go. That is, it might be an attempt to say “well, our traditional laws do not sanction treating women this way,” which he might want to say for very political reasons even if it isn’t true. He’s bowing to external pressure, but trying to say that of course so much was being passed at that point that that bad bit slipped by.

  3. The problem lies in this particular part of the Quran, and although of course the Quran can’t be translated so this translation probably doesn’t get the gist at all:
    2:223 Your women are a tilth for you (to cultivate) so go to your tilth as ye will, and send (good deeds) before you for your souls, and fear Allah, and know that ye will (one day) meet Him. Give glad tidings to believers, (O Muhammad).

    Of course, the sharia is based on the Quran, which is believed to be literally the word of God and entirely complete and comprehensive AND the hadith, that are supplements to the complete and comprehensive words.
    I think the logic is a bit like this: since a tilth doesn’t have any reason to object being plowed and such, a woman is not supposed to object being plowed either.

    Curiously enough, being with a woman (i.e. having intercourse with her) makes a man unfit for prayer, so he has to clean himself first, but if there’s no water available, dirt can be used too. And so we get back to the tilth. Dust to dust.

  4. This isn’t necessarily a substantive change.

    The Afghani Constitution is written in a way that simultaneously enshrines conflicting values, leaving wiggle room to really do anything you want regarding women- or remain paralyzed in confusion. And a Western audience is particularly susceptible to not “getting” this because of the power of some of the lipservice to rights, and the common ignorance of how Islamic law actually works.

    Here’s an English translation of the Constitution:

    http://www.afghan-web.com/politics/current_constitution.html

    Highlights include that Afghanistan is unabashedly an Islamic Republic, Article Three, Ch. 1states:

    “In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.”

    But, at the same time….

    Ch. 1, Art. 7 states:

    “The state shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights. ”

    But there’s more:

    The Constitution pledges to uphold “equal rights and duties” of men and women, while prohibiting any “discrimination and privilege,” AND SIMULTANEOUSLY enshrines the following:

    “Article Fifty- Four
    Ch.2, Art. 33

    Family is a fundamental unit of society and is supported by the state.

    The state adopts necessary measures to ensure physical and psychological well being of family, especially of child and mother, upbringing of children and the elimination of traditions contrary to the principles of sacred religion of Islam. ”

    “Equal” does not mean (has not meant) “identical” in an Islamic context regarding gender, especially in the realm of family and personal law. “Equal” can mean “complementary,” (*wink*) meaning, patriarchal gender roles being upheld with the full force of the State. So, basically, women are screwed.

    They can argue for their rights on the basis of the UN Declaration of Human Rights and verbiage about equality in the Constitution, but the “equality” that is actually currently possible to extract through the Constitution and Hanafi jurisprudence (the school of Sunni Sharia used in Afghanistan for the majority population) doesn’t uphold spousal rape as something that even exists. Sexual crimes are based on the marital status of the people involved, not whether or not consent was given. Spousal rape isn’t a form of zina. Spousal rape has no legal status, as far as I’m aware. But I’m no expert on Hanafi legalism. If anyone reading is, who knows an angle a Sunni woman in Afghanistan could use to prosecute her husband for rape, I’d love to know about it.

    But the other issue here is this is about the Shia minority, and that the Constitution applies a different school of sharia law for them in Afghanistan. (I’m assuming Ja’fari? Does anybody know?) Sharia is not one monolithic thing. Not even within the Shia community. So, whose sharia Karzai is counting as “Islamic Sharia” is an important question. And who gets to decide and implement it. But this doesn’t seem like good news yet. It’s like a semantic bit of lipservice, I don’t think it *gives* women the right to say No. Because “Islamic Sharia” doesn’t guarantee that. I’d be interested to see if Afghani Hanafi jurists have explicitly articulated that right for Sunni women. Saying Shia women can’t do something isn’t the same thing as saying Sunni women can.

  5. thanks for filling us all in, amanda. v interesting stuff. so, it certainly sounds like the battle isn’t won yet–or that we can’t tell from what karzai has said whether it is or not. that’s a shame. but i suppose we’ll wait and see what happens.

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