Shia Family Law
Encyclopedia
Shia Family Law or Shiite Personal Status Law is a law of Afghanistan
that was approved in February 2009 with Afghan President
Hamid Karzai
's signature. A portion of the law pertaining to sexual relations between husband and wife has made international headlines. The United Nations Development Fund for Women, NATO, Canada
, United States
, Germany
and other nations have come forward asking for a review of the law as it is felt that it oppresses Shiite women, taking away many of their rights in a marital relationship.
The new law will only affect the Shia denomination of Afghanistan, approximately six million people. Family issues had previously been decided by customary law, so it is considered an improvement on past affairs. Some Afghan politicians feel that it protects women who are weaker than men. Shia officials claim that the new law preserves the distinctions which are inherent between the Shia and Sunni Muslim religions of Afghanistan.
Hamid Karzai
pushed it through the parliamentary process in February 2009. "Issues that have been mentioned in the Western media, such things are not in our law," said Karzai, "We understand the concerns of our allies in the international community….If there is anything that is of concern to us then we will definitely take action in consultation with our [religious clerics] and send it back to the parliament."
Senator Humeira Namati affirmed that the legislation was not debated, nor read out in the Upper House (parliament). It was just sent to the Supreme Court.
The presidential election is upcoming this August, and Afghanistan's Supreme Court has given their approval that Karzai can remain in power. It was after this sanction that the Shia Family Law materialized.
"It's about votes. Karzai is in a hurry to appease the Shia because the elections are on the way." said Shinkai Karokhail, a woman MP, "There are moderate views among the Shia, but unfortunately our MPs, the people who draft the laws, rely on extremists"
“Due to the sensitivity of this law and the pressure by some Shia lawmakers, it was approved by the parliament as a package, not article by article, which is the procedure for all other bills,” said Sabrina Saqib, a female MP.
Critics of the bill feel that it was passed to appease Shia clerics and Islam fundamentalists
.
Human rights groups and the United Nations High Commissioner for Human Rights report that the parts which have been seen inherently sanction rape within the marriage.
Internationally, there is opposition to the legislation which is reminiscent of the Taliban regime. The Taliban was the ruling authority in Afghanistan between 1996 and 2001. During that time Taliban law forbade women to work and attend school, women had to be completely concealed by a burqa
and they could not even be in public places without a male family member. "This law is not something that Karzai should sign because there must be mutual agreement within a marriage, but what westerners have to realize is that it is much better for us than it was before when the Taliban behaved so badly towards us," said Shapera Azzizulah, "Under the Taliban I was forced to wear a burka and my sister was beaten once on her feet for only showing her eyes. Now I don't wear a burka, so that is progress.
, British Defence Secretary
.
"We're deeply troubled by it, and I don't think we're by any means alone. Making progress on human rights for women is a significant component of the international engagement in Afghanistan. It's a significant change we want to see from the bad old days of the Taliban," said Stephen Harper
, Prime Minister of Canada
, "I think President Karzai and those other actors who may be supporting this policy will find themselves under considerable pressure."
“I think this law is abhorrent,” said Barack Obama
, President of the United States
, “Certainly the views of the administration have been, and will be, communicated to the Karzai government. And we think that it is very important for us to be sensitive to local culture, but we also think that there are certain basic principles that all nations should uphold, and respect for women and respect for their freedom and integrity is an important principle.” said Navi Pillay, United Nations High Commissioner for Human Rights.
“The law is another clear indication that the human rights situation in Afghanistan is getting worse not better. Respect for women’s rights – and human rights in general – is of paramount importance to Afghanistan’s future security and development. This law is a huge step in the wrong direction,” said Pillay.
"We urge President Karzai to review the law's legal status to correct provisions of the law that ... limit or restrict women's rights," said United States
spokesman.
"[The law] legalizes the rape of a wife by her husband.... The law violates women's rights and human rights in numerous ways." was submitted by the United Nations Development Fund for Women (UNIFEM).
The conference named, "A Comprehensive Strategy in a Regional Context" started Tuesday, March 31.
"I am sure the conference will give a clear political signal that will make it possible to build a free and prospering Afghanistan," said Jan Peter Balkenende
, Prime Minister of the Netherlands
.
, the capital city of Afghanistan, on Wednesday, April 15. About 200 women protestors made it to the protest after many were held back by husbands, and not allowed access to public transit. Between 800 to 1,000 counterdemonstrators swamped the women's protest, who were supporters of a high ranking Shia cleric, Hayatullah Sheikh Mohammad Asif Mohsini. When the protest reached the parliamentary grounds a signed petition was presented.
Sitara Achakzai
was murdered on Sunday, April 12. Achakzai was a women's activist as well as a member of Kandahar's provincial council. It is reported that Taliban gunmen shot her.
or Islamic law
. The law has been placed before the Justice Minister and the top religious leaders. “We have already initiated procedures to correct, if there is anything of concern, that (it) should be changed,” said Karzai “If there is any article in the law that is not in keeping with the Afghan constitution...it should be corrected in consultation with our clergy, in accordance to the constitution and our Islamic Shariah.” “We understand the concerns of our allies in the international community. Those concerns may be out of an inappropriate or not so good translation of the law or a misinterpretation of this,” Karzai also said, "If there is anything that is of concern to us then we will definitely take action in consultation with our ulema (senior clerics) and send it back to the parliament ... This is something we are serious about.”
The third article of the constitution states that no law will transgress against the Islamic religion followed in Afghanistan. The constitution provides a mandate in article seven that the Islamic Republic shall adhere to the Universal Declaration of Human Rights
(UDHR) and to other international treaties and conventions which is signatory to. Under Article 22 of the constitution of Afghanistan
equality between the sexes is recognised.
"It is a complicated process, and it will take a long time to review every line of the 250 articles of the law. We will consider concerns from everyone and make sure the law meets the human rights standards," said Mohammad Qasim Hashimzai, Deputy Justice Minister.
Shia clergy defend the new law, and feel that the international community has misinterpreted the legislation.
The legislation has not yet been published in Afghanistan's official gazette which technically means it can still be altered. Karzai has also said that while the law is at the Justice Department to be reviewed it will be on hold. While on hold, the law cannot be enforced.
A copy of the bill since it was originally drafted has been changed. The age of marriage for women has been changed from nine years old to sixteen. The age at which a mother can keep custody of her daughter after a divorce was raised from seven to nine years old. Politicians in the lower house of Parliament was able to remove the law's stipulation for temporary marriages. Another amendment from the first draft is reported that a woman could leave the house without a male relative escort if she were to go to work, school or for medical treatment. Canadian International Development Agency
CIDA provided funds to the Rights and Democracy organisation which advises Afghanistan on developing new family laws. Some aspects of the law that the staff thought would be repealed were the marriage of girls as young as nine years old to men and that wives did not need the man's permission to work.
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
that was approved in February 2009 with Afghan President
President of Afghanistan
Afghanistan has only been a republic between 1973 and 1992 and from 2001 onwards. Before 1973, it was a monarchy that was governed by a variety of kings, emirs or shahs...
Hamid Karzai
Hamid Karzai
Hamid Karzai, GCMG is the 12th and current President of Afghanistan, taking office on 7 December 2004. He became a dominant political figure after the removal of the Taliban regime in late 2001...
's signature. A portion of the law pertaining to sexual relations between husband and wife has made international headlines. The United Nations Development Fund for Women, NATO, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
and other nations have come forward asking for a review of the law as it is felt that it oppresses Shiite women, taking away many of their rights in a marital relationship.
The new law will only affect the Shia denomination of Afghanistan, approximately six million people. Family issues had previously been decided by customary law, so it is considered an improvement on past affairs. Some Afghan politicians feel that it protects women who are weaker than men. Shia officials claim that the new law preserves the distinctions which are inherent between the Shia and Sunni Muslim religions of Afghanistan.
Politics
The bill sat without action until February when Afghan PresidentPresident of Afghanistan
Afghanistan has only been a republic between 1973 and 1992 and from 2001 onwards. Before 1973, it was a monarchy that was governed by a variety of kings, emirs or shahs...
Hamid Karzai
Hamid Karzai
Hamid Karzai, GCMG is the 12th and current President of Afghanistan, taking office on 7 December 2004. He became a dominant political figure after the removal of the Taliban regime in late 2001...
pushed it through the parliamentary process in February 2009. "Issues that have been mentioned in the Western media, such things are not in our law," said Karzai, "We understand the concerns of our allies in the international community….If there is anything that is of concern to us then we will definitely take action in consultation with our [religious clerics] and send it back to the parliament."
Senator Humeira Namati affirmed that the legislation was not debated, nor read out in the Upper House (parliament). It was just sent to the Supreme Court.
The presidential election is upcoming this August, and Afghanistan's Supreme Court has given their approval that Karzai can remain in power. It was after this sanction that the Shia Family Law materialized.
"It's about votes. Karzai is in a hurry to appease the Shia because the elections are on the way." said Shinkai Karokhail, a woman MP, "There are moderate views among the Shia, but unfortunately our MPs, the people who draft the laws, rely on extremists"
“Due to the sensitivity of this law and the pressure by some Shia lawmakers, it was approved by the parliament as a package, not article by article, which is the procedure for all other bills,” said Sabrina Saqib, a female MP.
Critics of the bill feel that it was passed to appease Shia clerics and Islam fundamentalists
Islamic fundamentalism
Islamic fundamentalism is a term used to describe religious ideologies seen as advocating a return to the "fundamentals" of Islam: the Quran and the Sunnah. Definitions of the term vary. According to Christine L...
.
Human rights groups and the United Nations High Commissioner for Human Rights report that the parts which have been seen inherently sanction rape within the marriage.
Internationally, there is opposition to the legislation which is reminiscent of the Taliban regime. The Taliban was the ruling authority in Afghanistan between 1996 and 2001. During that time Taliban law forbade women to work and attend school, women had to be completely concealed by a burqa
Burqa
A burqa is an enveloping outer garment worn by women in some Islamic religion to cover their bodies in public places. The burqa is usually understood to be the woman's loose body-covering , plus the head-covering , plus the face-veil .-Etymology:A speculative and unattested etymology...
and they could not even be in public places without a male family member. "This law is not something that Karzai should sign because there must be mutual agreement within a marriage, but what westerners have to realize is that it is much better for us than it was before when the Taliban behaved so badly towards us," said Shapera Azzizulah, "Under the Taliban I was forced to wear a burka and my sister was beaten once on her feet for only showing her eyes. Now I don't wear a burka, so that is progress.
International reaction
“The government of Afghanistan must abide by international agreements that it has entered into willingly,” said John HuttonJohn Hutton (Labour MP)
John Matthew Patrick Hutton, Baron Hutton of Furness is a British Labour Party politician who was the Member of Parliament for Barrow and Furness in Cumbria from 1992 to 2010, and has served in a number of Cabinet offices, including Defence Secretary and Business Secretary...
, British Defence Secretary
Secretary of State for Defence
The Secretary of State for Defence, popularly known as the Defence Secretary, is the senior Government of the United Kingdom minister in charge of the Ministry of Defence, chairing the Defence Council. It is a Cabinet position...
.
"We're deeply troubled by it, and I don't think we're by any means alone. Making progress on human rights for women is a significant component of the international engagement in Afghanistan. It's a significant change we want to see from the bad old days of the Taliban," said Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...
, Prime Minister of Canada
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
, "I think President Karzai and those other actors who may be supporting this policy will find themselves under considerable pressure."
“I think this law is abhorrent,” said Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
, President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
, “Certainly the views of the administration have been, and will be, communicated to the Karzai government. And we think that it is very important for us to be sensitive to local culture, but we also think that there are certain basic principles that all nations should uphold, and respect for women and respect for their freedom and integrity is an important principle.” said Navi Pillay, United Nations High Commissioner for Human Rights.
“The law is another clear indication that the human rights situation in Afghanistan is getting worse not better. Respect for women’s rights – and human rights in general – is of paramount importance to Afghanistan’s future security and development. This law is a huge step in the wrong direction,” said Pillay.
"We urge President Karzai to review the law's legal status to correct provisions of the law that ... limit or restrict women's rights," said United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
spokesman.
"[The law] legalizes the rape of a wife by her husband.... The law violates women's rights and human rights in numerous ways." was submitted by the United Nations Development Fund for Women (UNIFEM).
International conference regarding Afghanistan
An international conference was held in Hague regarding Afghanistan at the end of March.The conference named, "A Comprehensive Strategy in a Regional Context" started Tuesday, March 31.
"I am sure the conference will give a clear political signal that will make it possible to build a free and prospering Afghanistan," said Jan Peter Balkenende
Jan Peter Balkenende
Jan Pieter "Jan Peter" Balkenende is a Dutch politician of the party Christian Democratic Appeal .He was the Prime Minister of the Netherlands from 22 July 2002 until 14 October 2010, having led four coalition governments, cabinets Balkenende I, II, III and IV, none of which served a full...
, Prime Minister of the Netherlands
Prime Minister of the Netherlands
The Prime Minister of the Netherlands is the chairman of the Council of Ministers of the Netherlands. He is the de facto head of government of the Netherlands and coordinates the policy of the government...
.
Protest
A protest hit the streets in KabulKabul
Kabul , spelt Caubul in some classic literatures, is the capital and largest city of Afghanistan. It is also the capital of the Kabul Province, located in the eastern section of Afghanistan...
, the capital city of Afghanistan, on Wednesday, April 15. About 200 women protestors made it to the protest after many were held back by husbands, and not allowed access to public transit. Between 800 to 1,000 counterdemonstrators swamped the women's protest, who were supporters of a high ranking Shia cleric, Hayatullah Sheikh Mohammad Asif Mohsini. When the protest reached the parliamentary grounds a signed petition was presented.
Sitara Achakzai
Sitara Achakzai
Sitara Achakzai was a leading Afghan women's rights activist and a member of the regional parliament in Kandahar. She was assassinated by the Taliban....
was murdered on Sunday, April 12. Achakzai was a women's activist as well as a member of Kandahar's provincial council. It is reported that Taliban gunmen shot her.
Amendment
On Tuesday, April 7, Karzai vowed to change the law if it was found to go against the constitutionConstitution of Afghanistan
The Constitution of Afghanistan is the supreme law of the state Afghanistan, which serves as the legal framework between the Afghan government and the Afghan citizens...
or Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
. The law has been placed before the Justice Minister and the top religious leaders. “We have already initiated procedures to correct, if there is anything of concern, that (it) should be changed,” said Karzai “If there is any article in the law that is not in keeping with the Afghan constitution...it should be corrected in consultation with our clergy, in accordance to the constitution and our Islamic Shariah.” “We understand the concerns of our allies in the international community. Those concerns may be out of an inappropriate or not so good translation of the law or a misinterpretation of this,” Karzai also said, "If there is anything that is of concern to us then we will definitely take action in consultation with our ulema (senior clerics) and send it back to the parliament ... This is something we are serious about.”
The third article of the constitution states that no law will transgress against the Islamic religion followed in Afghanistan. The constitution provides a mandate in article seven that the Islamic Republic shall adhere to the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
(UDHR) and to other international treaties and conventions which is signatory to. Under Article 22 of the constitution of Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
equality between the sexes is recognised.
"It is a complicated process, and it will take a long time to review every line of the 250 articles of the law. We will consider concerns from everyone and make sure the law meets the human rights standards," said Mohammad Qasim Hashimzai, Deputy Justice Minister.
Shia clergy defend the new law, and feel that the international community has misinterpreted the legislation.
A copy of the bill since it was originally drafted has been changed. The age of marriage for women has been changed from nine years old to sixteen. The age at which a mother can keep custody of her daughter after a divorce was raised from seven to nine years old. Politicians in the lower house of Parliament was able to remove the law's stipulation for temporary marriages. Another amendment from the first draft is reported that a woman could leave the house without a male relative escort if she were to go to work, school or for medical treatment. Canadian International Development Agency
Canadian International Development Agency
The Canadian International Development Agency was formed in 1968 by the Canadian government. CIDA administers foreign aid programs in developing countries, and operates in partnership with other Canadian organizations in the public and private sectors as well as other international organizations...
CIDA provided funds to the Rights and Democracy organisation which advises Afghanistan on developing new family laws. Some aspects of the law that the staff thought would be repealed were the marriage of girls as young as nine years old to men and that wives did not need the man's permission to work.
See also
- War in Afghanistan (2001–present)War in Afghanistan (2001–present)The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...
- Sunni-Shia relations relating to Afghanistan
- Religion in AfghanistanReligion in AfghanistanThe official religion in Afghanistan is Islam, which is practiced by over 99% of its citizens. Sunni Islam makes up 80-89% of the total population while the remaining 10-19% are Shi'as and about 1% or less practice other religions....
- Human rights in AfghanistanHuman rights in AfghanistanThe situation of Human Rights in Afghanistan is a topic of some controversy and conflict. While the Taliban were well known for numerous human rights abuses, several human rights violations continue to take place in the post-Taliban government era....