Afghanistan's Women

The Shia Women of Afghanistan:

Some of you may recall that earlier this year, the Afghan government came under fire for approving a Shia marriage law that was unfair to women. It resulted in some protests by Afghan women, which are unusual, and so the government promised to go back to the drawing board.

The new law is reportedly not much better. Unfortunately, the text is not available online as yet. Human Rights Watch, which has taken quite a bit of criticism over the years, claims to have seen a copy of the final law.

The law gives a husband the right to withdraw basic maintenance from his wife, including food, if she refuses to obey his sexual demands. It grants guardianship of children exclusively to their fathers and grandfathers. It requires women to get permission from their husbands to work. It also effectively allows a rapist to avoid prosecution by paying "blood money" to a girl who was injured when he raped her....

The law regulates the personal affairs of Shia Muslims - who make up between 10 and 20 percent of the population - including divorce, separation, inheritance, and the minimum age for marriage. The initial version of the law included articles that imposed drastic restrictions on Shia women, including a requirement to ask permission to leave the house except on urgent business, and a requirement that a wife have sex with her husband at least once every four days.

This law sits in a very strange place in the Afghan legal system. The Afghan Constitution has some fairly clear and explicit statements about the rights of its citizens.

Article Twenty-Two

Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.

The Shia "exception" is here:

Article One Hundred Thirty-One

The courts shall apply the Shia jurisprudence in cases involving personal matters of followers of the Shia sect in accordance with the provisions of the law. In other cases, if no clarification in this Constitution and other laws exist, the courts shall rule according to laws of this sect.

Finally, there is a relevant article in the section on changing laws.

Article One Hundred Forty-Nine

The principles of adherence to the tenets of the Holy religion of Islam as well as Islamic Republicanism shall not be amended. Amending fundamental rights of the people shall be permitted only to improve them.

It would seem that Article 22 is exactly the kind of "clarification in this Constitution" that Article 131 considers. It seems reasonable to believe that the law should be unconstitutional for that reason.

Article 149 complicates the matter. To the degree that it declares Islam to be the model for Afghanistan, it harmonizes with 131 but clashes with 22. Shia jurisprudence is certainly Islamic, and certainly admits to the model the law proposes. On the other hand, it states that anything that could be considered an amendment to basic liberties is not constitutional -- unless it improves those liberties. (We could use a version of that language in our own Constitution!)

I don't know how Afghanistan's government resolves a constitutional clash like this. I'm guessing, since it is patterned on our own form of government in key respects (like having a nine-member Supreme Court), that it would look to its court system. The oath of office repeats the verbiage from 149, with two additional invocations to underline the importance of adhering to Islam: "In the of God, Most Gracious, Most Merciful, I swear in the name of God Almighty to attain justice and righteousness in accordance with tenets of the Holy religion of Islam, provisions of this Constitution as well as other laws of Afghanistan, and to execute the judicial duty with utmost honesty, righteousness and impartiality."

So: what wins out? The 'tenets of Islam,' or the Constitution's explicit text? They appear to be in direct conflict.