Group Probes Afghan Constitution's Protection of Women's Rights
United States Consulate - Mumbai - India's website
02/26/2004
Afghan ambassador says constitutional system should
allay fears
Washington -- Afghanistan's new constitution,
while containing an article guaranteeing equal rights for women
and men, as well as measures promoting human rights and democracy,
does not entirely ensure protection from the types of abuses
Afghan women suffered under the Taliban regime, according to
Masuda Sultan, a program director for the New York-based advocacy
group Women for Afghan Women.
Sultan, speaking February 10 at the Woodrow Wilson
International Center for Scholars in Washington, said the equality
clause is a "huge victory" for Afghan women.
But she noted that the constitution also contains
an article declaring that no law can be contradictory to the
beliefs and practices of Islam, adding that many of the Taliban-era
bans on women's freedoms of movement, education, marriage, and
employment could continue to have legal sanction since the former
regime often justified the measures according to their reading
of Hanifi jurisprudence.
In a February 24 interview with the Washington
File, Afghanistan's Ambassador to the United States, Said Tayeb
Jawad, countered that the new constitution sets forward clear
priorities of how legal decisions will be made, which would
limit the possibility of discriminatory measures being upheld.
"[T]he way it works in any given case is,
first the constitution applies, then the civil law system of
Afghanistan, and then if there are no provisions, the Hanifi
jurisprudence will be applicable," he said. He added that
the constitution institutionalized the Afghan civil law system,
including penal and commercial codes, which are now being revived
or reformed.
Atiq Sarwari, a program associate at the Wilson
Center's Kennan Institute, said the new constitution generally
embraces human rights and democracy, but "no question about
it, this is also a religious constitution."
"The difficult part is how to reconcile the
two in the constitution and offer a way to, at least in a moderate
way, provide for the protection of some of these provisions,"
he said. But the extent to which Afghan authorities manage to
do that is very "vague, ambiguous and open to a wide range
of interpretation," he added.
Both Sarwari and Sultan foresee that the document
will be tested in Afghanistan's courts as women seek to claim
their rights. "There is no other mechanism in place to
deal with these issues except the Supreme Court," said
Sarwari, but he expressed his opinion that the institution is
unaccountable to other branches of government and still has
many conservative judges, including some who served under the
Taliban.
To illustrate this argument, Sultan recounted
the recent case of a female singer's appearance on Afghan television
in January, the first such broadcast in twelve years. She said
the deputy chief justice of Afghanistan's Supreme Court had
objected to the broadcast on the grounds that it was in violation
of Islam. The Afghan Minister for Culture, however, noted that
no such prohibition existed against male singers and said the
broadcast was consistent with the constitutional article declaring
men and women to be equal. Ultimately, Afghan President Hamid
Karzai intervened in favor of the broadcast.
Sultan said she was concerned that eligible Supreme
Court appointees could be trained in either religious or civil
law, and that most have been trained in the former, which has
no central accreditation system. "There's really no check
on them," she said.
As a result, Afghan women could be faced with
justices who are unsympathetic to women's rights. "We didn't
want a constitution that's going to leave the struggle to the
courts," she said.
"How does a woman ... do something that's
considered contrary to the beliefs and provisions of Islam,
[and] whose Islam?" she asked. "[T]he battle for that
is really going to be waged in the Afghan courts."
Ambassador Jawad told the Washington File that
the constitution calls for the Supreme Court to have nine new
judges that will be appointed by the president, subject to approval
by the Afghan parliament.
Currently, the country is in a transitional period
in which most of the existing institutions are being reformed
to comply with the constitution's new requirements, he said.
In order to help smooth the transition, initial judicial appointments
will cover periods of three, six and nine years, and then all
subsequent appointments will be for nine years.
Sultan said that she and Women for Afghan Women
organized a September 2003 conference in Kandahar where 45 grass
roots Afghan women leaders met to discuss the then unpublished
draft constitution.
The result of the conference was a document entitled
the "Afghan Women's Bill of Rights," which listed
16 articles that the delegates wanted to be included in the
draft constitution. These would have given women full rights
in marriage, divorce, employment, education, voting, inheritance,
and property.
But despite expressions of support from the constitutional
commission and President Karzai, the demands were not included
in the document.
Sultan expressed her belief that the drafters
of the constitution did not want to generate excessive controversy
that would jeopardize the overall approval of the document.
"They wanted to get this through very easily ... and this
was the best compromise they could get," she said.
In defense of the final document, Ambassador Jawad
said Afghan women delegates actively participated in its adoption
by the Constitutional Loya Jirga.
"More than 20 percent of the delegates
were women and they actively participated," he said. They
introduced a number of significant amendments to the constitution,
including one that requires that at least 25 percent of the
members of the parliament will be women in Afghanistan,"
adding that very few countries "provide for such a high
quota of women's participation in the legislative branch."
