Afghanistan's Shia Personal Status Law treats women as second-class citizens

Farzana Hassan [Communications Director, Muslim Canadian Congress]: "Afghan president Hamid Karzai has obviously capitulated to the conservative Shia clergy in signing the contentious Shia Law of Personal Status that severely curtails the rights of Shia Muslim women. The law grants a husband the right to withdraw material support to his wife by even denying her food if she refuses to comply with his sexual demands. It also severely limits the rights of Afghan Shia women on matters of custody, as well as in seeking redress for marital rape.

That marital rape is not recognized under Sharia law as a crime is rooted in the concept of the "nikah" or the Islamic marriage contract. The concept stems from the patriarchal belief in sex for maintenance. A woman, under strict Sharia law is hence seen as being in violation of her chief obligation towards her husband. The view that sex is an expression and consequence of love is totally alien to this way of thinking.

In the case of the Afghan law however, there also appears to be a mixing of Afghan customary practice in the law, as there is little sanction in the Shia view for coercion in marriage, exemplified by the life of Fatima as a wife, wherein she undertook work outside her home, indeed for community and political issues. Moerover, the Nahjul Balagha (codified utterances of Imam Ali) refer to coercion being highly unfavourable in the martital relationship.

Be that as it may, it is well nigh impossible to expect that Sharia law will come to embrace modern concepts of love and marriage unless there is a fundamental shift in the thinking of clergy on this issue. As it stands, the contentious Shia application of domestic religious law will not yield the desired result of recognizing women as equal partners in a marriage contract.

The answer to such quandaries is therefore, the enactment of laws based on secular principles. Religious law has historically discriminated against women in stipulating unequal and unjust domestic practices. Islamic countries including Afghanistan must look into separating religion from politics in the public domain, so that human rights violations meet proper redress within the legal framework of a country.

Although the Shiite law affects only ten to twenty percent of the Afghan population, it is setting a very dangerous precedent for other Islamic societies where Shia law might prevail. Additionally, similar laws may come to be enacted in some Sunni communities as well.

Women must be treated as equal citizens in a given Islamic country. As a preeminent guiding principle, a law must not discriminate on the basis of race, creed, class or gender. Afghan women are rightly concerned about the enactment of the Shia Law of Personal Status. Their protests should be heeded rather than brutally silenced by Afghan authorities. Moreover, Afghan women have every right to question the fairness of the law and to hold Mr. Karzai to his words of bringing the law at par with international human rights standards."

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