Shia Personal Status Law: Difference between revisions

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</ref> "If a woman says no, the man has the right not to feed her," says Ayatollah Mohammed Asif Mohseni leader of the Shiite clerics.<ref name="Cleric"/> The law obligates a woman to have sex when the husband wants it, which analysts say is tantamount to [[marital rape]].<ref name="threaten"/>
 
</ref> "If a woman says no, the man has the right not to feed her," says Ayatollah Mohammed Asif Mohseni leader of the Shiite clerics.<ref name="Cleric"/> The law obligates a woman to have sex when the husband wants it, which analysts say is tantamount to [[marital rape]].<ref name="threaten"/>
   
"Why should a man and woman get married if there is no need for a sexual relationship? Then they are like brother and sister," said Mohseni.<ref name="Cleric"/>
+
"Why should a man and woman get married if there is no need for a sexual relationship? Then they are like brother and sister, well, not my sister..I like raping her too!" said Mohseni.<ref name="Cleric"/>
   
 
The woman must obtain permission from a male relative to leave the home except in case of emergency.<ref name="threaten"/> As well Balkhi claimed that the new version allowed a woman leave of the house on her own "for any lawful purpose within the boundaries accepted by custom" in which case she would not require permission.<ref name="Cleric"/>
 
The woman must obtain permission from a male relative to leave the home except in case of emergency.<ref name="threaten"/> As well Balkhi claimed that the new version allowed a woman leave of the house on her own "for any lawful purpose within the boundaries accepted by custom" in which case she would not require permission.<ref name="Cleric"/>

Revision as of 14:27, 29 April 2009

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 the 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. [1][2][3]

The new law will only affect the Shia denomination of Afghanistan, approximately six million people.[4] 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.[4] Shia officials claim that the new law preserves the distinctions which are inherent between the Shia and Sunni Muslim religions of Afghanistan.[3]

Articles of the law

Article 132 of the Shia Family Law obligates wives to submit to the man's sexual desires. The wife will provide sex a minimum of once every four nights unless they are sick or can offer up a logical or lawful reason to abstain.[5] Article 132 continues that the husband is to have sex a minimum of once every four months.[3] “[The] man should not avoid having sexual relations with his wife longer than once every four months.”[6]

“As long as the husband is not travelling, he has the right to have sexual intercourse with his wife every fourth night. Unless the wife is ill or has any kind of illness that intercourse could aggravate, the wife is bound to give a positive response to the sexual desires of her husband.” is a part of Article 132. [6]

“The law says it is the right of men to have sex — even by force. You can’t complain because they are husband and wife and this is the duty of a wife. This is the belief of all Afghan men,” said Azita Raffat, a MP from Badghis province.[7]

"It is the responsibility of the wife to prepare for sexual satisfaction of her husband and not leave the house without permission, unless there is the need or difficulty." is from a draft copy of the law.[8] Karzai signed a proviso allowing refusal to sex if there is "lawful or logical excuses or with permission of her husband," reported Sayed Hussain Alimi Balkhi who helped with the law format.[9]

According to law, the husband cannot force himself upon the woman for sex, however if she does not agree to his desires he is allowed to stop feeding her.[9] "If a woman says no, the man has the right not to feed her," says Ayatollah Mohammed Asif Mohseni leader of the Shiite clerics.[9] The law obligates a woman to have sex when the husband wants it, which analysts say is tantamount to marital rape.[10]

"Why should a man and woman get married if there is no need for a sexual relationship? Then they are like brother and sister, well, not my sister..I like raping her too!" said Mohseni.[9]

The woman must obtain permission from a male relative to leave the home except in case of emergency.[10] As well Balkhi claimed that the new version allowed a woman leave of the house on her own "for any lawful purpose within the boundaries accepted by custom" in which case she would not require permission.[9]

Men's rights will be the priority in courts cases and in divorce cases. Inheritance issues will also lean in favour of the husband.[5][11] If the husband dies, the wife is not entitled to any inheritance is mentioned in article 137.[3]

The husband can demand that the wife wear cosmetics and dress up.[10] "When men venture outside, they see lots of other women with makeup, but he comes home and finds his own wife with a dirty face This is mentioned to encourage men to have more interest in a social and personal life with his wife." said Mohseni.[9]

The new law approves of child marriage.[12] Article 27 of the new law proposes that it is legal to marry girls once their menustration cycle has started.[7]

Women can be gainfully employed or seek schooling only if her husband condones such. Wives can also only obtain medical care with the husband's permission.[13] Women would be denied custody of their children under this law as well granting custody instead to fathers and grandfathers.[14][15]

Politics

The bill sat without action until February when Afghan President 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."[16][17]

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.[12][18]

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.[18]

"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" [12][18]

“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.[19]

Critics of the bill feel that it was passed to appease Shia clerics and Islam fundamentalists.[18]

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.[17]

Internationally, there is opposition to the legislation which is reminiscent of the Taliban regime.[20] The Taliban was the ruling authority in Afghanistan between 1996 to 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.[2][19] "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 Hutton, 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."[21]

“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.[22]

“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.[22]

"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.[23] "[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).[23]

International conference regarding Afghanistan

An international conference was held in Hague regarding Afghanistan at the end of March.[24] The conference named, "A Comprehensive Strategy in a Regional Context" started Tuesday, March 31.[25]

"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.[26]

Protest

A protest hit the streets in Kabul, 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.[19] When the protest reached the parliamentary grounds a signed petition was presented.[27]

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.[28]

Amendment

On Tuesday, April 7, Karzai vowed to change the law if it was found to go against the constitution 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.”[29] “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.”[3]


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.[30] Under Article 22 of the constitution of Afghanistan equality between the sexes is recognised.[7][17]

"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.[8]

Shia clergy defend the new law, and feel that the international community has misinterpreted the legislation.[31]

The legislation has not yet been published in Afghanistan's official gazette which technically means it can still be altered. [2] 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.[32]

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. Mothers are able to retain child custody if their child is over the age of nine from the previous seven years of age.[32] Politicians in the lower house of parliment was able to remove the law's stipulation for temporary marriages.[4] 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.[3] 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 wive's did not need the man's permission to work.[24]

See also

References

  1. ^ "Merkel supports review of Afghan sex law". Canoe Inc. The Associated Press. Retrieved 2009-04-16. 
  2. ^ a b c "Afghan women attacked for protesting marriage law". Asia News. 2009-04-16. Retrieved 2009-04-16. 
  3. ^ a b c d e f "Anger over Shia law ismisplaced, says Karzai". Gulf-Times.com. Reuters. Retrieved 2009-04-16. 
  4. ^ a b c Boone, Jon (2009-03-31). "'Worse than the Taliban' - new law rolls back rights for Afghan women". Guardian News and Media Limited. Retrieved 2009-04-16. 
  5. ^ a b "Afghan family law sparks angry demonstrations in Kabul". New Kerala. IANS. Retrieved 2009-04-16. 
  6. ^ a b Panetta, Alexander (April 2, 2009). "Canada files complaint over rape law". Canadian Press. Retrieved 2009-04-16. 
  7. ^ a b c Coghlan, Tom (April 3, 2009). "President Karzai's Taleban-style laws for women put troop surge at risk". The Times. Retrieved 2009-04-16.  Unknown parameter |coauthors= ignored (|author= suggested) (help)
  8. ^ a b Chianello, Joanne. "Afghan Shia law not in force, ministry says Government promises to alter legislation if review finds it contradicts women's rights". The Ottawa Citizen and Agence France-Presse. Canwest Publishing Inc. Retrieved 2009-04-16.  Unknown parameter |coauthors= ignored (|author= suggested) (help)
  9. ^ a b c d e f Farmer, Ben (2009-04-16). "Shia cleric defends law said to legalise marital rape". Telegraph Media Group Limited. Retrieved 2009-04-16. 
  10. ^ a b c Jha, Lalit (2009-04-14). "Afghan's new family law threatens women's freedom: HRW". Press Trust of India. Retrieved 2009-04-16. 
  11. ^ Starkey, Jerome (2009-03-31). "Afghanistan - New Shia Family Law - Highly ControversiaL". Women's Net. Retrieved 2009-04-16. 
  12. ^ a b c Starkey, Jerome (2009-03-31). "Afghan President Signs Law "Legalizing Rape"". Independent UK. Retrieved 2009-04-16. 
  13. ^ Serrano, G (April 7, 2009). "The ‘Wife Rape’ Law in Afghanistan". Telegraph.co.uk. Retrieved 2009-04-16. 
  14. ^ "New Afghan law forcing sex draws outrage from Canada". The Canadian Press. 2009-03-31. Retrieved 2009-04-16. 
  15. ^ "Outrage over Afghan law legalizing rape in marriage". CTV. Retrieved 2009-04-16. 
  16. ^ "Afghanistan will Review New Shia Law that Restricts Women's Rights". Ms. Magazine. April 8, 2009. Retrieved 2009-04-16. 
  17. ^ a b c "Karzai rejects criticism of controversial bill allowing Shia family law". RFI. 2009-04-04. Retrieved 2009-04-16. 
  18. ^ a b c d "Karzai Accused Of Bid To 'Legalise Rape'". The Independent. March 31, 2009. Retrieved 2009-04-16. 
  19. ^ a b c "Afghan family law sparks angry demonstrations in Kabul". Sindh Today. 2009-04-15. Retrieved 2009-04-16. 
  20. ^ "Outrage grows over Afghan rape law". Macleans.ca. The Canadian Press. April 1, 2009. Retrieved 2009-04-16. 
  21. ^ Silke, Siobhán (2009-04-02). "Karzai backs new law curtailing women's rights". AFP. Retrieved 2009-04-16. 
  22. ^ a b "President Obama Calls New Women-Oppressing Afghan Law "Abhorrent" -- But Suggests It Won't Change US Mission". ABCNews Internet Ventures. April 4, 2009. Retrieved 2009-04-16. 
  23. ^ a b Vlahos, Kelley Beaucar (April 04, 2009). "Afghan Law That Legalizes Rape Poses Problem for Obama and Clinton". Fox News. Retrieved 2009-04-16.  Check date values in: |date= (help)
  24. ^ a b Collins, Michelle (Apr. 8, 2009). "Afghan Law: 'That This Came out of Nowhere was Not True' While ministers claim they were kept in the dark, Rights and Democracy says Canadian officials knew it was coming.". Embassy Canada's Foreign Policy Magazine. The Hill Times Publishing Inc. Retrieved 2009-04-16.  Unknown parameter |coauthors= ignored (|author= suggested) (help); Check date values in: |date= (help)
  25. ^ "Secretary Clinton: Travel to The Hague for International Conference on Afghanistan, March 31". Hillary unleashed. March 31, 2009. Retrieved 2009-04-16. 
  26. ^ "International conference on Afghanistan opens in The Hague". RIA Novosti. March 31, 2009. Retrieved 2009-04-16. 
  27. ^ "To President Karzai: withdraw new Shia family law - The Petition Site". The Petition presented April 15, 2009. Care2.com, inc. Retrieved 2009-04-16. 
  28. ^ Fisher, Matthew (April 14, 2009). "Shia law not up to West: Afghan women". Canwest News Service. Retrieved 2009-04-16. 
  29. ^ "Karzai ready to change Shia law". Reuters. 2009-04-08. Retrieved 2009-04-16. 
  30. ^ "The Constitution of Afghanistan" (PDF). Joint Electoral management Body (JEMB). 2004-01-23. Retrieved 2006-11-09. 
  31. ^ Farmer, Ben (2009-04-15). "Afghan women's protest 'stoned' by conservatives". Telegraph Media Group Limited. Retrieved 2009-04-16. 
  32. ^ a b "U.S., U.N. concerned about Afghan Shia law". Reuters. 2009-04-02. Retrieved 2009-04-16.