The Shari'a in the Constitutions of Afghanistan, Iran and Egypt - Implications for Private Law 3161605462, 9783161605468

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Materialien zum ausländischen und internationalen Privatrecht 45 Herausgegeben vom

Max-Planck-Institut für ausländisches und internationales Privatrecht Direktoren:

Jürgen Basedow, Klaus J. Hopt und Reinhard Zimmermann

ARTIBUS

The Sharîca in the Constitutions of Afghanistan, Iran and Egypt Implications for Private Law edited by

Nadjma Yassari

Mohr Siebeck

ISBN 3-16-148787-7 / eISBN 978-3-16-160546-8 unveränderte eBook-Ausgabe 2022 ISSN 0543-0194 (Materialien zum ausländischen und internationalen Privatrecht) Die Deutsche Bibliothek lists this publication in the Deutsche Nationalbibliographie; detailed bibliographic data is available in the Internet at http://dnb.ddb.de. © 2005 by Mohr Siebeck, P. 0. Box 2040, D-72010 Tübingen. This book may not be reproduced, in whole or in part, in any form (beyond that permitted by copyright law) without the publisher's written permission. This applies particularly to reproductions, translations, microfilms and storage and processing in electronic systems. Printed in Germany.

Preface One of the most critical issues for the legal reconstruction in Afghanistan is the limited amount of quality research and the resulting lack of reliable data and analysis. The conflicts of the past 25 years have resulted in the collapse of institutions of higher education and a brain drain as many educated Afghans fled the country. Furthermore, the short-term nature of funding, combined with the fast-paced working environment, have left little room for reflection and severely restricted investments in research and learning. This is a handicap calling for redress. To assist Afghan colleagues in their endeavour to reconstruct their legal system, the Max Planck Institute for Foreign Private Law and Private International Law invited the deans of the law and Shari°a faculties of the universities of Kabul, Herat, Nangarhar, and Balkh as well as legal experts from Iran, Egypt, and Syria to a conference held in Hamburg in February 2004 entitled: The Sharfa in the Afghan Constitution and its Implications for the Legal Order: Family and Succession Law, Commercial Law and TradeThe idea was to offer a forum for discussion on the interaction of law and religion. Most Islamic countries have incorporated the Sharfa or Islamic principles in their constitutions as the main or indeed the primary source of law. The implications of such a choice are manifold. So far, no general model has emerged as to how this constitutional postulate is to be translated into the legal reality in various Islamic countries. In January 2004, Afghanistan enacted a constitution where similar formulations were chosen. As a preliminary to the debates within the Afghan legal community, the speakers of the conference presented an analysis of their own systems, traced the various ways in which religion has been incorporated into law and outlined the limits and controversies that have emerged in this regard. This book contains the papers given at the conference. We were happy to include articles from Afghan scholars living inside and outside the country, notably the articles of Dr. Ali Wardak from the University of Glamorgan (Building a Post- War Justice System in Afghanistan), of Bashir Munib from the University of Herat {Law of Land Tenure and Transfer of Property in Times of War) as well as the contribution of Mohammad Hamid Saboory, research fellow at the Max Planck Institute in Hamburg (The Progress of Constitutionalism in Afghanistan). In the appendices, we have included the Bonn Agreement of December 2001, the Afghan Constitutions of 1964 and 2004 in 1

See the report of the conference, Haars, RabelsZ 69 (2005) 351-355.

VI

Preface

Dari and English for comparative purposes, as well as excerpts of the Constitution of the Islamic Republic of Iran, as far as they were relevant to our discussion. As the Egyptian Constitution of 1980 is more easily available 2 , we abstained from reproducing it here. In an effort to open a genuine discussion with the legal community in Afghanistan, all contributions have been translated into Dari, and it is hoped that this will induce a fruitful exchange on equal terms. This book is the result of thorough and committed teamwork. I would like to thank in particular Mohammad Hamid Saboory and Dr. Winfried Schmitz from the law firm SCHMITZ Rechtsanwälte in Düsseldorf who sponsored his oneyear-scholarship at the Institute; Martin Haars, Ann-Christin Maak, Ingeborg Stahl and Uda Strätling for the formatting and final review of the volume; and last but not least Valey Arya, who translated the texts into Dari. I would also like to express my gratitude to the directors of the Max Planck Institute for giving their support and assistance to the Afghanistan project. Finally, the generous financial support granted by the Foreign Office of the Federal Republic of Germany is gratefully acknowledged. Nadjma Yassari

2 See for example Boyle, K., Human Rights and Democracy: The Role of the Supreme Constitutional Court of Egypt, CIMEL Book Series, No. 3, 1996. The book contains a digest of key human rights judgments along with the texts of the Constitution and the Statute of the Supreme Constitutional Court. The constitution in Arabic and English is available on the website of the Egyptian Parliament www.parliament.gov.eg/EPA/ar/Index.jsp

Table of Contents Abbreviations

IX

Contributors

XI

Part I: Shar^a in Afghanistan

1

Jürgen Basedow Introduction

3

Mohammad Hamid Saboory The Progress of Constitutionalism in Afghanistan

5

Mohammad Hashem Kamali Islam and its Shar^a in the Afghan Constitution 2004 with Special Reference to Personal Law

23

Nadjma Yassari Legal Pluralism and Family Law: An Assessment of the Current Situation in Afghanistan

45

Ali Wardak Building a Post-War Justice System in Afghanistan

61

Irene Schneider The Position of Women in the Islamic and Afghan Judiciary

83

Bashir Munib Law of Land Tenure and Transfer of Property in Times of War

103

Part II: The Iranian Model

107

Elaheh Kolaei Afghan and Iranian Women: Sharing Experiences

109

Mohammad Rasekh Are Islamism and Republicanism Compatible? A Theory of the Unchangeable Principles of the Constitution of the Islamic Republic of Iran

113

VIII

Table of Contents

Behrooz Akhlaghi Iranian Commercial law and the New Investment Law FIPPA

123

Nahid Shid Selected Aspects of Iranian Family Law

141

Part III: The Egyptian Way

153

Adel Omar Sherif Constitutions of Arab Countries and the Position of the Sharl°a

155

Baudouin Dupret A Return to the SharT°a? Egyptian Judges and the Reference to Islam

161

Part IV: Concluding Remarks

179

Martin Haars Summary and Concluding Remarks

181

Bibliography

195

Participants in the Conference

203

Appendices

207

Annex A: The Afghan Constitution 1964 (Dari/English)

209

Annex B: The Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions Annex C: The Afghan Constitution 2004 (Dari/English)

261 269

Annex D: Excerpts of the Iranian Constitution 1979 as amended 1989 (Farsi/English)

331

Annex E: Foreign Investment Promotion and Protection Act 2002 FIPPA (Farsi/English)

343

Translation of the contributions in Dari

Abbreviations AI AIA AICA AfgCC Art.

Amnesty International Afghan Interim Administration Act on International Commercial Arbitration of 1997, Iran Afghan civil code of 1977 article(s)

Bonn Agreement

Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions of 2001

CBI CC CCP CEDAW

Central Bank of Iran civil code code of civil procedure United Nations Convention for the Elimination of All Forms of Discrimination Against Women confer chapter(s) commercial code compare Corporate Registration Bureau

cf. ch. ComC comp. CRB d. DCISA DIS Divorce Act

died Draft Constitution of the Islamic State of Afghanistan Danish Immigration Service Act on the Amendment of the Divorce Provisions of December 10, 1992, Iran

ed(s). EgypCC Enforcement Act etc.

editor(s) exempli gratia [for example] Egyptian civil code of 1949 Civil Judgement Enforcement Act of 1977, Iran et cetera

f. / ff. FIDIC FIPPA FS

following International Federation of Consulting Engineers Act on the Promotion and Protection of Foreign Investment, Iran Festschrift

HM H.R. Principles

His Majesty Human Rights Principles

ICG ICJ IDLO ie

International Crisis Group International Commission of Jurists International Development Law Organisation id est

IFL int. IRI

International Legal Foundation international Islamic Republic of Iran

eg

X

Abbreviations

IRI Constitution ISAF

Constitution of the Islamic Republic of Iran of 1979 International Security Assistance Force

J. Jh. JVC

Journal Jahrhundert [century] Joint Venture Company

LAPFI

Act for the Attraction and Protection of Foreign Investments, Iran literally Law on the Jurisdiction and Organisation of the Courts of 1967, Afghanistan

lit. LJOC MPI MPs

Max-Planck-Institute Members of Parliament

New York Convention

United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 Non-Governmental-Organisation number(s)

NGO No. ODI OIETA

Overseas Development Institute Organisation for Investment, Economic and Technical Assistance of Iran

PCM PDPA pi. POW p./pp.

Communist Party of Morocco Peoples' Democratic Party of Afghanistan plural prisoners of war pages

SCC sect. stud.

Supreme Constitutional Court of Egypt section studies

Truth Commission

Special Court of Human Rights of Afghanistan

UDHR UN UNAMA UNCITRAL UNDP US USA USSR

Universal Declaration of Human Rights of 1948 United Nations United Nations Assistance Mission for Afghanistan United Nations Commission on International Trade Law United Nations Development Programme United States United States of America Union of Soviet Socialist Republics

WCLRF

Women and Children and Legal Research Foundation

1933 Act

Act on the Observance of the Personal Status of non-Shfl Iranians in the Courts of August 1, 1933

Contributors Behrooz Akhlaghi, Dr. Prof., is Associate Professor for commercial law at the Law Faculty of the University of Tehran since 1970. He graduated from the Faculty of Law and Political Sciences of the University of Tehran in 1961 and pursued his studies at the University of Aix-en-Provence with a Doctorat d'État in private law in 1970. Since 1979 he is practising lawyer with the International Law Offices Dr. Behrooz Akhlaghi and Associates in Tehran. Akhlaghi is a member of the Iranian, the International, and the American Bar Association, as well as the International Business Law Consortium (IBLC) and the Law Association for Asia and the Pacific (Law Asia). Currently he is in charge of drafting a new commercial code for Iran. Jürgen Basedow, Dr. iur. Dr. h.c. LL.M. (Harvard), is Professor at the Law Faculty of the University of Hamburg and since 1997 the Director of the Max Planck Institute for Foreign Private Law and Private International Law in Hamburg. From 1987 to 1995 he was a Professor of private law, comparative law, private international law, international litigation, and international economic law at the University of Augsburg and from 1993 to 1994 he was the Dean of that faculty. He furthermore was Professor of private and private international law, and international economic law at the Free University of Berlin from 1995-1997. Basedow is a member of various governmental advisory committees. Baudouin Dupret, Dr. LL.M., is Research Fellow at the Centre National de la Recherche Scientifique (CNRS), affiliated with the Institut Français du Proche-Orient (IFPO), Damascus, Syria. He holds a M.A. in Arabic and Islamic Sciences and a LL.M. from the Catholic University of Louvain, a G.D. in Middle Eastern Studies from the American University in Cairo and a Ph.D. in Political Sciences from the Institut d'Études Politiques de Paris (IEP). Since 2003 he holds a 'habilitation à diriger des recherches' from the IEP in Paris. Dupret has been a Research Assistant in the Centre for the Study of the Modern Arab World at the Catholic University of Louvain and a Research Fellow at the Centre for Economic, Legal and Social Research (CEDEJ) in Cairo. Mohammad Hashim Kamali, Dr. Prof. LL.M. (London), is Professor of Islamic law and jurisprudence at the International Islamic University Malaysia in Kuala Lumpur. He studied law at the University of Kabul and completed

XII

Contributors

his LL.M. in comparative law, and his Ph.D. in Islamic and Middle Eastern law at the University of London, 1972 and 1976 respectively. Kamali served as Assistant Professor at the Institute of Islamic Studies, McGill University in Montreal, and later as a Research Associate with the Social Sciences and Humanities Research Council of Canada. From May to September 2003 he was a member of the Constitutional Review Commission of Afghanistan. At present he is Dean of the International Institute of Islamic Thought and Civilisation (ISTAC) in Kuala Lumpur. Elaheh Kolaei, Dr., holds a Ph.D. in international relations from the Tarbiat Modarres University of Tehran. She has been the Director General of Educational Affairs at the University of Tehran from 1997-2000. Until 2000, when she was elected to the Iranian Parliament as the representative of Tehran, she has been Professor at the Faculty of Law and Political Sciences of Tehran University. In 2004, Dr. Kolaei resigned from her Parliamentary seat. She is a member of the Council for Planning for Women Affairs at the Ministry of Education, Research and Technology and the Commission for National Security and Foreign Policy and a member of the scientific board in the Faculty of Law and Political Sciences. Bashir Ahmad Munib, is heading the Department of tafstr and hadith at the University of Herat. He graduated from the Shari°a Faculty of the University of Herat in 1996 specialising in law and jurisprudence. From 1997 to 2004 Munib was teaching at the Sharfa Faculty. Mohammad Rasekh, Dr. LL.M. (LSE), is a Fellow at the Department of Law, London School of Economics and Political Sciences (LSE). He holds a LL.B., from the Faculty of Law of the University of Tehran, a LL.M. from LSE and a Ph.D. from the Faculty of Law of the University of Manchester. He has furthermore studied for several years at the Islamic Seminary in Tehran. He held the position of an Assistant Professor at the Faculty of Law at the University of Shahid Beheshti from 1998-99. He has recently joined the Iranian Bar Association. Mohammad Hamid Saboory, is a law graduate from the University of Kabul, Afghanistan. In 2004 he was a Visiting Researcher at the Max Planck Institute for Foreign Private Law and Private International Law in Hamburg with a scholarship from the law firm SCHMITZ Rechtsanwälte in Düsseldorf. Irene Schneider, Dr. Prof., is Professor for Islamic studies at the University of Göttingen. Until 2003, she was Project Director of the special research unit 'deviation and integration'. Her research centres on Islamic legal history, women in Islam, reconstruction of early Islamic history and socio-politics

Contributors

XIII

in Islamic countries. She studied and worked at the German centres of Oriental studies in Freiburg, Tübingen and Cologne. Adel Omar Sherif, Dr., is Deputy Chief Justice at the Supreme Constitutional Court of Egypt since December 2002. He holds a Ph.D. in Constitutional Law from the Universities of Cairo and Ain Shams and an Advanced Studies Diploma in Public and Administrative Law. Between 1980 and 1992 he served in various positions within the judicial section and other departments of the Council of the State (Egypt's system for administrative judiciary). Since 1992 Justice Sherif has been a Visiting Fellow at various Human Rights Law Centre as well as Visiting Professor at the Faculty of Law of McGill University. Nahid Shid is a practising lawyer in Tehran. A specialist of social security, insurance issues and pension claims, she is engaged in research and counselling of women rights. She is an adviser to the family courts in matters of maintenance and compensation claims for divorcees and the Head of the Family and Women Association in Iran. Shid has been involved in the enactment of the laws concerning the adaptation of the amount of dower to the inflation rate, the insurance for housewives and the compensation claims of women divorced on the initiative of their husbands. Ali Wardak, Dr., is a reader in criminology at the University of Glamorgan, U.K. He holds a B.A. in law and jurisprudence, an M.A. in sociology and wrote his Ph.D. thesis in the field of criminology. His main teaching interests include criminological theory, comparative criminology, and social exclusion and crime. He has published papers and reports in the areas of law, politics and ethnicity in Afghanistan, and is a member of the academic board of the Institute for Afghan Studies, USA. Wardak has furthermore been a Consultant for the British Overseas Development Institute (ODI). Nadjma Yassari, Dr. iur., LL.M. (SOAS), is the Head of the Department for the Laws of Islamic Countries at the Max Planck Institute for Foreign Private Law and Private International Law in Hamburg. She holds a LL.M. from the School of Oriental and African Studies of the University of London, and a Ph.D. from the University of Innsbruck. Her main field of research is national and international family and succession laws of Islamic countries.

Part I: Sharia in Afghanistan

Introduction After 25 years of civil war, religious dictatorship and foreign occupation peace is slowly coming back to Afghanistan. It is a fragile peace perhaps, a peace that has to be conquered after a complete destruction of civil order and institutions. Given the mutual distrust in society that has resulted from the absence of reliable institutions during a whole generation the re-establishment of such institutions and of a legal order that is basically approved by the population is a Herculean labour. The promulgation of the constitution of Afghanistan in January 2004 by the Loya Jirga gives evidence of a growing belief of the political elite of Afghanistan that time has come for a reinstatement of law as an order of peace. In fact, a peaceful coexistence of people of different cultural, linguistic, and ethnic origin would appear inconceivable if not in a legal framework that defines clear responsibilities and areas of freedom. The new constitution of Afghanistan is to be seen as a first step in that direction. In a country that is fairly heterogeneous in many respects the profession of the Islamic religion by almost 100% of the population is a common element which helps to generate a national identity. It is therefore no surprise that Art. 1 Constitution 2004 proclaims Afghanistan an Islamic Republic and that Art. 2 declares the 'sacred religion of Islam' to be the religion of Afghanistan. Given the country's troublesome experience under the Taliban regime, however, the profession of the Islamic character of the state might also be interpreted as a conservation of some influence of fundamentalist ideas in post-war Afghanistan. On the other hand it is well known that the constitutions of other fairly western-minded Islamic states such as Tunisia make an equal claim to Islam which after all must be considered ambivalent for legal purposes. After a first reading of the new constitution of Afghanistan it appears doubtful, whether other provisions provide more clarity. It is true that under Art. 3, 'no law may be contrary to the beliefs and provisions of the sacred religion of Islam'. This provision might seem to confer a certain veto power to Islam and the religious establishment. But like many old texts the Qur'an is liable to numerous different interpretations, and it could be argued that laws adopted under the new constitution are not contrary to Islam as long as they can be reconciled with one of those interpretations. Art. 130 and 131 Constitution 2004 also support the view that the effect of religious laws is of subsidiary, ie minor significance. Under Art. 130 the court shall follow the provisions of the hanafi jurisprudence only where no provisions exist in the constitution or the laws for a case under consideration, and a similar subsidiary role is accorded to shfijurisprudence in Art. 131.

4

Introduction

It is not the purpose of these introductory remarks to go into further details. Whatever arguments could be made, it would seem, however, that the constitution is ambivalent and paves the way for different interpretations relating to the role of the Sharfa. This observation puts the burden on the shoulders of the future institutions designed to shape the legal system of Afghanistan, in particular of the legislature and of the judiciary. The courts' decision on the greater or lesser significance of SharT°a will probably depend, inter alia, on the existence of appropriate provisions in the law of the state dealing with typical conflict situations of contemporary life. The more lacunae exist in state law, the more frequent will be the recourse to the subsidiary rules of Sharfa. In this respect it is not difficult to foresee that judges will discover important gaps of the legal system in the near future. The civil code which is at least technically still in force shows influence of the French code civil in matters relating to the law of obligations and property, but basically reflects Islamic law and hanafi jurisprudence in respect of personal status. The discrimination of women which is characteristic for many rules of Islamic law in the field of family and succession will sooner or later and probably sooner run counter to the prohibition of all kinds of discrimination on the basis of gender laid down in Art. 2 of the Universal Declaration of Human Rights. It should be added that the Universal Declaration is specifically referred to in the second recital of the preamble of the new constitution as being respected by the people of Afghanistan. A modernisation of civil law would therefore appear to be urgently required. This is equally true for the commercial code which is essentially a translation of the Ottoman commercial code of 1850. The experience of many transition countries shows that the process of modernisation cannot be entirely left to legislation. It is rather a step-by-step modernisation carried out by the courts and the legislator which allows the legal system to adjust to changes of society. One of the most important tools in this process is the existence of a legal press, in particular a collection of court reports and law journals which enable lawyers and the general public to take note of, and reflect the development of the law as evidenced by the judgements of the courts. Afghanistan is embarking on the stony road which leads from the rule of force to the rule of law. Due to the great differences in culture, economic development and religion, Western law such as that of the Federal Republic of Germany can hardly be recommended as an appropriate model to follow. The particular tensions that arise between forms of modern life and religious law can best be studied in countries that have experienced a similar evolution. That is why it is important to hear the voices of scholars and legal professionals from Islamic countries such as Egypt, Syria, or Iran and further experts of Islamic law who can share that experience with their Afghanistan colleagues. Our role in this debate is that of an honest broker. Jürgen Basedow

The Progress of Constitutionalism in Afghanistan M O H A M M A D H A M I D SABOORY

A. B.

Introduction Constitutional Law in I. The Constitution II. The Constitution III. The Constitution IV. The Constitution V. The Constitution

Afghanistan of 1923 of 1931 of 1964 of 1978 of 1980

C.

VI. The Constitutions of 1987 and 1990 VII. The Constitution of 1992 VIII.The reign of the Taliban 1996-2001 IX. The 2004 Constitution Conclusion

A. Introduction The theory of constitutionalism was introduced into the Afghan society with the promulgation of the first Afghan constitution in 1923. Since Afghanistan has an Islamic and traditional society, the implementation of constitutionalism represented a great challenge. The juxtaposition of the rule of Islam, traditions, statutory laws and other elements challenged its legitimacy, and these factors have always been a test for any constitution promulgated in Afghanistan. All constitutions with the exception of the Constitution of 1964 were promulgated in eras of revolution and uprising. The lack of public consultation and participation reduced the support of the people and affected the impact of the constitution. This led to a situation of instability and injustice in the country. This paper examines the constitutional developments in Afghanistan since 1923. However, as not all aspects of the constitutional process can be considered here1, the focus will be on the place of Islam, traditions, and the integration of secular law into the legal system in the various constitutions.

1 See for a detailed account of the seven constitutions of Afghanistan Yassari/Saboory, Sharia en nationaal recht in Afghanistan, in: Sharia en nationaal recht in twaalf moslimlanden, Otto et al. (eds.) (2006, forthcoming).

Sharfa and Private Law

6

B. Constitutional Law in Afghanistan I.

The Constitution of 1923

The first Afghan constitution in 1923 was based on King Amanullah's modernisation policy. The constitution was approved by the Great Assembly, the Loya Jirga, in April 1923. A plethora of reform edicts on administrational and educational affairs called nizâmnâmas2 followed the promulgation of the constitution. Islam was recognised as the official religion. Social institutions, industries and economical infrastructure and a catalogue of basic rights were introduced 3 . The judiciary was to be independent, and the creation of judicial structures was defined as the most significant step for the enforcement of law (Art. 53). A special high court for military and civil trials was established as an independent body on a temporary basis (Art. 55). Elementary education became compulsory for every citizen (Art. 68). It must be noted that tribalism and Islam are the two major influences determining the social and cultural characteristics of Afghan society. Islam has always strongly influenced the social and cultural life of the Afghans 4 . However, tradition has had a stronger impact in some parts of Afghanistan than religion. Even though some of these traditions are not in accordance with Islamic principles, they have become part of the lifestyle of parts of the population. Soon after the promulgation of the constitution tribal revolts were mounted against the reforms undertaken by the King. The religious establishment also contended the implementation of the constitution, especially the intended educational program of Amanullah. The tribal revolt and the religious opposition forced Amanullah to reconvene another Loya Jirga in January 1925 to discuss some of the articles of the Constitution. The bone of contention was in particular Art. 2 Constitution 1923, because it did not mention explicitly the hanafi school as the predominant one 5 . Although the provision of Art. 21 2 See generally for a history of the judiciary in Afghanistan Wakili Popalzai Durani, Dâr alqâcjâ' dar afqânestàn (1990). Nizâmnâmas are the first legal documents or written laws in Afghanistan, dating back to 1919. More than 51 nizâmnâmas were published by January 1929, according to the latest report of the Ministry of Justice 75 nizâmnâmas were enacted in total, some of which are lost today due to the destruction of the legal archives during the wars in Afghanistan. 3 Freedom of religious practice for the followers of other religions (Art. 2), delegation of some of the authorities to the ministers (Art. 6), individual liberty (Art. 9), abolishment of the principles of slavery (Art. 10), freedom of press (Art. 11), right to education (Art. 14), equality of rights and duties (Art. 16), prohibition of forced labour (Art. 22). 4 Kamali, Law in Afghanistan: A Study of the Constitutions, Matrimonial Law and the Judiciary (1985) 1-18; Amin, Law, Reform and Revolution in Afghanistan: Implications for Central Asia and the Islamic World (1992) 40. 5 Art. 2 Constitution 1923 read: The religion of Afghanistan is the sacred religion of Islam. Followers of other religions such as Jews and Hindus residing in Afghanistan are entitled to the full protection of the state provided that they do not disturb the public peace. The article, as amended on January 28, 1925, read: The religion of Afghanistan is the sacred religion of Islam and its official

The Progress of Constitutionalism in Afghanistan

7

Constitution 1923 strengthened the position of Islamic law by stating that all cases and disputes should be decided according to the principles of Sharfa, the religious leaders argued that the adoption of the hanafï school would be desirable, as it excludes other unorthodox variations of Islam. They further argued that just as the Iranian constitution had made a reference to the s h f ï school, a similar reference should be made to the hanafï school in the Afghan constitution. Amanullah emphasised that the adoption of such restrictive terms would undermine the fundamental rights of followers of other religions and would challenge the national unity of Afghanistan. The consultation however, did not breach the gulf between the parties: the religious establishment pursued its policy against Amanullah, and Amanullah continued his modernisation efforts. The religious issue, its position within the constitution and its interpretation, remained a critical point. The government was accused by the opposing powers of enacting laws contrary to the principles of the Sharfa. This was, however, not true since the main source of the laws were Islamic principles. For example, the general criminal code that was enacted in 1927 classified crimes and their punishments according to the principles of the hanafï school of law. The religious establishment did not accept Amanullah's interference in what they considered to be 'God's business'. They felt their position as sole interpreters of the Sharfa in danger and did not want to lose their influence and power. They especially disliked the potential 'undue' rights that the new laws might give to women. Amanullah can be seen as the first reformer and progressive leader of Afghanistan, to be mentioned in one breath with Atatiirk of Turkey or Reza Shah of Iran. His legacy is the establishment of the basic legal structure, the promulgation of individual freedoms and the foundations for Afghanistan's move towards the rule of law. II. The Constitution of 1931 On October 31, 1931 the second constitution of Afghanistan was promulgated. Due to the rise of internal unrest and opposition to the reform policy undertaken by Amanullah, considerable attention was given to the rule of the Sharfa in the next Afghan Constitution of 1931. Many nizàmnâmas were amended after the ratification of the 1931 Constitution, the expression 'nizâmnâmas' itself was changed to iusûlnâma'6. The 1931 Constitution with minor amendreligious rite is the sublime hanafï rite. Followers of other religions such as Jews and Hindus residing in Afghanistan are entitled to the full protection of the state provided they do not disturb the public peace. Hindus and Jews must pay special tax and wear distinctive clothing. After 1929 the laws in Afghanistan were labelled usûlnâmas; 69 usulnâmas published from 1933 to 1964 could be retraced, see Wakili Popalzai Durani (note 2) 623-626. According to recent reports of the Ministry of Justice the actual number of usûlnâmas is however 98.

8

Sharfa and Private Law

ments endured for 33 years. The new King, Nadir Shah, endeavoured to appease the religious establishment and adopted a conservative policy. He annulled all secular legislations of Amanullah and strengthened the enforcement of Islamic law through religious courts. Art. 1 Constitution 1931 proclaimed the Sharfa as the law of the land. As a reaction to the 1923 Constitution, Art. 1 attributed to the hanafT school the supremacy over all other schools. Moreover, all court cases were to be solved in the light of the hanafT school of jurisprudence. The position of religious minorities such as Hindus, Sikhs and Jews and the followers of other schools of Islam, in particular the Shit, was not clearly defined, as Art. 1 only guaranteed them protection as long as public peace was not disturbed by their religious practice. The 1931 Constitution provided a complicated theory of religious freedom and was not free of contradictions. According to Art. 9 all persons residing in Afghanistan were considered Afghan subjects without any discrimination of religion or creed. Art. 10 strengthened this position by entitling all Afghan nationals to enjoy their legitimate right in religious rituals. Furthermore, the provision of Art. 22 gave religious minorities the right to religious education. This did not correspond with Art. 1. One could argue that the provision of Art. 9 included the s h f t residents of Afghanistan. Art. 75, however, contradicted the provision of Art. 9, 13 and 22, since it stated that the ministers should be Muslim and Afghan citizens. This created problems as regards the political rights of Afghan citizens and was discriminatory. On the one hand, Art. 75 provided for Muslim ministers, excluding followers of other religions, on the other hand, it provided that they should be Afghan citizens. In fact, this article considered non-Muslims as Afghan subjects without political rights. The 1931 Constitution was ambiguous: on the one hand, it was based on religious and traditional values and Nadir Shah had adopted an exceedingly conciliatory stance to demands of the religious and tribal establishment, on the other, it was modern and demanded all laws to be within its framework. The main difference between the first two constitutions of Afghanistan lies in the position that was officially awarded to Islam and to democratic features. There are no sources indicating that either constitution was debated in any Loya Jirga or that any public consultation was sought before their promulgation. During the years of Nadir Shah's rule, statutes and acts dealing with the administration of government, civil, criminal and commercial affairs were enacted. They were based on Islamic and customary law, but the influence of Western theories was also visible. They benefited from comparative studies of the legal systems of Turkey, Egypt, Germany and France and their legal practice. The Commercial Code of 1965 and later the Civil Code of 1977 were the results of such influence. From 1931 to 1964 the need to develop the legal sector, to unify the legal structure, to increase the knowledge and training of members of the courts and judges, and to establish institutions of higher education such as the faculty of

The Progress of Constitutionalism in Afghanistan

9

law, was felt strongly. These reforms had to be based on a conciliatory approach to provide a common ground for the requirements of all societal groups: traditionalists, conservatives, and moderates. However, the lack of education, the spreading of corruption, the underdevelopment, and the autonomy of tribal leaders led Zahir Shah, who had been King since 1933, to introduce new reforms and strengthen his authority in all parts of the country. III. The Constitution of 1964 In March 1963, Zahir Shah appointed a committee composed of seven members to draft a new constitution. He aimed to remove discriminatory provisions, to mobilise the governmental apparatus, to centralise the authority of the government, to reform the judiciary, and to promote education. The Constitutional Committee assisted by a French adviser, Louis Fouger, presented the first draft to the 455-member Loya Jirga (including four female members) that convened in Kabul in September 1964. The new constitution was ratified on September 20, 1964 and promulgated by the King on October 1, 19647. This time a wide range of public consultation and participation preceded the promulgation of the third Afghan constitution. A constitutional monarchy was introduced. The executive, legislative, and judicial branches were separated and members of the royal family were excluded from political office. Art. 8 Constitution 1964 provided for the King to be a follower of the hanafï school of law. Although Zahir Shah kept considerable power as the head of the state (Art. 9), a Supreme Court was established and the judiciary was declared independent from the legislative and executive powers (Art. 97). The constitutional organs adopted measures to unify and consolidate the existing disparate laws and the unspecified judicial organisation. New laws were introduced to unify the judicial practice, organisation, jurisdiction and in particular the procedure of the courts that had been mainly regulated through Shar^a courts and/or the traditional tribal dispute resolution mechanisms. Furthermore all laws were published in a governmental publication, the socalled rasml garlda [Official Gazette]8. This collection has remained the only reliable source of law in Afghanistan. Under the new constitution, Islam and the hanafï school of law retained considerable power: the King had to be a Muslim and follower of the hanafï rite (Art. 8). The other members of the government, members of the two houses of the parliament and other key administrative positions were not under that obligation. According to Art. 64 the parliament was required not to enact any laws which were contradictory to the principles of Sharl°a and the values embodied 7 8

Ewans, Afghanistan: A Short History of Its People and Politics (2002) 120. A complete list of the Official Gazettes is available at .

10

Sharfa

and Private

Law

in the constitution. The jurisdiction for the settlement of all disputes, including those over property and family matters, which until then were under the jurisdiction of Sharfa courts, was transferred to governmental courts (Art. 98). However, the 1964 Constitution remained stuck between its own provisions: on the one hand, priority was afforded to Sharfa law; on the other hand, Art. 69 potentially recognised the supremacy of statutory law by stating that the provisions of the hanafi school of jurisprudence should only be considered where no statutory law could be found, thus establishing for the first time an order of priority in favour of statutory law over the Sharfa. The equality clause was yet another example of the complexity of the 1964 Constitution. Art. 25 provided that all Afghan citizens without discrimination or preference should have equal rights and obligations before the law. This provision did not specifically mention women. Some scholars interpreted it in this way in order to provide equal rights for women. The constitution, however, did not contain any other provision to support the case of equal rights between men and women, thereby leaving the followers of equality on shaky ground. Some provisions of the 1964 Constitution contained democratic elements: Art. 32 allowed for the establishment of political parties and Art. 31 provided for freedom of press. The provisions of these two rights facilitated the introduction of new ideologies such as communism and Islamism and theoretically at least encouraged the establishment of political parties. Practically however, unfortunately, no party law was ever passed. Although the establishment of political parties could have moved the country toward a more representative government where the minorities could participate equally in the democratic process, in practice the opposite happened: two strong opponents to reforms were created - conservative Islamism and hard-line communism. They used the new freedoms to publish and spread their ideological stands and recruit followers. The coexistence between Islamic law and an expanding body of modern, statutory laws continued. This duality also characterised legal education. In 1968 the Supreme Court opened a new judicial training centre in Kabul. The aim of this program was to redress the existing imbalance in the educational background of the law graduates of the religious schools and the students of the faculty of law and the faculty of Sharfa of Kabul university. The graduates of the religious schools were not versed in modern law, and graduates of the modern law faculty had poor knowledge of the Sharfa 9 . Unfortunately, the lack of sufficiently educated staff within these two faculties and non-conformity of the educational curriculum made it very difficult for any reform to take effect in this context. The 1964 Constitution can be said to be the second step in the secularisation process of the Afghan legal system after Amanullah's failed attempt in the 9

Kamali (note 4) 42-44.

The Progress of Constitutionalism

in Afghanistan

11

1920s. In this era new ideologies such as Marxism were introduced; communism expanded slowly in the government and other parts of the country as did the support of the Soviet Union and their intervention in the internal affairs of Afghanistan. This movement ignored completely the Islamic and traditional character of Afghan society. The freedom to establish political parties turned out to be a threat to the monarchy, and in 1973 Zahir Shah's rule ended in a coup staged by his cousin Daud Khan. IV. The Constitution of 1978 Daud Khan proclaimed Afghanistan a republic and introduced a new era of reforms. Until the promulgation of a new constitution in 1978 Daud Khan ruled by governmental decrees. Decree No. I 10 amended the 1964 Constitution; all powers of the King outlined in the 1964 Constitution were transferred to the President of the Republic of Afghanistan. De facto, the country was ruled by an unelected government and by the army. In March 1976, Daud issued a decree by which he assigned a commission composed of 20 members including two women to prepare a draft for a new constitution. The draft was published in January 1977 and distributed throughout the country for public discussion. In February 1977, the new constitution of Afghanistan was approved by the Loya Jirga and signed by President Daud on February 24, 197711. Some authors contest that the Loya Jirga that had convened to debate the draft was representative of the population, but according to the Chairman of the Loya Jirga of 1977, Azizullah Wasifi, it was a democratic and representative body that debated the provisions of the 1977 Constitution. The representatives expressed their views, criticised some of the provisions and rejected others12. The 1977 Constitution introduced many changes. In particular, the three prominent features of this constitution were Islam, nationalism and socialism 13 . It went a step further towards secularisation and the integration of statutory law and Sharî^a law. According to Art. 64 Constitution 1977 no law shall be repugnant to the basic principles of the sacred religion of Islam, the republican order, and other values embodied in the constitution. Moreover, Art. 99 Constitution 1977 indicated that the courts should apply the basic principles of Islam and hanafï jurisdiction where no provision existed in the constitution or in the state 10 Decree No. 1 Speech of President Daud on the occasion of the establishment of the republican government in Afghanistan: Official Gazette No. 245 of July 28, 1973. " See Akhwan, Tarikh-e shafahT-e afqanestan 1900-1992 (2002). 12 Akhwan (note 11). 13 Art. 22 Constitution 1977: The religion of Afghanistan is the sacred religion of Islam. Those citizens who are not followers of Islam shall be free to perform their religious rites within the limits determined by the laws relating to public decency and public peace.

12

Sharfa and Private Law

laws. Reference to Islam was similarly made in the preamble and in other provisions of the 1977 Constitution. Art. 77 required the president to be Muslim and Art. 80 required him to swear to protect the basic principles of Islam and respect the constitution and other laws of Afghanistan. The 1977 Constitution was regarded as the logical progression of the three previous constitutions and was significantly different from its predecessors. This bolstered its credibility. Unprecedented features were the adherence for the first time to the Charter of the UN and the Universal Declaration of Human Rights, the proclamation of Afghanistan as a republic, the reference to gender equality, and the right to vote for all Afghans over 18. Finally a one-party system was declared, which was justified as a reflection of the social and political immaturity of the people14. Another significant achievement of that time was the enactment of a civil code. The Civil Code of 1977 blends the principles of Sharfa with secular law. These two elements together created a more rational and comprehensive approach to reform the legal system and keep the original source, the Sharfa. In 1976, a new code of civil procedure was enacted, instituting a comprehensive organisation of the judiciary. The courts were divided into two categories, general courts and special courts. Special courts were given powers to adjudicate exclusively in areas such as taxation, expropriation, disputes arising from general and municipal elections, and commercial, industrial disputes, press and smuggling offences and disputes between the individual and the administration. However, the Sharfa courts remained as courts of general jurisdiction since they retained their powers to adjudicate in all other areas which were not specifically assigned to the specific courts. V. The Constitution of 1980 Despite its many positive aspects the 1977 Constitution was never fully implemented due to the collapse of the Daud regime just one year after its promulgation. Afghanistan entered into its fourth and final secularisation process after the overthrow of the republican regime and the seizure of power by the communist party in 1978. The first two years before the ratification of the Provisional Constitution of 1980 were characterised by the internal conflicts of two fractions of the communist party and the elimination of many individuals who opposed the regime. The first declaration of the Revolutionary Council which effectively ruled the country after 1978 amended the 1977 Constitution and announced that all administrative affairs of the government would be regulated by decrees15. 14

Art. 12, 20, 27,29, and 40 Constitution 1977. Historical Decree of the Revolutionary Military Council of the Democratic Republic of Afghanistan: Official Gazette No. 396 of May 6, 1978. 15

The Progress of Constitutionalism in Afghanistan

13

Furthermore, the Revolutionary Council decided to replace the green strip of the Afghan flag, representing Islam, with a full red flag to match the new communist spirit16. It transferred the authorities of the Supreme Court to a newly established organ called the Supreme Judicial Council, which was headed by the Minister of Justice and the Attorney General, and remained accountable only to the Revolutionary Council17. In April 1980 the communist government promulgated its provisional constitution. Art. 5 of that constitution declared that the sacred religion of Islam would be respected, observed, and protected, without making it a source of law or the official religion of the state. The freedom to perform religious ritual was guaranteed to all Muslims. Religion was not to be used as a tool for antinational, defamatory or ethnic propaganda that would run counter to the interests of the new Democratic Republic of Afghanistan. The Provisional Constitution of 1980 introduced two unprecedented features to the Afghan legal landscape: firstly, the Special Revolutionary Court (Art. 54) and secondly, the Institute for Legal and Scientific Research and Legislative Affairs 18 . The Special Revolutionary Courts were established as specialised penal courts to deal with crimes against the national security and the territorial integrity of the country (Art. 2 of the Act Establishing the Special Revolutionary Courts). This was dictated in the strong desire to serve the policies of the government to guard the country against opposition groups and to implement policies without fear of resistance. The Institute for Legal and Scientific Research and Legislative Affairs was declared the supreme legislative organ of the government and was authorised to draft and scrutinise all laws, decrees and regulations in accordance with the principles and necessities of the Democratic Republic of Afghanistan and to present them to the heads of the Revolutionary Council. The communist government undertook a number of other reforms to introduce new Soviet-style institutions. In fact these reforms changed the administrative and legal structure introduced by previous governments entirely and consolidated the authority of several administrative institutions while reducing the total number of interim administrative bodies. However, all these changes did not improve the efficiency of the legal institutions, nor did they strengthen state power in the remote areas of the country. The integration of Marxist ideology into the legal structure and communist rule engendered a broad sense of distrust towards the government and its legitimacy. 16 Decree No. 4 of the Revolutionary Council: Official Gazette No. 409 of October 18, 1978. The old black, red and green national flag was, however, restored soon after this disputed decision to appease public opinion. 17 Decree No. 3 of the Revolutionary Council of the Democratic Republic of Afghanistan Abrogating the 1977 Constitution: Official Gazette No. 398 of May 28, 1978. 18 Official Gazette No. 483 of June 6, 1981; Act on the Special Revolutionary Courts: Official Gazette No. 449 of April 20, 1980.

14

Sharia and Private Law

The inconsistency of features of the provisional constitution with Islamic principles made it necessary for the government to convene a Loya Jirga. Karmal, who was the head of the communist government, held a Loya Jirga on April 23, 1985, allegedly attended by some 1800 representatives from all the provinces. However, the real number of attendees seems to have been around 600, and the Loya Jirga failed to assemble an authentic representative body. This was followed by elections in August 1985 and another Loya Jirga in September, which did not achieve their purpose, namely to tone down the level of hostility against the reforms of the communist government. Karmal's politics failed. Even his introducing non-communists to the government and the creation of a national reconciliation commission and yet another commission to draft a new constitution 19 did not bring about the popular support he had hoped for. His government and its Soviet-style administration widely contradicted the principles of Islam and Afghan tradition; it merely enhanced the level of violence and did not appease the Islamic opposition. The communist party and its supporters abroad had little credibility and it seemed obvious that the communist government had to change its policies dramatically if it wanted to stay in power. VI. The Constitutions of 1987 and 1990 In 1985 Karmal was replaced by Najibullah. In 1987 Afghanistan was renamed the 'Republic of Afghanistan', its former title. A new constitution was promulgated: Islam and nationalism were back, and in the constitution communist terminology was removed. The deletion of the communist terminology was meant to strengthen the role of Islam in the new constitution, even though it can be described as a mere symbolic act by the government. While the new constitution provided for a multi-party system, the law on political parties banned any parties opposed to the communist party20. In 1988, the government liberalised the law on political parties, allowing parties to form as long as they were not in contradiction to the provisions of the 1987 Constitution and had their headquarters in Kabul. Moreover, a nationally elected parliament that would designate a Prime Minister and a President elected by the Loya Jirga was endorsed. The 1987 Constitution provided full control over the executive, legislative and judicial powers by the President21. A Constitutional Council was established as 19

Ewans (note 7) 165. The Peoples' Democratic Party of Afghanistan (PDPA) was created in January 1965. It was known as the khalq-pirty and was founded by Noor Mohammad Tarakai. The PDPA was eventually split in two parties since its leaders Tarakai and Kamal fought over the direction the party should take. Whereas Tarakai became head of the khalq-fraction, Karmal established the parcham-fraction in 1967. 21 Art. 71, 75 Constitution 1987. 20

The Progress of Constitutionalism

in Afghanistan

15

the supreme legislative institution for the interpretation and assessment of conformity of Afghan laws and regulations with the constitution and with international standards and treaties (Art. 146 Constitution 1987). Attention was also given to Islam. According to Art. 2 Constitution 1987 the sacred religion of Islam was the religion of Afghanistan and no law should run counter to the principles of the sacred religion of Islam and other values enshrined in the constitution. The 1987 Constitution integrated some of the provisions of the Constitutions of 1964 and 1977, but preserved also some of the characteristics of the Provisional Constitution of 1980. The 1987 Constitution allotted an even more prominent place to Islam than the 1964 Constitution had done. The President and his wife were to be born of Afghan parents and had to be Muslims (Art. 73 Constitution 1987). This provision is identical with Art. 77 Constitution 1977. The last indication of the Soviet influence in the Afghan constitution was obliterated when the red star and the book were removed from the Afghan flag (Art. 9 Constitution 1987) to match people's taste and feelings. After only three years Najibullah convened a Loya Jirga to promulgate a new, more Islamic constitution. The resulting Constitution of 1990 removed the last vestiges of communism from the constitution by modifying some of the articles, in an effort to secure public support for the government. It also declared Afghanistan an 'Islamic state'. The Special Revolutionary Courts were abolished to give full authority to the judiciary. The Chief Justice was still accountable to the President and bound to report to him. In 1991 an act allowing for public referenda was passed 22 . For the first time in the legal history of Afghanistan, the government banned the execution of the death penalty, except in five cases (Art. 1 of the Act Limiting the Death Sentence) 23 . The 1990 Constitution provided for the first time for institutionalised representation at the local level and for some devolution of administrative control of these local bodies. By creating a corresponding system between the provincial courts and the central courts in Kabul, the 1987 and 1990 Constitutions undoubtedly further fostered the incipient state power structure. In his last effort to stop the ongoing fighting, Najibullah sought to convince his opponents to join the government under a national reconciliation plan. His plans failed. The Soviet withdrawal from Afghanistan, the lack of support for the communist regime, and finally the pressure of the United Nations led Najibullah to give up power to the mugâhedïn in 1992.

22 23

The Law on Referendum and Plebiscite: Official Gazette No. 734 of February 3, 1991. Official Gazette No. 763 of March 7, 1992.

16

Sharfa and Private Law

VII. The Constitution of 1992 In 1992 the opposition groups arrived in Kabul and proclaimed the establishment of the 'Islamic State of Afghanistan'. This entity may have been 'Islamic', but it was hardly a state, and it certainly did not rule Afghanistan - not even the capital Kabul24. Afghanistan now suffered great under the uncertainty regarding the applicable law; the constitutions of the previous regimes were not annulled, but their validity was very doubtful, since the mugàhedïn did not issue any decrees to identify the sources of law. Thus, Islamic law and customary law were applied as the only certain sources of law, especially in the remote areas of the country, where people had no access to state courts and state-enacted law was completely unknown. Although the mugàhedïn prepared a draft constitution, it was never promulgated. This draft, called the Draft Constitution of the Islamic State of Afghanistan25 consisted of 88 articles. The position of Islam was highlighted; the words Islam' and 'Sharl°a' were repeatedly mentioned to emphasise their position. Art. 2 DCISA stated that the legal system of the Islamic State of Afghanistan was to be based on the Holy Qur'àn. Art. 3 DCISA indicated that all political, social, and economic laws would have to conform to the principles of Islam and the injunctions of the Holy Qur'ân and Sunna. Art. 5 and 7 DCISA proclaimed Islam as the supreme authority ruling all private and public aspects of life. Art. 7 DCISA declared Islam the official religion of the country and the hanafï school of law as its official creed, leaving no space for the intervention of secular or state law26. Contrary to all previous constitutions, Art. 8 DCISA provided that the government would institute special programmes for the development of the Arabic language which is the language of the Qur'ân and the means of communication in the Islamic world. The sacred phrase 'God is Great' and 'There is no God but Allah and Mohammad is his Messenger' was inscribed on the Afghan flag (Art. 11 DCISA and the 1993 Decree No. 26327). Like the communist government and its Revolutionary Council the mugàhedïn government established the so-called Leadership Council which was considered the highest manifestation of authority in the country (Art. 12 DCISA). The duties and authorities of the King as enshrined in Art. 8 Constitution 1964 and those of the President listed in Art. 78 Constitution 1977 were transferred to the President of the Islamic State of Afghanistan (Art. 18 DCISA). Art. 34 DCISA considered the judiciary a permanent organ of the 24 Rubin, The Fragmentation of Afghanistan-State Formation and Collapse in the International System 2 (2002) 272. 25 Hereafter abbreviated DCISA. 26 Art. 1,2, 3, 5, and 7 DCISA. 27 Decree No. 263 on the Amendment of Art. 1-8 of the Law of Flag and State Emblem: Official Gazette No. 767 of August 22, 1993.

The Progress of Constitutionalism

in Afghanistan

17

Islamic state without any indication of the independence of this body. Finally, the Council ofjihad was established as the legislative power of the government, which was composed of the main jihad elites and organisations, authorised to draft laws, approve or abrogate bilateral agreements and produce the state budget (Art. 25 DCISA). Despite its conservative Islamic tenor, the DCISA surprisingly provided for gender equality in Art. 47, albeit in accordance with the tenets of Islam. VIII. The reign of the Taliban 1996-2001 Under the mugahedTn the civil war did not stop and went from bad to worse with all the basic infrastructures of the society destroyed. In this era of turmoil yet another movement, the Taliban, emerged as a opposition to the mugahedTn government. 'Talib' literally means student, and the Taliban movement was comprised of Afghan refugees, students from religious schools in Pakistan and former members of the mugahedTn groups. After the formation of the Taliban movement in 1994, their commander-in-chief Mullah Omar invited 1,200 religious leaders to Kandahar in March 1996 to debate the future of the country. This was unique and the biggest gathering of religious men in the modern history of Afghanistan. At the end of this consultation Afghanistan was declared an 'Islamic Emirate', Mullah Omar was proclaimed the commander of the faithful (amir al-mocmenTn), and finally holy war was declared on the Kabul government. The only source of law was to be the classical Sharfa as practiced in the days of the Prophet Mohammad 28 . A day after their seizure of Kabul, the Taliban established a supervising council consisting of six persons to rule Kabul. Decree No. 10 issued by Mullah Omar declared Afghanistan an 'Islamic Emirate'; the word 'state' had to be removed from all official documents 29 . The Taliban issued a statement whereby they declared the system of law established under the communist regime annulled and the laws under Zahir Shah reintroduced, except for the provisions related to monarchy. They also claimed to support the principles of representative and non-discriminatory government based on the tenets of Islam 30 . They did not, however, act accordingly. They introduced a strict interpretation of classical Islamic law by implementing the hudud and qisas21 punishments that

28

Ewans (note 7) 195. Law No. 788 of 1999: Decree of the Emirate Authority about Amending the Word 'State' to Emirate; see also Rashid, Taliban: Militant Islam, Oil and Fundamentalism in Central Asia (2000). 30 Ewans (note 7) 205. 31 Hudud or major offences calling for fixed punishments proscribed by Islam encompass six crimes: drinking of alcohol, theft, armed robbery, illicit sexual relations, slanderous accusation of un-chastity and apostasy. Qisas, which is homicide or physical injury inflicted upon others, calls for retaliation. 29

18

Sharfa and Private Law

had not been applied in the recent history of Afghanistan. The prosecution of hudud and qisàs crimes was announced on the radio on September 28, 1996. The communiqué said that 'thieves will have their hands and feet amputated, adulterers will be stoned to death, and those drinking alcohol will be lashed' 32 . All disputes had to be resolved by Sharfa courts according to the principles of Islam and the hanafi school of law. To strengthen their position the Taliban issued a decree determining the authority of military courts and the Supreme Court to hear all cases. A group of religious elites was to review the laws and regulations to ensure their compliance with the sacred religion of Islam. The Taliban banned women from all social activities, from working in governmental institutions as well as in international organisations and NGOs 33 . They were expelled from schools and universities. Female doctors and nurses were the only exception to the job prohibition; they were allowed to work, but under very strict observance by the religious police 34 . The Taliban also imposed their version of the Islamic hegâb, the burqa - a head-to-toe veiling of women, in order to protect, as they procalimed 'their honour'. The Taliban argued that as soon as a stable government was established and the circumstances amenable, they would provide educational and labour opportunities for women. But nothing of the sort ever happened. The administrative structures of the Daud era were revived. All ministries which existed under the government of president Daud remained in place. In addition, the Ministry for the Enforcement of Virtue and Suppression of Vice was introduced. Based on Decree No. 1235, this ministry strictly controlled and observed the implementation of the decrees issued by Mullah Omar and the implementation of punishments. During the Taliban regime the country was ruled by decrees and edicts issued by Mullah Omar. The promulgation of a new constitution was never publicly discussed, nor did the Taliban express their desire to draft a new constitution. The progress of constitutionalism, which had started with the ratification of the first constitution in 1923, was halted. Instead, religious fanatics that had come to power in a violent and illegitimate manner ruled Afghanistan, proliferating a dark and restrictive interpretation of the principles of Islam. Until the collapse of the Taliban regime in December 2001, Afghanistan once again saw an era of unconstitutionalism, similar to that experienced from 19731977 during the regime of President Daud and between 1980-1987 under the communist government.

32

Rashid (note 29) 50. Official Gazette No. 795, 2002. 34 Official Gazette No. 788, 1999. 35 Regulation Organising the Affairs of the Ministry for the Enforcement of Virtue and Suppression of Vice: Official Gazette No. 786, 1999. 33

The Progress of Constitutionalism in Afghanistan

19

IX. The 2004 Constitution The Agreement on Provisional Arrangements in Afghanistan for the Re-Establishment of a Permanent Government, known as the Bonn Agreement of December 5, 2001, paved the way for the reconstruction of constitutionalism in Afghanistan. On October 5, 2002 the Interim President Hamid Karzai appointed a ninemember commission, the so-called Constitutional Commission, to produce a preliminary draft constitution. The Constitutional Commission completed the draft by mid-April 2003 and submitted the draft to the 35 members of the Constitutional Review Commission, opening public consultations. From April to July 2003 the secretariat of the Constitutional Review Commission launched public education and consultation programs in the entire country as well as in Iran and Pakistan to inform Afghans in and outside the country on the constitutional process and to obtain feed-back on the draft constitution. The members of the Constitutional Review Commission attended almost 555 public consultation meetings, in which over 35,000 women participated. A total of 484,450 questionnaires was distributed 36 . The Constitutional Loya Jirga convened on December 14, 2003 in Kabul to ratify the final draft of the constitution. After almost three weeks of extensive discussion of each article of the new constitution, all 502 delegates approved the constitution on January 4, 2004, which was signed and promulgated by President Hamid Karzai on January 26, 2004. The 2004 Constitution incorporates many new features which were not included in any of the previous constitutions. Islam, traditionalism, nationalism, state law, and all the main factors which for centuries constituted the fibre of Afghan social and legal order have been now incorporated in the 2004 Constitution, as is reflected in the preamble. Art. 1 proclaims Afghanistan an Islamic Republic. The expression 'Islamic Republic of Afghanistan' was championed in particular by the Islamists and jihad leaders and some members of the Constitutional Commission, despite strong opposition by many other members, by members of the Constitutional Review Commission and members of the Constitutional Loya Jirga. The definition of Afghanistan as an Islamic state gives Islam a strong base and a dominant role in particular in the area of legislation and judicial structure. Art. 2 indicates that the sacred religion of Islam is the religion of the Islamic Republic of Afghanistan (as did Art. 2 Constitution 1964) without using the word Shari^a or pointing explicitly to the hanafT school of jurisprudence. It also provides that the followers of other religions are free to exercise their faith within the limits of the law. On one hand, Art. 2 Constitution 2004 provides for a broader scope of religious activities for the followers of other creeds, while on the other hand,

36

Website of the Constitutional Commission: .

20

Sharfa and Private Law

by emphasising the expression 'Islamic Republic of Afghanistan' and Islam as its religion, it strengthens the position of religion within the Constitution. Art. 3 again highlights the role of Islam when it states that no law shall contravene the tenets and provisions of the holy religion of Islam. This article explicitly accords a predominant role to the basic principles of Islam without mentioning the provisions of the constitution. This was not so in previous constitutions, as the Constitutions of 1964, 1987 and 1990 provided that no law should be contrary to the basic principles of Islam and other values enshrined in the constitution. Art. 3 Constitution 2004 potentially seems to be in conflict with Art. 7, in which the government commits itself to observe international human rights treaties. The position of statutory legislation seems to be weaker in the 2004 Constitution than it was in the 1964 Constitution. Art. 45 provides that the government is to implement and develop an educational curriculum based on the tenets of the sacred religion of Islam, while the previous constitutions and especially the 1964 Constitution did not make any reference to religion with regard to education, but used the expression 'balanced and universal education' in Afghanistan (Art. 34 Constitution 1964). A reference is made in Art. 131 Constitution 2004 to s h f t law. This must be hailed as one of the greatest achievements of the constitutional efforts. Art. 131 provides that in matters of personal status the courts can apply the principles of shrt law when both parties are followers of the s h f t school of law. This article is similar to the provision of Principle 12 of the 1979 Constitution of the Islamic Republic of Iran, which provides for a broad range of religious freedom for the followers of other schools of Islam in Iran37. Hence, the recognition of the shi°T jurisprudence is a positive step for the enrichment of the Afghan legal system and will help ensure the rights of the followers of other schools of Islam. The 2004 Constitution also integrates national and tribal features. The reference to ethnic matters in Art. 4 is absolutely new; no Afghan constitution ever before contained such as reference. This reference was occasioned mainly by the conflict that has ravaged Afghanistan in the past 25 years, leaving behind a fragmented country with different groups who need to be reconciled. In fact Art. 4 explicitly mentions some of the groups residing in Afghanistan, such as the Pashtun, Tajik, Hazara, Uzbek, Turkman, Baluch, Pachaie, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, and Brahwui as belonging to the Afghan nation. A similar approach is taken as regards the various languages in the country. Art. 16 enumerates - besides the official languages of Pashto and Dari - other languages such as Uzbeki, Turkmani, Baluchi, Pashai, Nuristani, Pamiri as languages of Afghanistan.

37 For Principle 12 of the 1979 Constitution of the Islamic Republic of Iran, as amended 1992 see Annex D, 331 ff.

The Progress of Constitutionalism in Afghanistan

21

Unfortunately, the institution of a constitutional court does not figure in the 2004 Constitution. According to Art. 157 an 'Independent Commission for the Supervision of the Implementation of the Constitution' must be established. This institution resembles the one conceived in Art. 146 Constitution 1987, the so-called Constitutional Council. This council was authorised to evaluate the conformity of laws, decrees, and international treaties with the constitution and to advise the President on legal matters. No further details on the spectrum of responsibilities and authorities of the Independent Commission for the Supervision of the Implementation of the Constitution are given, but it is likely that this commission will have responsibilities similar to those of the Constitutional Council under the 1987 Constitution. Another development worth noting is the provision for a Supreme Court, entitled to 'review the laws, legislative decrees, international treaties and international conventions as regards their conformity with the Constitution and to interpret them in accordance with the law' (Art. 121 Constitution 2004). This article also has predecessors. Art. 94 Constitution 1987 gave the Supreme Court the right to propose, amend and repeal laws. Decree No. 18 of the Islamic Emirate of Afghanistan also provided for a commission of Islamic judges under the supervision of the Supreme Court of Afghanistan to ensure compliance of legislation with the basic principles of Sharfa. In January 2005 the Interim Supreme Court was installed. The powers exerted by the Court are very extensive, and it remains to be seen to which extent the Supreme Court will influence the tenor of the forthcoming legislation. C. Conclusion The process of introducing a constitutional frame as well as the legal and institutional developments in Afghanistan in the past 85 years have generated a vast amount of theoretical and practical material that have found their way into Afghan legislation. However, many initiatives have contradicted the core values of Afghan culture. The analysis of the provisions of all constitutions ever promulgated in Afghanistan shows positive and negative effects stemming from the social realities and conditions in Afghanistan. One of the main reasons why most constitutions failed is the fact that they were enacted chiefly to serve the interests of the respective rulers without taking into consideration sociopolitical, economic, traditional, and religious factors. Due to the complexity of the situations and the lack of a central government to guarantee their realisation, they were hardly ever implemented. Most Afghan constitutions can be labelled as illegitimate and jeopardised by political considerations, with power struggles, coup d'états, revolutions and uprisings as the main force behind their enactment. The ultimate aim of a constitution, ie the reflection of the will of a nation, never translated into politics. Constitutionalism in Afghanistan was

22

Sharfa and Private Law

thwarted all too often by the distortion of constitutions subject to political bias. Therefore, the constitutional order was never a genuine framework for effective legal reform. Unlike the other constitutions the 2004 Constitution was drafted and ratified in a democratic manner, according to the proceedings of the Constitutional Loya Jirga and under the scrutiny of international observers. This has however not prevented the intrusion of the political ambitions and influences of former warlords and their supporters, resulting in the withdrawal of certain proposed provisions from the agenda of the Constitutional Loya Jirga. Thus the issues of ethnicity, language, religion, gender and political participation were hardly debated during the Constitutional Loya Jirga, as the representatives of many ethnic groups were resisting and stalled on the important abovementioned issues for matters of minor importance. This was done to ensure the support of their clientele for future elections. The Constitution 2004 thus reflects the situation from which it emerged, a savage civil war. It must be termed as a post-conflict-constitution. However, regardless of the circumstances in which the constitution was ratified, priority should be given to the implementation of the policies of the elected government and efforts mobilised to prevent any departure from the values enshrined in the new 2004 Constitution.

Islam and its Sharfa in the Afghan Constitution 2004 with Special Reference to Personal Law MOHAMMAD HASHIM KAMALI

A. B. C. D.

Introductory Remarks The Islamic Republic Clause The Head of State Reference to Hanafi and S h i t Jurisprudence

E. F. G. H.

S h a r f a and Statutory Law The Repugnancy Clause The Equality Clause and Women's Rights Conclusion

A. Introductory Remarks This essay is presented in seven sections, beginning with a discussion of Art. 1 of the Afghan Constitution of 2004 (hereafter: Constitution 2004), which declared Afghanistan an Islamic republic. This is followed by a brief look at the position of the Head of State, and then an analysis of Art. 130 and 131 Constitution 2004 on the application of hanafi and shfl jurisprudence respectively in the legal order of Afghanistan. The 2004 Constitution broke new ground by recognizing shl°r jurisprudence as a source of law in Afghanistan. The relationship of Sharfa to statutory law and then the repugnance clause that represents a salient feature of that relationship are discussed in sections five and six. The discussion then turns to an analysis of the equality clause in Art. 22 Constitution 2004 and its implications, especially for women's equality before the law. This also leads us to an analysis of some of the provisions of the civil code of 1977 (qànûn-e madanî) relating to marriage, polygamy, and divorce. The essay concludes with some remarks on the present situation in Afghanistan and prospects of implementation for the new constitution. In almost every part of this essay, a comparison is attempted with the relevant provisions of the Afghan Constitution of 1964 (hereafter: Constitution 1964) which formed the immediate background. Considerations of brevity do not permit a fuller comparison with all the previous constitutions of Afghanistan. Afghanistan's past experience in constitution-making has been almost invariably linked with crisis, coup d'état, and popular revolt. In the absence of a popular mandate, new regimes that came into power were inclined to use the

24

Shan a and Private Law

constitution as an instrument of gaining legitimacy. The 1964 Constitution may have been an exception because it did not involve a regime change and was introduced in the name of renewal and reform, although rivalry and dissent within the royal family were clearly behind even the 1964 Constitution. That pattern of unrest has continued, albeit in a different form, in the case of the new constitution: Afghanistan had just emerged from the ravages of foreign invasion and civil war that caused a massive population exodus and refugee problem that was, and still is, beyond Afghanistan's capacity to address. The collapse of law and order in the country, the reassertion of tribalism, and the emergence of powerful warlords are among the crises which surrounded the new constitution. Yet unlike most of its six antecedents, the 2004 Constitution involved public consultation over a period of several months and was then duly ratified by the Loya Jirga in December 2003. In his capacity as a member of the Constitutional Review Commission, the present writer was a direct participant in the consultative process that immediately preceded the convocation of the Loya Jirga, which eventually ratified the 2004 Constitution.

B. The Islamic Republic Clause The 2004 Constitution stands out for its unprecedented proclamation in its very first article that 'Afghanistan is an Islamic Republic, an independent, unitary and indivisible State'. This being the full translation of Art. 1 Constitution 2004, the text provides no further detail anywhere on the meaning or definition of 'Islamic Republic'. On the other hand, Art. 2 Constitution 2004 upheld Art. 2 Constitution 1964 to provide that Islam is the sacred religion of Afghanistan but that non-Muslims are free to practice their own religion 'within the limits of the law'. The only change here was that the additional phrase of the 1964 version that '[r]eligious rites performed by the State shall be according to the provisions of the Hanafi doctrine' was omitted. This phrase does not appear in the new constitution, due presumably to the recognition of shI°T jurisprudence in Art. 131 Constitution 2004 so as to prevent a possible conflict. There was much debate in the Constitutional Review Commission as to whether Afghanistan should be declared a republic only or an Islamic republic. The Commission debated the subject on three occasions covering a wide range of themes. Art. 1 Constitution 2004 was discussed together with the title of the constitution: the initial draft entitled the constitution the 'Constitution of the Islamic Republic of Afghanistan.' After much debate it was decided to omit the words 'Islamic Republic' and simplify the title to read 'Constitution of Afghanistan' (qánün-e asásl-ye Afqünestán), which has been retained ever since. There was a certain degree of reticence on the part of many of the commission members due to the great sensitivity of the subject and the fact that many of them were respected religious leaders. Many also objected to the change of name, but the shorter name was adopted simply because the new

The Sharfa in the Constitution with Reference to Personal Law

25

constitution had not in any way advanced the idea of an Islamic republic. It was an added phrase to a text that was otherwise very similar to the 1964 Constitution. This part of the discussion had already given rise to some anticipation that the initial draft of Art. 1 Constitution 2004 would also be changed accordingly, and there was much support for such an amendment in the early stages of the debate. On the first two occasions, most of the 35-member commission supported the second of the two proposals which declared Afghanistan as a republican state, and it was only on the last of the three occasions that the first proposal was carried and finally also upheld by the Loya Jirga. A sub-committee was also set up in the process to come up with a formula to resolve the deadlock. In fact, no other provision of the draft constitution had caused as much hesitation and uncertainty as Art. 1 Constitution 2004. Many members felt that this ambiguity persisted even after the three repeated debates, each absorbing almost the whole of a morning session. Since uncertainty prevailed throughout, the issue was postponed each time to another occasion. Those who supported the idea of a republic only argued that none of Afghanistan's previous constitutions had adopted the Islamic republic provision, and a decisive change in that precedent would require that the idea be articulated in some detail. It was noted that 'Islamic Republic' had not been expounded anywhere in the text, and as such it would appear as somewhat of an isolated addition. A defining element of the new polity of Afghanistan would thus stand undefined. It was added that if providing a clear definition for 'Islamic Republic' was difficult, one should at least try to identify some of its salient features so that the expression could find a juridical basis in the text. Many commission members voiced the view that one should either specify and articulate Islamic republic or simply opt for a republic only. It was further argued that leaving the idea without specification of any kind would give rise to ambiguity and confront the government and judiciary with issues they might be unable to resolve. The present writer, who took this view, elaborated on the implications of an Islamic republic in the way it was proposed for the legal order of Afghanistan. I referred to three scenarios relating respectively to hudud Islamic punishments, banking interest, and women's rights. The hudud punishments have not been applied in the recent legal history of Afghanistan, with the exception perhaps of some unrecorded instances under the Taliban. The hudud punishments are generally understood to be a prescribed mandatory aspect of the SharfV. Yet they have not been declared such by statutory law. Both the Law of Criminal Procedure 1965 and the Penal Code 1977 evade the issue and provide for alternative procedure and punishment for hudud crimes. The latter were punishable instead under the principle of tcfzTr, 1 For a critical review of the theory of hudud and its proposed application in the Malaysian province of Kelantan, see Kamali, Punishment in Islamic Law: An Inquiry into the Hudud Bill of Kelantan (2000).

26

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and the offences in question carry prison sentences of various durations. It was possible then for some Taliban-minded people to confront the courts of justice with the demand to enforce the hudud punishments and even be able to advance a persuasive argument from the Islamic republic platform. In the absence of any guidance in the constitution, the courts were likely to encounter difficulties in responding to such a demand. With regard to banking interest, I argued that the idea of Islamic banking and the elimination of banking interest was entirely new to Afghanistan. Islamic banking had gained ground in Afghanistan's immediate neighbours, Iran and Pakistan, in recent decades, at a time when Afghanistan was in the grips of foreign occupation and civil war. There are no Islamic banks in the country to this day, and we do not even have the necessary legislation to address the institutional and procedural aspects of Islamic banking. The effort to eliminate interest, or riba, from the banking system took decades in Iran and Pakistan and they are still faced with the challenging task. The war and its aftermath brought even the conventional banking system to its knees in Afghanistan. If one were to have a substantial change in the banking system, one would need to have a functioning infrastructure to work with; otherwise, confusion is likely to arise on the assumption that an Islamic republic would not be true to its name without addressing the issue of bank interests. The legitimacy of the existing banks would be put to the test as a result. With regard to women's rights, I noted that the equality clause in Art. 22 Constitution 2004 and its equivalent in Art. 25 Constitution 1964 declared all citizens to have equal rights and obligations before the law. This is what has been said before and is now being repeated, but the realities of the tribalist and tradition-bound society of Afghanistan tell a totally different story. Customary and traditional attitudes regarding women have proven very difficult to penetrate. The women of Afghanistan have not enjoyed equal rights, even though most of its constitutions in the 20. century declared otherwise. The point I made in the debate over the Islamic republic clause was that the presence of such a clause would make the challenge of equality for women even more difficult to meet. Tribalism and popular religion seem to be natural allies on this and tend to share the same attitudes toward gender equality. Those who supported the Islamic republic clause viewed their position more as a dogmatic and political gesture to win the Muslim sentiment in the country, and they did not think it even necessary to address the juridical implications of their proposal. Their typical response was that Afghanistan fought a 23-year war in the name of Islam and sacrificed so much in its cause. To declare the country an Islamic republic would be a fitting response to public expectations. The advocates of an Islamic republic proceeded on the assumption that it was basically a symbolic gesture that did not require any further elaboration. The Islamic contents of the proposed constitution would remain about the same as under the 1964 Constitution. They expected no fresh demands, adding that the

The Sharfa in the Constitution with Reference to Personal Law

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Loya Jirga would decide on the final position. The point was clearly made in the debate, however, that once the draft adopted the proposed clause, the Loya Jirga would not remove it, and that is what actually happened. There was no consensus on the proposal at any stage of the debate. The counterargument to the Islamic republic proposal referred, in turn, to the extremist attitudes that were often advocated in the name of Islam. Having experienced how the Taliban and the now defunct hezbe eslaml [Islamic party] of Gulbuddin Hikmatyar projected Islam, the possibilities for distortion and extremism were all around us, and ambiguity under such circumstances could easily receive a negative input. I am still of the view, however, that the declaration of an Islamic republic will not have a visible impact on the legal status quo of Afghanistan in the near future, simply because the government is faced with a host of more urgent issues, and the present administration does not have the political will to entertain any significant change of direction. There is also a certain absence of credible intellectual engagement on Islamic themes in Afghanistan, although some academic circles and writers are beginning to address Islamic issues. The situation is different in Afghanistan's neighbouring countries, Iran and Pakistan, where discourse on Islamic themes has continued to be present in the public media. Iran's historical legacy as the torch bearer of shI°T Islam and the element of intellectual continuity it has enjoyed, plus the post-Khatami opening of the public space for a relatively more open discourse, were all conducive to projecting Islamic options and alternatives, and there is a public demand for that. Pakistan's history bore the influence of colonialism, which tended to encourage reformist thought and a more liberal intellectual discourse. This aspect of colonialism never penetrated Afghanistan because it was never colonised. The three Anglo-Afghan wars of the 19. and early 20. century (1841, 1879, 1919 respectively) had the effect of keeping Afghanistan a stage away from the current of reformist thought. For example, the Marriage Law 1971 was approved by an elected parliament 2 , but when it came out, it was widely criticised for its near-total lack of reformist content. This was at a time when the Islamic family law reform movement had reached its tail end in the Middle East, North Africa, and Pakistan. Yet patriarchal custom and tribalist attitudes prevailed and remained aloof to the very visible tide of family law reform in the Muslim world. The decades that followed were preoccupied with civil war, the communist invasion, the collapse of the normal order and the educational system, and the reassertion of tribalism, which actually prolonged the intellectual stagnation the country experienced in the closing decades of the 20.

2

The post-1964 parliament was dominated by tribal leaders, landlords, and religious figures who were also more assertive due to their newly acquired role under the 1964 Constitution. Within the nine years of this constitution's lifespan, five governments were toppled as a result of parliamentary no-confidence votes.

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century. For these and other similar reasons, an isolated constitutional clause on an Islamic republic may not be enough to significantly change the present status quo in the near future. Afghanistan is likely to remain preoccupied with the problems of security, law and order, unemployment, and restoration of essential services. The last two years have seen only a modest start to building a national army and police, and the country's financial and taxation systems still need to be rebuilt almost from scratch. Legal reforms would still appear to be less of a priority over the next few years at least. C. The Head of State The 2004 Constitution requires the Head of State to be a Muslim. He is the patron of the religion of Islam, a position which is manifested in his oath-taking ceremony held before parliament wherein he commits himself to protect the basic principles of the sacred religion of Islam, and the constitution and other laws of Afghanistan (Art. 63 Constitution 2004). In a similar vein, the 1964 Constitution proclaimed the King as protector of the basic principles of the sacred religion of Islam (Art. 7 Constitution 1964). The King was not only required to be a Muslim but also to be a follower of the hanafï doctrine (Art. 8 Constitution 1964). The 1964 Constitution also provided that the King is not accountable and shall be respected by all (Art. 15 Constitution 1964). The 2004 Constitution has omitted the last two provisions, hence there is no requirement for the President to be a follower of the hanafï doctrine, nor is he indeed beyond accountability. This is borne out in Art. 69 Constitution 2004 concerning the impeachment procedure and removal from office of the President when he is charged with treason, crime against humanity, or other serious crime. A constitutional clause for the Head of State to be a follower of the hanafï madhhab would, in fact, be problematic in view of the presence of a significant minority of shÎT followers in Afghanistan. Such a provision would also be at odds with certain other clauses of the new constitution, including the one in Art. 33 Constitution 2004 which provides that all citizens of Afghanistan are entitled to elect and be elected for public office, as well as its equality clause in Art. 22 which prohibits all forms of discrimination among Afghan citizens. Besides, there is no requirement in the SharT°a for the Head of State to be a follower of any particular madhhab so long as he professes Islam. Constitution's lifespan, five governments were toppled as a result of parliamentary no-confidence votes. It is of interest to note in this connection that the qualifications of candidacy for president in chapter three of the new constitution do not stipulate that the President should be a male Muslim. This would imply that a woman can also qualify as a candidate for president (cf. Art. 60-71 Constitution 2004). The 1964 Constitution envisaged a hereditary monarchy, and its provisions on sue-

The Sharfa in the Constitution with Reference to Personal Law

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cession in Art. 18 Constitution 1964 entitled only the male descendant of the outgoing King to be the next in line. Women were consequently precluded from accession to the throne. But women could hold all other offices of government, even under the 1964 Constitution. It is a matter of some disagreement, but the constitutional theory of caliphate in Islamic law as expounded in the renowned Al-Ahkam al-Sultaniyya (principles of government) of Abu'l Hassan alMawardT (450/1058) reserved the offices of both caliph and prime minister (wazir a-tafwid) for male Muslims only. Many have even claimed a general consensus (igma°) in support of this position. The absence of a prohibitive clause on women's candidacy for president is an important step towards gender equality, which is what Afghanistan's conservative custom and tradition has generally discouraged. It is of interest to note that for the first time in Afghanistan's history, a woman candidate, Dr. Masuda Jalal, challenged the incumbent President Karzai for interim presidency in the Emergency Loya Jirga of June 2002. She obtained only 11% of the votes, but she has already announced that she will again contest the forthcoming presidential election scheduled for October 2004 3 . The 2004 Constitution also signified another change concerning the Head of State, which is the omission of a reference to the khutba4. The 1964 Constitution contained this with regard to this long-standing Islamic tradition: the name of the King is mentioned in the khutba 5 . There is no equivalent provision in the 2004 Constitution on this - hence the previous position has simply been discontinued. It is not certain, though, whether this silence would actually affect the traditional practice of khutba. Whether the President's name would be cited in khutba or not would appear to be a question to some extent of legality and political stability in the country. The fact that Afghanistan now has a constitution that was duly approved by the Loya Jirga serves to legitimise the transitional administration, whose position is likely to be further strengthened if the forthcoming presidential elections are successfully held. In that event, it is likely that the President's name would be cited in the khutba, especially in khutbas delivered in Friday congregational prayers - notwithstanding the absence of a reference to it in the new constitution. I may add, however, that there is no real need for a constitutional clause on citation of the President's name in khutba since that would most likely be implied in Art. 2 Constitution 2004, which proclaims Islam as the state religion of Afghanistan.

3 4 5

Cf. Dawn, August 17, 2003; The Star, January 26, 2003, 36. The khutba is a religious address delivered on religious occasions. Art. 11 Constitution 1964.

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D. Reference to Hanafï and ShI°T Jurisprudence As already noted, except for the 1980 Constitution which was introduced under the communists, all the previous constitutions of Afghanistan upheld the hanafi school of law to the exclusion of all the other madhhab, and some even laid down the requirement that the Head of State should be a follower of the hanafï school. Both of these positions were upheld in the 1964 Constitution. The fact that the 2004 Constitution also upheld the position of hanafi jurisprudence with reference to cases under court consideration was a continuation of the existing precedent. The only new development in this constitution was the recognition, for the first time, of s h f t jurisprudence as a source of law side by side with that of the hanafï. The 2004 Constitution addresses this in two separate articles Art. 130 and 131: Art. 130 Constitution 2004: The courts shall apply this Constitution and other laws when adjudicating cases. When no provision exists in the constitution or the law for a case under consideration, the court shall, by following the principles of the Hanafi school of law and within the limitations set forth in this constitution, render a decision that secures justice in the best possible way.

The next article reads: Art. 131 Constitution 2004: In cases involving the Shi'i followers, the court shall, in disputes concerning personal status matters, apply the Shi'i school of law in accordance with the law. In other disputes, where no provision can be found in this Constitution and other laws, the courts shall adjudicate the case in accordance with the rulings of the Shi'i school of law.

Apart from minor omissions, the first of these two articles reproduces the parallel provision (Art. 102 Constitution 1964)6. Hanafi jurisprudence thus retained the position it was assigned under the 1964 Constitution. The latter portion of Art. 130 Constitution 2004, which stipulates that the court may apply the ruling of the hanafï school in a way that renders justice in the best possible way, was understood to be conducive to judicial igtihäd. This was the conclusion that former Chief Justice Abdul Hakim Ziya'i drew when he wrote concerning the 1964 Constitution that Art. 102 'laid down the constitutional foundation of judicial igtihäd in Afghanistan' 7 . The omission of certain elements of Art. 102 Constitution 1964 in its revised version in the new constitu-

6 There are two omissions in Article 130 Constitution 2004: a) The phrase 'of the Shari'a of Islam' which appeared immediately after 'Hanafi Jurisprudence' in the 1964 Constitution was omitted in the 2004 Constitution; b) The words 'that in their opinion' which appeared after 'by following the basic principles of the Hanafi jurisprudence' were omitted in the version that appears in the 2004 Constitution. 7 Quoted in Kamali, Law in Afghanistan: A Study of the Constitutions, Matrimonial Law, and the Judiciary (1985) 232.

The Sharfa

in the Constitution

with Reference to Personal

Law

31

8

tion, in particular the phrase 'that in their opinion' , would probably not mean a significant change of the earlier position. The omission of these elements is probably meant to introduce a degree of objectivity in judicial igtihad, which, unlike juridical igtihad, carries a binding force and therefore should not be too subjective. I do, however, think that omitting the phrase 'of the Shari'a of Islam' which appeared immediately after 'Hanafi jurisprudence' in Art. 102 Constitution 1964 is not totally devoid of significance. By removing this, there remains no other reference to the 'Shari'a of Islam', and all the references that occur in Islamic law in the new constitution are effectively to the hanafi (or the shit) school of law. One is inclined to think that there is a difference - at least in theory - between a school of Sharfa and the Sharfa itself, for Sharfa is a wider entity and the word itself is linked more closely with the Holy Qur'an and the Sunna. Certain aspects of the Sharfa are also not scholastic and go beyond the confines of schools. When the constitutional text refers only to hanafi jurisprudence, the implication is that a direct recourse to the Holy Qur'an and the hadith by the judge is precluded. It remains an open question, on the other hand, whether such an understanding can command general acceptance, notwithstanding the constitutional reference to hanafi jurisprudence only. The Constitutional Review Commission debated the draft text of the constitution almost continuously over a period of seven months (May to December 2003), setting up ad hoc committees to deliberate over certain provisions and making new proposals in a continuing debate. But two basic phases of the review merit attention: Phase one, which was held during the first two months, May and June 2003, prior to the 'consult the people programme' which took place in the following six weeks in June and July; and then phase two, which followed the public consultation programme in July through September 2003.1 was involved in both these phases. In our initial discussions on the constitutional position of hanafi jurisprudence, I advanced the following proposal: If the constitution were to encourage judicial igtihad, then it may be better not to confine the scope of the igtihad to the hanafi sources alone. Since we were, in any case, concerned with judicial igtihad in particular cases, it was a controlled variety of igtihad and it might as such be of benefit to enable the judge to utilise the wider resources of Sharfa in all of its leading schools. Since the concern here was to render justice in the best possible way, this should naturally not be confined to the hanafi madhhab only. When I made this proposal, I sensed a certain reticence on the part of my fellow commissioners, and the debate remained inconclusive on that occasion. Then came the 'consult the people programme' in which the 35-member commission was split into eight groups with the assignment for each to tour four provinces to meet with the people and solicit their counsel over the draft con8

Kamali

(note 7) 232.

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stitution. I took part in this programme and held some 80 meetings within a period of six weeks in the eastern provinces of Afghanistan. The number of participants in these meetings ranged from as low as 50 to as many as 600 persons, and we travelled to almost all the districts (woleswalis) in the four Pashtun-majority provinces. Although I had an impression of the people's attachment to the hanafT madhhab, my meetings with them were eye opening. The message came through unmistakably clearly that the vast majority of them wanted the hanafT school, sometimes even before mentioning anything about Islam itself. I was convinced by then that the attachment to the hanafT madhhab for the Afghans went beyond the juristic context. It was a part of dogma and, as such, was a sensitive subject. When we returned to Kabul in late July 2003 and resumed our work on the text with a view to implementing the substance of the people's views we had received, I did not pursue the proposal I had earlier advanced concerning the hanafT madhhab. Art. 130 Constitution 2004 also stipulates that the court shall apply the hanafT jurisprudence within the limitations set forth in this constitution. The first limit, given in the text itself, is that recourse to hanafT jurisprudence is only valid in the absence of any guidance in the constitution and other laws of Afghanistan, and the text here is in no need of interpretation. But there may be other limitations in the constitution emanating from the equality clause and other clauses on basic rights and liberties that may have bearing on hanafT jurisprudence. '[Jjustice in the best possible way', as stipulated in the text of Art. 130 Constitution 2004, may also preclude certain aspects of hanafT jurisprudence itself from the scope of judicial consideration. For instance, in the case of a missing person (mafqud), the hanafT school provides that 90 years (or 70 years according to an alternative ruling) must elapse, starting from the date of birth of the mafqud, before he can be declared dead. This would mean that his wife and his legal heirs must wait that long. The sheer length of this period may well be seen to be in conflict with the terms of Art. 130 Constitution 2004. In a similar vein, hanafT jurisprudence basically does not recognise judicial divorce on the basis of injury (darar); however, this is recognised in malikT jurisprudence. The Afghan civil code 1977 as discussed below has, in fact, adopted parts of the malikT law of divorce. This is just to show that certain aspects of hanafT jurisprudence itself may not serve 'justice in the best possible way', in which case the judge may decide not to apply them. The recognition of shT^T madhhab and its jurisprudence in Art. 131 Constitution 2004 is also contingent on the stipulation 'in accordance with the law'. This would presumably imply that there should be a law (qanun) in the sphere of personal law that codifies shfT jurisprudence, and the court would then apply it. This is implied in the phrase ajjLu ^ ¡jnWi ¡jjjls Aj ¿jUm [in accordance with the law] meaning that the court resorts to s h f l jurisprudence in accordance with the rulings of qanun. If one were to read into these words the alternative and equally plausible meaning that shT°T jurisprudence is only appli-

The Sharfa in the Constitution with Reference to Personal Law

33

cable when it is in conformity with the applied law, such as the civil code or the marriage laws, this might mean indirectly imposing hanafl jurisprudence on the Shrt. Such an interpretation, although plausible, would go against the original intention of Art. 131. This is why Art. 131 only mentions 'in accordance with the law' and stops short of making an equivalent reference to the constitution, as is the case in Art. 130 Constitution 2004. The reference in that article is 'when no provision exists in the constitution or the law', which is obviously not adopted in the case of sfrft jurisprudence on personal status matters. The purpose is that shî*! jurisprudence itself should be codified into a law, and not that it should be subjected to the existing laws of Afghanistan. The other limitation of note here is that s h r t jurisprudence applies to a dispute that is sub judice and the court adopts it as a basis of decision. For example, this would preclude an open fatwà of a religious scholar among the s h r t or a jirga council from the scope of Art. 131 Constitution 2004. Furthermore, the requirement that shl°l law should be adopted into a statute first would seem to be confined to personal status matters. In other disputes, such as ones concerning contract and transactions, the text of Art. 131 changes its terms by saying that the court can resort to the provisions of shî°î jurisprudence when both parties are followers of shï°î madhhab and when no ruling exists in this constitution or other laws. Thus, when a dispute can be determined by recourse to existing laws, recourse to s h f l jurisprudence would be ultra vires. This being the case, the courts are not expected to take direct recourse to the manuals of shl 0 ! jurisprudence. Only when no law can be found to exist concerning the case is recourse to shï 0 ! jurisprudence deemed to be justified. The reference specifically to personal status matters in Art. 131 would also imply that other areas of the law, such as criminal and constitutional law, would not be included, and s l i f t law would not apply in these areas. This was probably the intention behind the specific reference to personal law, because public law is normally applied uniformly to all citizens. Yet the latter portion of Art. 131 tends to affect this analysis, for it provides that in other disputes as well, when no ruling can be found in the constitution and other laws and both parties to the dispute are shT0! followers, the judge may apply the rules of the shi°T madhhab. The phrase 'in other disputes too' immediately extends the scope to disputes outside personal status law. But then the text qualifies this by saying that this applies only when no ruling exists in the constitution or other laws. This would obviously mean that the existing statutes such as the civil code and the penal code would apply, and this tends to considerably narrow down the possibilities of recourse 'in other disputes' to shl 0 ! jurisprudence. The additional proviso that both litigants are S h ï t followers also implies that criminal prosecution is not included because, unlike civil disputes wherein two parties litigate, in criminal cases it is only the accused person who is the focus of court proceedings. The other party to a criminal charge is usually the police

34

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or public prosecutor, and it would seem immaterial whether they were s h i t or hanafT. The latter portion of Art. 131 would thus apply only to civil disputes such as contracts, property, and transactions for which no ruling can be found in the existing laws. Comparing the language of the two articles (ie Art. 130 and 131 Constitution 2004), it would appear that the reference in Art. 130 is more general. This article begins by stating that the courts, in cases under their consideration shall apply the constitution and other laws in the first place, and then resort to hanafi jurisprudence. 'The courts' in this article would appear to include all courts. If the judge had a case before him in which both parties were Shi0! but requested that the court apply hanafT jurisprudence, it would appear that the general terms of Art. 130 would not prevent taking that option. Art. 131 acts as a specifier on the general terms of Art. 130, and the latter would apply generally if the former cannot apply. At present there are no courts of special jurisdiction for disputes among Sh!0!. It remains a possibility that such courts may be established in the future, or a s h i t bench may have to be added to the existing courts. A further ruling would seem to be needed to clarify whether the general courts can still adjudicate cases that fall under Art. 131, in which the disputing parties, even though they are Shi0!, request them for adjudication. This may well be due to some practical reason, such as transportation problems, or the absence in a particular locality of a s h i t court or bench. A pragmatic approach to interpretation might be to leave that possibility open, for the time being at least, because otherwise a jurisdictional vacuum would be created whereby the general courts would be unable to entertain cases that fall within the ambit of Art. 131. Having said this, the wording of Art. 131 Constitution 2004 is equally open to precluding the general courts on the understanding that recourse to s h i t jurisprudence in personal status disputes and where both the litigants are S h i t is mandatory. Outside the scope of these two types of disputes, it would appear that the general courts can adjudicate cases even among s h i t parties. My final remark concerning the juxtaposition of hanafT and s h i t schools of law in the legal order of Afghanistan is that I see this new beginning as a stimulant for enrichment. The 2004 Constitution took a step in the right direction, and it is likely to contribute to the national unity of Afghanistan. Constitutional recognition of s h i t jurisprudence is also likely to have a positive impact on cultural and community relations. This was long overdue, and its denial led to much alienation and resentment among the s h i t Muslims of Afghanistan. The political gesture that is made is probably the more significant aspect of this opening. The two sides are now more likely to feel at ease and be more open emotionally and intellectually in each other's presence. Some enrichment and diversity can also be anticipated because the two schools of law differ considerably in some areas. The exposure that they gain toward one another in this new relationship will hopefully contribute to a cross-fertilisation of ideas at the level of igtihad. Although the civil code 1977 utilised the

The Sharfa in the Constitution with Reference to Personal Law

35

resources of the other sunrii schools of law in some areas, it did not go far enough to enrich the law with the options that are available in the wider resources of Sharf a. It is an intellectual challenge, in the long run at least, for the hanafi judges of Afghanistan to see their s h f l counterparts making their own distinctive contributions to the development of Sharfa in the years to come. Based on my familiarity and contact with the s h f l religious scholars and academics of Afghanistan, I can say that they will be able to make a handsome contribution to the enrichment of Sharfa and statutory legislation in the future. E. Sharfa and Statutory Law Historically, the Sharfa dominated law and judicial practice in Afghanistan. Statutory legislation was basically a latecomer on the scene, supplementing the Sharfa especially in areas that were not covered by the latter. Legislation in the traditionally Sharfa-dominated fields such as family law, property, contracts, and evidence mainly sought to codify the substantive Sharfa for purposes of easy reference by judges and lawyers. The 1931 Constitution clearly endorsed the traditional supremacy of Sharfa in Afghanistan. This is manifested in the numerous references this constitution made to the Sharfa which essentially amounted to proclaiming Sharfa as the law of the land. Sharfa continued to dominate judicial practice, and the limited number of statues that existed were mainly concerned with procedural and administrative matters. However, a mixed pattern was developing which eventually led to confusion over the relationship of law to the Sharfa, especially in cases of ambiguity and conflict between them. The courts generally applied the Arabic manuals of hanafi jurisprudence, the Ottoman Mejelle that was a codified version of the hanafi law of civil transactions excepting family law. An early departure from this pattern was the Commercial Code of 1955 (qanun-e tegarat) and the Law of Commercial Procedure of 1963 (qanun-e usul-e mohakemate tegaratT) which were not based on the Sharfa and had a mixed, mainly Western, origin. The 1964 Constitution was the first to provide a clear definition of 'law' and also to reverse the earlier pattern by establishing a formal order of priority in favour of statutory law. Thus it was provided that: Art. 69 Constitution 1964: Excepting the conditions for which specific provisions have been made in this Constitution, law is a resolution passed by both Houses, and signed by the King. In the area where no such law exists, the provisions of the Hanafi jurisprudence of the Shari'a of Islam shall be considered as law.

This was an important development which, however, remained largely ineffective. The order of priority stipulated here obviously could have become effective in the presence of a credible mass of statutory law, but this did not materialise. This was due to the legislative impasse that afflicted the post-1964 parliament. The 1964 Constitution gave birth to a powerful parliament, thus

36

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reversing the hitherto prevailing role of a more powerful executive. The two were then engaged in a power struggle, and both failed to adjust to their new roles under the 1964 Constitution. With regard to the definition of law, the 2004 Constitution has followed the precedent set in the 1964 Constitution by stating: Art. 94 Constitution 2004: Law is what both Houses of the National Assembly approve and the President endorses, unless this Constitution states otherwise.

A minor variation to be noted here is that the latter portion of the earlier text, which referred to hanafï jurisprudence, has been omitted, only to reappear in the chapter on the judiciary under Art. 130 Constitution 2004. Yet this shift in itself may not be totally insignificant, as it tends to restrict the application of hanafï jurisprudence to court cases only. Whereas under the 1964 Constitution, hanafï fiqh supplemented statutory law generally - that is, within or outside court proceedings - under the 2004 Constitution, hanafï jurisprudence becomes applied law only if the existing statutes do not cover a case under judicial consideration. This reference to hanafï jurisprudence occurred twice in the 1964 Constitution, once in Art. 64 in the chapter on parliament, and again in Art. 102 in its chapter on the judiciary. The combined effect of this repetition was that hanafï jurisprudence supplemented the law of Afghanistan within and outside the court proceedings. The new constitution has now restricted this to court cases only 9 .

F. The Repugnancy Clause Almost all Afghan constitutions (except the 1980 Constitution introduced by the communist regime of Karmal) contained a repugnancy clause to say that statutory legislation may not contravene the basic principles of Islam. The exact wording of each of the six constitutions differs somewhat, but the repugnancy clause became an established feature and precedent of the constitutions of Afghanistan. This precedent has been followed in the 2004 Constitution, which reads as follows: Art. 3 Constitution 2004: In Afghanistan, no law may be contrary to the beliefs and provisions of the sacred religion of Islam.

The 1964 Constitution had a similar clause in Art. 64 with identical wording except for an additional element: whereas the 2004 Constitution referred to 'the beliefs and provisions of the sacred religion of Islam', the 1964 Constitution stipulated instead that there shall be no law repugnant to 'the basic principles of the sacred religion of Islam' (asâsàt-e dln-e moqaddas-e eslàm). The wording 9 The 2004 Constitution in this case actually followed the precedent set by the 1996 Constitution, known as Najbullah's Constitution.

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of the 1964 Constitution thus implied that repugnance to subsidiary rulings that did not oppose the basic principles of Islam could be ignored or tolerated in statutory legislation. The recent substitute would seem to be more general and seems to overrule the previous distinction. Bearing in mind the fact, however, that there was no attempt, at a formal level at least, to distinguish the 'basic principles of Islam' from its subsidiary rulings, the constitutional clause was not free of ambiguity. Yet it was a discerning qualification, for some of the subsidiary rulings of fiqh that were based on juristic construction and not on the clear text of the Qur'an or authentic Sunna could be excluded and replaced, if necessary, due to a change of circumstances. Two alternative phrases were proposed when this clause was being debated by the Constitutional Review Commission. One was usul-e kolliya (cardinal principles, replacing asasat) and the other was arkan (pillars) of the sacred religion of Islam. There was some support for these new phrases, the latter of which implied a reference to the five pillars of Islam, but many felt that this would unduly limit the scope of the repugnancy clause. The Loya Jirga instead adopted the word ahkam (pi. of hukm), which refers to the laws and values of Islam and tends to be more akin to the legal corpus, or the Sharfa of Islam. To illustrate the ambiguity that can arise from an undefined repugnancy clause, I refer to the parliamentary debate on the Marriage Law 1971, one of the few laws passed during a period of virtual legislative impasse that stretched over the entire lifespan of the 1964 Constitution. Parliamentary debaters who were opposed to virtually any proposed reform on child marriage and polygamy were able to refer to almost any provision of Islamic law on the topic of their concern. There is no mandatory principle in Sharfa on child marriage or polygamy, yet many inferred that these were included in the 'basic principles of Islam'. In the absence of a set of guidelines to prevent misguided opposition to healthy reconstruction and igtihad, it may be said that the repugnancy clause can serve as a tool in the hands of hard-line conservatives more than it can serve its desired purpose otherwise. Focusing attention on subsidiary matters, sometimes at the expense of the bigger picture, is not peculiar to the mullahs of Afghanistan; it has happened elsewhere, especially in gender relations such as wearing the scarf and women's participation in public life. The present writer was in Kabul in May 2003 at a time when the Supreme Court had just issued a verdict declaring cable TV to be haram, apparently because it encouraged promiscuity and was therefore deemed to be contrary to the basic principles of Islam. The verdict caused an uproar but had limited impact, for after a few weeks people began to ignore it. More recently, in January 2004, the Supreme Court issued a verdict proclaiming that the appearance of female vocalist Ustad Mahwash on Kabul TV was contrary to the principles of Islam. This time, President Karzai intervened to say publicly that women vocalists had customarily been seen on Kabul TV in previous years, that it was a cultural issue and should be left to the

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Ministry of Information and Culture to decide. The ministry subsequently decided to allow the practice. One may argue about the validity of these rulings on several grounds, one of which is that bringing those issues under the 'basic principles of Islam' is decidedly doubtful. In addition, cable TV includes beneficial programmes and entertainment for families and youth in a country where most of the familiar means of recreation - from public parks to cinemas to museums and architectural relics - have been destroyed because of the decades of war that unleashed its ferocity primarily in the urban centres of Afghanistan10. Kabul lies in ruin and is there for all to see. Now that the 2004 Constitution has even removed the qualification 'basic' from the 'principles of Islam', it would seem that all forms of repugnance to Islam, basic or otherwise, can obstruct statutory legislation. An alternative approach to suggest here might be to reinstate the provisions of the 1923 Constitution of Afghanistan, which only required that careful consideration be given to the principles of Islam in the process of legislation.

G. The Equality Clause and Women's Rights In its chapter on fundamental rights and duties of citizens, the 2004 Constitution provides that any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan -whether man or womanhave equal rights and duties before the law (Art. 22 Constitution 2004). This article may be said to be emphatic on equality even more than its equivalent clause in the 1964 Constitution, which simply provided that '[t]he people of Afghanistan, without any discrimination or preference, have equal rights and obligations before the law' (Art. 25 Constitution 1964). The 2004 Constitution thus took the affirmative stance of the 1964 Constitution a step further by its explicit prohibition of all kinds of discrimination. The phrase 'both male and female' in Art. 22 Constitution 2004 did not exist in the final draft and it was added by the Loya Jirga at the request of a substantial number of its women delegates who proposed this addition to the text. The Bonn Agreement of December 2001, which laid down the basic framework of a new polity for Afghanistan, singled out women's equality before the law as a frame of reference for the new constitution it had envisaged. The Bonn Agreement thus provided for the 'establishment of a broad-based, gendersensitive, multi-ethnic and fully representative government [...] with due regard to the ethnic, geographic and religious composition of Afghanistan and to the importance of the participation of women'". This Agreement also re10

For a discussion of the views of Imam Abu Hamid al-Ghazali (505/1111) and other Muslim jurists on music, dance, and other artistic forms of expression, see Kamali, Freedom of Expression in Islam (1997) 207 f. " See for the Bonn Agreement Annex B, 235 ff.

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instated, with some exceptions, the 1964 Constitution until a new constitution was to be duly promulgated. This affirmative stance on gender equality in the 2004 Constitution can also be seen in its provisions regarding the composition of the two houses of parliament. It provided that the election law must ensure that at least two women from each of the 32 provinces of Afghanistan are included in the Wolesi Jirga (Art. 83 Constitution 2004). In reference to the Meshrano Jirga, the text also provided that the President of the republic must ensure that 50% of its appointed members are selected from among women (Art. 84 Constitution 2004). Both of these articles are unprecedented and mark a milestone of development for women's equality and their participation in public life. The civil code of 1977 which currently governs the subjects of matrimonial law, polygamy, child custody, and divorce in Afghanistan was a step forward from its antecedent, the Marriage Law 1971. Contrary to expectations, the Marriage Law 1971 was totally silent on polygamy, and its provisions on child marriage and divorce were devoid of the kind of family law reforms that had taken place elsewhere in the Middle East, the Maghreb, and Pakistan in the 1950s and '60s. As I have explained elsewhere, most of these reforms were based on igtihad and novel interpretations of the Qur'an on their respective themes. 12 The civil code 1977 (hereafter: AfgCC) introduced only minor reforms on child marriage, polygamy, and divorce which, however, fell short of an adequate response to the demand for more effective measures. With reference to child marriage, the law specified a marriageable age (of 16 and 18 years) for prospective couples (Art. 71 AfgCC), but diluted in the meantime the effect of that provision by providing that a 'valid marriage contract may be concluded by the contracting parties themselves, or by their guardians and representatives' (Art. 77 AfgCC). The law thus fell short of addressing abusive exercise of the power of guardianship in Afghanistan whereby parents, brothers, and uncles often imposed their will on minor and even adult boys and girls. The civil code 1977 also validated polygamy but made it contingent on conditions such as just character of the husband, his financial ability to maintain more than one household, existence of a lawful benefit, and consent of the new wife (Art. 86, 89 AfgCC). But these conditions are not likely to be effective simply because the intending polygamist was not required to obtain a court order in advance to certify that he has, in fact, fulfilled these requirements. The law merely entitles the existing wife to apply for judicial separation on the basis of injury (darar) if the husband failed to fulfil the stipulated conditions (Art. 87, 183 AfgCC). This law once again failed to address the social realities of Afghanistan, for the law places the burden of proof entirely on the wife. It is extremely difficult for an Afghan woman to prove that her 12

For a summary of these reforms, see Kamali (note 7) 154, 189 f.

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husband is unjust and has inflicted injury on her. There is a provision for arbitration if the wife fails to prove her claim of darar but still demands separation, in which case the court may appoint arbitrators to attempt reconciliation between the estranged couple or recommend a separation. Yet even here the law does not stipulate a time limit for this procedure, which could be very protracted and could have been avoided for the most part if polygamy were made dependent on obtaining a court order in the first place. It might have been preferable also if the burden of proof had not been placed on the wife's shoulders alone and a summary procedure of some kind were adopted to diffuse the problem of proof. Under its Islamic Family Law Ordinance 1961, Pakistan provided for a Union Council which must give prior permission to a proposed case of divorce (based on injury) and must be informed, under pain of punitive sanctions. All forms of divorce must be reported to this Council, and no divorce is final until 90 days after the delivery of this notice. An intervening procedure such as this is likely to lighten the wife's predicament of proving her claim of darar because it assigns a certain role and involvement to other parties from the outset. The civil code 1977 recognised the husband's unilateral power of talaq, which he can pronounce either verbally, in writing, or by gesture (Art. 139, 135 AfgCC) without any conditions. He can pronounce a talaq outside the court and need not have any witnesses to be present. The law also recognised judicial separation on certain specified grounds, such as the husband's incurable illness, failure to maintain his wife, absence/desertion for three years without a lawful excuse, the husband's imprisonment for ten years or more, and injury (Art. 89, 176, 191, and 194 AfgCC). Then there are provisions for khufa, a type of divorce initiated by the wife whereby she gives a financial consideration, such as returning the dower she may have received from her husband, and obtains his agreement to the proposed divorce. The lengthy passages of this law on khul c a (Art. 156-176 AfgCC) merely rehash traditional hanafT jurisprudence on the subject. They fail once again to take note of the family law reform measures that other Muslim countries have introduced. As a result of these reforms, many Muslim countries have recognised khul°a as a right of the wife which the court can ultimately enforce even if the husband refuses to agree to it. An Afghan woman's attempt to utilise khul c a under the civil code 1977 can be frustrated simply by the husband's refusal to agree to her proposal. If one were to single out two salient features of Islamic family law reform of the 20. century, one would be the introduction of judicial divorce that basically overruled the husband's unilateral power af talaq and also made khul c a a basic part of the court jurisdiction. The other point of these reforms was to make polygamy dependent on obtaining an advance judicial order by the intending polygamist. The civil code 1977 fell short of incorporating either of these reform measures.

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It may not be necessary to enter into further details on the regime of family law found in the civil code. What seems clear is that this law does not meet the standards of equality before the law that are envisaged in the Bonn Agreement or the equality clauses of either the 2004 or the 1964 Constitution. Therefore, the civil code should be revised so as to reflect these standards, not only with reference to polygamy and divorce but also with regard to all of its provisions that do not comply with these standards. Another development of note here is that on March 5, 2003, Afghanistan signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which came into effect a month later on April 4, 2003. CEDAW is strongly egalitarian and its adoption ushers a new beginning for the future of women's rights in Afghanistan. The UN General Assembly adopted the CEDAW on December 18, 1979, and it came into effect as a treaty on December 3, 1981, 30 days after the 20. member nation ratified it. To date over 180 countries have signed CEDAW, which is a comprehensive bill of rights for women. It is monitored by the CEDAW Committee, a standing UN Committee based in New York. State parties to this Convention are expected to report to the CEDAW Committee one year after ratification, and thereafter every four years. The basic structure of the CEDAW Convention is contained in 30 articles: Art. 1 defines discrimination. Art. 2-4 outline the nature of state obligations that need to be undertaken by the state party in the form of law, policy, and other measures. Art. 5-16 specify areas of discrimination that need to be addressed, including sex roles, stereotyping, customary practices detrimental to women (Art. 4), prostitution (Art. 6), political and public life (Art. 7), citizenship (Art. 9), education and employment (Art. 10-11), health care and family planning (Art. 12), rural women (Art. 14), equality before the law (Art. 15), and marriage and family relationships (Art. 16). Art. 17-30 detail the structure and function of the CEDAW Committee and other procedural matters. H. Conclusion In a paper I presented to the Washington-based International Human Rights Law Group Conference in Kabul on 'Women's Rights, Law and Justice in Afghanistan' in May 2003, entitled 'Islam, Pernicious Custom and Women's Rights in Afghanistan' I wrote that 'tribalism and patriarchal practices tend to adversely affect the rights of women in Afghanistan more than any other single factor, be it economic, political, religious' or the like. This was evident, I added, from the fact that combating pernicious customs in the area of matrimonial law was a central feature of no less than eight statutes introduced in Afghanistan on marriage and divorce since the early 1920s. That challenge is

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still facing us, especially in view of the decades of devastating war that brought Afghanistan to a near-total collapse of law and order. In the absence of a constitutional order and government, tribal custom reasserted itself and expanded even further with the emergence of powerful warlords. It was a bold step by all accounts for Afghanistan to become a signatory to CEDAW. Broadly speaking, conventions create an obligation on the state party to comply with their stipulations, but conventions generally fall short of creating a binding obligation for the courts of justice and other state organs to comply with their provisions. This can be achieved through legislation that would bind the state institutions within its territory. The next phase of anticipated development might be for Afghanistan to adopt CEDAW and its purport through a series of new reformist laws and policy measures. This may also entail a re-examination and revision of some of the existing laws. Whether Afghanistan can actually move in that direction and whether it can make the equality clause of its new constitution a reality is, however, uncertain at present while the country is preoccupied with other pressing problems. The steps that have so far been taken on women's rights and participation in public life were strongly influenced by international opinion, active participation of UNAMA (the United Nations Assistance Mission for Afghanistan) in the constitutional process, and enlightened opinion within Afghanistan. Afghanistan has not yet been engaged in the details of law reform. It seems even doubtful at present whether the new constitution can be implemented in the absence of an effective government in the country, beyond what is necessary to give legitimacy to the present administration. The bill of rights part of the constitution is likely to remain theoretical in the near future. There are some hopeful signs at present, but it will take a great deal of concerted effort, dedication of the Afghan leaders, and international support to meet the challenge of rebuilding Afghanistan and making equality before the law a tangible reality for its people. The Sharfa is likely to play a more important role in legislation, especially in the wake of the constitutional proclamation of an Islamic republic. An enlightened approach to the Sharfa, to matters of interpretation, and to igtihad can be conducive to the establishment of a just government that is observant of its duty to serve the people. A rigid and doctrinaire approach to the Sharfa can, on the other hand, also turn it into an instrument of oppression. What has just been said also relates to the relationship of Sharfa to statutory legislation. The two can be allies and endorse one another in their legitimate goals and objectives, or they can be made to follow a negative course that may undermine one another and the system as a whole. Past experience tends to show that they are not natural allies; to forge a good and purposeful pattern of interaction between them requires resource development and fresh and relevant research as to how to build a people-friendly legal order in which the traditional and the more modern legal acumen can work together to realise the objectives of the new constitution.

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The earlier draft of the 2004 Constitution provided for a constitutional court of nine sitting judges with the main purpose of ensuring harmony between the law and the constitution. The proposed constitutional court was also to act as an authoritative organ on matters of interpretation. That project did not materialise due to many reservations that were levelled against it. Yet I believe that there should be some kind of a similar arrangement - a Sharfa and law research institute, perhaps, to engage scholars and thinkers from both disciplines, a think-tank that would address issues of concern to fundamental rights, implementation of the new constitution, and democratic government through mutually supportive approaches between Sharl°a and statutory law. It is not yet certain, for instance, how an Islamic republic should actually be manifested in practice and what institutional arrangements need to be made to point the country in that direction. The proposed institute could be assigned some specific tasks to begin with. Otherwise, the fear exists that like many of its predecessors, the 2004 Constitution will remain detached from people's lives, in which case it would be seen as yet another failed attempt to give meaning to the idea of government under the rule of law in Afghanistan.

Legal Pluralism and Family Law: An Assessment of the Current Situation in Afghanistan NADJMA Y A S S A R I

A. B.

Introduction Legal Pluralism I. The historical dichotomy between Islamic law and statutory law

C.

II. The Sharf a and customary law III. Customary law versus statutory law IV. Matters of personal status Conclusion

A. Introduction The Afghan Interim Administration established by the Agreement on Provisional Arrangements in Afghanistan for the Re-Establishment of a Permanent Government, known as the Bonn Agreement of December 5, 2001, inherited a legal system devastated by a 23-year long conflict. According to the Bonn Agreement, the 1964 Constitution was applicable until the enactment of a new constitution: on January 26, 2004 the seventh Afghan constitution came into force. Furthermore, existing laws and regulations are applicable to the extent that they are not inconsistent with the Bonn Agreement or with international legal obligations to which Afghanistan is a party 1 . On this basis, all major codifications such as the Civil Code of 1977, the Commercial Code of 1955, the Law on the Jurisdiction and Organisation of the Courts of 19672 (hereafter LJOC) are de jure applicable until new laws are enacted. Pursuant to the Bonn Agreement, Afghanistan is thus theoretically equipped with statutory law with all necessary instruments for the implementation of its codes and the rule of law. However, as in many countries in transition, statutory law is not the only source of law. The question whether the civil code really governs in practice or whether other sources of law, such as uncodified Islamic and customary laws,

1

Part II of the Bonn Agreement entitled Legal Framework and Judicial System, section 1, i and ii; see Annex B, 261 ff. 2 Law on the Jurisdiction and Organisation of the Courts of 1346 (1967), Decree No. 5882189 of September 24, 1967.

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are more frequently applied must be considered in depth to understand the current legal system in Afghanistan. Legal pluralism has many facets. It may describe the fact that in a given society different legal mechanisms apply to identical situations3; it has also been defined as being the result of the 'transfer of whole legal systems across cultural boundaries'4, pointing to legal transplants and the reception of foreign law leading to the co-existence of existing and new laws. It may also relate to the existence of different rules applying to different groups (religious communities or geographic boundaries) within one state. Some refer to legal pluralism whenever state-enacted law and the living law, not necessarily associated with the state, do not correspond5. In its broad conception legal pluralism indicates a complex relation between law and society. There is however little research on the interaction and relationship between the different sources of law: they might not have an ordered relationship; they may conflict with each other; or be different but compatible 6 . Afghanistan may be said to show all of these facets. More recently, some international organisations have conducted field research studies on this issue 7 . 3

Vanderlinden, Le pluralisme juridique, essai de synthèse, in: Le pluralisme juridique, Gilissen (ed.) (1972) 19: 'l'existence, au sein d'une société déterminée, de mécanismes juridiques différents s'appliquant à des situations identiques'. 4 Hooker, Legal Pluralism - An Introduction to Colonial and Neo-colonial Laws (1975) 1. 5 Ehrlich, Grundlegung der Soziologie des Rechts 4 ( 1989) 23. 6 See Woodman, The idea of legal pluralism, in: Legal pluralism in the Arab World, Dupretetal. (eds.) (1999) 16-18. 7 Recently some reports have been published by NGOs working in Afghanistan, see in particular: The International Legal Foundation (IFL), The Customary Laws of Afghanistan (September 2004), a compilation of tribal and customary laws based on field research in the Pashtun areas of Southern and Eastern Afghanistan, conducted by Karim Khurram and Nathalie Rea, (hereafter: IFL-Report 2004); Danish Immigration Service, The political conditions, the security and human rights situation in Afghanistan, Report on fact-finding mission to Kabul, Afghanistan, 20 March to 2 April 2004 (2004), (hereafter: DIS-Report 2004); Women and Children and Legal Research Foundation (WCLRF), BAD, Painful Sedative, Final Report (2004). For this report 468 women ranging from three to 50 years in 11 provinces were interviewed on the issue of badd ie the exchange of women, (hereafter: WCLRF-Report 2004); International Crisis Group (ICG), Afghanistan: Women and Reconstruction (2003) [Asia Report 48], (hereafter: ICG-Report 2003); Lau, Afghanistan's Legal System and its Compatibility with International Human Rights Standards, Report of the International Commission of Jurists (2003) (hereafter: ICJ-Report 2003) ; Amnesty International has published several reports on the legal situation in Afghanistan, most recently: Afghanistan - Women still under attack - a systematic failure to protect (May 2005), AI Index: ASA 11/007/2005 (hereafter: AI-Report 2005); Afghanistan - Re-establishing the rule of law (August 2003), AI Index: ASA 11/ 021/2003 (hereafter: AI-Report 2003). From January to March 2005, field research on family law was conducted by the Max Planck Institute for Foreign Private Law and Private International Law in nine provinces of

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The following article attempts to draw a picture of pluralism in Afghanistan by looking at the legacies of a century of modern legal history and by evaluating information from these field research reports. B. Legal Pluralism When considering Afghanistan's legal system, one can distinguish three in many ways interconnected sources of law: Islamic law 8 , state law and customary law. This is ascribed to a large extent to the legal reforms introduced by Abdul Rahman Khan (ruling 1881-1901), who is seen as the founder of the modern Afghan state 9 . Beside the three sources of law, he had also three kinds of courts established: religious ( S h a r f a ) courts to deal with religious and civil matters, criminal courts which were administered by the chiefs of police or judges, and a board of commerce consisting of merchants, who settled business disputes 10 . Tribal groups had always had their own ways of dispute settlement: the local assemblies or jirgas. Though state structures and a certain degree of administrative unity has been established over the last century in Afghanistan, a unified body of law never emerged; the Afghan legal system relies on the principles of Islam, local customs and the spirit of Afghan tribal codes, and to a much lesser extent on state-enacted statutes. I.

The historical dichotomy between Islamic law and statutory law

The dichotomy between the Sharfa and state law has a long history in Muslim countries. Before the adoption of constitutional forms of government (originating in the West) the legal system of Muslim countries was based on two Afghanistan: Kabul, Kandahar, Herat, Balkh, Nangarhar, Kunduz, Faizabad, Badakhshan, Paktia and Bamiyan. The aim was to find data and information on family laws and assess the sources of law and their interaction. The research was conducted by Mohammad Hamid Saboory and Baryalai Hakimi. The report entitled 'Family and Family Law in Afghanistan: a report on the fact-finding mission to Afghanistan (Kabul, Kandahar, Herat, Balkh, Badakhshan, Bamiyan, Ningarhar, Kunduz Paktia) January 10 - March 17, 2005' will be published in autumn 2005 (hereafter: MPI-Report 2005). 8 By using the expression 'Islamic law', reference is made to the schools of law applicable in Afghanistan. For the purpose of this paper the emphasis on the differences within the schools has been omitted. For the inherent pluralism of 'Islamic law' see Yassari, Islamisches Recht oder Recht der Muslime - Gedanken zu Recht und Religion im Islam: Zeitschrift für vergleichende Rechtswissenschaften 103 (2004) 103-121. 9 See on the reign of Abdul Rahman Khan Rubin, The Fragmentation of Afghanistan 2 (2002) 48-52. 10 Gregorian, The Emergence of Modern Afghanistan - Politics of Reform and Modernization 1880-1946 (1969) 136 f.

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sources: state law (qànun) which served as the basis for public law and administrative regulations, and the Sharfa (in its regional mould) governing matters of civil law and personal status 11 . The early constitutions of Muslim countries upheld the differentiation between Sharfa and state law. In fact, Art. 16 of Afghanistan's first constitution, the nizàmnâma-e asâsî-ye dowlat-e âliye afqànestân of 1923, required all Afghan citizens to obey both the rule of the SharT°a and the laws of the state. No real contradiction was felt in this rule, as different fields of law were addressed. Islamic law and state law have coexisted in Afghanistan for a century, both regulating important sectors of society, whereby their respective jurisdiction also overlapped 12 . The education of the legal elites has been conducted along similar lines: legal education was offered in Islamic seminaries in the Sharfa tradition, as well as in secular institutions of higher education teaching mostly state-enacted law. Even today, the universities are composed of faculties of law and faculties of Sharfa, with different curricula. The relationship between the Sharfa and state law has become more critical with the emergence of the idea of 'Sharfa-based Islamic government' that disrupted the logical structure of division of the previous era 13 . The idea that state law and Islamic law competed emerged, as did the question on the hierarchy of norms. This dichotomy that endured into modern times left some question open. Can this pluralism be incorporated into a modern legal system and the conditions of a modern world? Art. 1 of the new constitution of 2004, proclaims Afghanistan an 'Islamic Republic', and Art. 3 states that no law shall be contrary to the beliefs and provisions of the sacred religion of Islam. On the other hand, Art. 130 Constitution 2004 14 stipulates the priority of statutory law over Islamic law. Islamic law shall only be applicable when no explicit provision in state law exists. The constitution fails to define the 'beliefs and provisions of the sacred religion of Islam' or what the expression 'Islamic Republic' encompass. Do these constitutional postulates in the new constitution imply that the ethical values of Islam govern the interpretation of the laws, or does the constitution (and state-enacted law) set the frame within which Islamic law must operate? 11

See Coulson, A History of Islamic Law (1964) 124. Weinbaum, Legal Elites in Afghan Society: Int. J. Middle East Stud. 12 (1980) 39. 13 See Arjomand, The Role of Religion and the Hanafi and Ja'fari Jurisprudence in the New Constitution of Afghanistan, letter to the Constitutional Commission of Afghanistan of February 6 , 2 0 0 3 published on the internet: . 14 Art. 130 Constitution 2004: The courts shall apply this Constitution and other laws when adjudicating cases. When no provision exists in the Constitution or the law for a case under consideration, the court shall, by following the principles of the Hanafi school of law and within the limitations set forth in this constitution, render a decision that secures justice in the best possible way. 12

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The answers to these questions are difficult. Closely linked to this question is the question as to who is to interpret the constitution. Several models can be found in Islamic countries; be it the religious organ of the shûrà-ye nagahbân in Iran 15 or the Supreme Constitutional Court in Egypt. The proposal to establish a genuine 'Supreme Constitutional Court' was rejected in the drafting process. In the 2004 Constitution two institutions are foreseen: according to Art. 157 an 'Independent Commission for the Supervision of the Implementation of the Constitution' must be created. Furthermore the Supreme Court has the competence to 'review laws, legislative decrees, international treaties and conventions on their compliance with the Constitution and to interpret them, in accordance with the law [...]' (Art. 121). Here again we see a constitutionally instituted dichotomy, very likely to cause serious problems in the future. II. The Shari^a and customary law The traditions and behavioural norms embedded in customary law apply to almost all aspects of Afghan life. Despite this prominent role little research has been conducted on customary law in general 16 and the implications for family law in particular. The most important tribal code is the pashtunwali. Primarily, it is a tribal code of honour 17 , 'the way of the Pashtu' as an integral part of the Pashtu identity 18 . It is thus applied to a wide range of legal fields, in particular to what is generally regarded as criminal law. The dividing lines are however not clear, since the pashtunwali dominates the social relations not only in criminal matters, but also in marriage and property disputes 19 , hence fields that traditionally fell/fall under the jurisdiction of the Sharfa. The relationship between customary law and Islamic law is thus a complex one. Palwasha Kakar argues that, in the Pashtun mind, the pashtunwali has a religious foundation in Islam, therefore, for a Pashtun there is no contradiction between being a Pashtun and practicing pashtunwali, and being Muslim and adhering to Islamic law 20 . Kakar goes on 21 : 15

See Rasekh in this volume, 113 ff. For a comprehensive account of the pashtunwali, see Steul, Pashtunwali - ein Ehrenkodex und seine rechtliche Relevanz (1981); Glatzer, Zum Pashtunwali als ethnisches Selbstportrait, in: Subjekte und Systeme, FS Sigrist (2000) 93-102; most recently IFL-Report 2004 (note 7) on the customary laws in Afghanistan. 17 See Steul (note 16). 18 Kakar, Tribal Law of Pashtunwali and Women's Legislative Authority, paper from the Afghan Legal History Project of Harvard Law School, published on the internet ; Steul (note 16 ) 135 with reference to Spain, The way of the Pathans (1962) 46. 19 Kamali, Law in Afghanistan: A Study of the Constitutions, Matrimonial Law and the Judiciary (1985)4. 20 Kakar (note 18)2-3. 16

50

Sharfa and Private Law 'Even though the Shari'a and pashtunwali overlap in the Pashtun consciousness, they are seen as functioning for a different purpose. The Shari'a represents God's will for humanity on earth and is practiced because it is a moral code whereas pashtunwali is seen as a matter of honor, which to a Pashtun is defined by a person's integrity in upholding and practicing the concepts that make up pashtunwali.'

According to the IFL-Report 2004, when a dispute arises, the parties agree with each other whether the dispute shall be solved 'sharfa-wise' or according to customary law 22 . This question can be of vital importance, since the rules of the pashtunwali more often than not contradict the Shari^a. This is particularly visible in cases where the Pashtun concept of women and their being part of the honour of the men comes into play 23 . Women are considered to be part of the namus24, a concept that Kakar defines as 'that which is defended for honor to be upheld, instead of acted upon to achieve honor (such as hospitality)' 25 . If someone offends the rules of the gendered order, there is reason to act in defence of one's namus. This interpretation and the negative impact of the extreme seclusion of women known as purdah has led to a situation where women have been deprived of their basic rights, granted to them by Islamic law: their consent in matters of their own concern is not taken into consideration, and disobedience to the rules of customs are regarded as crimes and consequently punished by the community 26 . The norms of the pashtunwali rely more on the notion of restorative justice than on retributive justice 27 . Rather then being sent to prison for a committed wrong, the wrongdoer is asked to pay blood money to the victim and ask for forgiveness. The concept of blood money however varies, as in some crimes it requires the giving into marriage of women as compensation for the loss suffered by the victim's family and as a means to pacifying hostile tribal groups or families 28 . The IFL-Report 2004 states 29 :

21

Kakar (note 18)2-3. IFL-Report 2004 (note 7) 7. 23 Comp. Steul (note 16) 140-143 on namüs. 24 Despite its applying to both genders, namus is known to be the 'defence of the honour of women'; see Dupree, Afghanistan (1973) 126. 25 Kakar (note 18)4. 26 IFL-Report 2004 (note 7) 7; WCLRF-Report 2004 (note 7) 15; DIS-Report 2004 (note 7) 50: 'A woman runs the risk of being murdered by her family, if she does not marry the person whom the family has chosen'. 27 Drumbl, Rights, Culture, and Crime. The Role of Rule of Law for the Women of Afghanistan: Columbia Journal of Transnational Law, 42 (2003) 349; AI-Report 2005 (note 7) 36; see also Wardak, in this volume, 82, footnote 38. 28 There are various rules for different crimes applied differently in different tribes; see for the full account IFL-Report 2004. 29 IFL-Report 2004 (note 7) 11. 22

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'Generally, girls are preferred to money, because when the girls are wedded to the victim's family, kinship and blood sharing will transform the severe enmity into friendship.'

Such practices fall under the concept of badd, which literally means exchange, equivalent or revenge 30 . The girls are given in marriage as a token of peace without brideprice (walwar)31. In this the girls and women have no say. The negative effects of these forced marriages are manifold: very often very young girls are wedded to considerably older men32, suffering at best from frustration and at worst from abuse and maltreatment. If the 'severe enmity' does not change into 'friendship' and animosity between the families does not cease, the girl remains in a hostile environment without protection33. Men who are forced into marriage often resort to second marriages34, making family life difficult 35 . Very often child marriages, forced marriage and polygamy are practised as instruments of tribal politics 36 . These practices contradict the Shari°a, basic human rights as well as the regulations of Afghan law 37 . In fact, family law legislation attempted to eliminate badd as early as 1926. Art. 9 of the nizamnama-e nikah, carusi va khatnahsuri of 1926 [Law on Marriage, Weddings and Circumcision] (hereafter Marriage Law 1926) prohibited the practice of badd, as did the qanun-e ezdevag [Marriage Law] of 1960 (Art. 20) and the qaniin-e ezdevag [Marriage Law] of 1971 (Art. 21). However, none of these statutes elaborated the prohibition any further or provided any meaningful 30

Steul (note 16) 153; literally the word 'bad' is the opposite of good. Kamali (note 19) 91; Tapper, Bartered Brides - Politics, Gender and Marriage in an Afghan Tribal Society (1991) 149. More on walwar see below. 32 According to the WCLRF-Report 2004 (note 7) 27 more than 25% of the girls are under 18. 33 On the effects of badd on women, men and society at large see WCLRF-Report 2004 (note 7) 25-32. 34 WCLRF-Report 2004 (note 7) 26. 35 See DIS-Report 2004 (note 7) 50 on forced marriages: '[i]t is customary practice that young women are married against their will to older men, which contributes to a high incidence of suicide among young women'. 36 Kamali (note 19) 4. 37 Afghanistan is signatory of following International Human Rights Conventions: The Convention on the Elimination of all Forms of Discrimination against Women ratified on March 5, 2003; the Optional Protocol of the Convention of the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, ratified on October 19, 2002; the Convention on the Rights of the Child, ratified on April 27, 1994, the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, ratified on June 26, 1987 (reservation in respect of Art. 20 and 30); the International Convention on the Elimination of All Forms of Racial Discrimination, ratified on August 5, 1983 (reservations in respect of membership and jurisdiction of the International Court of Justice Art. 17, 18 and 22); the International Covenant on Economics, Social and Cultural Rights, ratified on April 24, 1983 and the International Covenant on Civil and Political Rights, ratified on April 24, 1983 (reservations in respect of membership provisions Art. 48(1) and (3)). 31

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sanction against breach; badd is still widespread 38 ; according to most reports de facto the situation has not changed to this day. III. Customary law versus statutory law One of the main fields of conflict here is the relationship between the formal administration of justice of the state and the informal dispute resolution systems as practised according to customary tradition 39 . According to Art. 120 Constitution 2004 and Art. 4 LJOC state courts shall have exclusive jurisdiction over all legal disputes. Art. 116 Constitution 2004 foresees a three-tiered court system with courts of first instance, appeal courts and the Supreme Court as last instance. The constitution does, however, not give detailed rules on the structure of the courts. According to Art. 123 Constitution 2004 the rules related to the structure, authority, and performance of the courts and the duties of judges shall be regulated by statutes. Art. 117 Constitution 2004 provides for a nine-member Supreme Court (Stera Mahkama), appointed for a 10-year term by the President with the approval of the House of Elders (Wolesi Jirga). In January 2005 the Temporary Supreme Court of Afghanistan was constituted. President Karzai appointed nine judges, all of them Islamic scholars, including one shfT scholar. According to the constitution, the Temporary Supreme Court will work until the National Assembly (Loya Jirga) is formed; elections for the Afghan Parliament are scheduled for autumn 2005. Art. 44 (a) LJOC provides that specialised family law courts must be established in all provinces. Except for Kabul no such family court has been established yet 40 . In any case, according to the MPI-Report 2005 41 , parties to a family law dispute hardly ever resort to state courts; if and when they do, the judges in some parts of the country refuse to adjudicate the case if no help was previously sought some informal dispute resolution institution 42 . In fact, in many regions of Afghanistan, especially where central state authority is weak or inexistent, people rather turn to community leaders, tribal councils and other forms of mediation and informal justice mechanisms known as shürá or jirga 43 , as opposed to official courts to solve legal disputes 44 . There is however a great 38

WCLRF-Report 2004 (note 7) 18. See Wardak in this volume, 61 ff. 40 Comp. AI-Report-2003 (note 7) 7. 41 See note 7. 42 Confirmed by the AI-Report 2003 (note 7) 45. 43 See on customary law and jirga Wardak in this volume, 61, 62 f. 44 Azabaijani-Moghaddam, Including Marginalised Groups in the Legal System, Conference Paper for the Conference: State Reconstruction and International Engagement in Afghanistan, Center for Development Research, May 30 - June 1, 2003, Bonn, published on the internet: . 39

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disparity in the emphasis placed upon informal justice systems by local populations living in different regions of Afghanistan. The strongest emphasis is placed in the Pashtun areas45. The jirga is generally comprised of prominent male members of the community with established social status and a reputation for piety and fairness who convene to resolve community problems, including those related to land, property, the family and crime 46 . Members of the jirga are interested in reaching a suitable decision according to the prevailing mood of the community as well as the best interest of the community as a whole47. Decisions are taken by consensus and are binding on the parties 48 . They are conveyed orally; there are no written reports49. In their decision-making the jirgas apply different sources of law, including Shari^a law and Afghan custom50. There are, however, no reports on jirgas applying state-enacted law. As mentioned above, in some areas courts would refuse to deal with cases that had not been initially referred to the local jirgas 51 , whereas in others, no such thing has been reported. At the present time, one can only say with certainty that the actual relationship between the various kinds of dispute resolution is largely unregulated. The emphasis on informal, non-state dispute resolution mechanisms is partly explained as a reaction to the imposition of foreign models of justice perceived as being unable to address specific Afghan interests and serve justice 52 . Additionally, unlike state courts 53 , informal settlements of disputes are without substantive delays and are less costly 54 . As Wardak points out, illiteracy also plays an important role in discouraging people from using the formal courts - the overwhelming majority of Afghans are unable to make applications, to read or understand the laws or complete the paper work. According to the ICG-Report 2003, there are also positive incentives to address the informal institutions, especially for women, as women 'know how to lobby influential men, such as village heads or mullahs' 55 . It remains doubtful however whether justice can be served in the best interest of all members of the community, if practices such as badd are still 45

AI-Report 2003 (note 7) 45. See Steul (note 16) 226 and the reported 58 cases on the mentioned issues. 47 Kakar (note 18)2. 48 Steul (note 16) 123; Kakar (note 18) 6. 49 IFL-Report 2004 (note 7) 9; WCLRF-Report 2004 (note 7) 15. 50 AI-Report 2003 (note 7) 45; DIS-Report 2004 (note 7) 38. 51 AI-Report 2003 (note 7) 45. 52 AI-Report 2003 (note 7) 45. 53 Comp. ICJ-Report 2003 (note 7) 22 '[c]ourts are very slow, do not conduct their hearings in public, litigants do not know the law or do not have access to trained lawyers and that there was excessive bureaucracy. In his opinion, the legal system did not encourage people to ask for their own rights'. 54 See Wardak in this volume, 61, 70. 55 ICG-Report 2003 (note 7) 21. 46

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followed and decisions are made in absence of clearly recognised procedures, where conformity with Afghan law (be it Islamic state law or international human rights obligations) cannot be controlled56. Furthermore, the lack of documentation in the process of decision-making can lead to inaccuracies in evidence and thus undermine the value of the jirga as a tribunal for settling disputes57. However, as these informal dispute resolution mechanisms are widespread in Afghanistan, it would be hardly seen advisable to ban them all together. It is more reasonable to link them with the formal court system. The inclusion of informal justice mechanisms must however be approached with care; sentences by the jirgas or shura should be monitored in order to ensure that they are not contrary to basic human rights58, especially in cases regarding criminal law and badd. IV. Matters of personal status 1.

Legislation

Historically, matters of personal status fell under the jurisdiction of the Shar'fa and were governed mostly by hanaft law59, as the majority of Afghans adheres to this school of law60. The first attempt to regulate family law matters by statutory law was undertaken by King Amanullah Khan in the early 1920s (ruling 1919-1929). Amanullah endeavoured to reform the system through statutory law. Indeed Afghanistan's first constitution, the nizamnama-e asasT-ye dolat-e aliye afqanestan of April 1923, triggered the enactment of a plethora of other nizamnama. They were the first written legal documents in Afghanistan. More than 51 nizamnamas were published between 1919 and 192761, among them the Marriage Law 1921 which was incorporated in the abovementioned Marriage Law 1926. An administrative code was issued to transfer the jurisdiction of family matters from religious to civil courts62. Amanullah introduced the right of women to education and the permission to travel abroad for female students for higher education purposes. He attempted to abolish the widespread practice of child marriages 63 and to restrict polygamy 64 . His reforms were however met

56

Comp. AI-Report 2003 (note 7) 46; AI-Report 2005 (note 7) 36. Kamali (note 19)4. 58 DIS-Report 2004 (note 7) 38. 59 Amin, Law, Reform and Revolution in Afghanistan (1992) 90. 60 Vafai, Afghanistan: A Country Law Study (1988) 10. 61 A list of the nizämnäma is accessible on the website of the International Development Law Organization (IDLO), . 62 Vafai (note 60) 12. 63 For a history of child marriages in Afghanistan see Kamali (note 19) 110-129. 64 Gregorian (note 10) 243. 57

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65

with hostility . The advent of secular state-enacted law was rejected by Amanullah's opponents, especially among the clerics, who saw their powers fading in a more educated society 66 . They accused the nizamnama of being unIslamic and in violation of God's laws. When Amanullah ordered the unveiling of women, the enraged mullahs joined forces with the tribesmen who resented Amanullah's centralisation efforts. The King had to make concessions: in the late 1920s he agreed to end female education by the age of 12 and to allow child marriages and polygamy 67 . Under his successors several statutes dealing with family law issues emerged: the Marriage Law 1934, 1949, 1960 and 1971. These statutes can be described as piecemeal legislation, enacted to address very specific questions on particular, mostly economic issues revolving around marriage, such as the expenses for weddings and other family ceremonies. The Marriage Law 1949 for example addressed the financial side of marriage ceremonies and limited the amount of money to be spent for them68. In its preamble the Marriage Law 1949 stated that it was enacted in order to: [...] put an end to the unlawful ceremonies, competition, hypocrisy and useless expenses in marriage, wedding and circumcision celebrations, and in order to carry out the provisions of these regulations, after having explained them to the people; the governors, mayors and heads of villages are responsible and charged with arranging meetings of religious scholars and dignitaries in which they shall personally participate and explain to the people the great damage caused by these ceremonies and the great expenses which are contrary to law and the economic interests and the morals of the people.

The preamble of the Law of Mourning Ceremonies of 1949 took a similar stance: [...] clearly explain to the people that mourning ceremonies shall be carried out in accordance with Divine law, so that all improper customs, useless expenses, and unlawful usages and habits which are detrimental to the morals and the economy of the people are completely stopped.

There is unfortunately very little research and analysis on the actual effect of these statutes69. It may be presumed that they did not really have much impact on behaviour and traditions, since one of the economically most devastating

65

Amin (note 59) 72. Poullada, Reform and Rebellion in Afghanistan 1919-1929 (1973) 120. 67 Stewart, Fire in Afghanistan 1914-1929 (1973) 263, see Art. 3 of the Marriage Law 1926: 'Marriage of minors is permissible, [...] but child marriages cause disharmony, conflict and killing among you', as quoted in Kamali (note 19) 112. 68 Art. 4 of the Marriage Law 1949 forbade for example to serve 'too many sweets', and Art. 3 stipulated that the groom should not be required to pay for the wedding gown of his bride beyond his means. 69 For an account of the fate of these statutes and the practice of extravagant marriage ceremonies see Kamali (note 19) 83-105. 66

Sharfa and Prívate Law

56

traditions of Afghan society, the walwar, as exemplified below, not only survived but is still practised widely in Afghanistan today. In 1977 the Afghan civil code (AfgCC) was enacted, with 2416 articles encompassing all areas of civil law. It is generally based on the hanafT school of law and influenced to some extent by the French code civil as far as capacity for transactions, the requirement for registration of matters of personal status (marriage, divorce, proof of parentage and relationship (Art. 48 AfgCC), and domicile (Art. 51 AfgCC) are concerned 70 . Art. 56-336 AfgCC contain the provisions on family law and cover matrimonial law, polygamy, child custody, and divorce. Soon after its enactment the political situation in Afghanistan became instable, and within a matter of years the reality of applied law revealed that the civil code was hardly used and that people resorted more often than not to the (uncodified) classical hanafT laws. This happened despite the fact that Art. 1 AfgCC stipulates the precedence of statutory law over Islamic law. Islamic law shall only be applicable when no explicit provision in state law exists 71 . Art. 130 Constitution 2004 reiterates the same hierarchy as Art. 1 AfgCC. In practice, however, the opposite is true. Statutory law is hardly applied. The preference of Islamic law over state-enacted law is partly explained by the instable history of changing regimes and rulers in Afghanistan, where Islamic law has been the single constant that has survived a century of law reform and legal insecurity. Surprisingly, even the acceptance by the population of codified Islamic family law has been hesitating. Without exception all surveys of the Afghan legal system observed the fact that Afghanistan's statutory laws and regulations existed on paper only 72 .

2. Marriage customs contrary to state law and Islamic law Nearly all aspects of Afghan society are connected to the structure and function of the family. The family determines social rank, religious adherence, marriage partners, and personal standards of behaviour of each of its members. The kinship system is based primarily on the extended family, comprising the husband, the wife, their married sons with their families, and unmarried daugh-

70

Amin (note 59) 51. Art. 1 AfgCC: 1. In cases where a provision of law exists, the application of religious jurisprudence (egtehâd) is not permitted. [...] 2. In cases where there is no provision in the law, the court shall apply the fundamental principles of hanaf? jurisprudence of the Islamic SharT°a to secure justice in the best possible way. 72 Lau, An Introduction to Afghanistan's Legal System: Yearbook of Islamic and Middle Eastern Law 8 (2001-2002) 27, 29. 71

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73

ters . Given the significance of the family in the scheme of social relationships, marriage is of utmost importance. The preferred marriage partner is considered to be the father's brother's daughter, or failing this, someone in the same large kin group. Economic consideration underlies this aspect, since property transferred to the bride remains in the family 74 . This is why some writers have called marriage in Afghanistan 'essentially a business transaction' 75 . Extravagant wedding expenses involving payment of high brideprices and dower have added to the impression that 'marriage has become the privilege of the wealthy' 76 : the economic aspects of marriage have become great obstacles to marriages, as poor families will not be able to afford the marriage of their members, if they cannot raise the necessary amounts of money. The disastrous marriage expenses have weakened the financial status of the family and exacerbate poverty 77 . The economic interests of the families in the matrimonial affairs of their children are the driving force, and although many rituals and customs are well-intentioned and respond to basic considerations of continuity, many practices revolving around marriage are contrary to Islamic law, statutory law and basic human rights. Besides the limitation of expenditures for the celebration of weddings and other ceremonies, as seen above, the most salient feature of early legislative acts in family law is the prohibition of the brideprice, walwar 78 . Walwar is a tradition whereby the groom has to reimburse the parents of the bride for the financial loss they suffered while raising their daughter 79 . It is thus a sum of money (or commodity) that the groom or his family has to pay to the head of the bride's household 80 . Walwar originates in the tribal tradition of Afghanistan, and viewed from the Pashtun perspective, it is a matter of honour: the higher the walwar, the higher the esteem of the husband's family for the bride. Some have argued that the concept of walwar is wrongly considered as 'selling out girls', since this view ignores the socio-cultural background of the institution81. The idea underlying walwar is to provide some financial relief to the girl's parents while purchasing gold and silver ornaments, clothes, household

73

Smith, Afghanistan: a country study 4 (1980) 97. Smith (note 73) 103. 75 See Smith (note 73) 105. 76 Kamali (note 19) 12. 77 Kamali (note 19) 12. 78 See for an account of walwar in Afghan Turkistan among the Maduzai, Tapper (note 31) 141-156. 79 Kamali (note 19) 84. This practice is also known in other countries of the region, such as shir-baha in Iran. 80 Kamali (note 19) 85. 81 Afridi, Pakhtun Customs Relating to Birth, Marriage and Death: Monthly Diplomat, Pakistani Magazine, . 74

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utensils as dowry etc. for their daughters 82 . However, even if the dowry may be paid out of the walwar, it is not compulsory 83 ; the walwar very often does not benefit the girls nor does it flow into the expenses for the wedding ceremony. The amount of commodities or money acceptable as walwar differs from province to province, as do the social attitudes with regard to walwar 84 . In the 1980s Kamali recorded amounts of 20,000 to 200,000 Afghanis 85 according to geographic areas86, a uniform figure could, however, not be given. The MPIReport 2005 87 revealed the following data: walwar would be from 2,000 US$ (about 85,000 Afghani) to 40,000 US$ (1,700,000 Afghani) for a virgin girl. This amount might be even higher, if the man was already married; it would double for the third marriage and increase further for the fourth marriage88. It is important to add that the amount of walwar can vary according to chastity, beauty, education and family standard of the girl's family. Special attention was given by the legislator to this issue; the need to purge the Afghan way of life of this tradition detrimental to society at large was strongly felt. The Marriage Law 1921 explicitly forbade the practice of walwar, as did its successor, the Marriage Law 1926. Both statutes failed, however, to specify any means of enforcement or sanction in case of infringement. The Marriage Law 1949 contains similar provisions. According to its Art. 5 the bride is denied any further gift (including walwar) in addition to her dower. Art. 6 provides the groom with some means of action and stipulates that the government is authorised to take action in a situation where, after the completion of a valid marriage, the guardian of the bride refuses to allow the bride to join her husband because of his refusal to pay extra money. This provision, however, had hardly a scope of application since normally the brideprice is to be paid before the conclusion of the marriage 89 . Subsequent legislation repeated the prohibition of walwar. The Marriage Law 1971 reiterated the formulation of the 1949 Law: Art. 15 Marriage Law 1971 provided that no one, including the relatives of the bride, may for the purpose of marriage ask or receive under any title any cash or commodity from the groom or his relatives. It goes on by stating that violators will be liable to prosecution and punishment according to law. However, the act failed to 82

Kamali (note 19) 85; Tapper (note 31) 143. Kamali (note 19) 85. 84 See Kamali (note 19) 85, Tapper (note 31) 142: 'A brideprice is customarily seen as the equivalent of one hundred sheep'. 85 In 1969 the average national income per capita was approximately 4,050 Afghani (US$ 90) Smith (note 73) xxxv; in 1977 it was 6,750 Afghani (150 US$) Kamali (note 19) 86. 86 See Kamali (note 19) 85. 87 See note 7. 88 In a case reported from Paktia, a man paid 80,000 US$ (4,000,000 Afghani) as walwar for his third wife. 89 Kamali (note 19) 87; Tapper (note 31) 144. 83

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specify the competent court to hear cases on the matter, the penalties involved, or the way the violator should be prosecuted. The absence of sanctions in the Marriage Law 1971 made Art. 15 inapplicable in practice. The intention of the legislator to eliminate walwar did not include any effective measure for the enforcement of the prohibition or sanctions for violation. The Civil Code of 1977 did not contain any provision on walwar. It is not clear why the civil code, which encompasses all matters of personal status, is completely silent on the matter, considering the importance attached to it in earlier legislation. The legislative measures to discourage expensive weddings and walwar were well-intentioned but ill-planned. No effective measures to sanction their breach emerged, and the practice of walwar has survived a century of attempts to eliminate it. In a country suffering from widespread poverty and unemployment this institution must be reconsidered in view of the fact that many men cannot afford it and are forced to sell their land or travel abroad to earn money for it. C. Conclusion Legal pluralism is the hallmark of Afghan legal reality. Afghan law is a combination of Sharl°a, state legislation and local customary law. Although historically grown, the lack of clarity regarding the relationship between these different sources of law and the absence of guidelines as how to resolve conflicts between them are felt strongly today. The socio-legal reality is not reflected by the formal legal system established under the provisions of the constitution, and the law in the books does not represent the norms that actually govern the lives of the majority of the population. Most writings on the Afghan legal system point to the fact that for ordinary people and villagers, who form the majority of the populace, tribal/customary and Islamic law are more significant and actually better known than any state legislation90. The difficulty in implementing statutory laws also has very practical reasons: many of the statutes are currently unavailable, due to the destruction of archives and the complete breakdown of administrative order during the years of civil war. Their limited practical value is also attributed to the demise of a central political authority as well as to the lack of training of legal professionals and the inability to adapt statutory law (often foreign in its origin) to the Afghan experience 91 . Very often, judges either do not know the law well, or know it but are reluctant to apply it92.

90

Amin (note 59) 66. ICJ-Report (note 7) 29. 92 The lack of knowledge applies not only to state law but also to Islamic law; comp. AIReport 2003 (note 7) 35. 91

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Customs such as badd and walwar have had a negative impact on family structures and society at large. Marriage has become - to a great extent - an economic issue. Legislative attempts to overcome these customs have failed. A change of attitude on part of the population at large concerning the application of rules that infringe upon basic human rights as well as basic Islamic rights is the condition sine qua non for change. As long as practices such as badd are not seen as disgraceful and against human dignity, imposing a system from above will not be successful in Afghanistan. It is impossible to reject the existing body of tribal laws in its entirety, as this will damage the legal reform process, but at the same time discriminatory practices, especially those against women, must be abolished. In changing these practices, history, traditional structures, and the failures of the past must be taken into consideration.

Building a Post-War Justice System in Afghanistan* ALI WARDAK

A. B. C.

Introduction The Afghan Context Key Dimensions of Post-War Justice in Afghanistan I. Sharfa II. Customary law and jirga III. Interim legal framework and the current justice 'system'

D. E. F.

IV. Fundamental principles of human rights and transitional justice Normative Location of Key Dimensions of Post-War Justice Towards an Integrated Model of a PostWar Justice System Conclusion

A. Introduction The formal justice system of Afghanistan has been influenced, to varying degrees, by Western (mainly French) legal thought and moderate Islam, radical Marxism, and by radical interpretations of Islam. These influences, by and large, reflected the values, ideologies, and politics of the various governments that Afghanistan has witnessed since its emergence as a politically organised society. In the 1950s and 1960s, the justice system was modernised and state law, rather than Sharfa, became the primary source of the justice system. After the military coup in 1978, the Marxist government attempted to introduce a Soviet-style judicial system, but these changes were rejected before they took root. The subsequent mugahedln regime of 1992-96 declared Sharfa as the basis of the state, and this was further entrenched by the Taliban's regime. While most of these regimes have partly used their systems of justice as tools for achieving their political goals, they have nevertheless contributed to the richness of Afghan legal culture; there is much within these different doctrines and approaches that could be fruitfully used and integrated in a post-war justice system.

This paper was first published in Crime, Law & Social Change 41 (2004) 319-341. The editor wishes to thank Kluwer Academic Publishers for their permission to republish this article in English and Dari.

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and Private

Law

It is also important to mention that, as the formal Afghan justice system was elitist, corrupt and involved long delays', many Afghans avoided contacts with it. As a result, many Afghans - particularly in rural areas - continued to use traditional institutions of informal justice such as jirga, maraka2, and shura1. Although the practices of these traditional institutions of popular justice sometimes conflicted with Afghan legal norms and with international standards of human rights, they nevertheless resolved tribal and local conflicts expeditiously and in cost-effective ways 4 . Since the establishment of the Afghan Interim Administration (hereafter: AIA) in December 2001 (and later the Afghan Transitional Authority), and the reinstatement of the Constitution of Afghanistan of 1964 and 'existing laws', there has been a new emphasis on the need to incorporate international human rights principles into Afghan justice institutions5. The increasing involvement of the international community and the UN in the social, political and economic reconstruction of Afghanistan appears to necessitate the compatibility of the Afghan justice system with international standards and principles of human rights. In this paper, key dimensions of the post-war justice system in Afghanistan are examined. These are: Sharl°a (Islamic law), traditional informal justice (jirga), 'existing laws' (interim legal framework) and human rights principles. On the basis of an analysis of the interrelationships among these, an experimental integrated model of post-war justice system in Afghanistan is proposed. However, first, it is important to place the subject of examination in this paper

1 Wardak, Structures of Authority and Establishing the Rule of Law in Post-War Afghanistan (2002) [unpublished paper]; International Crisis Group (ICG), Peacebuilding in Afghanistan (2003) [Asia Report 64] (hereafter: ICG-Report). 2 Jirga and maraka involve very similar processes and the main constituent elements of the two are not fundamentally different from one another. Therefore, the concepts are often used interchangeably. However, the fact that jirga deals with serious and important conflicts within the tribe (or between tribes) such as murder, disputes over land, mountain, jangle/woods, and the fact that it operates at a higher level of tribal formation, its social organisation is more structured. Maraka, on the other hand, mostly deals with civil and relatively less serious criminal matters at local village (or inter-village) level, and therefore, it is loosely structured and its related rituals are not as elaborate as those of a tribal jirga are. 3 Carter/Connor, A Preliminary Investigation of Contemporary Afghan Councils (1989) operationally define shura in this way: 'A shura is a group of individuals which meets only in response to a specific need in order to decide how to meet the need. In most cases, this need is to resolve a conflict between individuals, families, groups of families, or whole tribes." This description would seem to indicate that shura and jirga are fundamentally very similar Afghan informal (non-state) mechanisms of conflict resolution that operate in varying social and tribal contexts. 4 Wardak, Jirga: Power and Traditional Conflict Resolution in Afghanistan, in: Law after Ground Zero, Strawson (ed.) (2002). 5 Decree on the Establishment of Afghan Judicial Commission (2002).

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in the general context of Afghan society and nearly a quarter of a century of conflict in the country. B. The Afghan Context Afghanistan is a land-locked country that lies at the crossroad between South and Central Asia. To the North and Northwest of the country lie the former Soviet republics of Uzbekistan, Tajikistan, and Turkmenistan; to the South and East is Pakistan; to the West of Afghanistan lies Iran and to its North-East is China. It is this strategic geo-political location of Afghanistan that has made it both a cross-road between civilisations and a battlefield between competing global and regional powers. The total population of Afghanistan is estimated to be between 20-25 million, composed of various ethnic and tribal groups, most of whom have lived together in the country for centuries. These include Pashtun, Tajik, Hazara, Uzbek, Turkmen, Aimaq, Baluch, Brahui, Nuristani, Pashaie, Pamiri, Kirghiz, Qizilbash, Mongols, Arabs, Gujars, Kohistanis, Wakhis and Jats. Among these, the Pashtuns constitute the largest ethnic group (estimated around 50 percent of the total Afghan population), followed by Tajiks, Hazaras and Uzbeks 6 . Although these various Afghan groups are generally distinguishable from one another by their members' distinct language (or accent) and ethnic origin, for generations trade and commerce, universities/colleges, government institutions and cross-regional employment opportunities have pulled thousands of Afghans from different ethnic/tribal backgrounds to live and work side by side. Furthermore, inter-marriages, service in the national army and police, and participation in shared cultural, religious and social activities have strengthened citizenship at the expense of ethnic/tribal affiliations in urban centers and cities. This interaction among Pashtuns, Tajiks, Hazaras, Uzbaks, Turkmen's and other Afghan ethnic and tribal groups has resulted in a cultural fusion among various Afghan ethnic and tribal cultural traditions at the national level. The richness of Afghan national culture owes much to this century's old multi-cultural fusion. However, since the Soviet military intervention in Afghanistan in 1979, the country has been used as battlefield between competing global and regional powers and groups - a battlefield between the former Communist USSR and the Capitalist West (mainly the USA) in the 1980s; in the 1990s a battlefield 6

Dupree, Afghanistan (1973); Canfield, Ethnic, Regional, and Sectarian Alignments in Afghanistan, in: The State, Religion and Ethnic Politics: Afghanistan, Iran, Pakistan, Banuazizi/Weiner (eds.) (1996); Glatzer, Is Afghanistan on the Brink of Ethnic and Tribal Disintegration?, in: Fundamentalism Reborn? Afghanistan and the Taliban, Maley (ed.) (1998); Wardak, The Tribal and Ethnic Composition of Afghanistan Society, in: Afghanistan: Essential Field Guides to Humanitarian and Conflict Zones, Girardet/Walter (eds.) (2004).

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between Pakistan, the Arab Gulf countries, on the one hand, and Iran and Russia on the other; and more recently a battlefield between foreign Muslim extremist groups and a right-wing US administration. In this process of rivalry, Afghanistan's main immediate neighbours infiltrated deep into Afghan politics. With competing interests in the country, they created their client factions/ warlords and sponsored them militarily, financially and politically. The factions gradually became so dependent on their foreign sponsors that they saw Afghanistan's interests through the eyes of these foreigners. These neighbours also exploited Afghanistan's existing ethnic and religious composition and justified their interventions on the grounds that they had common religious and ethnic ties with their clients. Thus the armed conflict (which continued for several years even after the defeat of the former Red Army) resulted in the extensive destruction of Afghanistan's economic, political and social infrastructure. The Western world, particularly the USA, which lured the Soviets to invade Afghanistan 7 , and strongly supported the Afghan mugâhedïn - Islamic warriors - almost completely abandoned the ruined country after the Red Army was defeated. The destruction of the country's economic infrastructure, particularly, provided opportunities for foreign players and their client Afghan warring factions to exploit the situation, seeking their strategic goals and sectarian interests at the expense of the Afghan population. The almost total collapse of the Afghan pre-war economy gradually resulted in the emergence of a 'war economy' 8 - economic conditions that mainly centred on the manufacturing, repair, use and smuggling of weapons and ammunition, on the one hand, and on the smuggling (and production) of illicit drugs and national treasure on the other. The nearly a quarter of a century long conflict also resulted in a generation of young people who were largely deprived of the opportunity of gaining educational qualifications and other useful skills. This 'war generation' of thousands of young people has been deeply traumatised by the war - many lost their parents, relatives and homes. The various factions were able to recruit their fighters from amongst this war generation, so that the conflict in which they had a stake continued. Fighting for one or other warlord provided these young men with a source of income, social status, and a way of channelling their energies. More importantly, this situation provided the opportunity for foreign Muslim extremist groups - mainly the al-Qaida - to use Afghan soil as headquarters for terrorist activities against other nations. There now exists an increasingly convincing body of evidence, which links the Afghanistan-based al-Qaida to the 7 Brezinzski, Les révélations d'un ancien conseilleur de Carter, in: Le Nouvel Observateur, Troyer (ed.) (1998); Cooley, Unholy Wars Afghanistan - America and International Terrorism (2002). 8 Rubin, The political Economy of War and Peace in Afghanistan (1999); Goodhand, From War Economy to Peace Economy? (2003).

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September 11 terrorist attacks on New York's Twin Towers and on other targets in the United States. In the wake of the US-led military campaign in Afghanistan that resulted in the collapse of the Taliban regime, the Bonn Agreement of December 2001 was signed among the representatives of Northern Alliance warlords, pro-Zahir Shah (former King of Afghanistan) technocrats/intellectuals, and two other small Afghan groups that were mainly based in Pakistan and Iran. Although the four anti-Taliban groups did not consult (or represent) the people of Afghanistan, the Bonn Agreement which was signed in a rush, did open the possibility of a new participatory political order for Afghanistan. It provided a framework of state formation processes that aimed at the eventual creation of a 'broad-based, multi-ethnic and fully representative' government by 2004. The Agreement, which resulted in the establishment of the AIA in December 2001, raised hopes among many Afghans that there was an opportunity to end warlordism in Afghanistan and to rebuild the country's social, political and economic institutions. However, the reinstatement of most warlords as key political and military leaders in the post-Taliban administration, and the US government's emphasis on the 'war against terrorism' rather than on rebuilding Afghanistan, has spread disillusion among many Afghans about the prospects of lasting peace. The US's military and financial support for warlords, who may cooperate in hunting down remnants of the Taliban and alQaida, continues to be a major obstacle to the development of national participatory institutions in Afghanistan, and therefore, a major source of increasing instability in the country. Despite this, the people of Afghanistan still expect the patriotic Afghan leaders/forces and the fair-minded international players to help them lay down the foundations of participatory institutions and lasting peace in the country. Most Afghans see the deployment of the International Security Assistance Force (ISAF), economic reconstruction plans, and the UN-led political stabilisation process in Afghanistan as a unique opportunity for rebuilding their country and for its re-integration into the global community. These efforts may, for the first time in the past 25 years, provide common ground between the interests of the international community and the interests of the ordinary Afghan people. Central to political stabilisation and to the re-building of social and political order in Afghanistan is the establishment of an effective system of justice in the country. In this paper, key dimensions of a post-war justice system in Afghanistan are identified and discussed. One of the most important of these is Sharf a.

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C. Key Dimensions of Post-War Justice in Afghanistan I.

Sharfa

As the overwhelming majority of the people of Afghanistan are Muslim, Islamic teachings and Sharfa permeate various spheres of life in Afghan society. Thus, Sharfa has strongly influenced the development of Afghan justice since the emergence of Afghanistan as a politically organised society. The population of Afghanistan is mainly divided by their religious following into an estimated 80-85 percent of SunnT and 15-20 percent Shfi. The overwhelming majority of Sunnls in Afghanistan are followers of the hanajt school; Afghan S h f i are, by and large, followers of the gacfarT madhhab. Sharfa is an Arabic word, which means 'the path to follow'; it is also used to refer to legislation, legitimacy, and legality in modern Arabic literature. However, Sharfa in a jurisprudential context means Islamic law. The primary sources of Sharfa are the Holy Qur 'an and the Sunna. The first refers to the holy book of Islam, and the second to the statements and deeds of the Prophet Mohammad. However, relatively small portions of the verses of the Qur'an and the contents of the Sunna include legislative material 9 . Taken together, the two do not seemingly provide answers to all types of legal issues. However, the Qur'an and the Sunna do lay down general principles as well specific rules that are subject to interpretation and analysis. Thus, after the death of the Prophet Mohammad, the caliphs (leaders of the Muslim community) and the sahebun (the Prophet's associates) appointed consultants to help in the correct interpretation of the Qur'an and the Sunna and in the extraction of rules (for new situations) that seemingly did not exist in the two primary sources of Sharfa. As a result, qiyas and igma were added as secondary sources of Sharfa. Qiyas, in the context of Islamic jurisprudence, means analogical reasoning. That is, cases and questions not seemingly answered by the primary sources are deduced from similar original cases in the Qur'an, or in the Sunna through a process of reasoning by analogy. This process was handled only by those Islamic jurists who met strict criteria relating to their knowledge, piety and personal integrity; they were also required to fulfil very strict conditions for the kind of cases that were handled by qiyas. The fourth source of Sharfa, igmac, means the consensus of Islamic jurists on a ruling. When qualified Islamic jurists reached a unanimous agreement on solution to a specific new problem, their opinion became binding with absolute authority. In this way the outcomes of both qiyas and igmac were transformed into statements of divine law. This has, in turn, resulted in the documentation 5 Lippman/McConville/Yerushalmi, (1988).

Islamic Criminal Law and Procedure - An Introduction

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and compilation of hundreds of cases and books that are used, today, as references in Islamic jurisprudence 10 . In the process of the consolidation of the Afghan state institutions, particularly in the early 20. century, the hanafT school (alongside traditional customary laws) provided the basis of the Afghan justice system. This version of the Sharfa existed in symbiotic relationships with Afghan customary laws and with sunn! 'folk Islam' that generally reflected the cultural, social and economic realities of every day life of the overwhelming majority of the people of Afghanistan. Ulama (Islamic scholars) interpreted this version of Islam and the Shar'fa and also worked as qadT (judge) in state courts11. However, in order to have control over the ulama and over their interpretation of Islam and SharT°a, the government established the official institution of the society of Islamic scholars/jurists (jami'at al-ulama) and the state-funded Islamic madrasas of dar al-ulum-e arabi and Abu Hanifa in Kabul. While jami'at al-ulama members who were paid very handsome salaries endorsed the government policies, the two official madrasas trained students of Islamic theology and jurisprudence as qadT, or state judges. In the 1950s and 1960s, as Afghanistan's political, economic and cultural relationships increased with the rest of the world, the rulers started to modernise the Afghan justice system in line with those of the Western world. The justice model that Afghan rulers chose to adopt resembled closely the Egyptian model, which was strongly influenced by the French and Ottoman legal systems 12 . In order for the modern Afghan justice system to be run by professional judicial personnel, the faculties of Islamic Law and of Law and Political Science were opened at Kabul University. Thus, the graduates of dar al-ulume arabi and Abu Hanifa were only eligible to work as judges after they had studied modern positive laws as well as Islamic jurisprudence at the Faculty of Shar^a. Similarly students at the judiciary and prosecution branch of the Faculty of Law and Political Science were trained to work as judges mainly in the commercial and administrative sections of the Afghan judiciary. In addition, from the early 1960s all these graduates had to do a nine-month legal training course (including three months on-the-job training) called kadre qazayee. Some working legal professionals/judges and lecturers at the faculties of Islamic Law and Law and Political Science were also sent to the USA and Egypt for further legal training. This modernisation process was also accompanied by the codification of many Afghan laws in the 1960s and 1970s.

10 Wardak, Crime and Social Control in Saudi Arabia, in: Transnational and Comparative Criminology, Sheptycki/Wardak (eds.) (2004). " Oiesen, Islam and Politics in Afghanistan: Monograph Series 67 (1995). 12 Kamali, Law in Afghanistan: A Study of Constitutions, Matrimonial Law and the Judiciary (1985).

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This process gradually resulted in the relative secularisation of the Afghan justice system, especially in the areas of criminal law, commercial law, and general civil law. Thus state law, rather than Sharfa became the primary source of the justice system. Nevertheless, Sharfa remained a secondary source. As Art. 69 Constitution 1964 states: '[...] In the area where no such law exists, the provisions of the Hanafi jurisprudence of the Shari'a of Islam shall be considered as law.' While this justice system appears to have reflected a balance between Islamic Sharfa and modern legal norms, its administration involved long delays, bribery and corruption. Many Afghans, particularly in rural areas, avoided contact with state judicial institutions13. After the 1978 military coup, the Afghan Marxist government attempted to introduce the (former) Soviet-style judicial system in line with its socialist ideological, political and economic goals. However, since the Marxist totalitarian regime was at odds with both Islam and Afghan traditions, the whole system of governance and its judicial reforms (decrees) were massively rejected. After the collapse of the last Afghan Marxist government, the mugahedln government (1992-1996) declared Sharfa as the basis of their 'Islamic State of Afghanistan'. Despite the fact that the various mugahedln groups, which formed the government interpreted Islam in conflicting ways, most of them attempted to impose a totalitarian theocracy of which Sharfa laws were part and parcel. The Taliban's theocratic regime (1996-2001) imposed an even more regressive version of Sharfa much of which reflected their ignorance of Sharfa as well of a system of justice. Despite the over (or under) emphasis on the role of Sharfa in Afghan state institutions by different political regimes, it remains as an important constituent element of post-war Afghan justice. This is recognised by the Bonn Agreement14, which emphasises that the Afghan Judicial Commission and the UN shall rebuild the [Afghan] domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions. Past experiences, indeed, show that it is only that version of Sharfa that is in harmony with Afghan cultural traditions, existing legal norms and fundamental principles of human rights that can make important contributions to a credible post-war justice system in Afghanistan. II. Customary law and jirga The role of the Afghan central government and its formal institutions of justice (courts, police, corrections etc.) in maintaining social order in Afghan society 13

Wardak(note 1). The Bonn Agreement, Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions (2001), see Annex B, 235 ff. 14

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15

has always been limited . This particularly applies to rural Afghanistan, where it is estimated that over 80 percent of the Afghan population live. In some southern and eastern parts of the country, formal institutions of justice have no (or just nominal) existence, and yet there exist a reasonable degree of social order in these areas. A great many potentially serious disputes, relating to domestic violence, divorce, inheritance and marriage are normally settled within the 'private' sphere of the Afghan extended family without the involvement of local/tribal or state institutions 16 . They are dealt with on the spot before becoming a 'public' problem, and a burden on other societal institutions. However, those disputes that are considered 'public' are resolved by public institutions at local and tribal levels. The main institution that has traditionally operated as a mechanism of dispute settlement (at village and tribe levels) is jirga/maraka among the Pashtuns and its approximate equivalent - shura among the non-Pashtuns of Afghanistan 17 . The term jirga according to the Pashto Descriptive Dictionary 18 is an original Pashto word, which in its common usage, refers to the gathering of a few or a large number of people; it also means consultation according to this source. The word jirga is also used in Persian/Dari. According to ghyathul-lughat19 it is derived from jirg, which means a 'wrestling ring', or 'circle', but is commonly used to refer to a gathering of people. Other scholars believe that the word jirga originates from Turkish, where it has a very similar meaning 20 . Jirga in every day practice refers to a local/tribal institution of decisionmaking and dispute settlement that incorporates the prevalent local customary law, institutionalised rituals, and a body of village elders whose collective decision about the resolution of a dispute (or local problem) is binding on the parties involved 21 . Those on the jirga combine 'traditional authority' (based on personal qualities, social status, and leadership skills) as well as 'competent authority' (based on the individual's recognised expertise and skills), which play a central part in achieving a prikra (ruling) that is satisfactory to both parties. One important form of tribal jirga is nanawate, which means seeking forgiveness/pardon and the obligatory acceptance of a truce offer. This happens 15

Wardak (note 13); ICG-Report (note 1). Wardak(note 13). 17 Glatzer (note 6); Carter/Conner (note 3); Farhadi, Tâgïkâne afqànestan va qadamhâ-ye âshtï beyn-e ïshân, in: Qadamhâ-ye âshtî va mas'ulïat-e mâ afqânhâ, Farhadi (ed.) (2000); Hashemi, Qadamhâ-ye âshtï beyn-e uzbakân, in: ibid, Farhadi (éd.); Malekyar, Qadamhâ-ye âshtï va solh dar anânâi-ye hazarâhâ-ye afqânestân, in: ibid, Farhadi (éd.). 18 Pashto Descriptive Dictionary (1978) 1272. 19 Ghyathul-Lughat, in: Maulana Gheyathoddin (1871) 119. 20 Faizad, Girgâhâ-ye bozorg-e mellï-ye afqânestân (1989) 5. 21 Wardak (note 4). 16

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when the tribal jirga makes a prikra (decision) that relatives of the par (guilty party) send a 'delegation' to the victim's house. This consists of a group of people that include elders, a female relative of the offender holding a copy of the Holy Qur'an, and a mullah (Muslim priest), alongside the offender's other close relatives (and sometimes the offender himself) who bring a sheep and flour to the victim's house. The sheep is often slaughtered at the door of the victim's house. Once inside the house, the delegation seeks pardon on behalf of the offender. As it is against the tribal code of behaviour to reject a nanawate, the victim's relatives pardon the offender and the two parties are reconciled. This reconciliation is called rogha. Thus unlike formal state justice, which often labels offenders as different, evil, and excludes them from the community, nanawate reintegrates them into the community. Existing criminological knowledge suggests that reintegrative social control is, by and large, more effective in reducing crime than disintegrative social control, normally exercised by formal state institutions22. The main reasons that Afghan people have preferred jirga/shura to formal justice is because the former is conducted by respected elders with established social status and the reputation for piety and fairness. In many cases, the disputants personally know the local elders and trust them. In addition, in the context of jirga/shura, elders reach decisions in accordance with accepted local traditions/values (customary law) that are deeply ingrained in the collective conscience of the village/tribe - they have a profound existence in the collective mind of the village and in the minds of its individual members. Also unlike state courts, jirga/shura settle disputes without long delays and without financial costs. Illiteracy plays an important role in discouraging people from using the formal courts - the overwhelming majority of Afghans are unable to make applications, read/understand the laws or complete the paper work. However jirga/shura has its own problems: in some cases of murder jirga may recommend badal (direct vengeance), or the marriage of a woman from the par's tribe to the victim's close relative. Although these practices have become increasingly rare in recent years23, the first punishment is in direct conflict with the Afghan state laws, and the second one is a clear violation of fundamental human rights. In addition, jirga/shura is generally a male-only institution; it can also be excessively influenced sometimes by powerful elders. More importantly, in areas where warlords exercise direct control over the population, jirga/shura decisions are influenced (or undermined) by those with guns and money. However, by incorporating jirga/shura into the new justice system, it would conform to the norms of the national legal order of post-war in 22

Braithwaite, Crime, Shame and Reintegration (1989). Johnson/Maley/Thier/Wardak, Afghanistan's Political and Constitutional Development (2003). 23

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Afghanistan. This would, in turn, help to make this traditional patriarchal institution more inclusive of both men and women. But a pre-requisite for all this is a secure social environment where, jirga/shurà and the justice system as a whole could operate without any illegitimate influence by warlords. III. Interim legal framework and the current justice 'system' The AIA that was established as a result of the Bonn Agreement in December 2001 inherited a justice system devastated by the 25 year-long civil conflict in Afghanistan. However, under the Bonn Agreement, the 1964 Constitution and 'existing law' were reinstated with some important modifications. In effect, this constitution and the 'existing laws' currently provide an interim legal framework for Afghanistan. This 'framework' represents a mixture of Sharl°a and positive laws that were enforced until the Marxist coup d'état in 1978. Under the Bonn Agreement, the establishment of an independent Judicial Commission of Afghanistan was authorised. It was envisaged that the Commission (with the assistance of the UN) would provide the opportunity for Afghanistan's best legal scholars and practitioners to review and reform the Afghan domestic justice system. However, in view of the vastly devastated state of the post-war Afghan justice 'system', much of it needs rebuilding and even building from scratch. The Judicial Commission, which has a huge and complex task ahead of it, currently focuses on four major areas of Afghan justice system and legal order: a) b) c)

law reform; assessment and development of technical, logistical and human resources; review of the structure and functions of the justice system and the division of labour among its various components; d) legal aid and access to justice Despite the formal reactivation of the formal Afghan justice 'system' throughout the country, it is far from prepared to deliver justice. It is a hugely devastated institution. The devastation not only includes extensive damage to buildings, office furniture, official records, and essential office equipment, but also includes the lack of qualified judges and other justice personnel. Importantly, it is highly fragmented, with little or no interaction among the judiciary, the police, the prosecution, and the prison/correction service 24 . One of the main reasons for the lack of co-operation between the judiciary and the police is that the latter consist predominantly of Northern Alliance militia who 24 Amnesty International (AI), Afghanistan: Police reconstruction essential for protection of human rights (March 2003), AI Index: ASA 11/003/2003 (hereafter AI-Report 3/2003); Johnson/Maley/Thier/Wardak (note 23); United Nations Development Programme (UNDP), Strategy for Justice System Reform and the Rule of Law (2002).

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are highly dependent on, and more loyal to their factional patrons than to the national AIA. The police, in many ways, are merely an extension of the Northern Alliance's militia, who mainly represents Afghan Tajiks; they have no (or little) basic understanding of policing, and most of the people they police have no trust in them 25 . In addition, corrective regimes and rehabilitative programmes for both adult and young offenders do not currently exist in Afghanistan. Although the juvenile correctional institution, dar al-ta 'adeeb, is nominally functioning in Kabul, the institution has neither the necessary facilities nor the professional personnel to deal with the serious personal and social problems that Afghan young rulebreakers face today. Thus, the current fragmented Afghan justice 'system' is highly ineffective and dysfunctional; it does not operate as a system at all. Similarly, the Afghan prison/correction 'service' has only a very basic existence in the main urban centres; it has no existence at all in many rural districts and some provincial centres 26 . Although the prison service in Kabul was recently transferred from the Ministry of the Interior to the Ministry of Justice, its personnel has not changed. Many of the inmates are political prisoners who live in very overcrowded conditions and are fed by their relatives and friends. The situation in the prisons is particularly serious in Sheberghan and Herat 27 . The sources report that these prisoners are treated in inhuman ways, and many of them suffer from illnesses related to malnutrition and overcrowding; dozens have died since their surrender to the US-led Northern Alliance forces in November 2001. However, Afghanistan has a large body of codified laws including the 1977 Afghan Civil Code, the 1976 Criminal Codes, the amended 1973 Law of Criminal Procedure, and the 1973 Law of Police. Although these laws are currently implemented, they need some important modifications. In addition, as stipulated in the 1964 Constitution, in areas where no law existed the hanafT school of SharT°a is considered as applicable. These various laws, which currently provide the interim legal framework, are to be used as an important element of post-war justice system in Afghanistan.

25

AI-Report 3/2003 (note 24); Johnson/Maley/Thier/Wardak (note 23). AI, Afghanistan: Crumbling prison system desperately in need of human rights (July 2003), AI Index: ASA 11/017/2003 (hereafter: AI-Report 7/2003); Johnson/Maley/Thier/ Wardak (note 23). 27 Ai-Report 7/2003 (note 26); Physicians for Human Rights, Report on Conditions at Sheberghan Prison Northern Afghanistan of January 28, 2002 (2002) . 26

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IV. Fundamental principles of human rights and transitional justice The past 25 years of war have badly brutalised Afghan society as a whole. During this period, serious abuses of human rights and war crimes (by all sides of the conflict) have taken place. These include massacres, looting of houses and property, rapes, revenge killings, illegal imprisonment, the torture and murder of prisoners/POW and assassinations of political opponents 28 . These abuses of human rights continue to be committed by those with guns and money, many of whom currently occupy very important political and military positions in the country29. This legacy of war, poverty, and religious fanaticism have particularly affected Afghan women, who have suffered from both cultural and structural inequalities (and violence) in Afghan society for centuries. The persistence of this situation over the past quarter of a century has produced a 'culture of human rights abuses' - patterns of behaviour and practices that are justified and even positively sanctioned in the shadow of warlordism in Afghanistan. The gravity of this situation has long been recognised by Afghans, the UN and international human rights organisations. While, conformity of post-war justice to 'international instruments ratified by Afghanistan' was emphasised by the Bonn Agreement, the issue of past crime was not. The Bonn Agreement, which authorised the establishment of an independent Human Rights Commission for Afghanistan says: 'The Interim Administration shall, with the assistance of the United Nations, establish an independent Human Rights Commission whose responsibilities will include human rights monitoring, investigation of violations of human rights, and development of domestic human rights institutions.' But the Bonn Agreement that was concluded in a rush and under heavy pressure from the US and its rediscovered allies in the war against terrorism - the Afghan warlords - remained silent with regard to past crimes and a mechanism for investigating them. The need for this was more clearly reflected in the secretary-general's report to the Security Council in December 2001 (C/2002/1157, para. 83), which stated that 'The Afghan people and their international partners must commit themselves to addressing the problems of the past by ending impunity and ensuring accountability for past abuses, including gross and systematic violations of human rights'.

28

AI, Annual Report 2002, AI Index: POL 10/001/2002; Newsweek, The Death Convoy of Afghanistan (2002) 15-25; Rubin, Transitional Justice in Afghanistan: The Anthony Hyman Memorial Lecture (2003). 29 AI-Reports 3/2003 and 7/2003 (note 24 and 26); see also Human Rights Watch Reports: Paying for the Taliban's Crimes: Abuses Against Ethnic Pashtuns in Northern Afghanistan (April 2002); Afghanistan: All Our Hopes are Crashed: Violence and Repression in Western Afghanistan (October 2002); and, Killing You is a Very Easy Thing For Us: Human Rights Abuses in Southeast Afghanistan (July 2003).

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However, a mechanism for addressing crimes of the past, and the role of the 'international partners' was not clarified. Several months later, Mary Robinson, the former United Nations High Commissioner for Human Rights, raised the issue more explicitly and proposed that dealing with past crimes needed to be part and parcel of the process of reconstruction and institutional reform in postwar Afghanistan: 'We know well from past experience, in Afghanistan and elsewhere, that sustainable peace, reconciliation, reconstruction and development cannot be built upon a foundation of impunity [...] There can be no amnesty for perpetrators of war crimes, crimes against humanity and gross violations of human rights. Just as has been the case in Sierra Leone, East Timor, Cambodia, the Former Yugoslavia and Rwanda, so it must be the case for Afghanistan. When we speak of accountability, we refer to an Afghan-led and owned process that has different elements. These are justice, truth telling, reconciliation and institutional reform. [...] All these elements are indispensable.' 30

The lack of political will on part of key international players and the Afghan warlords who dominate the Afghan Transitional Authority means that this valuable advice has yet to be translated into action. One of the most obvious vehicles for implementing this advice is the Afghan Human Right Commission. However, since the birth of the Commission (about two years ago), it has had neither the power nor the resources to accomplish most of the tasks it was assigned. The Commission's work-plan to establish regional offices and 'working groups' in the main centres of Afghanistan has only been partially implemented. Even the 'working groups' that have been established are largely ineffective. The ICG's Asia-Report 4531 says that: 'The working groups - which were to include human rights education, monitoring and investigations, women's human rights, and transitional justice - have been largely ineffective, hobbled in part by changed assignments for individual members.' This raises serious questions about the independence of the 'independent' Human Rights Commission of Afghanistan. Indeed, the problem for Afghanistan is that many of those accused of human rights violations and war crimes are key figures in the Afghan Transitional Authority and military power-holders in various regions of the country. Thus, it is not surprising that since the installation of AIA and its successor, the Afghan Transitional Authority, vast-scale human rights violations have taken place 32 . Changing the 'culture of human rights abuses' needs, as Mary Robinson proposed, concrete inter-institutional efforts with strong and long-term support and commitment by the intentional community. Co-ordination of the activities of the Afghan Human Rights Commission, justice, educational institutions, at local and national levels, is particularly important. As will be discussed later, 30

Robinson, In solidarity with the Afghan people: Towards implementation of the human rights provisions of the Bonn Agreement (2002). 31 ICG, Afghanistan: Judicial Reform and Transitional justice (2003) 14 [Asia Report 45]. 32 AI-Reports 3/2003 and 7/2003 (note 24, 26); Human Rights Watch (note 29).

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with the collaboration of Afghan educational and civil society institutions, the justice system can play an important role both in successful investigation of past abuses of human rights and in effective prevention of future violations. D. Normative Location of Key Dimensions of Post-War Justice What has been so far described would seem to indicate that the establishment of a new justice system in post-war Afghanistan is a complex and multidimensional process. Post-war Afghanistan needs an integrated framework of justice that reflects the interplay between Shar^a, local/tribal institutions of informal justice, the Afghan interim (formal) legal framework, and fundamental principles of human rights. The normative locations of the key dimensions of postwar justice system in Afghanistan are illustrated in Diagram 1 below.

Diagram 1. Normative location of key dimensions of post-war justice in Afghanistan.

Diagram 1 above, shows that as Islamic Shar^a permeates different aspects of Afghan society, it constitutes the innermost part of post-war justice and social order in Afghanistan. What is meant by Sharfa, in this context, is its nonsectarian popular version that is not only part and parcel of the belief system of the overwhelming majority of the people of Afghanistan, but also strongly influences the social and cultural life of Afghan society. This version of Islamic teachings and SharT°a is understood by local people and is closely tied to their daily lives. In order to interpret Sharl°a in ways consistent with the spirit of Islam as well as with the demands of the 21. century, a new body of jami'at al-ulama needs to be established. Comprising

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Afghanistan's best, well-reputed and truly independent Islamic scholars/jurists (both sunn! and shfT), the new jami'at al-ulama would also need to be advised by international legal experts - both from Muslim countries and the Western world. Final decisions made and fatawa (religious decrees) issued by the Afghan jami'at al-ulama would have a binding effect on all (Muslim) Afghans. This would ensure that Sharfa is interpreted prudently and in the Afghan context. This would in turn, help strengthen the validity of a moderate and nonsectarian interpretation of Sharfa at the expense of those 'imported' and used by extremist Islamic groups for their own political agendas. The non-sectarian popular version of Shar^a has, over the centuries, closely interacted with the institutions of jirga/shura and existed in symbiotic relationships with them - the two have influenced one another significantly. Despite the opposition of the Afghan theocratic and Marxist regimes to traditional mechanisms of dispute settlement, jirga/shura has been widely used as the main alternative to the formal Afghan justice 'system'. More recent empirical evidence shows that jirga/shura is very commonly used in the resolution of conflicts in the current post-war situation in Afghanistan 33 . This further confirms that the two internal dimensions of post-war justice in Afghanistan - popular Islam and jirga/shura - are located at the heart of the normative order of Afghan society and are central to its justice system. This point is recognised by the Bonn Agreement, which advises the Afghan Judicial Commission and the UN to rebuild the post-war Afghan domestic justice system in accordance with 'Afghan legal traditions' among other things. The phrase 'Afghan legal traditions' in the context of the Bonn Agreement is elaborated by United Nations Assistance Mission for Afghanistan 34 in this way: 'The issue of Afghan legal tradition refers to the customs, values and sense of justice acceptable to and revered by the people of Afghanistan. Justice, in the end, is what the community as a whole accepts as fair and satisfactory in the case of dispute or conflict, not what the rulers perceive it to be.' Indeed, justice that is imposed by the state is likely to remain 'justice on paper'.

With regard to the external dimension, as Afghanistan is increasingly integrated into the international community, the post-war Afghan justice system must be sensitised to international norms and the fundamental principles of human rights. This dimension can no longer be completely separated from the normative order of Afghan society in the 21. century - Afghanistan, today, is as much part of the emerging 'global culture' as any other nation in the world. There would, however, be a degree of tension/conflict between some aspects of Sharfa and jirga/shura and the Western conception of human rights principles.

33

Johnson/Maley/Thier/Wardak (note 23); UNDP (note 24); ICG (note 1). United Nations Assistance Mission for Afghanistan (UNAMA), The Judicial Commission: Rebuilding the Justice System (2002) 5. 34

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This issue relates to the broader discussion about the 'clash of civilisations' or 'dialogue of civilisations', which is beyond the scope of this paper. However as mentioned earlier, finding solutions to such tension/conflict would be the responsibility of Afghan jami'at al-ulama assisted and advised by international legal experts in the West and in the Islamic world. In the current situation, it is the Afghan interim legal framework which is the centre of gravity. Located in the middle of the Afghan normative order, it has the formal authority to act as a medium of communication between the demands of the external and internal dimensions of post-war justice in Afghanistan - between the demands of the moral order of the Afghan society and the requirements of living in an increasingly 'globalised' international community. It is the future popularly approved Afghan constitution and other laws (the 'existing laws' in the interim period) that would define the role and limits of Islamic SharT°a within a formal legal framework. Likewise, informal local/tribal institutions of informal justice would need to be in harmony with the goals of the Afghan national state, its legal order and general principles of human rights. However, no attempt should be made by formal authorities to codify customary law; jirga/shura must continue to function as a genuinely local institution representing local people and their values/interests. This is to ensure that local people have the ownership of the justice system and are able to apply customary laws flexibly in various local contexts within which different conflicts are resolved. In the same vein, it is also the interim legal framework (and future popularly approved Afghan constitution/other laws) that has the responsibility to define human rights in ways that do not violate the cultural and religious sensibilities of the people of Afghanistan. A degree of conflict does exist between the ways some humans rights are defined by the Universal Declaration of Human Rights and the ways they are understood in an Islamic cultural context 35 . This conflict will not be resolved by a unilateral imposition of a single set of standards by the state and its international supporters. The 'universal' would need to be legitimised and properly understood within the 'particularistic' and culturally relative context of Afghan society at grass roots level. Reaching final decisions about such issues would be mainly the responsibility of the Afghan jami'at al-ulama and Human Rights Commission. Post-war Afghanistan would need to learn from the experiences of other Muslim nations, where human rights principles are integrated, to certain degree, into their domestic laws. This analysis of the interrelationships among the various dimensions of post-war justice in Afghanistan is further translated into an integrated model.

35 An-Na'im, Islam, Islamic Law and the Dilemma o f Cultural Legitimacy for Universal Human Rights, in: Asian Perspectives on Human Rights, Welch/Leary (eds.) (1990).

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E. Towards an Integrated Model of a Post-War Justice System The examination of the key elements of post-war Justice in Afghanistan, above, shows that a reinstated pre-war Afghan justice system (or a superficially reformed one) will not have the capacity to face the challenges of the post-war situation and meet the demands of the 21. century. It points to the need for the development of a new post-war model of justice - an integrated multi-dimensional model that represents Afghan cultural traditions, religious values, legal norms, and at the same time has the capacity to draw on human rights principles. Thus, an experimental model is proposed, which is illustrated in Diagram 2.

Appeal

Acquittal Fine

Prison

Other

Diagram 2. An integrated model of a post-war justice system (district level) in Afghanistan.

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Diagram 2 shows that the post-war justice model proposes the establishment of jirga/shura and a genuinely independent human rights units alongside the existing court of justice (based on SharT°a and positive law) and their integration into the overall system of justice at district level. The jirga/shura unit would be staffed by one or two full-time paid co-ordinators based in a fully equipped local office with a jirga hall. These local officers would replace the amer-e hoquq (law officer) who is closely connected with the formal justice system and has a reputation for corruption. Jirga/shura would be conducted by around half a dozen elected local elders with expertise in traditional dispute settlement and/or legitimate social influence. The elders would be paid only an honorarium (in form of consultancy fees) and travel expenses; the expenses of hosting jirga/shura would also be paid from the public purse. Although not illustrated in the diagram, above, jirga/shura would also advise the district administrator in issues relating to local governance. As Diagram 2 illustrates the jirga/shura unit would mainly deal with minor criminal, and all types of civil incidents at district level. In the case of civil incidents, people would have the choice to start their cases with either jirga/shura, or with the district court of formal justice. However, all serious criminal cases would be dealt with exclusively by the district court of justice, and those cases that jirga/shura fail to resolve satisfactorily would be referred back to the formal process of the district justice system. The referral would be based on a joint decision by jirga/shura, district judge and the district administrator. While paper work and official procedures must be kept to the minimum, the final ruling (prikra) should be communicated to both the district court of justice and the human rights unit to ensure that it is in line with national legal norms and with accepted principles of human rights. In this way, jirga/shura would not only significantly reduce the workload of the court of justice; more importantly, the use of this traditional local/tribal institution of dispute settlement would empower ordinary people to have ownership of the justice processes. In addition, the processes, rituals and outcome of jirga as a traditional tribal/ local Afghan institution resemble closely the spirit, values and principles of 'restorative justice' - one of the most recent paradigms in modern criminology and criminal justice. Although the phrase - 'restorative justice' - is defined differently in different social contexts, it proposes a community based model of justice that places special emphasis on the restoration of dignity, peace, and relationships, between offenders and victims; it provides restitution to victims and promotes the reintegration offenders into the community 36 . The theory of 36

Braithwaite, Setting Standards for Restorative Justice: British Journal of Criminology 42 (2002) 563-577; Braithwaite, Restorative Justice and Responsive Regulation (2001); Braithwaite, Principles of Restorative Justice, in: Restorative Justice and Criminal Justice, Hirsch et al. (eds.) (2003); Bottoms, Some Sociological Reflections on Restorative Justice, in: ibid, Hirsch et al. (eds.); Hudson, Victims and Offenders, in: ibid, Hirsch et al. (eds.); Johnston, Restorative Justice: Ideas, Values, Debates (2001); Van Ness, Proposed Basic

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restorative justice, which emphasises informalism and community involvement, is increasingly translated into practice in different parts of the world, especially in Australia, New Zealand, Canada, and South Africa 37 . The human rights unit, on the other hand, would be run by two full-time truly independent, highly educated and well-reputed officials based in wellequipped local offices. In order to counter-balance the male-dominated jirga unit, these officers should mainly be female (as far as practical in the current situation). In the short term, the unit's officials would act as ambassadors of human rights, and their role would be mainly educational. Liaising closely with district level educational institutions, the human rights officials would prepare educational and human rights awareness materials, and disseminate them in culturally sensitive ways. They would also organise lectures and seminars given by leading nationally recognised human rights activists and other Afghan personalities. However, soon after the district human rights unit is fully established at the local level, it would have the power to pro-actively investigate serious past human rights abuses and war crimes; it would liaise closely with the Independent Afghan Human Rights Commission, compiling serious past human rights abuses and war crimes and reporting them to the Special Court of Human Rights of Afghanistan (or Truth Commission) that Afghanistan would need to establish. The unit would also be the first point of receiving new cases/complaints of human rights abuses, including issues relating to domestic violence (mainly violence against women) and dealing with them in culturally sensitive ways. In addition, the human rights unit would advise the district administrator about local human rights issues, and would have the authority to monitor human rights violations by local government officials as well. It is important to emphasise that the human rights unit must be totally independent from the state, warlords and other political factions. Otherwise, it will become an ineffective body, and even an instrument in the hands of those with guns, power and money for staying in positions of power. The Diagram further illustrates complex interrelationships between the district court of justice, jirga/shura and human rights units: as mentioned earlier, while the final prikra (ruling) of jirga/shura should be reported to both the district court of justice and to the human rights unit, the latter two would consult the former for its mediatory role in cases that need diversion from the formal justice processes. Likewise, jirga/maraka and human rights units would Principles on the Use of Restorative Justice: Recognising the Aims and Limits of Restorative Justice, in: ibid, Hirsch et al. (eds.). 37 Daly, Mind the Gap: Restorative Justice in Theory and Practice, in: (note 36) Hirsch et al. (eds.); Morris/Maxwell, Restorative Justice in New Zealand, in: (note 36) Hirsch et al. (eds.); Roberts/Roach, Restorative Justice in Canada, in: (note 36) Hirsch et al. (eds.); Skelton, Restorative Justice as a Framework for Juvenile Justice Reform: A South African Perspective: British Journal of Criminology 42 (2002) 496-513.

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consult the court of justice about cases that may need to be dealt with in more strictly legalistic ways within the criminal justice system. A positive and constructive interaction between the state and local civil society institutions would provide an integrated inter-agency justice system that is effective, accessible and humane. However, such a system of justice is part and parcel of the processes of démocratisation, institutional reform (and building), disarmament, and the establishment of the rule of law in post-war Afghanistan. It can only, there for, successfully operate in a social and political environment where the rule of law prevails, not the rule of gun and money. F. Conclusion What has been discussed in this paper shows that despite the historical fragmentation and the current devastated state of the Afghan justice system, Afghanistan has a rich legal culture that could partly be used as a basis for rebuilding a new post-war justice system. This legal culture also provides important lessons for Afghans to avoid repeating the mistakes of past rulers of the country who mainly used their systems of justice as an instrument of state control. An unfortunate consequence of this has been the development of justice systems that have been elitist, inaccessible and corrupt, which alienated ordinary people form the state and its formal institutions of justice. This further resulted in the huge lack of communication between the Afghan state and ordinary people, which further widened the 'culture gap' between cities and rural areas in Afghanistan. Thus, it has not been a coincidence that ordinary people, especially in rural Afghanistan, have traditionally preferred not to use formal justice institutions for the resolution of their disputes. The integrated model of post-war justice system in Afghanistan proposes inter-institutional co-ordination between the Afghan formal justice system, informal justice, educational, and human rights institutions. It is argued that the incorporation of jirga/shura into the formal justice system would not only simplify the justice process for ordinary people, more importantly it would enable them to have its ownership. This, it is maintained, would make the justice system more widely accessible, cost-effective, and expeditious. Likewise, addressing issues relating to the vast violation of human rights during the past 25 years of brutal war and challenging the existing 'culture of human rights abuses' effectively, need inter-institutional co-ordination. The creation of a truly independent human rights unit, and its incorporation into the justice system is an effective way of creating awareness about human rights, accounting for past crimes, and preventing future violations of human rights. More importantly, this inter-institutional interaction between the local justice, executive, educational, and civil society institutions would provide an important channel of communication between the state and ordinary Afghan citizens. This would gradually result in the inclusion of women and those with-

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out guns and money into the political, economic and cultural life of the Afghan society. These processes would further pave the way for the gradual replacement of a 'culture of human rights abuses' in Afghan society by a culture of respect for human rights and the rule of law. Indeed, communication plays an important role in social integration38 and in strengthening social solidarity39 that Afghanistan badly needs today. However in order to test the applicability of this model in the real world, it first needs to be thoroughly discussed among Afghan and international legal experts and ordinary people, at grass root level, and then piloted in selected districts in Afghanistan.

38 Habermas, The Theory of Communicative Action, Reason and Rationalisation of Society I (1984). 39 Durkheim, The Division of Labour in Society (1964).

The Position of Women in the Islamic and Afghan Judiciary IRENE SCHNEIDER

A. B.

Introduction Women as Judges I. Classical Islamic Law II. Operative Islamic Law

C.

Women as Witnesses I. Classical Islamic Law II. Operative Islamic Law

After two decades of conflict and civil war, Afghanistan is facing the task of reestablishing the rule of law and rebuilding its political and judicial structures. After the devastating experience of the Taliban regime (1996-2001), which imposed a very regressive version of the Sharfa and was responsible for grave human rights violations, the rebuilding and reform of the judiciary and justice system is of special importance. Women were the main victims of this regime. This article analyses the position and role of women in classical Islamic and modern Afghan judiciary, focusing on the situation of female judges in the judiciary and the role of female witnesses in procedural law. As such, it connects questions on international human rights standards as laid down in the Universal Declaration of Human Rights of 1948 (UDHR) with classical and modern Islamic judiciary and procedural law.

A. Introduction Afghanistan has a rich and complex legal culture. Besides those of the Hindu and Jewish minorities, the main legal system is the Islamic legal system of the hanafi madhhab or school of law, which has dominated Afghanistan ever since the region became Islamic. But there is also a strong shfT minority to be found in the country. Thus, the Sharfa, the Islamic law, has always played an important role in the development of the Afghan justice system. At the beginning of the 20. century, statutory law was introduced by Amanullah (r. 1919-1929) in the nizamnama as an ambitious plan to create a modern Afghan state. Along with traditional customary law, the hanafi school provided the basis for the emerging Afghan justice system. This reform programme had far-reaching effects. On the legislative level, the codification of many of Afghanistan's laws

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was achieved in the 1960s and 1970s. On the jurisdictional level, a modern three-tiered court system was created. The Afghan Constitution of 1964, and especially the Law on the Jurisdiction and Organisation of the Courts of 19671 (hereafter: LJOC), laid down rules for the creation of a modern judiciary. After the military coup in 1978, the Marxist government attempted to introduce a Soviet-style judicial system, but these changes were rejected before they took root. Of greater importance is the strong customary law, especially the pashtunwali2 and other regional customs which constitute an important part of the Afghan legal culture. With regard to the jurisdictional system, the traditional jirga/shura, informal institutions mainly serving to settle disputes by ensuring that the involved parties reached an agreement, are of great practical importance. These institutions enjoy a great deal of acceptance amongst the population, especially in rural and tribal areas. Their competence and legitimacy stems from the renowned skill the tribal and rural - but also urban populations display in settling disputes on the basis of consultation. In January 2004 the new constitution (Constitution 2004) was ratified by the Constitutional Loya Jirga. This new constitution is the latest development in Afghan legal culture, which includes the adherence to such international conventions as UDHR and the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) (Art. 7 Constitution 2004) as well as to the respect for the religion of Islam (Art. 3 Constitution 2004). All these different kinds of rules, customs, and laws have contributed to the richness of the Afghan legal culture and judiciary system, and they can be used as a source for rebuilding a new and modern legislation and a modern judiciary based on the Islamic culture of the country. A useful tool for analysing this complex situation is the concept of 'operative Islamic law' as explicated by the Pakistani lawyer and jurist Shaheen Sardar Ali in her book Gender and Human Rights in Islam and International Law3. Islamic law has always shown a certain flexibility and pluralism. While it is based on the Qur an and the rulings of the Prophet Mohammad, the jurists (faqih) have to deduce the actual legal rulings from these textual sources using hermeneutical methods. The plurality of opinions resulting from this process was institutionalised in different schools of law which coexisted for centuries. But even inside each school it was considered acceptable for jurists to hold different opinions. The acceptance of such a pluralistic situation had its legal justification in the Prophet's saying: 'Blessing upon the plurality in my community.' Beginning in the 19. century, it was further expanded through the 1 Decree No. 588-2189 of September 24, 1967, qänün-e salählyat va tashkllät-e qadä'T-e dawlat-e shähl-ye Afqänestän. 2 See Glatzer, Zum Pashtunwali als ethnisches Selbstportrait, in: Subjekte und Systeme, FS Sigrist (2000) 93-102. 3 Ali, Gender and Human Rights in Islam and International Law. Equal Before Allah, Unequal for Man? (2000).

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influence of modern Western law. Secular legislation (qanun) inspired by European models was introduced, especially in the field of commercial law. This, in turn, made the implementation of a modern judiciary necessary. Thus, the legal systems in the Islamic countries and in Afghanistan today are marked by legal pluralism 4 . 'Operative Islamic law' as defined by Sardar Ali is the law that has evolved over the centuries and, in particular, since the emergence of sovereign nation states and globalisation. It differs in formal and material aspects from classical Islamic law because it comprises not only this form of law, but has also integrated modern developments in Islamic law, Western concepts of law, and popular custom. 'Operative Islamic law' thrives in a plural legal system composed of constitutional/statute law, Islamic law, and customary norms. All three systems coexist and draw on each others' conceptual and normative sources. The socio-economic and political circumstances prevailing within the country also play a crucial role in determining the selective use of these three sets of regulatory norms 5 . However, Sardar Ali points to the fact that while 'operative Islamic law' has a potential advantage in that an interaction between different legal systems may advance justice, the opposite may also be the case 6 . Referring to the situation in Pakistan, she argues: Provisions of law advocating equality between the sexes (as required by the constitution of Pakistan) are disregarded and watered down by reading into these an element of inherent inferiority of women (under certain religious and customary norms). The emergent 'operative Islamic law' therefore evolves on the premise of male dominance and 7 perpetuation of gender hierarchies .

As the Muslim countries are signatories to different international treaties, in particular the UDHR, 'operative Islamic law' also comprises the dimension of international law. Because the standard of pacta sunt servanda, for example, is already made obligatory in the Holy Qur'an (sura 5, verse 1; sura 17, verse 34), it is clear from the ratification of these treaties that the Islamic countries have given up the classical concept of jihad as an offensive concept of war in favour of peaceful coexistence with the other countries of the world 8 . Concerning the national level and material law, the abolishment of slavery by all Islamic countries - an institution which existed through the Middle Ages in Islamic as well as Christian countries and existed in the US until the 19. century - can be taken as an example of the flexibility of Islamic law, its view toward the wellbeing/welfare of society (maslaha), and the principle of justice ( c adala). In Afghanistan, for example, the hazara slaves were set free in the nizamnama 4 Dupret/Berger/Al-Zwaini, Introduction, in: Legal Pluralism in the Arab World, Dupret al. (eds.) (1999); see Yassari, in this volume, 45 ff. 5 Ali(note 3) 188-189. 6 Ali (note 3) 188. 7 Ali (note 3) 188. 8 Ali (note 3) 218.

et

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period in the 1920s9. The question which has to be dealt with here is: what specific feature does 'operative Islamic law' display in Afghanistan with regard to the judiciary and to procedural law? With regard to classical Islamic judiciary, the sequence of courts to be found today in Afghanistan and other Islamic countries represents a development, an expression of 'operative Islamic law' or Islamic law in a modern form. In classical law as laid down in the adab al-qadTX0 literature, the institution of the judge (qadT) is the sole and central institution, with no use being made of institutions of review. According to the classical adab al-qadl, a review of a judgement was only permitted in rare cases, and then normally only by the judge himself or his successor in office 11 . The ruler never had the right to interfere with the judge's jurisdiction. On the other hand, the ruler always had the right to appoint and dismiss the judge and to either give him full jurisdiction or restrict his jurisdiction to certain areas or to certain cases12. Through the power afforded by the siyasa (lit. 'politics, power to administrate the law'), the population was given the chance to turn directly to the ruler and hand in petitions of complaint, especially about the abuse of power by state officials. This institution was called mazalim (lit. 'acts of injustice') 13 . Thus, the modern judiciary system - for example, the three-tiered court system of Afghanistan today - can be seen as an institutional adaptation and development of the classical system to modern times14, fully in line with the principle of maslaha central to classical Islamic law. The main aim of Islamic procedural law has always been the implementation of justice. This is clear from the strict rules regarding the interrogation of litigants and witnesses, and the strict prohibition of influencing their evidence or of the exertion of pressure to gain evidence 15 . Islamic procedural law guarantees the rights of witnesses and litigants and strictly forbids arbitrariness and force used by the qadT16. The main aim of classical and modern Islamic law is to ensure that a fair trial is conducted and to protect the rights of the litigants.

9 Kamali, Law in Afghanistan: A Study of the Constitutions, Matrimonial Law and the Judiciary (1985)204. 10 The expression means literally 'the right behaviour of the judge'. It is the title of that part of Islamic legal literature which comprises rules for the behaviour of the judge and also Islamic procedural law. " Schneider, Das Bild des Richters in der adab al-qädT-Literatur (1990) 224-226; Schneider, Die Merkmale der idealtypischen qädl-Justiz - Kritische Anmerkungen zu Max Webers Kategorisierung der islamischen Rechtsprechung: Der Islam 70 (1993) 154-159. 12 Schneider, Das Bild des Richters in der adab al-qädT-Literatur (1990) 247-252. 13 Schneider, (note 12) 237; see also Schneider, State, Society and Power Relations - A Study in the Late 14"7l9 th Century Petitioning System of Iran (forthcoming). 14 Coulson, A History of Islamic Law (1964) 163-166, 172. 15 Schneider (note 12)66-68, 127-141. 16 Schneider (note 12) 165.

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Concerning the judiciary and procedural law of Afghanistan, mention needs to be made of the nizamnama of Basic Organisations of 1923, which already provided for a three-tiered court system: the primary court {mahkama-ye ibtida'iya) in every administrative district, the court of appeal (mahkama-ye murafaca) in each provincial capital, and the Cassation Board (hayat-e calT-ye tamylz) in the capital 17 . Art. 97 Constitution proclaimed the judiciary to be an 'independent organ of the state which discharges its duties side by side with the legislative and executive organs.' The aforementioned LJOC 1967 set the framework necessary for the establishment of a modern judiciary. A Supreme Court (Stera Mahkama) headed by the Chief Justice 18 and seated in Kabul had the exclusive power to interpret the law and to ascertain the conformity of the law with the principles of the constitution. In the Afghan judicial system established immediately after the Taliban reign, women were greatly underrepresented. No reliable statistics exist, but in 2003 out of approximately two thousand judges, very few were women 19 . While women do hold some key positions - for example, as heads of the juvenile and family courts in Kabul and as members of the Supreme Court - their overall representation in both the judiciary and the university law faculties is low. In interviews with Amnesty International (AI), a number of senior judges expressed a lack of concern for, and even resistance to, the greater inclusion of women in the judiciary. This lack of concern with the under-representation of women is evident, according to AI, in the fact that neither the Supreme Court, the Ministry of Justice, nor the Attorney General's Office possesses any statistical data on the number of women judges and prosecutors 20 . Furthermore, in interviews with AI delegates, many senior judges expressed outright opposition to increasing the number of women judges. Other judges informed the organisation that if there were to be more women in the judiciary, then it would only be appropriate for them to serve in the family and juvenile courts 21 . This reluctance to accept female judges in penal law can also be seen in a statement made by the Deputy Minister of Justice in March 2003. He stated that, according to 17

Kamali (note 9) 212-213. Kamali (note 9) 223. 19 Johnson/Maley/Thier/Wardak, Afghanistan's Political and Constitutional Development (2003) 26; Amnesty International (AI), Afghanistan: Re-establishing the rule of law (August 2003), AI Index: ASA 11/021/2003 (hereafter: AI-Report 8/2003). According to this report, out of a total of 2,006 sitting judges, only approximately 27 were female in 2003. However, the actual number of female judges and professors might be higher. I would like to thank my Afghan colleagues at the conference who supplied me with information about women in the Afghan judiciary, especially Ms Barakzai, a member of the former Constitutional Commission; Prof. Barmaki from the law faculty of the University of Kabul; Ms Kakar, a judge at the Supreme Court in Kabul; and Ms Rasouli, Head of the Children's Court in Kabul. 20 I am thankful to Deputy Chief Justice Mahnavi for informing me in the discussion of my paper that the number of female judges in Afghanistan now amounts to about 200. 21 AI-Report 8/2003 (note 19). 18

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the Qur'an, there are certain types of cases which should not be dealt with by women 22 . However, these types of penal cases were not tried in Afghanistan in the time before and after the Taliban, and Art. 29 Constitution 2004 explicitly forbids punishment contrary to human integrity. The question thus arises as to what the position of women in 'operative Islamic law' in Afghanistan actually is. As 'operative Islamic law' is strongly influenced by the SharT°a, it is first necessary to analyse the position of women in classical Islamic law and the judiciary before trying to determine the position of women in the modern judiciary. B. Women as Judges I.

Classical Islamic Law

Classical Islamic law is based, as is well known, on the text of the Holy Qur'an and the Sunna, the rulings of the Prophet. In the Holy Qur'an there is no text that explicitly forbids women to become judges or to participate in the judiciary system. As a result, there is no unanimously shared opinion in all schools of law that would deny women the right to be judges, but the topic is certainly controversial. Malik (d. 795), Shaft 0 ! (d. 820), and Ahmad b. Hanbal (d. 855), the eponyms of the main sunnl madhhab, were all of the opinion that women lack the competency to hold the post of qadl23. MawardI (d. 1058), the famous Shafi 0 ! jurist and author of al-ahkam al-sultaniyya, a normative book on the constitutional system of medieval Islam, based his view on the argument that jurisdiction (qada') is a part of political leadership (imama), for which a woman is not eligible24. He maintained that one of the requirements for a judge is that he has to be male. Basing his arguments on the traditional exegesis of the Qur'an, sura 4, verse 38 'Men are in charge of women' 25 he actually interpreted the part of the verse that says 'what God has provided to them over what he has provided to women' as meaning reason (caq[) and insight (racy). Thus, he concluded: 'It is not allowed that they (ie women) stand above men' 26 . However, in the hanafi law school - which is dominant in Afghanistan - one finds a different opinion based on Abu Hanlfa (d. 767), eponym of the hanafi 22 See Danish Immigration Service, The political, security and human rights situation in Afghanistan, Report on fact-finding mission to Kabul, Afghanistan, 22 September to 5 October 2002 (7/2002), (hereafter: DIS-Report 2002) 36. 23 Ibn Rushd, Bidäyat al-mugtahid 6 II (1983) 460. 24 Al-MäwardI, Adab al-qädi II (1971) 625-627; Tanzil-Ur-Rahman, Adab al-qädT: Islamic Studies 5 (1966) 199-207 (201), on this problem see also: Moosa, Women's Eligibility for the Qadiship: Awraq 19 (1998) 203-227. 25 Al-MäwardT (note 24) 627. 26 Al-Mäwardi (note 24).

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school. According to him, a woman could act as a qadl. But Abu HanTfa restricted a woman's judgement to those matters wherein the evidence of a woman was held to be permissible in law. This meant an exclusion of women in the law of criminal procedure, especially in cases of hudud27 and qisas28. The hanafi jurist KasanI (d. 1191) thus did not include - as MawardT had - the male sex as one of the conditions for the appointment as a judge, because, according to him, a woman could preside as a judge over property cases for example, excluding hudud and qisas cases29. This seems to match the aforementioned situation in Afghanistan today, where although there are female judges, they are few and there is a strong reluctance to let them preside over penal cases. Women are not unanimously denied access to penal jurisdiction. Malik who denied women the right to even preside over civil matters, collected and inserted an interesting report in his main legal work, the muwatta'30. It is a tradition reported by c Amra bt. °Abdarrahman (d. around 721) from c A'isha (d. 678), the Prophet's beloved wife. °A'isha played an important role in the transmission of legal and religious rulings from the Prophet and is accepted in the Islamic traditional literature as one of the main authorities on the opinions of the Prophet Muhammad31. According to this tradition, °A'isha, whom Muhammad is said to have loved most among his wives, acted as a judge in a criminal case, that is, in a judgement of hudud, in a case of theft. c A'isha interrogated a slave suspected of theft and then gave the order for his hand to be cut off. She relied on a saying of the Prophet: 'A thief s hand is cut off for a quarter of a dinar and upwards.' cAmra bt. cAbdarrahman, the transmitter of this tradition and a well-known and accepted traditionalist32, corrected the judgement of her nephew when he wanted to cut off the hand of a man who stole some worthless iron rings. She wrote to him: '°Amra tells you not to cut off the hand except for a quarter of a dinar or more.' By giving this verdict she obviously did not refer to c A'isha's decision but considered herself competent to correct the decision of a male judge on the basis of a ruling of the Prophet she knew of 33 . c A'isha and c Amra both acted as independent judges basing their decisions on the ruling of the Prophet. Whereas the actions of the companions and the wives of the Prophet (and here especially c A'isha) are usually con-

27 Hudud, pi. of hadd (lit. 'borders') are the crimes for which punishments were fixed in the Qur'an, eg, the cutting off of the hand for theft; see Schacht, An Introduction to Islamic law (1964) 175. 28 Qisas (lit. 'retaliation'), see Schacht (note 27) 181. 29 Al-Kasam, Bada'i0 as-sana'i c fi tartlb al-shara'ic2 VII (1982) 3; Ibn Rushd (note 23) 460; Al-Mawardi (note 24) 625-628. 30 Malik bin Anas, Al-Muwatta' (1988) 634. 31 Roded, Women in Islamic Biographical Collections (1994) 26-29. 32 Roded (note 31) 48. 33 Malik bin Anas (note 30) 643: inna camra taqulu laka: la qat'a ilia ft rubu° dinar fa-sacida.

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sidered to be normative among the Islamic jurists, this report is never referred to in discussions of whether women should participate in Islamic judiciary. Furthermore, the renowned historian and faqlh Abü Jarlr at-Tabarl (d. 923), author of the classical exegesis (tafsir) of the Qur'án, who held the opinion that the jurisdiction of women is possible in all legal matters, based his opinion on another reasoning 34 . He drew an analogy between jurisdiction and legal responses (futya). Women were never denied the competence to give legal opinions (fatáwá) and thus act as mufti according to all schools of law. This is why, TabarT argued, they were also capable of passing a judgement (hukm). Thus, on the level of legal discourse, there is no clear argument prohibiting women from becoming judges in classical Islamic law. This reflects the fact that no text (nass) in the Qur'an and Sunna unambiguously speaks out against the participation of women in the judiciary. In legal practice, however, women were obviously denied access to judgeship. When we consider the role women played in Islamic scholarship, however, it is clearly evident that they were actively involved in teaching and transmitting the rulings of the Prophet 35 , but not in teaching Islamic law and jurisprudence (Jiqh). In his analysis on 'Women and Islamic Education' in the Mamluk period (Egypt 13.-16. century), Bereky states that many women were associated with colleges (madaris) as benefactors, supplying the endowments necessary to establish and maintain the schools. But they played virtually no role, either as professor or students, in the systematic legal education offered in the madáris36. Roded, who analysed the biographical collections with regard to the role of women, stated that among the numerous learned women in the dictionaries, women's knowledge of Islamic law is only specified in about a dozen cases. She quotes the case of Fatima of Samarqand (12. century) who lived in Aleppo and studied hanafi law with her father. Legal decisions were issued under both of their names. She married her father's student, who was noted for his treatise on legal innovations. Nevertheless, Fatima's proficiency in law was such that when her husband prepared legal opinions, she would correct his errors, and he deferred to her judgement. His accomplishments notwithstanding, his name was added to legal decisions issued by Fatima and her father 37 .

34

Al-Mäwardl (note 24) 626 f. Roded (note 31) 80-84; Schneider, Gelehrte Frauen des 5./11. bis 7./13. Jhs. nach dem biographischen Werk des DahabT (st. 748/1347): Proceedings of the XVIII. Congress of the Union Européenne des Arabisants et Islamisants, held at the Katholieke Universiteit Leuven September 3-9 (1996) 107 ff. 36 Berkey, Women and Islamic Education in the Mamluk Period, in: Women in Middle Eastern History, Keddie/Baron (eds.) (1992) 144-145. 37 Roded (note 31) 80-81. 35

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II. Operative Islamic Law Modern interpreters have tried to deal with the problem by pointing to the spirit of equality implicit in Islam, which, according to them, includes equality between the sexes. J. Moosa writes38: The controversial question among the different schools of Islamic (common) law (or Shari'a) is whether a woman is competent to be appointed as a qadl. The views of the jurists (founders of these schools) on the matter, although based on (their) interpretations of the primary sources of Islam [...] are nonetheless subjective and man-made. It can, for example, be argued that women can/cannot be judges or that Muslim countries can/cannot ratify human rights instruments because a basis and validation for conflicting views on particular human rights issues can be found in the same corpus of Islamic law which is ambiguous in many respects. The same pattern is evident with matters relating to the existence-expansion/non-existence-constriction of women's rights. This paper asserts that in order to deal with these conflicts guidance must ultimately be sought in the spirit of equality implicit in (canonical) Islam.

Putting aside the different possible interpretations, which only represent the pluralism inherent in Islamic law, it would seem more useful to analyse the situation of 'operative Islamic law' as actively practised in Afghanistan and for reasons of comparison - in other Islamic countries. In 1971 the judge of the Supreme Court of Afghanistan, Walid Huquqi, gave the following statement regarding the controversy about female judges 39 : The Holy Qur'an does ing the very important support of employing possibility of women's

not forbid women from participation in public functions includarea of judicial service. Notwithstanding many good reasons in women in judicial posts, fanaticism practically foreclosed the participation in the judiciary.

On the basis of the 1964 Constitution, the Supreme Court employed women in judicial posts for the first time in 1969. The LJOC 1967 contains no rule barring women from participating in the judiciary. Art. 75 LJOC deals with the necessary requirements for the appointment of a judge. It states that judges must have possessed the Afghan nationality for at least 10 years, must not have been deprived by a court of their political rights, must be at least 26 years of age, etc. No mention is made of the male sex as a necessary condition. The preamble to the 2004 Constitution states Afghanistan's commitment to comply with the United Nations Charter and to observe the UDHR. Afghanistan has also signed the CEDAW. Furthermore Art. 22 Constitution 2004 states that the citizens of Afghanistan - whether men or women - have equal rights and duties before the law. So the question arises as to why only few women are practising as judges and why there is reluctance to admit women to the bench in penal processes. The argument brought forward by the Deputy Minister of Justice

38 39

Moosa (note 24) 204-205. Quoted in Kamali (note 9) 231.

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refers to the Qur'anic punishments, ie the aforementioned hudud 40 . However, there is no text on prohibiting women from becoming judges in these cases. As there is no clear nass that speaks out against women participating in the judiciary, the reasons for the low number of female judges must be sought elsewhere. In this context it seems necessary to compare the situation in Afghanistan to the actual situation in other Islamic countries. In Iraq, where political structures broke down due to the intervention of US military forces, the US Marine Colonel supervising the reconstruction of Najaf indefinitely postponed the swearing in of its first-ever female judge on July 31, 2003, after her appointment had provoked a wave of resentment, including fatawa, legal responses, from senior Islamic clerics and heated protest by the city's lawyers 41 . In Iran, women can only become assistant judges and may not be signatories to a judgement. However, in 2003 the first Muslim woman, Shirin Ebadi, won the Nobel Peace Prize. Ebadi had been Iran's first female judge in 1969, prior to the Islamic Revolution, and currently works as an attorney, providing legal representation for victims of political persecution and fighting for the rights of women and children in Iran42. In Algeria, women can become judges, and in 1998 out of 2,324 judges 547 were women working in all legal fields. In the Algerian Ministry of Justice there are 29 female judges out of a total of 95. But it is not clear from this report whether female judges are also permitted to pass judgement in penal cases43. In Tunisia, women have access to judicial office as well44. It has been reported that 25% of the judiciary was represented by women in 2002. In Nigeria the first female Chief Justice, Justice Rosaline Omotosho, succeeded a male judge; she held the office of Chief Justice from April 12, 1995, to February 27, 199645. In Sudan, women have been integrated into the judiciary after receiving training in special courses forjudges, equipping them to deal with all domains of the law, including penal law and entailing the setting of hadd punishments. There is evidence of women being nominated to the civil chamber within the court of the Mudiriyya in Khartoum and to a Court of Appeal. In November 1984 President Numayri decided to form an International Judicial Council ( M a j l i s al-qada' alc AlamT) and committed himself to appointing a woman to Sudan's Supreme Court46. In Egypt, which is normally considered one of the progressive Islamic

40

DIS-Report 2002 (note 22). middleeastinfo.org/article3118.html. 42 Middle East Media Research Institute, Special Dispatch Series, No. 596, October 24, 2003; see also: ; Interview with Amir Taheri of October 19, 2003. 43 . 44 . 45 . 46 Layish/Warburg, The Reinstatement of Islamic Law in Sudan under Numayri (2002) 255. 41

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countries, the first female judge did not assume her post until 2003. Ms al-Jibali was appointed to the Supreme Constitutional Court47. Egyptian women have been striving to attain the bench for over 50 years, Egypt being the cradle of the Arab women's movement. However, the campaign for women judges has come up against entrenched attitudes. Negus reports that, if asked, a large percentage of the population would say that women are not fit to sit on the bench, claiming that they are too easily swayed by their emotions and would be too soft on criminals. However, both major state theologians, the Grand mufti and the Grand shaykh of al-azhar, have made statements favourable to the appointment of women judges; so has the Supreme Guide of the Muslim Brothers. Analysing the situation in other Islamic countries, it becomes clear that female judges in the Islamic world are not a normal feature of the legal system. At the same time, though, exact statistics and information are difficult to obtain, and as of yet little research has been done on the topic. In comparison to these countries, Afghanistan may even be regarded as one of the more progressive Islamic countries. This is not only shown by the statement of Walid Huquqi quoted above as an expression of 'operative Islamic law' in Afghanistan, but is also evident in the aforementioned statutory law and the practice of appointing women that began in 1969. There are, as it seems, no general restrictions imposed on female Afghan judges. Unlike their female colleagues in Iran, Afghan female judges can sign their judgements and, it appears, may also be criminal law judges, at least according to the statute book. Thus, we can infer that there is obviously a strong tendency in Afghan 'operative Islamic law' to accept female participation in the judiciary, a tendency that is indeed older than those in other Islamic countries and predates such developments even in Egypt 48 . When considering the participation of women in the jurisdictional system in 'operative Islamic law', it is necessary not only to investigate the existing laws and the position of the Shar^a, but also to take into consideration legal practice in particular. This is the point where the informal justice mechanisms of Afghanistan, known as jirga/shürá, have to be considered. What is the role of women in these institutions? The emphasis on informal, non-judicial mechanisms for resolving disputes has been described partly as a reaction to the imposition of foreign models of justice (especially in the time of Soviet rule), which were perceived by Afghans as being incapable of properly serving the 47 Negus, Cairo Makes Belated Progress on Gender Equality (2003): . 48 Discrimination does occur, however: in 2002 the Supreme Court dismissed a female judge for not wearing the hegáb during a meeting with US President George W. Bush. Marziya Basil was among a group of 14 female government officials who attended computer and management courses in Washington. She was sacked days after her return to Kabul. See: from 12.03.04.

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interests of justice. The prevalent lack of confidence in formal justice mechanisms, combined with recent delays in rebuilding a formal judicial system, has perpetuated a strong reliance on informal justice systems in many areas. It is noteworthy that prior to the Taliban takeover, it seems not to have been unusual for villages in some districts to have had women's shura, or even sometimes for women to participate in a mixed shura49. And, what is more important: in the Constitutional Loya Jirga, one-fifth of the members were women. This important jirga on the national level could well serve as a top-down model for the jirgas and shuras on the local levels 50 . It has to be stated here that in the 1970s the Ministry of Justice had already introduced an experimental scheme for establishing local reconciliation councils, the so-called jirga-ye solh. Eight councils were set up in various localities across the province of Kabul in 1974. These were authorised to deal with minor civil, property, and family disputes; they were organised under the supervision of the local primary courts; and their main function was to settle disputes through the agreement of the parties. Surely, as Kamali argues in his book in 198551, this scheme would also flourish at the beginning of the 21. century among tribesmen known for their skill in employing consultation to settle disputes. However, at the same time, these institutions on the local level pose several problems: First, women are not always allowed to participate. Second, as there are no court records, there is so far no transparency in terms of litigation and settlement. And, third, these jirga/shura often act as instances of criminal justice. In the past, customary practices which are sometimes absolutely contradictory to Islamic law have been sanctioned by local jirga/shura, such as the custom of badd. This means, for example, that girls are brokered to meet debts or are offered as a settlement to resolve conflicts arising from feuds 52 . These practices contradict not only international human rights standards, but also contravene Islamic law and the statutory law of Afghanistan 53 . The Marriage Law of 1971 simply enacted that 'marriage may not be contracted in exchange of pore and badd' (Art. 21). The solution to this problem is to be found in the question of whether and to what extent it will be possible to preserve, on the one hand, a useful decision-making institution such as the jirga/shura, rooted particularly in rural and tribal society and backed by tradi49

Johnson/Maley/Thier/Wardak (note 19)30. Ali (note 3) 135 also argues for the usefulness of the top-down approach to women's participation in public life, citing for instance the example of Benazir Bhutto, elected Prime Minister of Pakistan in 1988. 51 Kamali (note 9) 198-199. 52 Another practice forbidden in Islam is shighar, the exchange of women to minimise the dowry. 53 Kamali (note 9) 91; Johnson/Maley/Thier/Wardak (note 19) 7, argue that is necessary to harness the authority of these local councils. They write: 'While they are unable to do much about major warfare, elders and community groups have shown themselves capable of defusing the law-level insecurity that can make life a misery for ordinary citizens'. 50

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tion, and to control, on the other hand, the scope of jurisdiction to be exercised by these institutions. To sum up: in all parts of operational Islamic law in Afghanistan, even in traditional law as represented in the meetings of the jirga/shura, women can and do participate, but are outnumbered heavily by men. There is still an extremely strong reluctance, as evident in statements made by male jurists and judges, to accept women in these positions. As in other Islamic countries, the social practice and the traditional structure of society, based on a patriarchal system, play an important role in Afghanistan. As Sardar Ali argues for Pakistan, women have a layered identity, each 'layer' outlining certain rights and obligations. Customary practices are not uniform and vary from region to region; this is true not only for Pakistan, where Pashtuns live as well, but also for the multi-ethnic society of Afghanistan. Yet the same trend seems to be asserting itself in both Pakistan and Afghanistan (and other Islamic countries): women being forced into subordinate positions in line with traditional perceptions of society and family life. Ali argues 54 : This notion is so deeply entrenched in the popular psyche, that even where religion and formal law gives a certain right to women, its denial by sheer force of custom invariably prevails.

This social perception of women's subordination is often justified by pseudoscientific and pseudo-psychological arguments: a woman's mental state and sensitivity, her biological disposition as the bearer of children, etc. make her unable to take part in society on the same level as men. This 'biological' theory is, by the way, not altogether unknown in Western history: in late 19. century Europe, biology was used to argue that women were ruled by their - unruly emotions, less likely to listen to the voice of reason, and were therefore a potential danger that had to be contained55. This pseudo-scientific perspective was turned in late 19. century England and other European countries into a powerful and convincing argument against the full public participation of women 56 . Schwarz argues convincingly that, given the dramatic social transformation stemming from the Industrial Revolution and confronted with the uncertainty of a life in which relations and gender concepts changed in line with its material conditions, men employed the language of science to (re-) define woman's 'proper' place of subordination57. However, 'operative Islamic law' in Afghanistan, which had already granted women the right to be judges in the 1970s, and the argument put forward by 54

Ali (note 3) 174. Schwarz, 'They cannot choose but to be women': Stereotypes of Femininity and Ideals of Womanliness in Late Victorian and Edwardian Britain, in: Political Reform in Britain, 1866-1996, Jordan/Kaiser (eds.) (1997) 133-150 (147). 56 Schwarz (note 55) 133-150. 57 Schwarz (note 55) 133-150 (133, 149). 55

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Walid Huquqi, show that this kind of biological argumentation, rooted in the traditional structure of Afghan society, no longer seems to be appropriate in Afghanistan, where women have acted and still act as female judges. This impression is underlined by Art. 54 Constitution 2004, which explicitly calls for 'the elimination of traditions contrary to the principles of the sacred religion of Islam'. To overcome the difficulties women still confront in a highly traditional society, Kamali has argued in his analysis of the Afghan judiciary that, in a first step, the number of women in family courts should be increased. He argues that in both urban centres and rural areas the people could be persuaded by the logic of having a woman judge presiding over family disputes, as traditionally it is even more acceptable for women to communicate with other women. Any legislation and court regulation that concerns women should emphasise attendance in person and eliminate, as far as possible, women's representation through agents, guardians, and proxies58. Concerning the percentage of women at law and Sharfa faculties, Iran in particular is an example of an interesting development: the number of women with a traditional training in the classical sources of law such as the Qur'an and the sayings of the Prophet are increasing, and many feminists - even if they believe in different social roles for men and women - are trying to accommodate to current needs by reinterpreting the scriptures59. They actively take part in the legal discourses in their countries and vote on the basis of the inherent dynamism of the Shari°a for an interpretation of the texts that gives more emphasis to the equality between the sexes.

C. Women as Witnesses I.

Classical Islamic Law

Regarding the question of the role of women as witnesses, there is a text in the Holy Qur'ân sura 2, verse 282: O ye who believe! When ye deal with each other, In transactions involving future obligations In a fixed period of time, Reduce them to writing ... And get two witnesses, Out of your own men. And if there are not two men, Then a man and two women, Such as ye choose, For witnesses, So that if one of them errs. The other can remind her.

The opinion prevails that in classical Islamic procedural law a woman's testimony has thus been normally considered worth half that of a man's. But the problem is more complicated than it seems at first sight. All schools of law agree that the number of witnesses in all cases with the exception of unlawful 58

Kamali (note 9) 198. Kar, Women's Strategies in Iran from the 1979 Revolution to 1999, in: Globalization, Gender and Religion, Bayes/Tohidi (eds.) (2001) 186. 59

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intercourse (zinà) is to be two males, and that in property cases there have to be two male witnesses or one man and two women. There are, however, differences in the acceptance granted to the testimony of women in the hudud, which is not accepted by the majority of jurists but by the zàhiri madhhab if there is a man among them and if there is more than one woman 60 . Abu Hanlfa accepted women as witnesses, not in hudud but in cases concerning the body, such as divorce, returning to one's wife after divorce, marriage, and manumission; Malik, however, refused to accept the testimony of women in cases concerning the body 61 . On the other hand, in issues of fact dealing exclusively with the female body, the testimony of two female witnesses, when corroborated by a male witness, is enough to win the claim 62 . In his article Two Women, One Man, Mohammad Fadel argues 63 : Instead of the cliché that in Islamic law, a woman's word is worth half of a man's, a more meaningful characterization of Islamic evidentiary discrimination against women would be that medieval Islamic law imagines legal disputes taking place across a public-private continuum. Because public space is regarded as man's space, the admissibility of women's testimony gradually decreases as the nature of the claim acquires more and more of a public quality. Thus, in a dispute regarding whether a baby was stillborn or died after birth, for example, the testimony of two women is sufficient, despite the fact that the dispute is both financial, in that the fact in question establishes rights of inheritance, and bodily, in that it establishes non-monetary legal obligations. The private nature of the event precludes a male (public) presence, and therefore the law admitted the testimony of women uncorroborated by the testimony of men.

Furthermore, the hanafT Khassaf (d. 874) interestingly wrote on the process of certifying the reliability of witnesses: 'Only those women from among the witnesses should be questioned who are intelligent (barza) and mingle and have contact with the people. Many things are reported from them and they can distinguish ([mumayyiza).' Jassas (d. 980) added in his commentary: 'Because a woman, if she is like this, she is like the men in the chapter of transmission (istikhbàr)64.' This argument seems to point to an equality of the testimony of men and women in cases where the women were considered intelligent and believed to have insight into affairs, faculties stemming from the fact that they did not live in seclusion but mingled with other people and thus knew the society and the public sphere as well as the private sphere. This argument was used by the two hanafl jurists, but only in the context of certifying the reliability of witnesses. 60 Al-Awa, Confession and Other Methods of Evidence in Islamic Procedural Jurisprudence, in: Criminal Justice in Islam: Judicial Procedure in the Sharia, Haleem et al. (eds.) (2003) 111-129 (120-121). 61 Ibn Rushd (note 23) 464; Al-KàsànJ (note 29) 277. 62 Fadel, Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal Thought: Int. J. Middle East Stud. 29 (1997) 185-204 (194). 63 Fadel (note 62) 185-204 (194). 64 See also for another source: Fadel (note 62) 185-204 (195).

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The alleged fact that women were more prone to error was explained by the commentators of the Holy Qur'an as a result of their 'nature'. Fakhr al-DIn alRazT (d. 1210) explained that a woman's different biological nature made her more prone to forget than a man. However, Fadel shows that Ibn Qayyim alJauziyya (d. 1350) argued that if a woman was believed to be reliable in her testimony regarding financial dealings, she must be assumed, all things being equal, to also be reliable in other areas of life 65 . According to Fadel's research, both Ibn Taymiyya (d. 1328) and Ibn Qayyim al-Jauziyya rejected the rule that two women equal one man. They argued that this rule resulted from ignoring the difference between recording testimony for the purpose of protecting a right in the event of a future dispute, known as tahammul al-shahada, and testifying before a judge, known as ada' al-shahada. They argued that the admissibility of testimony is not determined by gender, but rather by credibility 66 . This would point to the existence of different opinions, also with regard to the testimony of women, and that at least in the hanbalT school of law, to which Ibn Taymiyya and Ibn Qayyim belonged, the verse could be understood differently. Ibn Taymiyya and Ibn Qayyim al-JauzIya are not only outstanding figures among the medieval jurists, but also have influenced modernist reform discourses on Islamic law and are held in high esteem in modern Saudi Arabia.

II. Operative Islamic Law Modernists have tried to find more appropriate interpretations for this verse. In his interpretation of Holy Qur'an sura 2, verse 282, the celebrated Egyptian modernist and reformer Muhammad c Abduh (d. 1905) denied that the requirement of two female witnesses was based on the different nature of men and women; instead, he argued that both men and women have the same capacity for remembering and forgetting, the sole difference being that the different economic roles of men and women in society made each vulnerable to forgetting those things which were not part of his or her daily experience 67 . Sayyid Qutb (d. 1966), on the other hand, argued that it was the woman's psychology specifically her motherly instincts - that prevented her from possessing the objectivity necessary for a witness 68 . Fazlur Rahman undertook a new interpretation of the verse. He criticised the classical understanding of Holy Qur'an sura 2, verse 282, according to which it has to be seen as a general law to the effect that under all circumstances and for 65 Ibn Qayyim al-Jauziyya, I c läm al-muwaqqitn c an rabb al- c alamin III, 95; Fadel (note 62) 185-204(197). 66 Fadel (note 62) 185-204(196-199). 67 See Muhammad cAbdüh in Ridä, Tafsir al-Qur'än al-haklm al-mashhür bi-tafslr alManär, TafsTr XII (1999) 3, 105; see Fadel (note 62) 185-204 (187). 68 Fadel (note 62) 185-204 (187).

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all purposes a woman's evidence is inferior to a man's. Rahman argued that the verse does not show the slightest intention of proving any rational deficiency in women vis-à-vis men. He pointed to the fact that women have not been denied the ability to be witnesses. This, he argued, is clear from classical Islamic law which regards women with knowledge of gynaecology as the most competent witnesses in cases involving gynaecological issues69. Thus it could be argued that the verse has to be understood instead against the background of 7. century Arabian society, in which women did not participate in the public sphere of life at all. The verse could hence indeed be understood as a corrective of the complete non-recognition of women as legal persons in pre-Islamic times 70 . Muslim modernists argued that the apparent rule established by this verse was neither universally applicable across time nor generally applicable to all cases tried by a court. With regard to fiqh literature, Fadel has analysed the gender-based distinctions established in the medieval Islamic law of testimony and reached the conclusion that the arguments have to be considered political and not epistemological. As women were always given the right to equality in the transmission of knowledge as well as in the context of fatâwâ, they surely were not generally considered unable to gain, preserve, and communicate knowledge to others. Fadel wants to show that the line drawn was between testimony (shahàda) and verdict (hukm) on the one hand and narration and fatâwâ on the other. He coined these two discourses the political and the normative discourse71. Putting aside these intellectual discourses, it seems necessary to take a look at the legal practice as reflected in the legislation of the Islamic countries and their jurisdiction and 'operative Islamic law'. An analysis of the modern procedural law in legislation as well as criminal and civil jurisdiction is unfortunately beyond the scope of this article. Here only piecemeal information forming the basis of such an analysis can be collected and indicated. Regrettably, in his richly documented analysis of the application of Islamic law in Saudi Arabia, Frank Vogel does not refer to the role of female witnesses. This would have been of special interest, because the Saudi jurisdiction seems to rely heavily on Ibn Taymiyya and Ibn Qaiyyim al-Jauziyya, the two hanball jurists arguing in favour of more equality for female witnesses 72 . However, considering the conservative position of Saudi Arabia in family law and legal questions concerning the position of women - in Saudi Arabia women are even prohibited to drive - it is not very likely that a single woman's testimony is accepted in Saudi courts. In Tunisian law, female and male witnesses are

69 70 71 72

Quoted in Ali (note 3) 71. Ali (note 3) 71. Fadel (note 62) 185-204 (188-194). Vogel, Islamic Law and Legal System. Studies of Saudi Arabia (2000) 144-147.

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equal73. Stephanie Waletzki, however, reports that in a case of marriage in Bardo in 1994, the judge rejected a female witness and summoned two female witnesses 74 . The law on evidence in Pakistan formerly made no reference to any such conditions, and the evidence of male and female witnesses was, according to Sardar Ali, always considered equal. The period of islamisation in the 1970s made this equality a thing of the past. However, according to Ali, the law of evidence has never yet been invoked in a court of law. Ali takes this as an argument for the strength of an 'operative Islamic law' that has evolved over the years. She warns, however, that although the law devaluing the evidence of a woman has never been invoked, this is no assurance that it will not be put to such use in the future, leaving women in a very uncertain and indeed vulnerable position with regard to their legal personhood 75 . In Iran, Art. 73 of the Penal Code of 1991 requires for the proof of zina four male witnesses or three male and two female witnesses. The Iranian legislator thus followed a minority opinion of the s h i t madhhab. Outside of penal law, the testimony of a woman is considered equal to that of a man76. In their analysis of Islamic law in Sudan under Numayri, Layish and Warburg state that sect. 3 of the Sudanese Evidence Act of 1983 clearly manifested the norm that a woman's testimony is tantamount to half that of a man's and this norm is also applied in practice. On issues of criminal procedure, according to sect. 316 (2) of the Penal Code of 1983, four male witnesses are required whilst women's testimony is not accepted at all. The code does not mention whether the witnesses must be male or female, apparently because this is not necessary given the known Sharfa norm and the Judgements Basic Rules Act of 1983, which provides that a judge shall presume that the legislators did not intend to contradict the Shar^a 77 . As women have been trained in Sudan to become judges in criminal cases as well78, this would mean that women could be judges in cases where women were not admitted as witnesses. Perhaps better than anything else, this situation prevailing in Numayri's Sudan demonstrates the inconsistency of 'operative Islamic law' and the discrepancy between different interpretations, caused on the one hand by the inherent flexibility of Islamic law and by the social, economic, and political conditions for applying a modern law on the other. Especially in cases where nass is given, it seems difficult to find solutions on a level of intellectual discourse for ensuring the consistency of Islamic law and the rules of gender equality as laid down in the UDHR - to which all Muslim countries are signato73 Waletzki, Ehe und Ehescheidung in Tunesien: Zur Stellung der Frau in Recht und Gesellschaft (2001) 156. 74 Waletzki (note 73) 156. 75 Ali (note 3) 102-103. 76 Tellenbach, Strafgesetze in der Islamischen Republik Iran (1996) 14, 48. 77 Layish/Warburg (note 46) 252. 78 Layish/Warburg (note 46) 255.

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ries. The example of Tunisia shows that even where the legislation adheres to this standard of equality, juridical practice may be different. However, as Ali states for Pakistan, an important dimension of 'operative Islamic law' at the domestic level is the use of international human rights standards 79 . This is especially applicable to Afghanistan, where in the coming years the legislation will have to revise the whole body of existing statutory laws in the light of the new constitution, which includes adherence to such international conventions as UDHR and CEDAW as well as to the religion of Islam. As has been shown above, the aim of classical Islamic procedural law is the implementation of justice. At the beginning of the 20. century, the abandonment of the classical system of judiciary consisting of the qàdà' without any other institutions of appeal was not considered to be a problem in achieving this aim and imposing a modern system of jurisdiction. In almost every Islamic country, a sequence of courts can be found today. Furthermore, no substantial arguments can be brought forward against women as judges. This could pave the way for women to being accepted as full witnesses in procedural law. Justice, it seems, can only be archieved with the full participation of women. Fortunately, however, the implementation of the equal status of a female witness is guaranteed in Afghanistan, because the 2004 Constitution itself guarantees the equality between men and women before the law.

79

Ali (note 3) 191.

Law of Land Tenure and Transfer of Property in Times of War* BASHIR AHMAD MUNIB

A. B.

Introduction Concepts of Ownership I. Revitalisation of Land

II. Demarcation and Delimitation of Land III. Transfer of Ownership

In the Name of God A. Introduction This article deals with legal issues related to the transfer of property in Afghanistan during civil war and foreign occupation. All through human history, there have been and still continue to be conflicts and wars. War is a well-known phenomenon in the culture of all people on earth. The condition of struggle for a better life has become part of human nature. The Afghan people who lived in insecurity and harsh conditions for the most part of the last 30 years have adopted ways of coping with a civil war environment. War and peace have their own causes and according to the Holy Qur'an prosperity is inseparably linked to peace and never to war. One of the many problems that civil war creates is that individual rights, like the right to property, are completely negated. Information on the legal situation before the beginning of the civil war gets lost and leads to disputes after the end of the armed conflict. This is particularly true where land and real estate and the transfer of land are concerned. Since the subject of our discussion is the transfer of property, it is adequate to define the concepts of property and ownership. Ownership in its lexical meaning is the domination and control over a thing. It furthermore encompasses the relation between the owner and the thing as the owner has the right to possess and control the thing and deprive and prevent others of it. The Sharfa respects this right of individual ownership as a principle, whatever the value of

This article is based on a speech delivered by the author in September 2004 at the Summer School on Commercial Law under the auspices of Prof. Dr. Mathias Rohe at the University of Erlangen, Germany.

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this asset may be, provided that it has been secured by legitimate means, and thus not by violating the rights of other people; it is employed for a good cause and is not misused for illegitimate purposes (eg to support blasphemy). The rightfulness of property is thus conditional upon two requirements, namely the legitimacy of the source of its acquirement and the compatibility with the legitimate claims of society. Where these requirements are met one can speak of legitimate claims of ownership, and where they are not, the claims are illegitimate. B. Concepts of Ownership Ownership can be categorised into primary ownership and transitional ownership. With regard to land tenure one can differentiate between ahyâ, ie revitalisation or adverse possession by effectively using the land and taghlr, ie demarcating and levelling land in order to appropriate it. I.

Revitalisation of Land

The revitalisation of idle land, ahyâ, is one case of primary ownership. It applies to natural immovable property. According to customary law revitalisation can generate primary ownership of land. For this to happen, the land must be completely transformed and prepared for utilisation. Not all labour on immovable property creates ownership. Only if the labour transforms the previous conditions so that the land is prepared for utilisation and exploitation, the property will be transferred. So if a land is ruined and devastated because of an armed conflict and is revitalised and transformed into a developed land, ownership of that piece of land may be transferred. Also land that has been relinquished may be acquired by revitalisation. II. Demarcation and Delimitation of Land Developing dead land accounts to marking and delimiting the area first; this is called taghlr. The concept of taghlr can be explained as the demarcation and revitalisation of land. This process of cultivating land (clearing the plot from stones or bushes, demarcating it with a fence, digging a well, etc.) does not bring about primary ownership; but it creates a right to carry out the cultivation. Thus, taghlr is less than primary ownership but nevertheless a legal position. It can therefore be called transitional ownership.

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III. Transfer of Ownership The transfer of ownership of land from one person to another can be twofold: firstly, the forced transfer of ownership, like in situations of expropriation, but also in the case of inheritance, where ownership is transferred according to legal provisions; and secondly, consensual transfer of ownership, eg in the form of an agreement between two partners. One must further differentiate between legitimate and illegitimate transfer of ownership. 1. Legitimate transfer of ownership The individual's right to ownership is consistent with human nature and is recognised by the sacred religion of Islam: The right to dispose of one's property can be deduced from Islamic jurisprudence as follows: Since God has given humans the will to possess objects and Islam recognises this aspect of human nature, every Muslim has the right to own and transfer property, be it movables or immovables. Sura 36, verse 71 of the Holy Qur'an states: .¿)j£JL«l$J ^L.UIIUJJJI Lu -jB'.iU U l l j j j ^ j l 'See they not that it is We Who have created for them - among the things which Our hands have fashioned - cattle, which are under their dominion.'

On this basis, Islamic jurisprudence has developed principles for the legitimate transfer of property, such as sale, rent, dower etc. In this article, I will deal with the transfer of ownership of immovable property through sale in compliance with the provisions on sale, customs and the practices in Afghanistan. If a person wants to sell a piece of land, he/she will have to prove that the plot is his/her by producing the necessary documents. If documents are not available, the person has to make a statutory declaration that is endorsed by the village/city council, the neighbours and/or the imam. Then, in the presence of two witnesses, the transfer of land ownership can be considered lawful and can be carried out legitimately. Other preconditions are that the parties to this transaction are of full age and contractually capable. The contract has to be approved by both parties and the present witnesses and is thereafter taken to the local court where it is registered in the Properties Register. If a person raises a claim on the same property the onus of proof rests with him according to Art. 281 of the Afghan Code of Civil Procedure (CCP). This article provides for three kinds of evidence: documents, testimony of witnesses, and indications. Art. 282 CCP provides for two types of documents: official and customary documents. According to Art. 284 CCP an official document is a creditable and binding evidence for a creditor, his/her heirs, and his/her substitutes before the dispute arises in court. Article 286 explicitly provides: 'Whenever someone claims that an official document is not valid, his claim will be successful when the supposed invalid document of the defendant proves false, or the defendant admits that the document is false.'

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In such cases, if the claim is raised before the court, the court will consider the defendant's religious deed and the document tendered. If the claimant does not provide for other evidence or documents to invalidate the defendant's document, the court will give its ruling in favour of the defendant. The proof of ownership of land is particularly difficult to many Afghans since they cannot produce the necessary documents to show that the land they live on also is owned by them. As a matter of fact, most transactions regarding the transfer of land ownership take the form of informal agreements according to local customs, so-called customary documents. For example, the seller and buyer agree under the eyes of a group of chosen witnesses on a certain transaction and sign or fingerprint a document, but do not follow the requirements of the civil code or the code of civil procedure. This document bears no signs of state authority and will not be registered in the state's property register. Although this method and the use of customary documents are widespread, they have created many legal problems in the past. 2. Illegitimate

transfer of

ownership

According to the Land Reform Decree No. 8 (Afghan Official Gazette No. 412, Decree No. 8 of September 1978), ownership of land was restricted to 30 acres only. This statute was in contradiction to the customary laws of many Afghan communities and was one reason for upheaval against the then ruling regime. When the civil war broke out many landowners fled the country. Some of the abandoned lands were confiscated by the state authorities, other were annexed by opportunists and warlords. The 'free' lands were subsequently used in various ways, like construction sites, farming or as mere investment assets. In fact many plots were sold and bought several times which lead to further confusion regards ownership. The problem unfolded when the regime of Najibullah collapsed in 1992. Thousands of refugees returned to Afghanistan. Upon arrival they had to see that their land was used by others who claimed to be the rightful owners since they had bought the land in good faith and worked on it. A number of disputes arose, some of which escalated in violent clashes. Up to now, the state authorities have not been capable of resolving the issue effectively. Art. 40 Constitution 2004 was designed to prevent unlawful dispossession in the future. It declares private ownership to be immune from infringement or invasion. Furthermore no property can be expropriated without a lawful order and the judgement of a competent court. The dispossession of property of a person is only permissible by law and for securing public interest. A just and equitable compensation must then be given for the expropriated property. Given the state of complete impunity in Afghanistan the road to a just settlement will still take a lot of time and effort.

Part II: The Iranian Model

Afghan and Iranian women: Sharing Experiences ELAHEH KOLAEI

In the Name of God Although the 20th century has been called the century of women and remarkable developments have improved the situation of women all over the world, in Islamic countries like in many other developing countries, however, women still live under difficult conditions. Despite the emphasis of the sacred religion of Islam on the rights of women, ignorance, cultural and social backwardness, and underdevelopment have caused serious obstacles. In Afghanistan these problems have been aggravated by a long civil war, political upheavals and the military interferences from outside powers. Furthermore the rule of the Taliban and their backward way of seeing women amplified the problems. With the fall of the Taliban regime the opportunity has opened to positively transform the situation of women. The experiences of women in other Islamic countries especially in Iran, as the immediate neighbour of Afghanistan, may be helpful to Afghan women. In Iran, the public sphere has opened up to women. This phenomenon gradually expanded over the last few decades; activities of women have shifted from household and family-centred to social, economic, and political activities outside the home. The first debates and discussions on the limitation of the ruler's political power were initiated a century ago by the constitutional revolution. This movement favoured the presence of women in the public sphere. New institutions for the education and training of women and the formation of women's organisations were established, and the presence of women in civil society activities increased remarkably. Despite many backlashes, women have continuously strived and pushed for equal opportunities during the last hundred years. To understand these efforts, they must be placed within the framework of the developments towards democracy in Iran: As a matter of fact, women's participation in politics is very little in Iran as in many other Islamic countries. Women have higher illiteracy rates, lower social positions, fewer job opportunities, and lower wages in comparison to men. Many aspects of the educational systems in Islamic countries favour men over women and do not address the special needs of women. There is,

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thus, a strong need for legal reforms and the adaptation of a legal framework to empower women while protecting and promoting the family. The Islamic revolution of 1979 that celebrated its 25th anniversary in 2004, led to a break up of traditional religious concepts and opened the door for new and more innovate ones. Religious scholars and intellectuals are interpreting the precepts of Islam to the needs of today. The teachings and writings of the leader of the revolution Imam Khomeini and the sociologist Ali Shariati helped to create the intellectual basis for new attitudes towards the abilities of women and towards women's role in society. New role models for women have been designed based on the historical roles of women in Islam. These new models encouraged women to participate more actively in the social and political spheres of their society. By appreciating the role of women during the Islamic revolution Imam Khomeini denounced the perception of women as objects under the control of men and encouraged the full participation of women in all areas of life. Despite a difficult cultural heritage, Ayatollah Khomeini's full support for the presence of women in public life encouraged them to exit the private sphere. The wearing of the hegab has in many ways facilitated this movement, and has helped women to participate in different forums in the public sphere. Traditionalist and conservative individuals have challenged Ayatollah Khomeini's views and rejected any change in the traditional division of roles. This conservative opposition is apparent in all developing countries and transitional societies. Ayatollah Khomeini always emphasised the exigencies of space and time. It was on the basis of this fact that more financial resources were provided for women. In the Constitution of the Islamic Republic of 1979, special emphasis is being been placed on the elimination of discrimination, particularly against women. The state has the duty to create suitable conditions for the growth and improvement of the talents of people. One of the most important achievements of the Islamic revolution is the increase in the number of literate women. This has led to an increase of female awareness of their situation and encouraged women to aspire for higher positions. In the last few years, this trend has speeded up. Today, more than 62 percent of new students in Iran's universities are women. The increase of women in educational institutions has undoubtedly led to the improvement of their social, political and economic conditions. Similarly the ability of women to overcome obstacles has increased. The quantitative and qualitative increase of women in university structures has been so remarkable that some narrow-minded individuals have raised their concern and asked for a quorum of 50 percent to prevent a further augmentation of women's entry to university. When discussed in the Sixth Parliament, female Members of Parliament (hereafter: MPs) seriously opposed this view. Mentalities and century old attitudes of (male) decision-makers have shown very hard to break. A lot of resistance and persuasion by the freedom-loving people, especially by women is needed to make a difference.

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In September 1995, the United Nations Fourth World Conference on Women - Action for Equality, Development and Peace - convened in Beijing, China. This conference anticipated the creation of institutions to develop programs for the participation of women in politics; for example the Social and Cultural Council of Women within the High Council of the Cultural Revolution or the Special Office on Women Affairs within the President's Office. All over the country, women commissions for improving the position of women and resolving their problems have been established. In the last decade, this trend has been stabilised. Women are not facing any restrictions in secondary or higher education any more; new laws have been enacted to support working mothers, and large attention has been given to the position of rural women. The assistance given to them has improved their standards of living. Despite these efforts, the negative attitude towards gender issues and the traditional culture have remained obstacles that are hard to overcome. In the traditional division of labour, men are defined as breadwinners and providers of the families whereas the duties of women revolve around their role as wives and mothers; in other words, women in the private sphere and men in the public sphere. There are serious pressures for change, but resistance continues as a natural process in a transitional era. In the higher level of complementary education these changes still need to happen. The increase of educated women, however, gives hope for the future and for further changes. One of the main forums where the effort of Iranian women has been visible is the Iranian parliament, the magles. Although, during the last 25 years, the number of female MPs has not exceeded 5 percent, remarkable measures have been taken to abolish some of the most discriminatory laws. The implementation of reform programs has accelerated especially since the coming to power of president Khatami in 1997. This has been accompanied by a large number of reformist representatives elected to the district councils and to the sixth magles, also called the magles of reforms. In the sixth magles the number of female representatives was still at 5 percent; accounting for 13 female MPs, eight of which had university degrees and teaching and research experience. The female MPs have been successful in enacting a number of statutes, reforming many areas of law. Although the results of these efforts are not sufficient to meet all needs of women, they have prepared the ground for more positive steps to come. One of the most important measures has been the signing of the Convention for the Elimination of all Kinds of Discrimination Against Women, CEDAW. Unfortunately, this ratification has been rejected by the Council of Guardians and is now pending in the Expediency Council. Numerous debates took place on whether this convention should be ratified or not. The intensity of these debates depicts the gap between tradition and modernity in Iran. There is no doubt that the problems of women are not limited or related only to existing legislation. The reforms must create a legal frame that protects and

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helps improving the situation of women, taking into consideration that any legal reforms must match the social, political, economic, and cultural circumstances in order to ensure implementation to the greatest possible extent.

Are Islamism and Republicanism Compatible? A Theory of Unchangeable Principles of the Constitution of the Islamic Republic of Iran MOHAMMAD RASEKH

A. B. C.

Modern Constitutions and the Rule of Law The Iranian Constitutional Background Interpretative Principles

I. Republicanism II. Islamism III. A Republican Islamism

A. Modern Constitutions and the Rule of Law Various aspects of European life changed during the modern era. Of these, the emergence of modern constitutions could be cited as one significant aspect. Appearing mainly through the 18. century1, these legal documents represented a kind of national charter that purported to define and underlie the major aspects of social and political life. Modern man sought through these documents to impose limits on political authority. That is, it is commonly held that the main purpose of modern constitutions is to impose limits on political power (authority)2. Indeed, constitutions are not devised to describe the existing power, but are intended to delimit the central authority, that is, an authority which aims at diverse, though essentially identical, systems of concentrated power. Hence, anti-despotism could be marked as the essence of modern constitutions. To satisfy the aim mentioned, various principles and mechanisms have been introduced throughout history. The most important in this regard is called the rule of law. This rule implies the belief that social life in general (including government) should be regulated by rules 3 and according to rules 4 , which 1 See QazT, Bayastiha-ye huquq-e asasl (1998) ch. 1; van Caenegem, An Historical Introduction to Western Constitutional Law (1995). 2 See Barendt, An Introduction to Constitutional Law (1998) ch. 1. 3 See Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (1986); Walker, The Rule of Law: Foundations of Constitutional Democracy (1988). 4 For this see Dworkin, Taking Rights Seriously (1984); Gaus, Justificatory Liberalism (1996) ch. 12.

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would impersonalise politics. On the other hand, the most paramount mechanism to implement the rule of law - and hence to impose limits on the power is claimed to be the mechanism of the separation of powers 5 . This is probably the best device to prevent concentration of power in the hands of one person or one group. The principle and the mechanism mentioned above serve the ultimate aim of satisfying principles of justice. In particular, the right to participation as the right of rights6, and fundamental human rights in general, could be mentioned as the basic embodiments of the principles mentioned. In this sense, it can be claimed that a republican system represents a good way of individual participation in public life. Such a system was historically introduced and elaborated on in contrast to absolute monarchical systems. As such, republicanism can be regarded as one of the forms for countering the concentration of power in the hands of a few, and also for providing for the rights of citizens through legal devices. B. The Iranian Constitutional Background The above-mentioned changes in the Western hemisphere did not leave life in other places untouched. Having been exposed to modern social and political ideas and institutions - and as latecomers in contrast to Egypt and Turkey 7 Iranians strove to establish a constitutional monarchy through their constitutional revolution of 19058. Apart from certain institutional achievements - such as separating the three branches of power in general and establishing the Ministry of Justice in particular - this constitutional movement eventually became a battleground between traditionalists and modernists. To cut a long story short, it might be asserted that the constitutional revolution failed to eliminate the dominant despotic order, nor did it succeed in bringing about a fundamental change in the traditional deep-seated beliefs of the community. Despite the apparent triumph of the so-called 'intellectual' faction over its rivals, the popular culture remained strictly under the influence of traditional beliefs and attitudes. The causes and reasons aside9, in the same century a second revolution took place in Iran: the Islamic revolution of 1978-79. Ideologically speaking, soon after the victory of the revolution it could be easily seen that this time the 5 See Qazi (note 1) ch. 7; Bushïhrï, Huqüq-e asâsï II (1997); Finer/Bogdanor/Rudden, Comparing Constitutions (1995) ch. 2. 6 Waldron, Participation - The Right of Rights: Proceedings of the Aristotelian Society 98 (1998) 307-37. See Enäyat, Seyrì dar andïshe-ye siâsï-ye carab3 (1984). 8 See Kasrâvi, Târîkh-e mashrutï-ye Iran (1978); Bayât, Târikh-e mokhtasar-e Iran (1979) 207-212; Hairl, Tashayyo' va mashrütlat dar Tran (1985) ch. 1-2. 9 For this see Bashiriyeh, The State and Revolution in Iran: 1962-1982 (1984).

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traditional faction had the upper hand. The constitutive assembly was mainly dominated by the traditional clergy, the majority of which were /¡g/z-oriented and of a maximalist (or comprehensive) mentality. The assembly drafted a constitution; upon the approval of the leader, it gained the majority of the votes. Nevertheless, despite the fact that the traditional overtone of the constitution is strong, especially given the all-encompassing institution of velâyat-e faqîh (the authority of the jurisprudent), modern ideas and principles found their way into the document 10 . According to Art. 177 of the constitution of the Islamic Republic of Iran 11 (hereafter abbreviated IRI Constitution), the 'republican' and 'Islamist' characteristics of the system are not changeable 12 . The introduction of these concepts or principles poses a number of inter-related questions: First, does the text define the principles? Second, if not, what could we make of them? Finally, what is the relationship between the two principles? Do they point to different directions?

C. Interpretative Principles The first question, therefore, refers to the content of the unchangeable principles of the current Iranian constitution. Art. 177 IRI Constitution declares the following as unchangeable principles: -

-

Islamism: The content of the article related to the Islamic nature of the political system (nezâm); that all laws and regulations must be made in accordance with Islamic criteria; the religious bases and aims of the Islamic Republic of Iran [...] and the official religion and sect of Iran are unchangeable. Republicartsim: [...] the republican character of the government and velâyat (authority) and leadership of umma (the nation); and also the administration of country affairs according to the public election [...] are unchangeable.

Regarding Islamism Art. 4 IRI Constitution, referred to in Art. 177 IRI Constitution, reads: All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the members of the Council of Guardians are judges in this matter.

As we have seen, Art. 4 IRI Constitution does nothing more than issuing an order that 'all rules must be based on Islamic criteria'. On the other hand, the 10 See Schirazi, The Constitution of Iran: Politics and the State in the Islamic Republic (1997). " Added through the 1989 Amendment. 12 See Hashemi, Huqüq-e asäsT-e |umhürl-ye esläml-e Tran I (1995) 40-41.

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latter part of the article leaves the decision on the rules 'being or not being Islamic' to the Council of Guardians. Hence, the question regarding the principle of Islamism is still unanswered. The emphasis over the compliance with Islam has surfaced in different parts of the constitution - for instance, in Art. 3, 24, 26, and 27- while the definition and content of that criterion is again left unelaborated 13 . On the other hand, nowhere in the constitution is the republican principle clearly defined. Art. 6 IRI Constitution emphasizes election and referendum as the way through which the country affairs should be administered. Although there are other articles dealing with and referring to 'legitimate liberties' (Art. 9), 'human rights of non-Muslims' (Art. 14), 'rights of the people' (Art. 19-42 and 156), and 'the right of self-determination' (Art. 56), none is directly claimed to be a definition of republicanism. On this basis, one can see how the above-mentioned unchangeable principles are vague and/or ambiguous. Thus, in order to give a meaningful and consistent definition of them we are bound to extend our attention beyond the confines of the text. That is the reason why we could call them 'interpretative principles' in need of extra-textual explication14. This brings us to the second question of the paper: If the text does not elaborate on the principles, then what do they mean? I.

Republicanism

As hinted at the beginning, republicanism 'is defined by contrast to monarchy. Whereas a traditional king enjoys personal authority over his subjects and rules his realm as his personal possession, government in a republic is in principle the common business (res publico) of the citizens, conducted by them for the common good' 15 . Despite the fact that monarchy has been the norm for most of history, republican ideas have been prominent in European political thought ever since their origins in the city-states of Greece. In the course of the American and French revolutions, the principle was interpreted as implying representation of the people's will. It was argued that any kind of irresponsible authority is dangerous; thus, good government is secured by making powerholders elective and subject to continual scrutiny by those they represent. The latter has been mainly overtaken by judicial institutions (ie courts) which func-

13 One might claim that principles of velayat-e faqih and the like in the constitution are, in fact, the content of the Islamist principle. This could be countered by saying that, first, they are but one tiny group of the whole rules which form the legal system; and, secondly, even the principles claimed are themselves interpretative. For contending theories and interpretations of velayat-e faqih see Kadivar, NazarTyeha-ye dowlat dar feqh-e s h f e (1997). 14 For using the 'text' as an interpretative scheme see Bell, French Constitutional Law (1992) 2; Dworkin, Law's Empire (1990) ch. 9. 15 The Blackwell Encyclopaedia of Political Thought, Miller et al. (eds.) (1987) 433-36.

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tioned as the cardinal part of a system of checks and balances. This, in turn, is called the system of 'judicial review'. After about two centuries of practice, this is now heavily dependent on the basic rights of citizens as the yardstick against which courts, in a system of checks and balances, determine the constitutionality or unconstitutionality of statutes and governmental orders16. Accordingly, looked at from the contemporary political philosophy perspective, the principle of republicanism implies a sense of democracy and basic rights and liberties. The main contemporary constructions of justice revolve around the basic principle of democracy as the epitome of the right of every individual to public participation on one hand, and the concept of rights as representing the basic requirements of justice principles on the other 17 . The basic rights to equal freedom and equal resources could be given as the most significant instances of the requirements mentioned 18 . Now one can realise why so much emphasis has been put on the principle of public election and on the fundamental rights in the Iranian constitution. Those are indeed the principles and ideas embodying the modern understanding of justice which in turn form the foundation for the republican doctrine. Hence, as implied by Art. 177 IRI Constitution itself and by other articles, the republican aspect represents two major categories: the principle of democracy and direct election by citizens on one side, and fundamental human rights on the other. II. Islamism Turning to the principle of Islamism, we need first to ask which part of Islam is central to this principle. This is because Islam, like the other major religions, has been traditionally interpreted in a way that consists of various theoretical and practical elements that can be classified - with modern terminology, of course into three categories: theology, ethics, and law19. It goes without saying that the legal, or jurisprudential, part comprises the core of the principle of Islamism. However, three points are in order here. First, the claim that the jurisprudential part is central does not overshadow the theological bases of that part. Second, even if one asserts that by the principle of Islamism all three aforementioned categories are intended, it could be answered that even in this case the implementation of Islamic ideas and ethics at a national level ought to be based

16

See Kelly, A Short History of Western Legal Theory (1992) ch. 8-9. See Gutmann/Thompson, Democracy and Disagreement (1997); Kymlicka, Contemporary Political Philosophy: An Introduction (1990); Waldron, Theories of Rights (1984); Steiner, An Essay on Rights (1994); Dworkin (note 4); Dworkin, A Matter of Principle (1985); Simmonds, Rights, Socialism and Liberalism: Legal Studies V (1) (1985) 1-9. 18 Steiner, The Natural Right to Equal Freedom: Mind 83 (1974) 194-210; Dworkin, What Is Equality? Part 2: Equality of Resources: Philosophy and Public Affairs 10 (4) (1981) 24-40. 19 See Mutahhari, Ashnal ba c ulum-e eslaml (1979). 17

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on principles of Islamic just government. This is because the implementation involves social and political relations which fall within the realm of justicerelated rules. Third, since the principle of Islamism is entrenched in such a document as the constitution, the writers of the document were definitely thinking, and of course had to think, of that part of Islam which could be deployed as the substance for basic structures of society, determining the fundamental structures of the life and rights and duties of the whole nation. The materials forming the structures mentioned are the very principles of justice 20 . If the foregoing argument is right, then the question concerning the content of the principle of Islamism is replaced with the question as to the nature of Islamic theory or concept of justice. That is, the task of interpreting 'Islamism' transfers to the discussion of various Islamic theories of justice. In this respect, two major schools of thought took shape in early days of Islamic history. They were mutazilism and asharism. As early as the second half of the first Islamic century, a controversy concerning the word and attributes of God arose among Muslim theologians. The controversy was soon expanded to the realm of values and justice 21 . The forerunners of the two schools were the Qadarites (voluntarists) and the Jabarites (fatalists) who were engaged in a debate on man's capacity to be the author of his acts. The debate among the following generation revealed a higher level of sophistication, and it began to concentrate on questions such as whether justice should be regarded as an expression of God's omnipotence or His inherent justice, and how it is realised on earth22. 1.

Mutazilism

The Mutazila, who were also called the partisans of justice and oneness (ahl alc adl wa al-tawhid)23, proposed a doctrine of rational justice according to which man can endeavour to realise divine justice 24 on earth only by means of reason - a level of justice which is a reflection of divine justice and is translated into human acts by a free will for which man is responsible. Accordingly, the underlying principles of the mutazila theory can be summarised as follows: (1) the principle of rationalism - that justice is determined by reason, (2) the principle of voluntarism - that man's acts are the product of free will (ekhtiyar), and (3) the principle of responsibility - that man will ultimately be

20 See Rawls, A Theory of Justice (1971) ch. 1; Surüsh, TahlTl-e mafhum-e hokümat-e dTnl, in: Modärä va modiriyat (1997) 353-80. 21 See Mutahhari, Asl-e c adl dar esläm, in: Bist goftär (1979) 24-48. 22 Khadduri, The Islamic Conception of Justice (1984) ch. 3. 23 Mutahhari, Barresl-ye egmälT-e mabänl-e eqtesäd-e esläml (1982). 24 It should be noted that according to the Mu'tazila, divine justice is an expression of God's Essence and that he can only do what is salutary to man. That is, God by nature can do no injustice.

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rewarded or punished in accordance with his choice between justice and injustice. The Mutazila insisted on these principles on the grounds that if all human acts were predestined by God, as the Jabarites maintained, how could man be held responsible for acts over which he had no control? The inescapable conclusion, they argued, is that God would be committing an injustice were He to punish man devoid of responsibility, since such an act is inconceivable according to reason and also is contrary to revelation, which states that 'For Allah is never unjust To His servants.' (Qur'an 8:51). Another significant point is that the Mutazila assigned an important role to reason in human affairs. They held that if there were any discrepancy between reason and revelation, the latter must be construed to conform to the former. For this reason, they rejected the literal meaning of certain revelational texts which may be inconsistent with the explicit meaning of others, and proposed to apply the method of metaphorical interpretation (at-ta'wTl), which would provide consistency for the meaning of the revelational texts as a whole. Put another way, from mutazila's perspective, reason became, in the final analysis, the arbiter in deciding the meaning between conflicting texts. For instance, according to the Mutazila, the literal meaning of verses describing God as being in possession of hands, sight, hearing, and all other anthropomorphic qualities cannot be taken out of context and must therefore be interpreted by a 'rational interpretative' method. Therefore, the leading members of the school were all in agreement that reason is the power by virtue of which man acquires knowledge and distinguishes between just and unjust acts25. Although it was argued that, on certain matters of details or on matters concerning which reason is in doubt, man should be guided by revelation, it was insisted that reason cannot be faulted on matters of general principles.

2.

Asharism

Asharism, on the other hand, emphasised God's attribute of will 26 . They held that God's power is supreme, is embodied in the totality of things, and embraces everything which can be willed. Accordingly, for Asharites, even if God had not imposed any obligation on His servants that would be perfectly just; should He add to or subtract from what He has imposed, that would be permissible. Likewise, had He refrained from creating the world, He would not thereby violate the precepts of wisdom; to Him belongs the power to command and to prohibit, and the judgement; He does what He pleases and judges as He wills. Hence, according to the Asharites, justice is not subject to man's free will 25 See cAbdol Gabbar, Al-muqn! fi abwab at-tawhld wal- c adl, I Madkour et al. (eds.) (1962); Hourani, Islamic Rationalism: The ethics of 'Abd al-Jabbar (1971); Zaina, Al-Caql c eynd-al-mu c tazila (1978). 26 See Fakhry, Ethical Theories in Islam (1991) ch. 2.

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because God is the creator of 'everything' and there is no room for human or rational justice. Justice is an expression of God's will and man is commanded to do that which has been predestined to be just, because God knows what is good for man as a whole27. But if both justice and injustice are mere expressions of God's will, how can man distinguish between justice and injustice? To this question it was replied that although the revelational texts state that God does not will injustice to men, these texts do not necessarily mean that He did not create injustice. God, the argument continues, wills not to do them injustice, because He said 'And Allah means no injustice to any of his creatures' (Qur'án 3:108), but He does not say 'He does not will their injustice to each other'. Therefore, on this account, God does not will to do men injustice, even if He wills that they do each other injustice. In other words, it was held that God did create injustice as He created justice, but in an encounter between one man and another. 3. A Critique of

Asharism

The above brief account of the main tenets of asharism suffices to reveal fundamental problems inherent in the theory. First, the claim that 'justice is the expression of God's will' seems to be a circular assertion. This is because if we ask an Asharite 'what is just?' he firmly replies 'whatever God wills.' But if we continue to ask 'how do you know what is willed by God is just?' the answer is 'because God has willed it'. In other words, to distinguish between just and unjust claims made in the name of God in a non-circular way, one is bound to resort to an extra-religious rational criterion. Also, this reveals the extrareligious or rational nature of the principle of justice 28 . Second, it seems as if the Asharites are not consistent in their claims. On one hand, they assert that God wills everything which can be willed, and on the other hand, they argue that although God creates injustice, He does not will it. That claim could be interpreted in different ways. If by saying that God does not will the injustice of one man to another, the Asharites intend to leave room for man's free will, but this runs counter to their other claim that denies any room for man's will in this regard. Also, this interpretation is against the kind of absolute omnipotence attributed to God by the Asharites, since taking certain acts out of the realm of God's will would make those acts independent of God's will and, hence, curtail His all-embracing power. But, to avoid the previous problem, if their claim is that even in this case God has both created and willed the injustice of one man to another, two problems arise. In the first place, this amounts to an attribution of injustice to God29, which by itself flies in the face 27 28 29

See also Hourani, Reason and Tradition in Islamic Ethics (1985) ch. 5-10. See MutahharT (note 23) Introduction. Mutahharl (note 23) Introduction.

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of their claim that whatever God wills is just. In the second, to avoid that problem the Asharites have no way but to deny the very existence of any injustice on the earth which would make the whole debate nonsensical and, of course, once again will undermine their premise as to the existence of injustice. Perhaps that was the reason why the Mutazila attributed justice to God's essence and maintained that God by nature can do no injustice. Third, the denial of any room to man's free will and reason is the other side of the coin of determinism or fatalism. In this case, the very basis of law and morality is undermined. Needless to say, the world of law and morality is the world of 'ought' and 'ought not'. Any consideration of a theory of justice would require these concepts right from the beginning. How could one issue an imperative for beings whose will plays no role in complying or not complying with that imperative? Thus, if the Asharites insist on their fatalist view, they could not consequently enter the realm of normativity and values at all. Finally, the asharite view is rightly held to presuppose a 'subjectivist' theory of values 30 which, of course, is in its turn problematic. The criticism of asharism brings our discussion of the principle of Islamism to an end. The flow of the discussions and arguments indicates that the mutazilite school - in theorising about justice and a fortiori about basic values - can be defended against its rivals. Interestingly enough, since the second half of the 19. century, modern intellectual endeavours by Muslims have mainly taken the mutazilite premises as their departure point 31 . Along with the efforts put forward for a rational and democratic interpretation of Islam in North Africa, the Arab world, Turkey, Iran, and the Sub-Continent, the rights debate has gained momentum and many thinkers are now striving to produce a compatible account of Islam and human rights32. III. A Republican Islamism We are now in a position to deal with the third question of the paper: What is the relationship between the two alleged unchangeable principles of the Iranian 30

See Hourani (note 27); MutahharT (note 23). For this see Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usui al-fiqh (1997) ch. 6. 32 To give just a handful of instances, see MutahharT (note 23) 156 ff. (Interestingly the book was banned by the government and except for a few copies distributed privately. It never received the permission for distribution. Thus all copies were ultimately sold to pasteboard manufacturers); MutahharT, Nezam-e huquq-e zan dar eslam (1978); MutahharT, Peiramun-e enqelab-e eslaml (1980); MutahharT, Eslam va muqtaziyat-e zaman (1983); Surush, An Epistemological Appraisal of Human Rights: The Iranian Journal of International Affairs (1991) 673-8; Surush, Modara va modlrlyat (1997); Surush, KhiradvarzT va dlndarl: Neshat [daily newspaper], May 3 and 5, 1999; MontazerT, Letter to Bazargan (1989); MontazerT, Letter to Khatami (1997); An-Na 'im, Towards an Islamic Reformation (1990). 31

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constitution? Are they compatible with each other? To answer the questions raised, let us recap the main points of the discussions thus far. 1. It was shown that the constitution does not provide an articulate exposition of the alleged unchangeable principles of republicanism and Islamism, a fact that lays bare the interpretative nature of the principles. Therefore, we had to look outside the text for an interpretation of the principles. 2. It was argued that republicanism represents basic values of justice; those of democracy and fundamental human rights. 3. As for Islamism, it was attempted to expound that within the framework of the constitution, the justice-related rules of the religion must have been intended by the writers of the document. 4. Two major theories in this regard have been historically put forward: mutazilism and asharism. 5. It was argued that asharism is not tenable. 6. Therefore, the principle of Islamism has led us to a mutazilite approach to justice. 7. According to mutazilism, justice is a rational principle in the sense that it could be understood by human reason, that reason is the final arbiter - at least as to the general principles - and finally that man is both free and responsible. Therefore, it is evident that the principle of Islamism from the mutazilite perspective directs us to a rational conception of justice. But what is 'a rational conception of justice'? What can be said here, though very sketchily, is that 'a rational conception of justice' is nothing but a tentatively justifiable rational theory of justice. That conception, to this writer's mind33, is a theory providing for two fundamental values underlying the basic structures of the social life: (1) public participation or democracy, and (2) basic rights to equal freedom and resources. As already explained, those are the very values epitomised by the principle of republicanism. Therefore, the answer to the final question should have been evident by now. That is, the relationship between the two unchangeable principles is a relation of restatement and reinforcement: 'Islamism' provides us a license to appeal to rational theorising as to justice, while 'republicanism' is in fact one of the most tenable conceptions of justice and a just state for the moment. On this footing, Islamism is a restatement and reinforcement of republicanism. Therefore, a proper reading of the Iranian constitution authorizes us to take the mutazilite approach seriously and strive for a republican Islam, an Islam that takes democracy and rights seriously.

33 See the previous notes, in the section related to republicanism, and the related text for its justification. See also Rasekh, Rights for Ends (1998) and Haq va maslahat (2002).

Iranian Commercial Law and the new Investment Law FIPPA BEHROOZ AKHLAGHI

A. B.

C.

Introduction The Iranian Constitution I. The Supreme Leadership II. The Council of Guardians III. The Assembly of Experts IV. The Expediency Discernment Council V. The State's three sovereign powers Iranian Business Law I. The civil code

D.

II. The commercial code III. Commercial companies IV. Commercial contracts Investment in Iran - the Act on the Promotion and Protection of Foreign Investment I. Foreign Investment and legal evolution II. Foreign Investment Promotion and Protection Act FIPPA

A. Introduction When describing Iranian law, it is common practice to divide the Iranian legal system historically into two separate periods: before and after the Islamic revolution of 1979. Since the constitutional revolution at the beginning of the 20. century there have been strong codification movements in Iran. Despite the development that Islamic law underwent in that period, Islamic regulations could not answer all needs and questions of the modern era. The uncodified law that characterised the traditional legal system was replaced by modern statutory law, encompassing acts on civil, commercial, criminal and procedural law. The Islamic revolution brought fundamental changes and amendments in all fields of life and law, be it political, economic, social, or cultural, and thus changed the character of the Iranian legal system. One of the most important changes of this period was the amendment of the Iranian constitution and the penal laws.

B. The Iranian Constitution The current constitution was adopted in 1979 with its last amendments in 1989 (hereafter: IRI Constitution). One of its most salient features is the statement of the supremacy of Islamic law over all aspects of law, leading to the establishment of an Islamic Republic. The drafters of Iran's constitution also took into

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account social, cultural, and political factors to utilise Iran's potential in full measure. The constitution was drafted in a manner assigning a positive role to the government in order to establish macro-policies and micro-support programs enabling the economy to realise its full potential in creating wealth. A key aspect of the constitution is the establishment of a framework for the citizenry to partake in and influence the conduct and operations of the government. According to Principle 3 IRI Constitution the government shall provide for the 'participation of the entire population in determining their political, economic, social, and cultural destiny' 1 . The policy envisaged by the post-revolution constitution was to eliminate the likelihood of a concentration of power. Principle 3 IRI Constitution was designed as a means for the population to continuously participate in the administration of state affairs. The system that emerged consists of three elected bodies and five nominated or indirectly approved institutions. The structure of the political system is as follows:

The structure of the political system in Iran is different from other constitutions, with due regard to the duality of Islamic and Republican elements.

' See Annex D, 331 ff.

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The Supreme Leadership

In keeping with the Islamic principles of governance, the constitution provides for the establishment of a leadership headed by a religious jurisprudent (velâyat-e faqîh), whose duty it is to supervise and correlate the policies of the government with divine law. In this way, he is responsible for the conformity of religious law before God and the people. II. The Council of Guardians Second to the Leader in the hierarchy is the Council of Guardians (shûrâ-ye negahbàn). The Council is constituted by 12 members, six of which are clerics appointed by the Supreme Leader, six are law experts appointed by Parliament upon the recommendation of the Ministry of Justice. The Council reviews the laws passed by Parliament to determine whether they are in conformity with Islamic religious law (the Sharfa) and the provisions of the constitution. If a law is considered unislamic or unconstitutional, the Council has the authority to veto it. Decisions as to whether a given law is constitutional are to be taken unanimously among all 12 council members, whereas the question of conformity with the Islamic Shan°a is decided via a majority vote of the clerics. The Council also supervises presidential and parliamentary elections and plebiscites. In case of conflicting interpretations of the provisions of the constitution, the Council is empowered to give a binding ruling. III. The Assembly of Experts The Assembly of Experts (magles-e khobregan) is a 72-member body elected by popular vote. Its members are recruited from among the nation's leading jurists and scholars of Islamic jurisprudence. Having originally drafted the IRI Constitution, the Assembly is mandated to fill any vacancy in the post of the valï-e faqîh. The most recent elections of this body took place in October 1998 and were distinguished by the participation of over 15,000,000 voters across Iran. IV. The Expediency Discernment Council The Expediency Discernment Council (magma0-e tashkhïs-e maslahat-e nezàme keshvar) was established in compliance with Principle 112 IRI Constitution with the aim of mediating issues pertaining to the interpretation of law in case of differences of opinion between Parliament and the Council of Guardians. The members of the Expediency Discernment Council are directly appointed by the Supreme Leader.

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V. The State's three sovereign powers The Iranian constitution affirms the division of power into the executive, the legislative, and the judicial branch. These divisions are structured within the following framework: 1. The executive branch The President of the Islamic Republic is elected by direct nation-wide suffrage for a four-year term and is eligible for a second four-year term. Presidential candidates must be Iranian nationals 'of good background, pious and honest' (Principle 115 IRI Constitution). The constitution designates the President as the Head of the Council of Ministers and charges him with direct responsibility for planning and budgetary affairs, although each of these duties may be delegated at the President's discretion. The Cabinet comprises 21 Ministers. Members of the Cabinet must be approved individually by Parliament and are accountable for their actions. Parliament may censure each Minister and call for dismissal of any number of Ministers at any time. 2. The legislative branch The Parliament of Iran, better known as the Islamic Consultative Assembly (magles-e shura-ye eslamT) is composed of over 270 elected deputies representing various constituencies. The constitution provides for an increase in the number of seats every ten years based on 'demographic, political, geographical, and similar factors' and limits the number of new seats to a maximum of 20 every ten years. Elections to Parliament are held every four years, and sessions are run by a governing board comprised of a speaker, a first and second deputy speaker, a secretary, and two board members. There are 22 permanent committees that oversee all aspects of governmental, socio-legal affairs, accounting, and public petitions. 3. The judicial branch The Judiciary in Iran is independent of the executive and legislative branches. The Minister of Justice acts merely as a liaison between the judicial and the other two branches. The Judiciary is headed by an individual appointed by the Leader for a five-year term. According to the constitution the Head of the Judiciary must be 'a just jurist, well versed in judicial affairs, resourceful, and possessing managerial skills' (Principle 157 IRI Constitution).

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C. Iranian Business Law After the Islamic revolution fundamental changes occurred in all areas of life, resulting inter alia in a profound review of the Iranian legal system. Since 1979, Iran has witnessed a reiteration of Islamic law into its legal system. Principle 4 IRI Constitution stipulates: Principle 4 IRI Constitution: All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the members of the Council o f Guardians are judges in this matter.

While keeping this principle in mind, I shall explore the main sources of Iranian business law, which are the civil code and the commercial code and other laws and regulations ratified later in connection with different business matters. I.

The civil code

The civil code of Iran (hereafter: CC) must be considered one of the most important legislative documents and is actually the foundation of private law in the Iranian modern legal system. It was ratified during the years 1927-31 by the Iranian Parliament. This important code is a combination of Islamic law with some features of the French code civil. The Iranian civil code encompasses regulations on property, ownership, contracts, nationality, domicile, divorce, family rights, obligation proofs, and inheritance. Contract law as codified in the civil code has been influenced by the French code civil. II. The commercial code Since 1924 Iranian legislators have passed a diversity of laws concerning trade and other issues such as bill of exchange, bankruptcy, etc. The present commercial code of Iran (ComC), consisting of 600 articles, was approved by the National Assembly on April 3, 1932. Most of this commercial code has been taken from the 1807 French code de commerce. The Iranian commercial code is divided into four parts: 1. merchants and trade activities, 2. trade companies, 3. negotiable instruments and contracts, and 4. bankruptcy and liquidation. Unlike the French code de commerce that has undergone numerous amendments and modernisations, the Iranian commercial code has unfortunately not been revised and still retains its original form from the 1930s. It does not respond to the needs of international trade, and except for its regulations on commercial companies it can be described as outdated and ineffective. That is

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why most recently a commission has been set up at the Ministry of Justice to review the code and update its content. In relation to merchants and trade transactions, Art. 1 ComC stipulates: Art. 1 ComC: A merchant is one who ordinarily engages in trading transactions.

Art. 2 ComC enumerates trade transactions: Art. 2 ComC: Commercial transactions are: 1. Purchase or acquisition of any kind of movable property for the purpose of sale or hire, whether in its original state or not. 2. Transport business of any kind, by land, sea, or air. 3. Every act of brokerage, commission, agency, or engagement in any kind of establishment for the purpose of carrying out certain business such as facilitating property transactions, engaging employees, procuring or dispatching materials, etc. 4. Establishing and operating any kind of factory, provided it is not for the fulfilment of personal needs. 5. Business connected with auctions. 6. Management of places of public amusement. 7. Any type of banking and money exchange business. 8. Any type of draft exchange business, whether between merchants or not. 9. Marine or other insurance business. 10. Ship building, buying or selling of ships, shipping in territorial or international waters, and all transactions appertaining thereto.

In the discussion relating to commercial laws and regulations, two issues are of great importance: commercial companies and commercial contracts. III. Commercial companies From among the various types of commercial companies mentioned in the commercial code, three types of companies are of significant importance and are more common among merchants. These are: 1. the private joint stock company, 2. the public joint stock company, and 3. the limited liability company. 1. The private joint stock company This is the most common form of commercial enterprise in Iran and the one most frequently chosen by foreign investors with regard to the joint venture company. The liability of shareholders is in principle limited to their capital subscription. The private joint stock company is an independent legal entity that can enter into contracts, and it can sue and be sued. Shares can be transferred (subject to certain restrictions) without affecting the continued existence of the company, though in principle they may not be offered for public subscription or trading.

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2. The public joint stock company This form is generally adopted by entities who wish to raise capital publicly, regardless of whether the company is listed on the board of stock exchange or not. There are normally no restrictions with respect to the assignment or the transfer of shares of public joint stock companies. 3. The limited partnership company or company with limited liability In this form the company can be established by two partners who in principle are liable only to the extent of their contributions to the partnership's capital. Before the 1979 revolution, both foreigners and Iranians were able to freely establish a company, and there was no limit to their investment in such companies. After the Islamic Revolution of 1979, however, foreign participation in Iranian companies was reduced to 49 percent, and companies had to undergo extremely bureaucratic procedures not favourable to attracting foreign investments. 4. The joint venture companies Commercial activities and foreign company investments with Iranian companies usually take the form of joint venture companies (hereafter: JVC). A JVC is a registered company founded in Iran on the investment and cooperation of a foreign entity with an Iranian company. Based on a general practice, the upper ceiling of equity share which is brought in by the foreign company is limited to 49 percent. Nevertheless, by virtue of the regulations of the new Act on the Promotion and Protection of Foreign Investment (FIPPA), and depending on the form of cooperation, the amount of contribution imported by a foreign party is not subject to any limitation and it could be approved even up to 100 percent of equity share. In Iran's free trade zones some branches like insurance institutions and banks are allowed to establish companies by paying 100 percent of the investment. These types of companies take either the form of a private joint stock company or in some cases that of a limited liability company. With the mutual agreement of the companies and after having received the necessary permits, the JVC may operate as a completely independent entity, may enter into contracts and sign them as an independent legal entity. a) Foreign companies' branch and representative offices One of the simplest and most common means for commercial transactions and investment in Iran could be the establishment of a branch/representative office

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of the foreign company in Iran. This, however, has been a bone of contention for many years. The problems stem from Principle 81 IRI Constitution which stipulates the following: Principle 81 IRI Constitution: The granting of concessions to foreigners for the formation of companies or institutions dealing with commerce, industry, agriculture, service, or mineral extraction is absolutely forbidden.

The government sought to overcome the obvious problems resulting from this principle and brought the question before the Council of Guardians. In its Session of February 2, 1982 the Council announced: 'Foreign companies that have signed legal contracts with Iranian governmental organisations may register a branch office in Iran for their legal activities and operations according to Art. 3 of the Law of the Registration of Companies, and this is not in contradiction with Principle 81 of the Constitution.'

With this announcement of the Council of Guardians foreign companies began signing legal contracts with Iranian governmental organisations. But other companies that did not possess any such contracts with government organisations and merely wanted to operate in the private sector were deprived of such rights. A large portion of foreign companies and institutions was thus cut off from investment opportunities. In order to solve this problem, the government prepared a bill which was enacted by Parliament, to permit foreign companies that wished to invest in the private sector to register a branch or a representative office. The Act Permitting the Registration of Branch or Representative Offices of Foreign Companies was passed on November 12, 1997 (hereafter: Registration Act). Art. 1 Registration Act stipulates: Art. 1 Registration Act: A foreign company which is known and admitted as a legal company in the country of registration shall be authorised to have its branch or representative office registered in Iran for activities listed below, by observing the principle of reciprocal action and also with due regard to the requirements outlined herein, as well as other pertinent regulations: 1. After-sale services for goods and services supplied by the foreign company 2. Execution of the contracts signed between Iranian and foreign companies 3. Review and preparation of grounds for investment by foreign companies in Iran 4. Cooperation with technical and engineering companies in Iran, for works performed in a third country 5. Promotion of Iranian oil exports 6. Technical and engineering services and transfer of technology and technical knowhow to Iran 7. Activities legally licensed by Iranian government officials which are duly authorised to issue such permits in such areas as transportation, insurance, goods inspection, banking, marketing, and the like.'

The article makes no reference to legal contracts and stipulates the principle of reciprocity. This article is a novelty, and the Iranian Corporate Registration Bureau (hereafter: CRB) is still not well acquainted with it. However, since its inception a number of foreign branch companies have been registered. The

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CRB until recently has only registered foreign branch offices. The relevant regulations and executive orders for the registration of representative offices have not been issued. A foreign company's branch, as compared to a representative office, enjoys wider competence and authority and its establishment is more common in practice. Based on the amendments made in the Act on Direct Taxation, the foreign companies' branches and representative offices that are only dealing with marketing affairs and collecting commercial information are exempted from paying taxes. b) Foreign bank representative office Foreign banks are excluded from the above mentioned act, and the establishment of their representative offices follows other regulations. The new law and the relevant executing regulation introduced in March 1999 do not include banking as one of the activities. Therefore, foreign banks cannot open fully operative commercial branches in Iran. They are only authorised to open representative offices. It is noteworthy that some foreign banks have undergone the application process and have opened representative offices. The procedure for the opening of a representative office is based on several executing regulations, decrees, guidelines, and application forms approved by the Money and Credit Council and also the Central Bank of Iran (hereafter: CBI). IV. Commercial contracts A small section of Iran's commercial code is dedicated to commercial contracts. These contracts are the classic contracts, which have a history of hundreds of years in trade, ie agency, broking, transportation and commission contracts. In its discussion of these classic types of contracts, the commercial code makes references to the Iranian civil code. The civil code governs the general rules of commercial contracts as far as formation, performance, termination, and interpretation of contracts are concerned, unless the commercial code stipulates different rules. 1. Formation and validity of contracts Iranian contract law does not differ substantially from that of other legal systems in the world, as far as the formation and the basic conditions governing its validity are concerned. According to Art. 183 CC, the basic element for the formation of a contract is the mutual agreement of two intentions: Art. 183 CC: A contract consists of an undertaking by one or more persons vis-à-vis another person or others persons and the acceptance of the undertaking by the latter person or persons.

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Contracts are thus governed by will and consent and the intention of the contracting parties. This principle is also stipulated in Art. 10 CC: Art. 10 CC: Private contracts shall be binding on the contracting parties, provided they are not contrary to the explicit provisions of the law.

The parties may conclude contracts as they wish, without any formalities. Art. 190 CC lists the essential conditions required for the validity of a contract: Art. 190 CC: 1. 2. 3. 4.

For the validity of any contract the following conditions are essential: The intention of the parties and their consent. The capability of the parties. A definite object to form the subject-matter of the contract. The lawfulness of the cause.

Regarding the intention and mutual consent of the parties Art. 191 CC reads: Art. 191 CC: A contract is concluded through the intention to create it, provided that the intention is accompanied by some factor which proves that there was such an intention.

Art. 193 CC provides that: Art. 193 CC: A contract may be concluded by an act indicating the intention and consent, such as taking delivery and handing over, except in cases excluded by law.

On the basis of the principle of the autonomy of will a contract is formed by offer and acceptance of the parties, after agreement on a certain subject-matter, provided that the purpose of their transaction is lawful. After the conclusion of the contract the contracting parties are bound by their obligations created thereunder. A court cannot free any party from the obligations undertaken in the contract on the pretext of exercising justice. 2. The validity of international commercial

contracts

As far as international commercial contracts are concerned, the governing rules are the same as for national contracts, unless they are in contradiction to public policy or morality. Thus, under the general rule of Art. 10 CC, international commercial contracts such as agency and franchise agreements, distributorship, sale and know-how transfer agreements are considered valid in Iran. As far as construction and contracting companies are concerned, the terms and conditions of the International Federation of Consulting Engineers' (FIDIC) model contract apply to Iranian companies. 3. Governing law The principle of autonomy of will allows the parties to an international commercial contract to choose the law that shall govern their contract. This possibility is somewhat curtailed by the provisions in the civil code. The problem stems from Art. 968 CC which stipulates:

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Art. 968 CC: Obligations arising out of contracts are governed by the laws of the place of conclusion of the contract, except in cases where the contracting parties are both foreign nationals and have explicitly or impliedly subjected the contract to the laws of another country.

Some Iranian lawyers believe that this article has mandatory character; if a contract is signed in Iran, Iranian law will govern the contract. Some, however, maintain the exact opposite. They argue that the regulations of Art. 968 CC have a voluntary aspect and the parties may always choose the law of another country to govern their contract. If, however, no choice is made, then Iranian law, being the law of the country where the contract is signed, shall govern the contract. Parties to an international contract are therefore well-advised to carefully choose the place where the contract is signed. In cases where an explicit choice of foreign law is stipulated in a contract between a foreign and an Iranian party and the contract is signed in Iran, the danger remains, however, that in case of dispute the case will be brought before an Iranian court, with the Iranian party invoking Art. 968 CC to prevent the application of foreign law. It is thus equally important to take into account a jurisdiction clause, because whenever a foreign court or an international arbitration body has been chosen, the case is different. 4. Jurisdiction clause There is a general caution and suspicion on part of the foreign business community to allow Iranian law to govern their contracts, and there is even less leniency in submitting any case to the jurisdiction of an Iranian court. As a matter of fact, these fears are not groundless. The Iranian judiciary has undergone numerous changes and ups and downs and suffers from chronic disruption: the procedure in Iran's judicial system is time-consuming, and a simple case can take many years to be resolved; specialised courts are a rare phenomena, and the judge in an ordinary court examines all cases of civil law and may not be acquainted with international contracts and specialised commercial issues. This includes the foreign parties to refer controversial matters to international commercial arbitration bodies like the International Chamber of Commerce. 5. The Act on International Commercial Arbitration 1997 In 1997, the Iranian legislator adopted legislation on international arbitration the Act on International Commercial Arbitration (hereafter: AICA), based on the United Nations Commission on International Trade Law (UNCITRAL) model law. The AICA was approved by the Iranian Parliament on September 17, 1997 and approved by the Council of Guardians on October 1, 1997. The Act entered into force on November 5, 1997.

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According to its provisions, Iranian private companies can submit themselves to foreign law and choose a foreign jurisdiction or an international court of arbitration for disputes arising from their contracts. Iranian state companies or organisations with a state-controlled shares may only submit their disputes to a foreign arbitral body with the approval of the Iranian Parliament according to Principle 139 IRI Constitution. Iranian authorities claim that the AICA closely follows the UNCITRAL model law on International Commercial Arbitration and provides Iran with a modern legal framework for international arbitration. The study of the history and the evolution of arbitration in Iran as well as analysis of the AICA demonstrate, however, that the AICA, while considerably enhancing Iran's arbitral regime, contains major shortcomings which place the AICA below international standards. It is argued that the AICA should be amended and major international arbitration conventions should be ratified. 6. Recognition and enforcement of foreign judgements and arbitral awards a) Foreign court judgements The judgement of a foreign court is enforceable in Iran if the country whose courts rendered the judgement has a bilateral treaty with Iran or if that country would enforce an Iranian judgement (rule of reciprocity), provided that the rendered judgement is final, definite and not against the mandatory rules of Iranian law. The enforcement requires furthermore the exequatur proceedings in which the relevant court verifies compliance of the judgment with certain standards. The Iranian court will not reconsider the case (révision au fond) before enforcing the judgement. b) Foreign arbitral awards Iran ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (known as the New York Convention), on October 15, 2001. The convention entered into force on January 13, 2002. Like a number of other contracting states, Iran has reserved the application of the convention to disputes arising out of legal relationships considered as commercial under its national law and to awards made in the territory of another contracting state.

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D. Investment in Iran the Act on the Promotion and Protection of Foreign Investment I.

Foreign Investment and Legal Evolution

Until recently the Act for the Attraction and Protection of Foreign Investments in Iran (LAPFI), promulgated in 1955, governed the field of foreign investment in Iran. This act had many deficiencies, and after the 1979 revolution it could not be considered a sufficient and proper device for the realisation of investment. The need for a new act was felt very strongly. II. Foreign Investment Promotion and Protection Act FIPPA2 On May 26, 2000 Parliament considered the amendment of LAPFI and submitted a draft bill on the Promotion and Protection of Foreign Investment (FIPPA). The Council of Guardians rejected the draft on June 14, 2001, arguing that it was inconsistent with many principles of the Iranian constitution as well as religious dogmas. In a seven-point letter the Council disclosed its reasons: 1. The generality and comprehensibility of some articles of the mentioned bill may cause in some cases the unconditional transfer of ownership of land to foreign nationals and their states, even in the areas adjacent to neighbouring countries, and affects the independence and freedom of Iran's territorial integrity. 2. The generality and comprehensibility of the bill causes in some cases the dominance of foreign nationals over our economy and therefore leads to foreign infiltration. 3. The Bill for the Promotion and Protection of Foreign Investment in Iran is such that in some cases under equal circumstances it gives priority to Iranians abroad over Iranians living in Iran. 4. The mentioned bill has given such rights to foreigners which may impose losses to Iranians living in Iran and transgression of public interests. 5. In the said bill the magles has given authority to the Council of Ministers without clear and specific reason, leading to (some sort of) legislative authority; furthermore authority has been handed over to the deputies of different Ministries. 6. The generality and comprehensibility of the said bill grants in some cases special concessions and monopoly to foreigners, attracting foreign loans, disrupting the economy and harming self-sufficiency. 7. The mentioned bill does not provide for any priority for Iranian investors over foreign nationals.

The Council of Guardians considered the bill to be in contradiction with 16 Principles of the Iranian constitution. A second version of the bill, the result of a joint committee of Parliament and the Council of Guardians, was presented on November 4, 2001. But on December 3, 2001 the Council of Guardians

2

See Annex E, 343 ff.

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rejected the draft once again, stating that 18 problems remained in the draft. The bill had to be referred to the Expediency Discernment Council for final decision. The Expediency Discernment Council put an end to the disputes by making certain amendments and enacting the changed bill on May 26, 2002. 1. The new Foreign Investment Promotion and Protection Act FIPPA provides in its first chapter definitions of some of the important concepts of investment, such as 'foreign investment', 'foreign investor' and 'foreign capital'. The definition of 'foreign investor' is not confined only to natural and legal entities of foreign nationality, but covers also Iranians residing abroad and international institutions and organisations (Art. 1 FIPPA). A reference to Iranians residing abroad was felt to be necessary in order to attract the economical strength and power of Iranians who had emigrated after the Islamic revolution due to a fear of expropriation and performed remarkably in their host countries. Whereas the LAPFI provided that foreign capital covered the instances of investment 'either in cash or in the form of factories, machinery and parts, equipment, patent rights, expert services, and the like [...]', the FIPPA has added some items to that list. According to Art. 1 FIPPA foreign capital means 'various types of capital, whether in cash or in kind, imported into the country by Foreign Investor'. They comprise the following: a) Cash funds in the form of convertible currency, imported into the country through the banking system or other methods of transfer acceptable to the Central Bank of the Islamic Republic of Iran; b) Machinery and equipments; c) Tools and spares, CKD parts and raw, addable and auxiliary materials; d) Patent rights, technical know-how, trade marks and names, and specialised services; e) Transferable dividends of foreign investors; f) Other permissible items approved by the Council of Ministers.

2. The methods and procedures introduced by FIPPA Chapter 2, entitled 'General Conditions for Admission of Foreign Investment', refers to the matter of direct foreign investment in any non-governmental sector. The investment may be performed by various financing methods, including buy-back and build-operate-and-transfer schemes. The foreign investor is authorised to exercise proprietary rights over the portion of the capital remaining with the economic establishment/institution, as long as the foreign capital and the profit derived are not depreciated (Art. 3 FIPPA). According to Art. 5 FIPPA, the Organisation for Investment, Economic and Technical Assistance of Iran (OIETA) is vested with the authority to approve

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and determine the policies, conditions, and norms for the implementation of foreign investment. Its authority also covers the matter of determining the extent and maximum ceiling of foreign partnership in various economic sectors. In order to put an end to debates and discussions on the matter of 'concession', FIPPA provides that foreign investment shall not involve concessions to be granted by the government to foreign investors. Concession are understood to be special rights and/or exclusive privileges which may provide and entitle foreign investors to a monopolistic status that would place them in an exclusive position as compared to national investors (Art. 2 sect, c) FIPPA). In the LAPFI the procedure for the implementation of foreign investments was lengthy, with a bureaucratic applications process. Now the OIETA is bound to put forth the applications for investment before the Board of Foreign Investment within a maximum period of 15 days. The Board has to examine the case and declare in writing its final decision within a maximum period of one month from the date on which the application was submitted to the Board (Art. 6 note 1 FIPPA). 3. Guarantees provided by FIPPA The foreign capital that is subjected to FIPPA enjoys and benefits from the same rights, protections, and facilities stipulated for domestic investments (Art. 8 FIPPA). Foreign investments may not be expropriated, dispossessed or nationalised unless in the interest of the public, in conformity with the legally prescribed procedures, in a non-discriminatory fashion, and against payment of appropriate compensation and reparations equal in amount to the actual value of the investment immediately before expropriation (Art. 9 FIPPA). The application for indemnification of incurred damages must be submitted to the Board of Foreign Investment within a period of one year after the act of deprivation of ownership or nationalisation. Any dispute arising from the deprivation of ownership or nationalisation shall be settled according to Art. 19 FIPPA (Art. 9 notes 1 and 20 FIPPA). Art 19 FIPPA reads: Art. 19 FIPPA: Disputes arising between the Government and Foreign Investors with regard to their respective mutual obligations within the context of investments under this Act, if not settled through negotiations, shall be referred to domestic courts, unless the Law ratifying the Bilateral Investment Agreement with the respective Government of the Foreign Investor provides for another method for settlement of disputes.

4. Capital assignment Under the new regime the transfer of capital has become possible. According to Art. 10 FIPPA the total or partial assignment of foreign capital to a national investor or, upon the agreement of the Board, to other foreign investors will be authorised. In the case of transfer of foreign capital to other foreign investors,

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the assignee shall replace the former foreign investor or shall be regarded as the partner of the former investor. 5. Conditions for admission, import and export of the foreign

investment

One of the great difficulties and barriers on the way to foreign investment was the ambiguity existing in the foreign exchange conversion rate of the Iranian currency 'Rials'. This problem has been solved under FIPPA. The applicable foreign currency exchange rate, at the time of importation or exportation of foreign capitals, shall be the rate officially prevailing in Iran's banking system, in case only one parity rate for conversion of a foreign currency into Rials exists. The free market rate shall be applied at the discretion of the CBI (Art. 12 FIPPA). Currently, the official exchange network mentioned in FIPPA refers to the Tehran Stock Exchange which applies a foreign currency exchange rate close to the free market exchange rate. 6. Transfer of capital and investment profits The FIPPA has provided the possibility to transfer the principal amount of foreign capital and the profits derived therefrom. Art. 13 FIPPA provides that the original capital and the profits accruing thereof, or what has remained of the investment in Iran, may be repatriated after notification the Board of Foreign Investment three months prior to the transfer. Regarding taxes and charges, Art. 14 FIPPA provides that the profit derived from the foreign investment may be transferred abroad after deducting taxes, duties and statutory reserves. Regarding intellectual property rights, Art. 15 FIPPA explicitly authorises the repatriation of sums which shall be paid in instalments for the principal sum of financial facilities granted by foreign investors plus the associated costs, as well as the amounts due under the contracts concerning patents rights, technical know-how, engineering and technical aids, trade names and trade marks, management, and other similar contracts entered into in conformity with foreign investment projects. 7. The procedure for transfer The foreign currency required for transfers described in Art. 13, 14 and 15 FIPPA may be supplied and provided as follows: a. purchase of foreign currency from the banking system of Iran; b. using the foreign currency earned through export of commodities produced and/or the foreign exchange earned through the services rendered by the financial institution for and in favour of which the foreign capital shall be utilised;

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c. export of authorised goods and commodities duly observing the relevant laws and regulations.

Since the consecutive changes in Iranian law and the government's decisions may place some risk on the security of commercial activities and affect the foreign investment, Art. 17 note 2 and 3 FIPPA provide: Art. 17 FIPPA: [...] Note 2: With respect to investments referred to in sect, b) of Art. 3 of this Act, if, as a result of the promulgation of legislation or Government decrees, the execution of the financial agreements approved within the framework of this Act is prohibited or interrupted, the resulting losses, up to a maximum of instalments at maturity, shall be provided and paid for by the Government. The extent of acceptable commitments within the framework of this Act shall be approved by the Council of Ministers. Note 3: The Central Bank of the Islamic Republic of Iran must secure and make available to the Foreign Investor the equivalent foreign currency for the transferable amounts referred to in sect, a) of this Article, upon the agreement of the Organisation and confirmation by the Minister of Economic Affairs and Finance.

8. Settlement of disputes With respect to the settlement of disputes arising from investment, FIPPA introduced some new solutions and innovations. Under the LAPFI disputes resulting from an investment were referred to Iranian courts. In addition to this the FIPPA has introduced further methods for the settlement of disputes, such as arbitration (Art. 19 FIPPA).

Selected Aspects of Iranian Family Law N A H I D SHID

A.

Permanent Marriage I. Health qualifications for marriage II. Dower III. Maintenance IV. The wife's submission V. Custody VI. Guardianship

B. C.

D.

Temporary Marriage Dissolution of Marriage I. Annulment II. Divorce III. Remuneration IV. Other provisions Concluding Remarks and Evaluation

In the Name of God

The laws of Iran generally originate from and/or are influenced by Islam and Islamic jurisprudence (fiqh sources). As far as primary sources of Islamic law are concerned, the explicit rules of Qur'àn and sunna are determinative; the secondary sources are those established by the Islamic jurisprudents (faqîh) in response to and in view of social circumstances. In the Iranian Constitution of 1979 (IRI Constitution) a number of principles address the issue of private law and notably family law. Principle 10 IRI Constitution introduces the family as '[t]he fundamental unit of Islamic society, all laws, regulations, and pertinent programs must tend to facilitate [...] stability of family relations [...]'. Principle 20 IRI Constitution enounces that '[a]ll citizens of the country, both men and women, equally enjoy the protection of the law [...]', and Principle 21 IRI Constitution provides that '[t]he government must ensure the rights of women in all respects, in conformity with Islamic criteria [...]'. All this is embraced by the overarching rule of Principle 4 IRI Constitution that demands that '[a]ll civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria [...]'• Based on the said rules and in order to preserve and stabilise the family foundation while observing the rights of women, special family courts 1 have

' Act on the Allocation of some of the Courts as Courts Subject to Principle 21 IRI Constitution (Family Courts) approved on 8.5.1376/30.7.1997 by the Iranian Parliament

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been established for matters of personal status (excluding succession). Since 1992 female advisers can be appointed as legal consultants to these family courts2. There are certain principles governing family relations that take effect when a marriage is concluded. The marriage contract has legal consequences. It determines the relationship between the spouses, including the issues of dower, maintenance, woman's submission, guardianship and custody of children, dissolution of marriage, divorce, remuneration, and succession. The Iranian civil code (CC), read in the light of relevant amendments and in conjunction with other pertinent subsidiary rules, regulates these issues. The provisions on the mentioned matters form the basis of the legal relationship and reciprocal commitments of husband and wife. The 'negotiation' of a marriage contract starts with the marriage proposal; the offer comes from the part of the woman and acceptance is given by the man. The marriage can be permanent or temporary. A permanent marriage generates certain obligations that a temporary marriage does not bring about, as we shall see below. A. Permanent Marriage I.

Health qualifications for marriage

In order to preserve and safeguard the family and public health, some laws were passed that oblige the future spouses to undergo medical examinations before marriage. As such, a marriage of minors, that is persons who have not yet reached the age of puberty, is forbidden. However, there are exceptions to this rule: marriage may be concluded before the spouses have reached the age of puberty by permission of the guardian, provided that the ward's interests are not endangered 3 . A virgin girl may only marry with the permission of her guardian, even if she has reached the age of puberty. In case the father prevents the girl from marrying without justified reason, the girl may address the court and obtain a permission for marriage. Prior to the conclusion of marriage, the fiancés are required to get a medical attestation that they are in good health. Furthermore, the absence of contagious (Islamic Consultative Assembly) and confirmed by the Council of Guardians on 19.5.1376/ 10.8.1997. 2 Art. 1 note 5 of the Act on the Amendment of the Divorce Provisions, enacted by Parliament on 21.12.1370/11.3.1992 confirmed by the Council of Guardians 28.9.1371/ 19.11.1992: Rûznàme-ye rasml [Official Gazette] No. 13914 of 19.9.1371/10.12.1992 (hereafter: Divorce Act). 3 Art. 1041 and 1043 CC and its note.

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sexually transmitted diseases, as well as a negative result on thalassemia must be provided 4 . II. Dower It is a condition in the marriage contract that a determined sum and/or a defined tangible object of some proprietary value must be delivered by the husband to the wife as dower5, either at the conclusion of the marriage or thereafter. Whenever the dower is determined at the conclusion of a marriage contract, it is called the 'specified dower'; if it is to be determined later, it is called the 'proper dower'. Upon conclusion of the marriage contract, the wife becomes the owner of the dower and she may dispose of it as she wishes. In case no special dower is determined in the marriage contract, the spouses may determine it afterwards in mutual consent; if they cannot reach a mutually satisfying agreement after the marriage contract has been concluded and sexual intercourse has occurred, the wife can refer their dispute to the family court for determination and recovery of the proper dower. The court shall refer the case to experts in order to determine the wife's dower. The experts must take into consideration the wife's social and family status and all particularities of her standing as compared to the standing of other women in a similar environment. Local customs and other factors may hereby affect the total amount of the dower 6 . In a permanent marriage, when the dower has not been fixed and the husband divorces the wife before they had intercourse, the wife will be entitled to the value of a dower due in a temporary marriage. If the wife is divorced after intercourse was performed, she will be entitled to the proper dower. For determining the proper dower the man's financial status will be considered with regard to his pecuniary commitment and ability7. The wife may refrain from obedience and fulfilment of her marital duties as long as the dower is not given to her. Such refraining will not extinguish her marital right to maintenance 8 . This action is called 'withholding because of dower'. If, however, the wife continues to fulfil her duties vis-à-vis the husband, albeit the dower has not been given to her, she loses the right to refrain from doing so9. 4 Act Concerning the Requirement for Obtaining Physician's Certificate before Conclusion of a Marriage Contract, of 1.1.1376/21.3.1998 (with regard to thalassemia testing before marriage). 5 Art. 1078, 1087 and 1118 CC. 6 Art. 1091 CC. 7 Art. 1093, 1094 CC. 8 Art. 1085 CC. 9 Art. 1086 CC.

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If the dower has been fixed and the spouses separate before intercourse, the wife will be entitled to half of the specified dower. If the dower is an amount in cash, the value will be adapted to the market value according to the inflation rate at the time of the demand10. In this case the amount of dower will be determined according to this formula: inflation-coefficient of the year previous to the year where payment of the dower is requested divided by the inflation-coefficient of the year of marriage times the sum of the dower in Rial equals the actual value of the dower to be paid by the husband on the women's request11. When the wife's dower is to be paid out of the deceased husband's estate, the date of the husband's death will be taken as the basis of calculation of the dower. In case the husband refrains from paying his wife's dower, she may, on the basis of the marriage contract, recover it in two ways: firstly, through the Execution Department of the Deeds and Properties Registration Organisation, and secondly, by filing a lawsuit in a family court and submitting her claim for the dower. In the first instance, the Execution Department will confiscate the husband's property and sell it in an auction for the benefit of the wife. The wife's dower will be paid from the proceeds of the auction, provided that the property which was sold was not among the assets reserved for the redemption of debt. In the second instance, a judgement is issued requiring the husband to pay the dower. If he is financially not able to pay the dower, he may submit a petition to the court claiming his insolvency, or he may ask to pay by instalments; in the first case, he can be exempted from paying the dower, in the second case, he can be allowed to pay the dower by instalments. If he is known to be solvent or his insolvency has not been recognised by a court ruling, he can be imprisoned at the court's order until he pays the due dower12. III. Maintenance In permanent marriage the husband is obliged to pay his wife maintenance consisting of food, clothes, and housing furniture appropriate to the wife's social standing and status. The husband must even procure house-maid services

10 See for the calculation of the dower according to the inflations rates between 1315-1381 /1936-2002 Basedow/Yassari, Iranian Family and Succession Laws and their Application in German Courts (2003) 172. 11 Single Statutory Article on Appending a Note to Art. 1082 CC, as approved on 29.4.1376/20.7.1997 by the Iranian Parliament and on 8.5.1376/30.7.1997 by the Council of Guardians. 12 Act Concerning the Procedure for the Execution of Financial Conviction of 7.9.1367/ 28.11.1988.

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if the wife is accustomed to a servant, or if she is in need of a servant due to illness or disability13. In case the husband refrains from paying the wife maintenance, she may file a suit for deferred and/or current maintenance before the family court. The court will determine the amount of the maintenance through an expert and will then order the husband to pay the adequate amount. If in addition to the wife there are one or more persons entitled to maintenance, the wife will be given priority over others14. Moreover, the wife can file a complaint before the Public Prosecutor's Office and ask for the punishment of the husband for failure to pay maintenance in accordance with the relevant provision in the Iranian penal code. If the husband is solvent and able to fulfil his duty but still refrains from doing so, the court may have him imprisoned for three months and a day up to five months 15 . If after the conclusion of the marriage the husband contracts a contagious sexually transmitted disease, the wife has the right to refrain from any sexual relationship with her husband and will keep her right to maintenance 16 . IV. The wife's submission In the relationship between the spouses the position of the husband is considered to be supreme. Whenever the wife refuses to perform her marital duties without a valid reason, she will be deprived of her right to maintenance. The wife shall submit herself to her husband and shall reside in the house that the husband has chosen, unless the wife has been given the right to determine their residence. If her privacy and physical and psychological integrity and dignity are not secured in a certain residence, the wife may leave the husband's house upon proving before the court the infliction of damages or a high chance of them realising in the future. As long as the wife is excused from moving back in to her husband's house by an order of a court, the husband must pay her maintenance. The husband may prevent his wife from engaging in commerce or craftsmanship that may conflict with exigencies and needs of the family and/or with his own or his wife's dignity. The same right is given to the wife upon agreement in the contract of marriage, and she may address the court to prevent her husband from engaging in such a career17. The spouses may agree in their con-

13 14 15 16 17

Art. Art. Art. Art. Art.

1107CC. 1111, 1203, 1206 CC. 642 Iranian penal code, 1127 CC. 1105, 1114, 1117 CC.

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tract of marriage that the wife is entitled to choose and work in any profession she wants to take up. V. Custody Custody means the maintenance of and care for the children, which are both the right and the duty of both of the parents. In matters of maintenance and custody of children, by virtue of the amendment of Art. 1169 CC which was approved by the Expediency Council in 2003, the mother will have custody of her children, sons or daughters, until the age of seven. However, if a mother becomes insane or marries another man during her custody period, her right to custody may be annulled. When the parents of the children do not live in the same house, the parent that does not live with the children has a visiting right. If the parents cannot agree on the details of time and place, they will be specified by the family court18. In 1985, a special law - the Act on the Right of Custody of the Mothers of Minors or Underage Children - entitled mothers, whose husbands were martyred or had died, to the custody of their minor children19. If one parent dies, the custody for their common child will be with the one who is alive. If the health or the ethical education of a child is endangered because of a substantial failure or moral disqualification of the parent who is caring for the child, that parent will be deprived of his/her right to custody by a court order20. If the family court orders that custody be given to a certain person and the father or the mother or any third party prevents the execution of the order, that person may be sentenced to imprisonment until obstruction to the execution of the order is removed 21 . It is not obligatory for a mother to breastfeed her child. She may request remuneration from her husband for this service22. VI. Guardianship The minor child shall be under the natural guardianship of his father or paternal grandfather. The guardian (father or paternal grandfather) is the child's legal representative in all questions concerning property or other financial matters. 18

Art. 1168, 1170, 1174CC. Act on the Right of Custody of the Mothers of Minors or Underage Children, of 22.4.1365/28.7.1985: Law Collection of the Year 1364/2004-2005, 321 f. 20 Art. 1171, 1173 CC. 21 Act Concerning the Right of Custody of 22.4.1365/13.7.1986: Law Collection of the Year 1365/1985-1986, 185. 22 Art. 1176 CC. 19

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Guardianship is an ex lege right awarded to the male relatives of the child. The guardian may not refuse this right. He may, however, delegate these powers to a third party through representation. If a guardian is not qualified to administer the child's properties or if there is distrust in view of his management of the child's property, the court will examine the guardian's capacity in this regard at the request of the child's relatives (the mother being among them) or at the request of the public prosecutor. If the guardian's disqualification is proven, he will be dispossessed of his position as guardian23. B. Temporary Marriage The marriage contract will be temporary if it is concluded for a definite period of time. As opposed to permanent marriage, the dower must be determined. The amount will depend on the mutual agreement of the parties. If the dower is not specified in a temporary marriage contract, the marriage will be considered null and void. If the husband and the wife do not have sexual intercourse during the temporary marriage, the wife's claim to her dower will not extinguish and she may claim it. The same applies in cases where the husband dies before intercourse took place. If the husband terminates the temporary marriage by 'waiver of time' before having had intercourse, he must pay his wife half of the dower specified in the contract. In this kind of marriage, the wife is not entitled to maintenance unless this right was otherwise included in the marriage contract. The rules on guardianship and custody of the common children of the spouses in this temporary marriage are the same as those applicable to a permanent marriage 24 . C. Dissolution of Marriage The contract of marriage will be dissolved either by annulment, by divorce, or by 'waiver of time' in a temporary marriage. I.

Annulment

Insanity of a spouse, whether intermittently or continuously, and impotency of the husband are legal grounds for the annulment of the marriage 25 . Both medical conditions entitle to the annulment of the marriage bond even if these 23 24 25

Art. 1181, 1184 CC. Art. 1075, 1076, 1095, 1097 CC. Art. 1120 CC.

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problems appeared after the conclusion of the marriage. Other defects and illnesses (enumerated in Art. 1122 CC 26 with regard to the husband and in Art. 1123 CC27 with regard to the wife) will also generate the right to annulment. The defects of the wife may entitle the husband to terminate the marriage only if those defects existed at the time of the conclusion of the contract of marriage, but were unknown to him. It is possible to agree on a particular characteristic or attribute of one of the spouse as a condition for the conclusion of the marriage contract. If after the conclusion of the marriage that required feature is missing, the other spouse has the right to have the marriage annulled. This applies to cases where the required feature is explicitly mentioned in the contract and in cases where the marriage is concluded on the valid assumption of the existence of that particular feature 28 . If one of the spouses misleads the other party regarding the existence of certain characteristics, such as: being well-educated, being rich, being single, or having a high social standing and the prospect of a promising career and special position and the like, and the marriage is concluded based on the assumption of the existence of these facts, the person committing such fraud will be sentenced to six months up to two years of imprisonment 29 . The right to annul the marriage must be realised immediately upon becoming aware of the true facts of the case30. If the deceived spouse does not act immediately, the right to annulment will extinguish upon lapse of time. The formalities that must be observed in divorce do not need to be adhered to for the annulment of a marriage. II. Divorce Divorce is a matter of a permanent marriage contract. In a temporary marriage the bond of marriage will be broken upon expiry of the contract period or by a 'waiver of time' by the husband. A husband may divorce his wife at any time. A marriage is divorced in two ways: firstly, the irrevocable divorce, called ba'en, and secondly, the revocable divorce, called rogucI. In the case of an irrevocable divorce, the husband cannot 26 Art. 1122 CC: The following defects in a man will give the woman the right to annul the marriage: 1. castration, 2. impotency, provided the marriage was never consummated, 3. amputation of the male sexual organ to the extent that he is unable to consummate the marriage. 27 Art. 1123 CC: The following defects in a woman will give the man the right to annul the marriage: 1. protrusion of the womb, 2. black leprosy, 3. leprosy, 4. connection of the vaginal and anal passages, 5. being serious crippled, 6. being blind in both eyes. 28 Art. 1124, 1126, 1128 CC. 29 Art. 647 Iranian penal code. 30 Art. 1131, 1132 CC.

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revoke the divorce and rescind his intention of divorce during the waiting period (the so-called cidda consisting of three consecutive menstruation cycles after the date of divorce). Irrevocable divorces can be categorised as follows: firstly, those that occur before the spouses had sexual intercourse; secondly, the divorce from a women during her menopause; thirdly, a divorce initiated by the wife because of animosity against the reimbursement or waiver of the dower ( k h u f a ) 3 1 or because of mutual dislike (mobarat) 32 ; and fourthly, a third divorce after three consecutive marriages between the same spouses, whether by conclusion of separate new marriages or by revocation of previous divorces 33 . All other divorces are revocable, ie the spouses can reconcile with one another during the c idda period and their divorce will not be registered and thus be void. A wife can get a divorce on the grounds that her husband is not paying her maintenance. If the husband persists in refusing payment and he cannot be convinced to pay, the court can, upon request of the wife, grant the divorce 34 . Furthermore, the wife can get a divorce if the continuation of conjugal life causes her extreme hardship. She may refer her claim to the family court. If hardship is proven, the court will make the husband pronounce the divorce. If the husband refuses to pronounce the divorce, the court will issue an order of divorce 35 . Divorce in Iran today, whether initiated by the wife or the husband, is exclusively judicial 36 . III. Remuneration Husbands have been granted wide powers in divorce by the Iranian civil code 37 . In effect, a husband can divorce his wife at any time he wishes. Such unlimited power is apt to cause serious instability in the family. The Iranian legislator took measures to limit the unfavourable consequences for women accruing from this situation. On the basis of fiqh and after years of continued efforts and debates on the amendment of the Iranian family law, the Divorce Act was passed in 199238. It states that the wife has the duty to submit herself to her husband and that she must perform her marital duties. Beyond such obligations, however, she is not obliged to any housework. If the husband wishes to divorce 31

Art. 1146CC. A mobarat divorce is a divorce whereby both spouses dislike each other. Here, the financial compensation shall not exceed the amount of the dower. 33 Art. 1143-1145 CC. 34 Art. 1147, 1129 CC. 35 Art. 1130 CC. 36 Act on the Validity Period of the Certificate of Incompatibility of 11.8.1376/2.11.1997: Ruznàme-ye rasml No. 15384 of 26.9.1376/17.12.1997. 37 Art. 1133 CC. 38 See note 2. 32

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his wife in accordance with Art. 1133 CC and his wife did not neglect her marital duties, he must pay all her financial rights (ie dower, maintenance, and dowry) plus a remuneration, for example a kind of salary for such work and services that were not part of her marital duties according to religious order. If these conditions are not met, the husband must compensate his former wife with a certain amount of money for the services that she rendered, according to the duration of the marriage and the type of services (the so-called nehleh). The amount shall be commensurate to the husband's income and financial status. To assess the amount of the remuneration the court shall firstly try to reach a compromise between the former spouses. If a compromise cannot be reached, the amount shall be assessed by taking into consideration the mutually agreed financial conditions as laid down in the contract of marriage. If specific rules on financial issues were not included in the marriage contract, and the divorce is not grounded in the breach of the wife's marital duties, the court will assess the amount that is to be paid through an expert's assessment. The expert shall take into consideration the types of work performed by the wife during conjugal life, the duration of the marriage, and the husband's financial situation. If the husband contests the expert's opinion, a new expert can be appointed to determine once more the sum of remuneration. The divorce judgement then must contain all financial claims of the wife, including her remuneration.

IV. Other provisions For the purpose of preserving the rights of the spouses and reaching a fair balance in the application of their rights and duties, either one of them may put any condition in their marriage contract or in any other mutually binding contract, provided that this condition does not contravene the inherent nature of the marriage contract itself. The spouses may, for example, include special divorce grounds other than the legal ones: she may then have a right to divorce if the husband marries another woman, if he deserts the family, if he fails to pay maintenance, or if he mistreats his wife and threatens her moral integrity and health to an extent that makes a conjugal life intolerable. The spouses may also include a clause whereby the wife has the right to determine the residence of the couple, or whereby the husband may not prevent her from further education or acquisition of a job outside their residence. Furthermore, financial rights can be incorporated into the contract of marriage. For example, it can be agreed that in case of a divorce by the husband, the wife shall be entitled to a certain amount of money from her husband. This sum may amount up to half of the assets that he earned during the marriage 39 .

39

Art. 1119 CC.

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In 1982, the standardised marriage contract, containing 12 such conditions, was distributed by the Ministry of Interior. The spouses will be bound by its clauses if they sign each of the said conditions in the marriage contract. D. Concluding Remarks and Evaluation (1) The above-explained laws and regulations are the rules that are applicable to women. Women should know their rights, and should demand them at the right time. Careful consideration should be given to the principle of absolute authority of men in matters of divorce. There is a wide freedom to include special clauses in a contract of marriage in order to obtain numerous rights and competences from the husband, including the right to divorce. (2) Women have proprietary rights. A husband may not deny his wife the right of ownership, nor may he frustrate the use of her ownership rights. Moreover, while the woman can pursue a career and earn income, the husband is not disburdened from his obligation to pay her maintenance. Likewise, he may not take his wife's income away from her, if she does not consent to this appropriation. (3) According to the Divorce Act, women are entitled to remuneration, when divorced by their husbands in compliance with Art. 1133 CC. A woman can receive remuneration for work she carried out in the common household for her husband during their conjugal life. This claim has to be asserted by a court with the support of an expert's opinion. The spouses may also agree in their marriage contract that in such cases the wife shall be given half of the husband's assets aggregated during the marriage. (4) It should be understood that if a divorce, such as the mobarat divorce, is based on the mutual dislike of the spouses, there is no requirement for payment by either one of the spouses. The principle that the unwilling party shall be paid for his/her consent by the party that wants the divorce must be considered nonsensical in these cases. (5) In two specific matters, one is the receipt and issuance of a passport and the other is the granting of guardianship, the relevant rules highlight the role of the husband and the necessity to have his permission in this regard. A legal exception to this rule is the obligatory /jag-journey to Mecca, where there is no requirement for getting the permission of the husband. It seems that there are some other issues and areas that should be added to this list of exceptions. Especially, this must be considered for women with high academic qualifications and extremely valuable knowledge. These women must be free to leave

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the country legally with a proper passport, ie to take part in the debates of the international community abroad. The other matter of concern is the granting of guardianship to the wife. If the wife has her own assets and income and lives financially independently from her husband without obstructing family interests, she should have the right to administer the affairs of the ward. Therefore, it is not understandable why the position of a guardian cannot be granted to a woman, especially when the ward is her own child. (6) Another issue worthy of reflection is the guardian's role in permitting or disallowing a marriage, especially in the case of a ward's marriage before having reached the age of puberty. Marriage is a very sensitive, emotional and significant intercept point in life. Both, the woman and the man, should be well prepared for marriage and should have developed the capability of assuming responsibility. They should be able to distinguish between rights and duties with respect to their partner. So it is more than questionable whether a girl who has not reached the age of puberty is prepared for such a crucial step in her life as marriage. How can it be that it is her guardian who decides whether she is able to assume such responsibilities? And how could her guardian judge whether her interests and her well-being are sufficiently taken care of? In some cases, the guardians agree to a compromise concerning the daughter's readiness or her wellbeing; but in others the guardian can 'sacrifice' his daughter to secure the subsistence of the family or other family members. Thus, the guardian's authority in this pre-maturity period is a point of concern calling for of further study and analysis. Another question is the position of a daughter who has reached the age of puberty, but who is not able to decide independently on fundamental issues like her own marriage. How could she carry out her social duties and assume important functions like those of a spouse, especially regarding the administration of her properties and assets? It can be concluded that in some cases girls, even if they have reached the age of puberty, may not be capable of safeguarding their own interests. Based on the principles of reason one would argue that the period of guardianship ought to find an end not just through lapse of time, but based on the assessment of the independence and maturity of the minor, be it in matters of marriage or the management of financial affairs.

Part III: The Egyptian Way

Constitutions of Arab Countries and the Position of the Shan°a A D E L O M A R SHERIF

Today the world has been more focused on the future of Afghanistan than any time before. Indeed, Afghanistan has entered a phase of transition and its future can still be moulded. With a new constitution, an elected president, and a mandate for national unity, Afghanistan has a broad foundation to rest its hopes on. The country that Afghanistan is today has been forged through years of struggle, and a rich history of different ethnic groups. These considerations must be placed together. Talented individuals may build a government, but only those with knowledge of the struggles and the traditions may build a history. The acknowledgement of human history is important and necessary to our national identity; as Muslims, however, we know that this is not sufficient. As we recognise the narratives on which our countries are founded, we must also recognise Him who stands above history. Individuals can build a history, but without God, we are building the wrong history. The recognition of God has powerful implications for a nation, just as it has in the life of any individual. As a people, we are characterised by our submission to God, and by our recognition that God is sovereign in all things. Our personal submission means that we are bound by a set of principles that govern our lives in all respects - private, public, social, material, moral, spiritual, economic, political, legal, cultural, national, and international. This may be easy to say, but it is certainly difficult in practice. The ultimate meaning of our national submission will depend on the actions of our judges, lawmakers, and politicians. Today, the constitutional recognition of Islam is as important as is the subsequent implementation by judges and legislators. In January 2004, Afghanistan proclaimed itself a sovereign nation under God. In doing so, Afghanistan has joined other Islamic nations bound by the same set of divine laws. Art. 2 and 3 Constitution 2004 proclaim Islam as the religion of the state. No law shall be contrary to the beliefs and provisions of the sacred religion of Islam. This kind of provisions is not only incorporated in the constitutions of Islamic countries, but is also found in the constitutions of other nations around the world. The constitution of the United States for example reads:

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'The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people.'

Thus the constitution of the United States recognises a set of principles that precede it and serve as boundaries for all its actions. As humans and Muslims, it is not only possible but necessary to recognise the existence of higher principles. The bounds proscribed by Islamic law are definite and subject to little debate. The Islamic Sharfa contains a set of general principles and specific provisions, providing for an exhaustive system to govern our lives in all its aspects. Still, it is important to recognise that while the laws provide an important framework for moving ahead, they do not tell us exactly how to do so. The exact nature of our submission will depend both on the laws we pass and on the actions of our supreme courts. The actions of the courts will matter for two principal reasons: firstly, because the courts must interpret many Islamic principles, and secondly, the courts must enforce these principles subsequently. The first constitutions in the Islamic world did not have to confront the same issues that they do today. Many provisions were said to be irrelevant or consistent with Islamic law, in order to sidestep the issue. This was possible since constitutions had a less important role in the past. The Tunisian Constitution of 1861 for example was largely a codification of pre-existing political practices and institutions. It did not provide a comprehensive body of law, nor did it aspire to do so. It described the institutions often in Islamic terms but made no explicit reference to Islam as the law of the state or the source of legislation. The Egyptian Constitution of 1882, known as the basic statute, based almost all of its 53 articles on the already formed Consultative Council. It did not provide for a comprehensive legal framework and made no significant reference to the place of Islam in national legislation. Short-lived constitutional documents in Kuwait in 1938 and the Kingdom of Hijaz in the 1920s asserted similarly limited roles, describing the current government but providing few active constraints. The constitutions of these states largely avoided any declaration of national identity and bypassed potential tensions between the laws of the state and the laws of God. Accordingly, these first constitutions provided for no special recognition of God's sovereignty and no assurance of the strength of His law. True, in these early years, it may not have been necessary: the limited reach of the constitution left no space for overlaps between the dictates of the state and those of religion. As the role of constitutions began to change, however, this changed as well. In the late 18. century, European constitutions began to assert a different view of their roles. New national documents claimed to be comprehensive legal and political frameworks emanating from the sovereign (then the majesties or the people). With the expanding role of constitutions, discussions on the concept of sovereignty intensified. Accordingly, in Islamic countries, it became necessary to discuss the role of Islam, both because of the potential conflict

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between national and Islamic laws and the symbolic importance of the definition of sovereignty. Some of the constitutions made more explicit reference to Islam, but only few established institutions that would be obliged or even be able to ensure adherence to Islamic law. The Ottoman Constitution of 1876 provides a strong example of an Islamic country that addressed the position of Islam in theory but stopped short of ensuring a real role in practice. The constitution of the Ottoman Empire was issued in a period of turmoil, making the definition of sovereignty necessary for both internal and external reasons. Several provinces were engaged in open revolt. Severe national debts had led to extensive borrowing from international powers. The military was weak, and it became difficult to resist the encroachment of European powers. In the midst of these problems, senior officials, military leaders, and members of the ulama gathered to draft a constitutional document. The integration of Islam revolved primarily around the duties of the sultan. He was charged with executing specific provisions of the Shari°a, and in the final version of the constitution, he had to swear an oath on the Sharfa, the constitution, his homeland, and the nation. The implications of these provisions were significant: the rule of the sultan was subjected to the will of God and the people. Still, the limitations of centralised power remained weak. As in earlier constitutions, many issues were not addressed, and the document itself had many lacuna. The Ottoman constitution recognised God's sovereignty but provided no assurance for the implementation of His laws. Without provisions that would ensure its implementation, the recognition of God's sovereignty was only theoretical, while it had little effect in practice. In the aftermath of the First World War and the collapse of the Ottoman Empire, the newly emerged Islamic countries issued similar constitutional documents and confronted similar problems: while Islam was often recognised as religion of the state, no means of ensuring its enforcement was conceived. In the Ottoman Empire the definition of sovereignty had been necessary to its survival. In the new Arab states the issue of sovereignty became even more important: While the Ottoman Empire needed only to assert its power, the new Arab nations had to justify and articulate the very reason of their existence. Nevertheless, few countries accepted a definition of sovereignty that included substantial reference to God, and few dealt with the relationship between positive and Sharfa law. In both Iraq and Jordan, the new constitutions were partially drafted by the British and did little to put God's laws in a position of strength. While the British had ended their official occupation of Iraq, they retained significant control through the new constitution, eg the King was required to consult the British High Commissioner on all fiscal matters. The constitution declared popular sovereignty, without any mentioning of God. Egypt issued a constitution in 1956 to distance itself from the British. Islam was declared the religion of the state, but there was little elaboration, and there

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were few restrictions on the power of the monarch. In 1971 a new Egyptian constitution was promulgated. It was revised in 1980. It contains two provisions relevant to our discussion. Firstly and most importantly, Art. 2, as amended, reads: Art. 2 Egyptian Constitution 1980: Islam is the religion of the State and Arabic its official language. Islamic jurisprudence is the principal source of legislation.

Secondly, Art. 3 states that: Art. 3 Egyptian Constitution 1980: Sovereignty is for the people alone and they are the source of authority. The people shall exercise and protect this sovereignty, and safeguard national unity in the manner specified in the constitution.

While sovereignty remains with the people, the recognition of Islam as the religion of the state implies that the sovereignty of the people is subject to the authority of God; that the authority of the people is a gift from God, and that they have been appointed to execute and follow His will on earth. The scope of application of Art. 2, however, depends not only on the wording of the article, but also on the interpretation given to it by the judiciary. The question arises as to how the Supreme Constitutional Court of Egypt (SCC) interprets these provisions and how vigorously they are applied. There are three principles that address the meaning of Sharfa within the constitutional framework. Firstly, it is acknowledged that Art. 2 forms an integral organic unit with the rest of the constitution. No provision may overrule another; all provisions must be interpreted in accordance with each other. Secondly, the constitutional obligation of the legislature to adhere to the SharT°a is prospective not retrospective in nature. The judiciary may invalidate post1981 laws that are inconsistent with Shanfa, but it may not invalidate laws that predate the proclamation of Art. 2. And thirdly, in its application of the Shar^a, the SCC must always distinguish between definite and indefinite sources. The first two principles are easier to apply than the third one, even if occasionally problems arise. The third principle is more complex and must be scrutinised in more detail. The SCC has held that the impact of Sharfa-based norms depends on whether they are definite or indefinite. The definite norms of the Sharf'a called al-nusüs al-qafiya al-thubüt wa al-dalala refer to the sources of the Shart 0 a (Qur 'an and the sunna) that are definite and indisputable, both in their meaning and authenticity. However, a norm is indefinite, when it has been subject to different interpretations. Due to their broad nature, these norms may yield different responses with the change of time, place and circumstance. The decision whether a norm is definite or not lies within the competence of the SCC. All definite norms of Shari°a must be complied with by the legislature, and the SCC may eliminate any law that contradicts the Shar^a. If the norm is not definite, the legislature must adhere to the igtihad most favourable to the people when following a particular interpretation. In a case brought before the SCC in 1996, the Court held that '[t]he statements of an expert of fiqh on a matter related to the SharT°a are not granted any sanctity, or placed beyond

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review or re-examination'. In accordance with this recognition, the Court placed a large responsibility on lawmakers, saying, that "the ruler has - in debatable questions - the right of igtihad to facilitate the affairs of the people and reflect what is authentic in their customs and traditions, so long as the overarching purposes of their Sharfa are not abrogated." The statement that Islam is the religion of the state and Sharfa the principal source of legislation is a powerful one. Its power depends not on its repetition in several articles of the constitution but on the adherence of the legislature to it and its implementation by the judiciary. Still, the statement must be accompanied by the possibility of judicial review. As the judiciary applies the Sharfa to national legislation, it must confront potential conflicts between the sovereignty of man and the sovereignty of God. These conflicts are by no means new. Every day, Muslims make decisions based not only on their personal needs and desires, but also on the dictates of the Islamic Sharfa; on the dictates of God and of the prophet Mohammed. In the application of the Sharfa and the exercise of judicial review in a state founded on the Sharfa, the government must ensure that the dictates of God triumph over the desires of man. In a state founded on the Sharfa, the adherence to Islamic law is important to the people's relationship with God, because He calls for it. In a state founded on the Sharfa, the adherence to Islamic law is important for the relationship of the government with the people, because they, too, call for it. The credibility of a system of government as such depends largely on its respect for the Sharfa, as it is very unlikely for its people to trust a government that does not respond to God. The people will not call for the implementation of a constitution they do not believe in. They will not call for a balance of power in government unless it is according to terms they believe in. The adherence to Islamic law is important to our ability to limit the powers of the government. No man or governing body should retain absolute power. A strong constitution based on Islamic norms ensures that they will not. Finally, our adherence to Islamic law is important to our interactions with each other and with the international community. Based on the dictates of Islam, our national character is distinctive among the nations of the world, and it is important not only that we acknowledge it, but that we demonstrate its powerful and positive influence over our lives.

A Return to the Sharfa? Egyptian Judges and the Reference to Islam BAUDOUIN DUPRET

A. B.

Introduction The reference to Islam in law and in judicial practice

C. D.

Perspectives on Islam in law The Judge, the State, and the Sharfa

A. Introduction The present article seeks primarily to explain how in contemporary Egypt reference is made to the Sharfa islamiyya, the Islamic law, taken here in a wider sense than its strictly legal one. Indeed the Sharfa is often referred to as the principle explaining the Islamic project. However, few attempts have been made to analyse the content of this reference and its methods. Does it refer to a clearly identified legal model that would thus only need to be reinstated, or are we dealing with a purely ideological discourse that uses the Islamic idiom for strictly political ends? The situation is not clear-cut, and I will seek to show the complexity of the use of references to Islam in Egyptian legal practice. I will do so in three steps. First, I will briefly survey the fields of Egyptian law where reference to religion is explicitly made. This will provide us with the main elements of the issue at hand and will put an end to speculation on the radically Islamic nature of Egyptian law. While doing so, I will also draw a basic typology of the judicial rulings referring to Islam. This will give us an initial insight into the ways legal practitioners interpret texts, some of which refer to Islam. This first section will thereby allow us to gauge the scope of the legal provisions on which the Islamic discourse focuses and the ways by which the judges use or get round the breaches that are thus left open. In the following section, I will sketch a typology of the perceptions of the Sharfa that the practitioners of Egyptian law may hold. The aim is to look at how legal practitioners use their readings to serve their ends. In examining This paper was first published in Modernising Islam, Religion in the Public Sphere in Europe and Middle East (2003) John L. Esposito, Francois Burgat (eds.). We thank C. Hurst & Co. (Publishers) for their permission to republish this article in English and Dari.

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what the legal actors think is or ought to be, I seek not to substantiate their discourse but rather to locate them in a power structure of which their discourse is both a reflection and a determining factor. A series of interviews with lawyers, judges, and professors of law, Sharfa, and fiqh provides us with a body of perceptions of law and of the various legal repertoires that jurists use professionally and claim ideologically. Finally, to conclude my overview, I will examine three recent cases in order to lay the foundations for my non-substantialist approach to Islam and to the normative discourse that claims to draw from it. There is the Abu Zayd case, in which a divorce was enforced on grounds of apostasy, a litigation on the wearing of the veil at school, and a case of transsexuality. In my view, these three cases reflect well the malleability of the reference to the SharT°a in Egypt, that is at least within the realm of law. The Sharl^a stands out as a legal repertoire, that is a resource that practitioners have at their disposal and that they use simultaneously or in conjunction with others, in a game whose nature seems primarily rhetorical or discursive. These available means of discourse and legal action are more or less used, according to the circumstances of time and place. It is this use that gives them a meaning, a content, and not their inscription on tables of the law that are set for eternity. In this sense, the socalled return to the SharT^a should be viewed as the invention of a new Sharfa in the contemporary political, legal, and judicial setting.

B. The reference to Islam in law and in judicial practice Whatever the importance given to Islamic law and to its norms in the construction of contemporary Egyptian statute law, the focus here will only be on what remains today as explicit reference to Islam. My goal indeed is not to trace the Islamic roots of the rules of Egyptian law, but only to locate the realms of this law where Islamic arguments still seem relevant. Three areas can be identified: criminal law, civil law, and constitutional law. Islam in Egypt is the religion of the state (Art. 2 of the Egyptian Constitution1) and its public management is the duty of the shaykh of al-azhar, of the mufti of the Republic, and of the Minister of waqf, under the direct authority of the President of the Republic 2 . Regarding criminal matters, the sole explicit reference to Islam is the mandatory consulting of the mufti of the Republic in cases where a death penalty is handed down by the criminal court3. 1

Hereafter abbreviated Art. [je] Constitution 1971. Luizard, Al-Azhar, institution sunnite réformée, in: Entre réforme sociale et mouvement national. Identité et modernisation en Egypte (1882-1962), Roussillon (ed.) (1995); Paradelle, Entre juge et muftï: la place du religieux dans l'organisation judiciaire égyptienne (A partir d'une lecture de l'article 381 du code de procédure pénale): Droit et Cultures 30 (1995) 77-89; Zeghal, Gardiens de l'islam - Les oulémas d'AL-Azhar dans l'Égypte contemporaine (1997). 3 Paradelle (note 2) 77-89 (77). 2

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The realm of civil law contains a number of more substantial references to Islam. First, as regards procedure, the question was recently raised if the hisba, that is the lawsuit to protect Islam that can be initiated by any Muslim, without his own interests having to be directly at stake, was still admissible in Egyptian law. Law no. 3 of 1996 has confirmed the existence of this procedure while setting strict conditions for its use. Furthermore in civil law there are also a number of explicit provisions, the most important of which are found in the first article of the Egyptian civil code of 1949 (hereafter: CC) and stipulates the principle of the sole competence of the law for all the matters it regulates and, 'in the absence of an applicable legal provision', the competence of the judge to give a ruling according to custom and, in its absence, according to the principles of the Sharfa 4 . Islamic law is thus ranked as the second subsidiary source to the law. Also, a realm is explicitly acknowledged for Islamic law and its principles in various sections of the civil code, particularly as regards successions 5 and wills 6 . As for personal status (marriage, divorce, separation, alimony, child custody, inheritance, etc.), it is totally referred to the individuals' denomination, each of those acknowledged in Egypt having its own specific legal texts and competent judicial chambers for the various levels of jurisdiction. As regards Muslims, a series of texts have codified the hanafi legal tradition 7 . Regarding family matters, these are chiefly law 25-1920 and decree 25-1929, both amended by law 100-1985 8 . In the same way, laws 77-1943, 711946, and 25-1944 came to regulate in detail the realm of succession. Let us note that understandably no reference to Islam is made within these texts which already only apply to Muslims, except for cases of inter-communal marriage where it is forbidden to a Muslim woman to marry a non-Muslim. Certainly the constitution takes up central stage with regard to the reference to Islam in Egypt. This is mainly due to its Art. 2 Constitution 1971, which states that 'Islam is the religion of the state, Arabic is its official language, and the principles of the Sharfa are the main source of legislation'. This article was amended in 1980 so that the principles of the SharT^a have moved from the status of being a main source of legislation to that of the main source of legislation. Furthermore, this provision was used as grounds for claims of unconstitutionality brought before the Supreme Constitutional Court of Egypt (almahkama al-dusturiyya al-culya). As Bernard Botiveau says, 'today the judicial system, in its general principles and in its outline holds many of the basic characteristics usually found

4

Art. 1 CC. Art. 875 CC. 6 Art. 915 CC. 7 For Orthodox Copts, personal status regarding marriage and divorce is regulated by a decree of 1938. 8 Al-Alami, Law No. 100 of 1985 Amending Certain Provisions of Egypt's Personal Status Law: Islamic Law and Society 1 (1994) 116-136. 5

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when describing the judicial structure of a modern state 9 ': separation of judiciary and administrative jurisdictional orders, of civil and criminal jurisdictions, independence of the judiciary, etc. The present system is unified and similar to the judicial structure of the countries with a French legal tradition. There is no longer any specifically Islamic jurisdiction, since the denominational courts were abolished and replaced in 1955 by specialised sections of state courts. Civil law is divided into summary courts (for minor issues) and plenary courts at the first instance level, courts of appeal, and the Court of Cassation. Administrative law is handled by the Council of State, an institution made up of three sections (Judiciary, Consultative, and Legislative), the highest of which being the High Administrative Court10. Egypt also has a Supreme Constitutional Court that has been carrying out its duties since the promulgation of its organic law (Law 48-1979) and the adoption of its internal regulation code 11 . The Supreme Constitutional Court is competent regarding the interpretation of laws, controlling constitutionality, and conflict resolution concerning competence between jurisdictions. It can be referred to by any judge if the constitutionality of a law or of a statutory text is challenged. Following this brief review of the sources of the law, of the role of the Islamic principle within it, and of judiciary competences, I will now focus on the Egyptian judges' attitude towards issues involving a reference to Islam. To this end, I will sketch a typology of the decisions referring to the Islamic legal repertoire. The need to establish such a typology may take as its point of departure the decision by an Egyptian judge to sentence the enforcement of the Sharï^a punishment against an individual apprehended in a state of intoxication in a public place. 'Whereas the court refers to the preceding rules (rules contained in the doctrines) to judge on the nullity of any law contrary to the regulations of Divine Law, at the head of which are the repressive provisions concerning the present case. They are all invalid by absolute nullity. They are deprived of the reference to legality (shar'iyya). Thus the sharVa and its rules must be implemented, as a result of obedience to God and to His Envoy and by making possible the institution of His rules in the state' (District Court of c Abidin, March 8, 1982) 12 .

Beyond its declamatory nature, this type of ruling challenging statute law is only one among several types of reference to the Islamic legal repertoire. The rulings can be divided into four categories. The first is made up of rulings 9 Botiveau, L'exception et la règle. La justice vue par les magistrates: Bulletin du CEDEJ 20 (1986) 81-113. 10 Al-Kosheri/Rashed/Riad, Egypt: Yearbook of Islamic and Middle Eastern Law (1994) 125-141. 11 Jacquemond, Égypte: la Haute Cour Constitutionnelle et le contrôle de constitutionnalité des lois (1979-1987): Annuaire international de justice constitutionnelle 4 (1988) 271-1987; Jacquemond, Dix ans de justice constitutionnelle en Égypte (1979-1990): Politiques législatives: Égypte, Tunisie, Algérie, Maroc (1994). 12 Ghurab, Islamic Judgments Invalidating Positive Laws (1986).

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defining the content of Islam as a recognised and eventually privileged religion, or of the Sharfa as a legislative reference. In the second category are found arguments utilising Islam as a source of legitimation for rulings related first and foremost to the institutional form of the state or to a specific conception of public order. The third concerns the positive ratifying of rules of statute law whose wording is self-sufficient in itself and so does not explicitly justify the same kind of reference. Finally, fourth category, there were certain judiciary rulings that went as far as invalidating statute law in the name of the Sharfa. Statute law, then, does not seem overly disturbed by references made to Islam and to its normative provisions, as long as these references are not made in order to challenge its validity and/or to require its subordination to an order external to it. The 'objectivation' category deals with situations where reference is made to Islam as a religion of which free worship is claimed. Such is the case for the question of wearing the veil at school. In this case, it is the definition of the Islamic norm itself that is the object of the dispute brought before the courts, where reference is made to the provisions dealing with religion, freedom of conscience, and public worship in statute law. The judgments of the Supreme Constitutional Court, when it gives a decision on the nature of the Shari°a as a legislative reference, are also included in this category. In a judgment of May 15, 1993, the Court came to explicitly position itself in the realm of the Sharfa and of its interpretation. Differentiating between the absolute and the relative principles of the Sharfa, the Court stated that its control only extended to the absolute principles, without these being clearly identified 13 . The second category, that of 'instrumentalisation', covers instances where reference to Islam is made in order to ground a ruling pertaining to a specific view of public order. In this case, the harm to Islam is instrumentalised by the judge or by the parties who, under this guise, seek a different objective. Here many reasons may be put forward. It can be argued that harm is made to Islam as the religion of the state and as a pillar of the institutions. For example, it is on this basis that, in another context, the Communist Party of Morocco (PCM) was banned. 'Whereas the request of the Prosecution [...] stems from the incompatibility of the principles of the PCM with Islam and the Islamic institutions; 'Whereas it was wrongful for the first judges to consider that it was an accusation of heresy reaching beyond the competence of the regular courts [...]; 'Whereas HM King Mohammed V stated many times that any materialist ideology was contrary to the religious precepts of which he is the spiritual guardian [...];

13 On the evolution of the High Constitutional Court's jurisprudence regarding Art. 2, see Dupret, A propos de la constitutionnalité de la sharî'a: Présentation et traduction de l'arrêt du 26 mars 1994 (14 Shawwâl 1414) de la Haute Cour Constitutionnelle (al-mahkama aldustûriyya al- c ulyà) égyptienne: Islamic Law and Society 1 (1997) 91-113.

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'Whereas the sovereign has thus directly and unambiguously identified the doctrines inspired from Marxism-Leninism [...]; 'For these reasons, the Court [...] declares the dissolution of the association, with all the legal consequences'. (The Court of Appeal of Rabat, February 3, 1960, the Supreme Court, May 28, 1964)

Or it can be argued that harm to Islam as the religion of the majority also affects public order. It is following such logic that in Morocco as well as in Egypt the Baha 'i sect was considered heretical. In the former country, during the Nador trial, the accusation of heresy led to the sentencing to death and the execution on December 10, 1962 of three members of this faith rooted in Islam14. The third category, that of 'overvalidation', involves cases where reference is made to motivations which, in and of themselves, lie beyond the scope of the judiciary dispute. The judge grounds his ruling in general principles, such as that of religion and of the principles of law that stems from it in a state that makes Islam its religion. This in itself does not seem to be a particular problem. Resort to such principles serves to reinforce statute law. It is thus simply considered as a quasi-stylistic formula which faces no opposition. Bernard Botiveau refers to the resort to the Sharl^a as a measure of ratification15. 'The judge normally grounds his decisions in the 1985 law and in the provisions maintained from the 1929 law, more rarely in the 1920 law; equally, when in existence, in the running jurisprudence of the Court of Cassation. However, it happens frequently that he (the judge) also justifies his judgment either by a provision accepted by one of the Sunni schools of Islamic law, or by a ranking of the sources that is not always perceivable in the current debates on Islamization of law. In the former case, it confirms the current application of a rule justified by a number of precedents cumulated by an age-old tradition; by way of example, he quotes 'the dominant view' ascribed to the Hanafite fiqh or an 'established principle of fiqh' enjoying the consensus of all four Sunni schools, such as the mandatory providing for the wife. In the second case, the direct references to the sharVa tend to legitimate the ruling by a very powerful principle: for instance the necessity of a harmonious life must lead to the acceptance of separation; the importance of the nafaqat al-mut'a (Koran 11,236), a special pension paid after a repudiation; or the hadlth legitimising in a general fashion divorce on the basis of injustice suffered (La darar wa la dirár. neither damage nor retaliation disproportionate to the damage). In a few cases, the judge will combine in a same judgment practically all the available sources, shari'a, sunna, consensus of the ulama', jurisprudence of the old Islamic courts, and statute law; for instance in order to establish that the alimony should be calculated based on the income of the husband' 1 6 .

Finally, in the case of the 'invalidation' category, the question is very different since the situation comes down to using the SharT^a and the details of its normative formulation to invalidate statute law. Such is the case for a number of judgments passed by Judge Ghurab, in which he hands down a decision that 14

Tozy, Islam et État au Maghreb: Maghreb Mashrek 126 (1989) 25-46 (27). Botiveau, Loi islamique et droit dans les sociétés arabes. Mutations des systèmes juridique du Moyen-Orient (1993) 225. 16 Botiveau (note 15). 15

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he calls Islamic, in opposition to statute law which by the same token he declares illegitimate. Here is another excerpt from a ruling made by this judge. 'Thus, the existence of laws that are contradictory (with the shari'a) has become impossible, with the implication that to apply the laws of the shari'a is to implement the textual content of the Constitution itself and to purify the legislator from any form of profanation' (District Court of c Abidin, March 8, 1982) 17 .

The established legal and judiciary system thus finds itself faced with an obviously unacceptable assertion, a situation which leads it to react accordingly (judicial admonition and administrative measure attaching the judge to a noncontentious administration). But let us note the fact that what sets Judge Ghurab's stance apart is his explicit invalidation of statute law while the fact of using Islamic principles to ground a legal ruling is not uncommon. C. Perspectives on Islam in law In this section, I will examine the perceptions that various types of legal practitioners hold of Islam and of its role in Egyptian law. Let us begin by underscoring the duality, indeed the plurality of repertoires to which these various actors refer explicitly (Islamic and statute law repertoires), even if it is only so as to challenge the relevance and/or the legitimacy of one of the two. 'In Egypt, we have a mixed legal system: statute law is applied and shari'a is applied. The sharfa is the basis on which statute law rests' (interview with MD, lawyer, October 1994).

This acknowledgment of a plurality of repertoires may seem trivial, but overvaluing the Sharfa may lead to a refusal to grant it a legal status that in a way it transcends. 'There is a huge difference between a legislative document and the shari'a. The shari'a is not a legislative document but a life program' (interview with NH, lawyer, January 1994).

The simultaneous presence of various legal realms each reflecting a certain level of internal coherence brings forth the question of the transfers and adaptations that can be made between them. In other words, to what extent can the perceptions of the different legal repertoires be used outside their own original setting? In the Egyptian legal context, it seems that the actors operate through a displayed command of the various repertoires whose numerous provisions would be easily transferable, as long as the predominance of the religious reference is expressly acknowledged. 'Positive laws do not run against Islam, no more than they are in line with it. They are the laws proper to a state that is called the Arab Republic of Egypt. That is what I want you to understand. They are neither against nor in favor of Islam. They are not related to Islam. [...] And so, in my work I deal with Egyptian law, I do not deal with a law that is "

Ghurab{note

12).

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against or in favor of Islam. I do not deal with this issue. For me, Islam doesn't and never will come down to laws' (interview with NH, lawyer, January 1994).

It is only the question of the referent that creates a problem, and not the content of provisions of which the actors acknowledge the very wide compatibility. 'The interpretation of texts and their application should refer to Islam. If this referential framework were found today, 90% of our problems would be solved' (interview with AW, lawyer and former magistrate, June 1994).

This notion of referent reflects the perception of a cultural normality, that of the authentic tradition that society supposedly considers as the sole legitimate one. 'Until the present, the sharVa is better suited for our societies. Why? Because people easily understand it. Why? Because it is related to the Koran which hundreds of thousands of people have memorized in each country. [...] If I transform the humanly acceptable legal values into culturally acceptable ones, I guarantee them a better understanding, a better application, and that they will be considered as binding by the people. If people feel that it is their law and their religion, they will comply to it' (interview with AW, lawyer and former magistrate, June 1994).

Following the same logic, we find the construction of a cultural identity that can only come about through the construction of a cultural otherness. Law plays a major role here. It is in this sense that in any case I understand the discourses on the cultural integration of the legal heritage. 'We think that the sharVa is one of the visible signs of the expression of our independence towards the Western project. [...] Such is the conflict today. It lies in the fact that it is our right, as a community that has a history and a heritage, to be governed and educated according to our history and our heritage' (interview with AW, lawyer and former magistrate, June 1994).

The idea of a social 'normality' of Islamic law leaves the question of the content of this 'normality" shelved. We can quite easily talk of a standard with regard to the discourse of legal practitioners on the Shari°a. The position of these actors is indeed located at the junction between technical knowledge and the common sense of the SharVa. This is due as much to a 'latent legal knowledge' 18 and to a 'loss of legal knowledge accurate enough to be explicitly argued' 19 as to a manifest will to subsume the legal dimension of the SharT°a to its ethical and globalising dimension. 'The rule on which there is general agreement is the right of the Creator to govern. As long as He is the One who creates, it is Him who knows all, whether it be past, present, or future. This right ihaqq) is for the good of the governed (mahkum), since the one who creates doesn't need anything from the creation, from His creation. As long as He governs [...]; there will be impartiality and equity. It is a basic condition of equity. It is a basic rule on which the sacredness of the judge stands. Consequently, the judge must meet various well-known requirements, by virtue of the Constitution: he must be virtuous (muhsin) and, when examining a petition, he must not seek anything other than 18 Foblets, Les familles maghrébines et la justice en Belgique. Anthropologie juridique et immigration (1994) 109. " Foblets (note 18) 110.

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signs of truth (haqq). The law says that if the judge has a stake in a petition, he must put off the case and part with it' (interview with MN, lawyer, January 1994).

I could never emphasise enough all that this type of discourse conveys on the transformation of the Islamic legal repertoire, well beyond any idea of reproduction. We are dealing here with the notion of legal memory, with the cognitive process of the construction of tradition. In this matter as well as in others, the need is not so much to oppose a 'true history' to a 'biased history' as to measure the extent to which history, especially in the legal and political realm, is primarily a historiography. Creating a classical model doesn't provide meaning as a standard of the deviations and/or conformities of the present. However it allows the gauging of the actors' perceptions of such-or-such object at a certain point in time. In this sense, the classic referent, the reference to tradition, can only be analysed within the framework of a process of (reconstruction. Any tradition is a construct, even if this seems unacceptable to its supporter who acts 'as if that was not the case. Thus what we have before us is a staging of the self, whether collective or individual. The actors carry anticipations regarding what they believe to be socially acceptable and desirable. Their self-perception, which narrowly determines their behaviour and the content of their actions, itself stems from perceptions and anticipated assessments of the social realm. As the staging of oneself, but also as the staging of the society to which the jurist attributes a compound of idealised norms, the process is not so much a reflection of social expectations as the result of what he perceives as social expectations and, above all, of the position he is seeking within that setting. This is one of the angles from which to analyse the discourse on the lawyer's role in today's Egypt as well as in the Islamic state to come. 'From my point of view, the role of the lawyer in the old Islamic legal system was of course different. He was only the representative of the party, only the spokesman of the expressions and perspectives that he served to represent. Today the lawyer has become an expert to whom one refers for consulting on legal and particularly procedural matters, and then to express the interests of the individual he is representing and not his own point of view. [...] I think that, if there were a legal and judicial system based on Islam, the system of legal, commercial, and criminal procedures would not be eliminated. Thus, by their very nature, these systems require the presence of lawyers who can fill the function they are now filling. The other part of the question is to know what the lawyer must do in the context of the present political system. He must comply to professional honesty and not defend injustice. [...] Second, it is imperative that the lawyers who live in a society like ours acquire a deep knowledge of the shari'a. [...] Third, we must underscore the similarity of the function of lawyer and judge in bringing together the prevailing texts and the foundations of the shari'a' (interview with AW, lawyer and former magistrate, June 1994).

However, it is above all the issue of the crossing into the political realm that remains essential for assessing the attitudes of the professionals of law we

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interviewed. The idea of solidarity without consensus 20 can surely be used in the case at hand here. It remains to be examined what, beyond the solidarity with regard to referring to the Islamic legal repertoire, explains the disagreement as to the implications of this reference, indeed as to its content (at least, when this is a disputed matter). Up until now, the only explanation that to me seemed to shed light on the question is of a political nature, such as the stakes involved in holding power and the use of the Sharfa in this context. 'If (the constitutional text says that) the shari'a is the main source, we thereby eliminate all of the laws contradicting the shari'a. Such a step requires the introduction of many judicial petitions in numerous cases. I am personally convinced that this type of legal conflict means the downfall of the state, a downfall that the Supreme Constitutional Court cannot allow, no more than any individual with common sense. That is why we settled for the general orientation of the text, just as the judges did' (interview with NH, lawyer, January 1994). 'The criticism made to the Islamists is that they want to apply the sharVa without consulting the people. We say that if we sought the people's opinion freely and democratically, they would choose the power of God rather than that of the people. That happened in the past in Algeria and in Sudan. This success in Algeria and in Sudan comforted the perspective of those who call for elections as a means to change the leadership. [...] If in Egypt the people were given the opportunity to choose their leaders, they would certainly choose the shari'a ' (interview with MN, lawyer, January 1994). 'Some people think that everything is constraining, even some customs. I don't think this movement, called 'salafite', can serve as a basis for modern society. But a trend taking the shari'a as a referential framework for the laws may favor the renewal of the rules pertaining to daily transactions. This is one type of opposition. Another type, this one political, sets the organizations involved in violent activities against those calling for moderation. The question here is if it is possible to apply the shari'a simply through spreading the word. Some think that society needs a violent movement. Of course, the moderates hold that renewal is possible, while the proponents of violence refuse it. It is the social conditions that are accountable for this' (interview with BI, magistrate, November 1993). 'In Egypt, the sharfa can be applied within a day or overnight. [...] We promulgate the decrees for its implementation, the government agrees and the shari'a is immediately applied, without any problem' (interview with MZ, Islamic scholar, January 1994). 'The claim of the Islamic trend is the implementation of the shari'a. [...] But it is possible that many people are calling for the application of the shari'a. Any society has a particular ideology that reflects the whole of the beliefs (that prevail in it). We are an Islamic country and any leadership that would stray from this truth would be at fault. With regard to the shari'a, I can tell you that a great number of rules are implemented, and at the same time others are suspended' (interview with MB, lawyer, November 1993 and January 1994).

It is possible that one of the core elements of the issue lies here. Calling for the implementation of the SharVa may indeed well reflect the wish to change what 20 See Kertzer, Rituals, Politics and Power (1988) and the use that Ferrie, Prier pour disposer des soi. Le sens et la fonction de la prière de demande dans l'Islam marocain actuel: Annuaire de l'Afrique du Nord 33 (1994) 113-127 makes of it.

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is socially accepted and desirable (or at least supposed as such) into a set of prescriptive and proscriptive rules. It is as if somehow there were a structural inversion: from a 'cultural order' conveyed and manipulated by the norm, we would move to a 'legal order' influencing culture and setting its legitimate norms. This transition probably takes place through a process that gives strength to the norm. However this is possible only if the initial normative repertoire can be given a regulatory nature, and this depends on whether historically and ideologically it has already actually functioned in such a way and/or has been considered as such. This is most certainly the case with the Sharfa. But this condition alone does not suffice. It must be combined with conditions of a more political nature driving some actors to wish to include these regulatory features into the normative repertoire. We may also observe that, as it functions on the basis of social and cultural models, law operates through categorisation, a fact that has an impact on the reality that a social group builds for itself as well as on its self-definition. This categorisation comes about by establishing limits, borders, by what we may call a iiminarisation process'. In this sense, law plays a role in the assertion of identity, but this doesn't necessarily mean that this assertion cannot be conceived in terms other than interactionist and non-substantial ones. In the Egyptian setting, and for the people we interviewed, this is reflected in the statement that Islam is radically different from other legal cultures, or at least that Islam is distinguishable owing to the fact that it has a legal culture with particular basic principles. 'It is not possible that the Islamic community, which is made up of many hundreds of millions of members, suggest a civilizational project disconnected from Islamic law. It wouldn't be its project' (interview with AW, lawyer and former magistrate, June 1994).

The analysis of law, of its repertoires, and of the perceptions that the various actors hold of it allows us to underscore the extent to which the (particularly legal) norm makes up a central component of the assertion of collective identity. 'As a matter of principle, Islamic law constitutes one of the aspects of our faith and we feel towards it a need similar to thirst for water or hunger for food. It is the backbone of the Islamic civilizational system. If the backbone of this system snaps, it is the Islamic civilization that disappears and becomes an altered reflection of the Western, Buddhist, or other civilizations' (interview with AW, lawyer and former magistrate, June 1994).

In its process towards the coalescing of identity, law operates on the basis of the assertion of both historical continuities by means of reinterpretation of the existing rules, and cultural discontinuities through the creation of boundaries defining the common tie underlying identity. The legal discourse and the emphasis put on either of the legal repertoires reflect the typifying role of the legal norm. Law thus serves to build a unity based 'on a process of division and

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a practice of exclusion' 21 . As for the behaviour of the actors, its aim is above all to create the impression of conformity to the rules of the group, 'while in fact their action is contradictory to the rule or is not based on the principle of total obedience to the rule' 22 . Thus revealing that what counts above all is the public assertion of group belonging and not the adoption of practices that substantially speaking are proper to it. D. The Judge, the State, and the Sharfa In this third section, I will expose briefly three cases where an Egyptian magistrate was led to refer to the Sharfa and to claim to base his judgment on its provisions. These examples of reference to the Islamic legal repertoire will allow me to put forward my general approach to the reference to Islam in law. The first case deals with the wearing of the veil at public school. As the natural tutor of his two daughters, a father petitioned the administrative court of Alexandria against the Minister of Education, requesting that the ruling be suspended and declared void that forbade his two girls entrance to secondary school. Indeed, when the time came to enrol his two girls in school, he was informed of their expulsion based on a departmental order that forbade access to school to pupils wearing the full veil (niqab); this decree orders the compulsory wearing by pupils of a standard uniform complying with the features it defines. For the plaintiff, this was seen to contradict Art. 2 (see above) and 41 (individual freedom is protected and it is forbidden to undermine it) Constitution 1971. The Administrative Court then referred the case to the Supreme Constitutional Court. In its judgment of May 18, 1996, the Court recalled its interpretation of Art. 2 Constitution 1971. For the Court, the logic behind wearing the uniform is to protect the sense of decency of the girl and the ways and customs of society. The legislator can legitimately impose limits to the dressing mode without it running against the principle of protection of individual freedom, as long as he does so for the sake of preserving identity. Islam improved the condition of women, and this explains that it prompted her to secure her sense of decency. It ordered her to veil since this protects her against vulgarity. And so in matters of dress and according to the law (of God), the woman cannot use her free will. On the contrary, her dressing style must reflect the responsibility that she takes upon herself in the world. But since the style of female dress is not discussed in absolute Qur'anic texts, there is room for interpretation and the intervention of the legislator, who must respect the mores as well as the requirements of life in modern society. According to the Court, by authorising the veil as long as it is not imposed and as long as it does not

21 Osi, Essai de définition et de caractérisation de la validité juridique, in: Droit et pouvoir, Rigaux/Haarscher (eds.) (1997) 97-132. 22 Bourdieu, Raisons pratiques. Sur la théorie de l'action (1994) 239.

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limit the young girl's capacities to integrate, the departmental order does not run against Art. 2 Constitution 1971. Furthermore, in distinguishing between freedom of thought and freedom of worship, the Court underlined that while the first cannot be restricted, the second can for the sake of higher interests, such as public order and morality. And education is part of those higher interests that the state must protect and that authorise regulating school dress. Thus the Court decided to turn down the petition, which meant that the young girls could not return to school wearing the full veil. The second case aroused quite a bit of interest. It is the trial of Nasr Hamid Abu Zayd, Assistant Professor of Islamic studies and literature at the University of Cairo, author of works of exegesis. In May 1992, Abu Zayd was refused the title of professor on the grounds that he had attacked Islam and apparently had said heretical things. On May 16, 1993, the case took a new twist as a group of lawyers petitioned the court of first instance requesting that a judgment be passed to separate him from his Muslim wife on the grounds that his publications apparently 'included blasphemous elements that place him outside Islam' and since 'among the consequences of apostasy which is unanimously admitted in jurisprudence, there is the decision to separate the spouses' 23 . While Abu Zayd's defence was structured, among other things, on the absence of a personal interest for the plaintiffs, on the contrary the Court of Appeal of Cairo confirmed the validity of the hisba procedure (see above). Having founded the legality of the hisba procedure in Egyptian law, the Court then based its argument for Abu Zayd's alleged apostasy on showing that he had 'refuted the Qur'anic verses that hold that the Holy Qur'an is the word of God ([...] and said) that it is a human writing and a human understanding of the revelation'. For the Court, all of these claims make the one who holds them an apostate, and that is supported by the unanimous agreement among the Ulama and Imam. Consequently, the judge drew the conclusion that Abu Zayd must be separated from his wife; this judgment was confirmed by the Court of Cassation, but its enforcement was eventually suspended by the judge in charge of applying sentences. The third case, dealing with the authorisation for sex change operations, did not have significant legal repercussions, even though it was much covered by the media. Also, it does not explicitly concern the realm of Islamic law, even though what underlies the core of the dispute are diverging views on morals based on Islam. In 1982, a student in medicine from al-Azhar University, Sayyid c Abdallah, consulted a psychologist claiming to suffer from deep de23 Court of First Instance of Cairo, January 27, 1994. See also: Dupret, A propos de l'affaire Abu Zayd, universitaire poursuivi pour apostasie; le procès: l'argumentation des tribunaux: Maghreb-Mashrek (1996) 18-22; Dupret/Ferrié, For intérieur et ordre public, ou comment la problématique de l'Aufklärung permet de décrire un débat égyptien, in: Droits et Sociétés dans le monde arabe. Perspectives socio-anthropologiques, Boëtsch et al. (eds.) (1997); Bäh, Submitting Faith to Judicial Scrutiny Through the Family Trial: the Abu Zayd Case: Die Welt des Islams 37 (1997) 135-155.

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pression. The psychologist examined him and concluded that the sexual identity of the young man was disturbed. After three years of treatment, she decided to refer him to a surgeon so that he undergo a sex change operation that eventually took place on January 29, 1988. This type of operation involved many consequences of an administrative and legal order. The first was the refusal of the dean of al-Azhar University's Faculty of Medicine to allow Sayyid to write his examinations, while also refusing to transfer her to the Faculty of Medicine for Women. To obtain this transfer, Sayyid made a request for a name change at the Administration Office for civil status. The University of al-Azhar maintained that Sayyid, who in the meantime had changed his name to Sally, had committed a crime. Indeed, according to the university, the doctor who made the operation had not changed his sex but had mutilated him, and this simply to allow Sally to have legitimate homosexual relations. Meanwhile, the representative of the Doctors' Syndicate of Giza summoned the two doctors who had performed the operation before a medical board that ruled that they had made a serious professional error by failing to prove the existence of a pathological problem before operating. On May 14, 1988, the Doctors' Syndicate sent a letter to the mufti of the Republic, Sayyid Tantawi, asking him to issue a fatwa on the matter. This one came on June 8, 1988, concluding that if the doctor showed that it was the only cure for the patient, this treatment was authorised. However, this treatment cannot result solely from the individual desire to change sex, but must be the therapeutic result of a pathological diagnosis decided by the proper authorities24. This fatwa is not clear on whether the 'psychological hermaphroditism' from which Sayyid suffered was an admissible medical reason or not. Thus, everyone claimed that the text supported his own view. On June 12, 1988, al-Azhar brought the matter before the courts, holding that the surgeon had to be condemned in compliance with Art. 240 of the Penal Code for having inflicted permanent injury to his patient. The Attorney General and his Deputy Public Prosecutor then decided to examine the case. They referred it to a medical expert, who concluded that while from a strictly physical point of view Sayyid was a man, psychologically he was not so. Thus the diagnosis of psychological hermaphroditism was relevant and surgery was the proper treatment. According to the report, the surgeon had only followed the rules of his profession, since he had consulted the competent specialists, had carried out the operation correctly, and had not inflicted permanent physical disability to the patient25. The latter could thus be considered a woman. On December 29, 1988, the Attorney General decided not to follow up the charge. The final report confirms that the operation was carried out according to the rules.

24 For the details of this case and the text of the fatwa, see Skovgaard-Petersen, Defining Islam for the Egyptian State - Muftis and Fatwas of the Dar al-Ifta (1997) 319-334. 25 Niyaba, Memorandum of the Prosecution in Case No 21 of the Year 1988: Majalla hay'a qadaya al-dawla 35 (1991) 159-169.

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These three cases allow me to conclude this paper by putting forward a model to interpret the recourse to the Sharl°a within the Egyptian legal and judicial realm. Because it deals with the idea of normality, law claims to be the technical transposition of a social and historical reality that is clearly perceivable. The term 'norm' indeed has two meanings, one rather legal and the other statistical. Far from simply coexisting, they tend to become confused. If we say of one thing that it is normal because it is consistent with the most common type, there still remains, either implicitly or explicitly a reference to values, to an idea of what must be. 'If the notion of normality is ambiguous, it is because it constantly adds normative content to description' 26 . Theoretically speaking, normality is not part of the conceptual realm of law. This being the case, we cannot ignore the surreptitious reintroduction of the concept in jurisprudence. The normal then becomes a legal category, under the guise, among others, of the notion of standard (an explicit reference to an implicit idea of normality). And thus law 'ratifies and spreads a certain idea of normality and partakes in the effective normalisation of behaviour". On the descriptive plane, law claims to account for the prevailing social norms and to make them legally binding, while on the normative plane law prescribes the social norms it intends to approve. This inevitably creates a feedback effect, the norms considered normal in law, and so thereby guaranteed, tending to determine in return social normality. We thus notice from the part of the legal practitioners the systematic tendency towards 'conforming' the normal to the legal, and conversely towards 'making coincide' social normativity with legal normativity. The task of conforming the normal to the legal and of the conjunction of social and legal normativity raises the question of the status of the legal norm claiming to reflect normality, that of nature as well as that of common sense. The rule imposing the veil is one of these. The court presents it as ethically, socially, and historically based. A rule does not exist on its own, and it is not followed simply because it is there. A rule exists as the inclusion of an understanding that we feel in harmony with others. Legal formalisation does not in itself determine the existence of the rule, no more than a map would determine the spatial layout that it sketches more or less accurately. A rule exists as a set of practices forming a background that is possibly but not necessarily represented and representable, and the regularity of which is the object of an incorporation: it is reproduced with no other justification than the simple feeling of doing so by conformity. The legal practitioners claim to be acting according to rules that exist, but these do so first and foremost as available resources, as parts of normative repertoires and as traces of previous formalised practices.

26

Lochak, Normalité, in: Dictionnaire encyclopédique de théorie et de Sociologie du droit2, Arnaud et al. (eds.) (1993) 393.

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According to Bernard Lepetit27, a rule is a form that exists due to previous practices, but that can serve for different practices. The three cases that I have briefly presented clearly show the existence of normative forms to which magistrates give a content when they give a ruling. The relationship between the forms and their 'substantialisation' may be compared to the shared images serving as a kind of paradigm 28 . These images, at once both descriptions of typical actions and tacit social judgments, are temporally and culturally contingent. Like the process of narrative typification, the process of substantialisation, dealing with the use of normative forms available according to the needs and constraints of interaction, is a judgment of relative similarity. The normative form works like a shared image, or better yet, like a paradigmatic narrative typification. Through a judgment of relative similarity, the normative form serves as a criterion for the legal definition of events which, because of their context, the actors are compelled to evaluate analytically and normatively. It is the result of the legal definition of these events that makes up the content as such. It appears then that the process of typification must above all be linked to the structure of judicial action. We thus come to inquire now about an 'economy of typifications' determined for a large part by the realms of interaction, realms that work according to a functionally identifiable mode and in a way specific to their use by the actors. Symbols and rhetorics thus become resources rather than sources29, forms rather than contents, which the systematic study of identificatory mechanisms compels us to distinguish from the occurrences that actors seek to define 30 . Furthermore, what about the relations of law with history, a discipline of which law is presented as the heir? It does not suffice to recall the notoriously known fact that very often the content of the law outlives its spirit; still the analysis of the type of relations that bind them remains to be undertaken. A number of hypotheses regarding substantialisation can be put forward 31 that shed an initial light on these forms of law which are available to the legal practitioner in a particular social setting. As I previously mentioned, these means available for normative action appear as the traces and resources that historical and biographical memory make available to the actor.

27

Lepetit, Le présent de l'histoire, in: Les formes de l'expérience. Une autre histoire sociale, Lepetit (ed.) (1995). 28 Jackson, Making Sense in Law. Linguistic, Psychological and Semiotic Perspectives (1995) 152. 29 Ferrie, Les Visions de l'Occident dans le monde arabe. Introduction: Egypte-Monde arabe 30-31 (1997) 13-27. 30 Dupret, La définition juridique des appartenances. La typification narrative de l'action identitaire devant les juridictions suprêmes d'Egypte et d'Israël: International Journal for the Semiotics of Law/Revue Internationale de Sémiotique Juridique 10 (1997) 261-291. 31 see Dupret (note 30).

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The norm is created by way of sedimentation, but that of its form and not of its content. Sedimentation, in the sense that the process, central to the idea of 'memory', consists in the subjective intervention aiming to (re)construct the original reference and the milestones linking to it. The norms, tied to a founding past, are constructed, deconstructed, and reconstructed. Any particular moment in time is 'a layer of a constantly changing diachronical accumulation of sediments brought by generations of different people' 32 . However, these layers only significantly affect the present if they interact and, rather than reproducing separate structures evolving concurrently, they partake in the formation of the 'top layer', of the new normative sediment that is coming into being. Due to its compound nature, this 'top layer' is both the result of a number of normative 'possibilities' and the closing of the normative repertoires available at that given moment. Furthermore, this sedimentation is formal insofar as it is true that it is not the thing per se that is socially relevant but rather the perspectives used to assess this thing, these perspectives being closely determined by the setting of interaction. In this regard, the notion of 'traditioning context" seems particularly relevant33. The claim is that the authority of a norm declared constraining by a judge stems more from the setting of its statement, which in some way would make the conjunctural conditions transcendental, than from its part in a transfer process. The 'traditioning' of a claim and, consequently, its normativity come about from the fact of having been 'made' by the authorised person, at the proper time and place. We can say that the trial is the ritual moment par excellence where a referent is given a traditional symbolic value, thereby concealing from the actors the contingent nature of the process, and reasserting a view of the world, of its norms, and of its history 'as they are' 34 . Therefore, normative sedimentation is not an act of heritage but rather a complex process of appropriation and reinterpretation establishing new truths. Thus the norm has no existence in itself except when it is being used. It explicitly becomes a repertoire, that is a (rhetorical) resource available to the actors and shaped and modified through practice 35 . In the interpretations of the legal rules that the magistrate makes with regard to the Sharl^a, the judge authoritatively gives a formal rule an exact and constraining meaning by conferring on it the status of a historically based and socially sanctioned religious requirement. And the judge would supposedly be the only individual able to conceive of this rule simultaneously as a norm to be imposed upon society and as a social normality to be given legal status. Various obligations whose normality are displayed are morally and legally sanctioned by a judge presenting his interpretative mode as the current and cultural reflec32

Krygier, Laws as Tradition: Law and Philosophy 5 (1986) 242. Bouju, Tradition et identité. La tradition dogon entre traditionalisme rural et néotraditionalisme urbain: Enquête - Les usages de la tradition 2 (1995) 95-117 (106). 34 Kertzer (note 20); Carzo, Le droit comme fait social total, in: Legal Semiotics and the Sociology of Law, Jackson (ed.) (1994) 37. 35 Lepetit (note 27) 297. 33

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tion of a timeless will. In its quest for a morality in compliance with its perception of religious and social normality, law gives strength to purely formal prescriptions inherited from history. While claiming to reflect natural normativity, it actually created it. While claiming to return to the Sharfa, it actually reinvented it.

Part IV: Concluding Remarks

Summary and Concluding Remarks MARTIN HAARS

A.

Summary of the discussions I. Constitutional law II. Family law III. Economic and commercial law

B.

Concluding remarks I. The situation in Afghanistan II. Iran as a model? III. Egypt as a model? IV. Prospects

A. Summary of the discussions During the conference, the discussions revolved around three main branches of law: (I.) constitutional law, (II.) family law, and (III.) economic and commercial law. I.

Constitutional law

1. The fundamentals of the new constitutional order The first three articles of the Afghan Constitution of 2004 voice the self-conception of the new state, namely that of a unitary, indivisible and independent Islamic republic (Art. 1), with Islam as a uniting pillar and as the state religion (Art. 2), and incorporating the repugnancy clause (Art. 3). The significance of the terms 'Islamic Republic' and 'sacred religion of Islam' and the mutual relationship of these provisions were intensively discussed. The discussants found that the wording of the first articles in the constitution is without precedent in the Islamic world. They agreed that the laws of a country designating itself an 'Islamic Republic' must be in conformity with the SharT^a. Prof Hashim Kamali (Kuala Lumpur) elaborated on this, affirming that Art. 3 Constitution 2004 has a negative alignment: as long as a proposed body of law was not contrary to the Shar^a, there was ample scope for statutory legislation to operate side by side with religious principles. On the other hand, the constitution commits itself to the SharT°a in an affirmative sense: it cannot accept rules that are offensive to Islam.

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In this, the Afghan Constitution 2004 differs slightly from constitutions of other Islamic countries like the Egyptian constitution that proclaims in Art. 2: 'Islam is the religion of the state [...] Islamic jurisprudence is the principal source of legislation.' Questioned on the essence of that provision in comparison to the articles of the Afghan Constitution, Justice Adel Omar Sherif (Cairo) emphasised that the expression 'Islamic Republic' required the state to respect Islamic law, and that Art. 1-3 of the Afghan constitution each had a separate function; therefore it was perfectly acceptable to draft the articles in the way they are formulated now. With regard to the Iranian understanding of republicanism, Dr. Mohammad Rasekh (London) emphasised that the concept had a political and philosophical connotation that needed more in-depth discussion among shl 0 ! jurisprudents. Modern concepts like human rights and civil society engagement can be incorporated in an Islamic Republic, he argued. Examples of legal modernisation by incorporation of new concepts can be found in early Islamic history, when the Prophet Mohammad accepted new ideas from his companions. Rasekh added that the sole reference to Islam as such may not be helpful in motivating democratic change, because in fact, also dictators have referred to Islam to justify their rule. An illustrating remark on the idea and the respect of republicanism in Europe came from Prof. Jurgen Basedow (Hamburg). He spoke of the conflict between Catholics and Protestants which led to the Thirty Years' War in the German Empire in the 17. century. The lesson that was learnt then was that 'the very essential idea of republicanism is to be tolerant towards the ideas of other people'. 2. Spiritual and political Islamic leadership The declaration that Afghanistan is an Islamic Republic is not, as such, sufficient to describe or to anticipate what the standards for 'truly Islamic' or 'unIslamic' legislation are. The question is who can decide what is Islamic and who cannot. This prerogative pertains to the political arena, but it is also a question of spiritual leadership. Here Afghanistan's neighbour Iran has gone its own way, and the Iranian structures were therefore of interest to many Afghan participants. In this context, an Afghan speaker asked about the relationship between the velayat-e faqlh (leadership of shI°T jurisprudents), democracy, and republicanism. Rasekh explained that the concept of velayat is manifold in the sense that absolute velayat is attributed only to God, while political velayat was primarily accredited to the Twelve Imams. He stated that no ordinary man can be in possession of velayat. Commenting on the current situation in Iran, Rasekh referred to the distinguished jurist Montaseri, who expressed the opinion that religious leaders should not have executive powers. The balance of

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political power and moral authority in an Islamic republic very much depends on who has the competence to interpret the constitution. 3. Interpretation of the new constitution Since the constitutional framework is new, its institutions are not yet consolidated and have not set the boundaries of their respective spheres of competence. One of the major concerns is that the constitutional framework may not effect what it promises because of different views regarding its principles, contents, interpretation or the sharing of power. These fears are to a large extent rooted in the constitutional history of Afghanistan. One speaker referred to the fundamental principles of the Afghan Constitution of 1964, establishing a constitutional monarchy, and stated that they had never been thoroughly defined or properly interpreted. He therefore asked how this might be achieved now. Kamali answered that according to Art. 116-135, the task of interpreting the constitution lies in the hands of the Supreme Court of Afghanistan - the stera mahkama - and that the proposal to establish a genuine 'constitutional court' was rejected in the drafting process. Art. 121 Constitution 2004 provides that the Supreme Court shall 'review laws, legislative decrees, international treaties, and conventions on their compliance with the constitution' and interpret them. As guidelines for the interpretation of the constitution the participants identified the norms of the SharT^a and basic human rights principles such as those outlined in the Universal Declaration of Human Rights. Regarding the techniques used in interpreting the constitution, one speaker pointed out that Afghanistan has operated a mixed legal system for decades and that in principle there are no objections 'to borrowing something which we find acceptable and beneficial'. Even if one may find problematic provisions in the constitution, there is a well-founded tradition of disposing unacceptable provisions and of carrying on working with the 'good parts'. 4. The advancement of the constitutional

framework

It lies in the nature of constitutions that they provide the framework for discourse, a set of minimum standards, and the rules for decision-making. Yet they do not present all the answers to achieving the intended social, economic and legal enhancements. Among the cornerstones of constitutionalism are the respect for the rule of law, political stability, human security and a culture of fairness in political and legal discourse. Dr. Amr Shalakany (Cairo) referred to the abstract character that every new constitution has and that 'the test will be in the particulars'. For example, if Afghanistan wants a modern functioning economy, the jurists must be prepared

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to answer questions on issues like securities regulations, e-commerce, insider trading, strict liability in torts or proof of fault. He remarked that 'saying 'we have an Islamic constitution' is not the end, but the beginning of the problem'. The answers to a number of issues will not be found in the constitution, and therefore Afghanistan needs to look abroad and see what other nations have done. Taking the development in Egypt as an example, he said that the starting point for reform was the admission that new answers to emerging problems needed to be found. Despite the deep respect for Islamic legal traditions, one had to admit that the world had changed and that the gates of igtihad had been closed. The Egyptian scholars had been trying to find solutions, and one might disagree about how they had done it and what solutions they had produced, but - he argued - it was necessary to admit that problems existed and had to be debated. Over the years this attitude has produced a legal system that most people are comfortable with. The discussants found that some of the preconditions for the advancement of constitutionalism in Afghanistan are not yet fully realised, like political stability and security. One speaker commented that projects of famous scholars like Edouard Lambert and Abdul Razeq As-Sanhuri to modernise Islamic law were most promising in a stable political climate. Another speaker mentioned that at present Afghanistan also lacked the political culture that was needed to implement the constitution. 5. Sharfa

and human rights

obligations

The body of rules that constitute the Sharfa is an integral part of the Afghan legal system, since Art. 3 states: 'In Afghanistan, no law may be contrary to the beliefs and provisions of the sacred religion of Islam.' At the same level, the constitution directly and indirectly makes reference to international human rights obligations and a large set of civil liberties (Art. 22-59). Some participants identified potential conflicts and asked how respect for human rights and the Sharfa could be harmonised. One discussant gave the following example: Art. 16 (1) of the Universal Declaration of Human Rights provides that '[m]en and women, without any limitation due to [...] religion, have the right to marry. They are entitled to equal rights as to marriage, during marriage and at its dissolution'. According to the Qur'an, a Muslim woman cannot marry a nonMuslim man; thus there seems to be a clear contradiction between Islamic law and international human rights standards where adaptation of the rules is questionable. Sherif did not elaborate directly on the implications of the Universal Declaration of Human Rights, but stated that he could not see any 'legal violation of human rights against Islam or of Islam against human rights'. Nevertheless, he said that the Shar'fa encompasses certain 'definite rules' from which derogation is not possible. Rules like the hudud-chmes (Qur'anic criminal

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provisions) are definite and clear in their meaning, thus 'as Muslims we have to accept them'. Dr. Baudouin Dupret (Damascus) clarified that the reference to the Sharfa as such is also a reference to a very diverse system of interpretations of Islamic jurisprudence. The Shari°a has often been re-shaped to the different needs of societies. One example was the Abu Zayd apostasy case that provoked a modification of the whole concept of hisba in Egyptian law. Therefore, the particular understanding of the content of the Sharfa will determine whether one can conceptualise a dichotomy to international human rights standards. 6. Gender equality and women's rights Afghanistan's constitution contains some new and potentially problematic elements. Art. 7 provides that the state shall respect its international human rights obligations and the Universal Declaration of Human Rights, while Art. 22 declares that all citizens of Afghanistan - whether man or woman - are equal before the law. Since 2003 the Islamic Republic of Afghanistan has been a member state to the United Nations Convention on the Elimination of All Forms of Discrimination against Women, so-called CEDAW. Therefore, the question is how Afghanistan can live up to its promise to implement the goals of CEDAW and those set out in the new constitution. The speech given by Dr. Elaheh Kolaei (Tehran) on this topic raised many questions. It was mentioned that both Iran and Afghanistan had signed CEDAW, but that the question remains whether the convention is really going to be enforced. The pursuant discussion touched upon the sensitive point of 'Islam's ability' to adapt to certain international standards. Kolaei expressed the opinion that Islam has the capacity to meet the needs of the people now as it had in the past. With reference to Imam Khomeini she said that Islam could provide answers in times of social change and was no obstacle to development. Thus, the debate on women's rights and needs should be addressed within the paradigm of Islam. She ascribed many forms of discrimination against women to 'characteristics of traditional societies and historical habits' rather than Islam in itself. But she also made the point that discrimination of women is not a phenomenon which occurs in Islamic societies alone. The fact that women are paid lower wages for equivalent work is a reality in many countries and not only Islamic ones. She attributed this problem to the underlying belief that men have to provide for their families and that women 'just receive what is given to them'. In reality, both men and women work together and divide and share their social, economic and familial duties and commitments. According to their constitutions, the states have a duty to provide effective support for women (comp. Art. 45 Afghan Constitution 2004 and Art. 21 IRI Constitution). The governments should therefore play a positive role in pre-

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serving the institution of the 'family' and they should do so in an organised and coherent way. Speaking of the need to implement policies for the improvement of women's rights, Kolaei said: 'We believe that women's' issues [...] and acceptance of women's rights are part of the whole process of démocratisation within our societies.' With regard to the ratification and implementation of CEDAW, she informed the plenum about the rejection of CEDAW by the Iranian conservatives and the Council of Guardians. They were of the opinion that CEDAW would undermine Islamic values. Nevertheless she remained optimistic that a law implementing CEDAW may still be approved. She pointed out that joining international conventions like CEDAW could strengthen the women's rights movement, but that changes in the law also call for setting up the appropriate social infrastructure. Even the best laws, Kolaei remarked, cannot just be imported. II. Family law 1. Minorities in Afghanistan: shfl law, mufa and the equality clause Art. 131 Constitution 2004 introduces the pluralistic idea that followers of the s h f l sect are to be judged according to s h f l law in matters of personal status. Dr. Nadjma Yassari (Hamburg) pointed to some controversial questions that may derive from this provision: Will it be possible to engage in mufa marriages (temporary marriages) in accordance with Art. 131? Or is it probable that the Afghan legislator will introduce a public policy clause in order to remove s h f t rules that are deemed incompatible with hanafî jurisprudence? If so, how shall one deal with other religious minorities in view of the new constitution stipulating non-discrimination? If s h ï t law is part of Afghan law, must it be taught in the major universities of Afghanistan? And who is going to apply s lift law? Will there be changes in the law of inheritance in cases with purely shl 0 ! or also with mixed families? Kamali clarified that if one party of a dispute is a follower of the hanafî rite and the other is shfT, the public courts of Afghanistan will apply the law according to the hanafî jurisprudence. If both parties are shT°î, the legal position changes and shrt law is applied. This interpretation would allow for the toleration of the mufa-marriage, as it is a concept that is largely accepted in the shî°î doctrine. On the other hand, Art. 22 Constitution 2004 declares that all citizens of Afghanistan are equal before the law. This can be interpreted as a restriction on discriminatory rules, which would make the acceptance of mufa marriages problematic. If one follows this interpretation, the question would then be whether the constitution should 'turn a blind eye' in this regard or whether the state can 'ignore whatever is happening in the shT0! corners of Afghanistan.' Kamali attested that inheritance law is included in the term 'matters of personal status' and that there are indeed considerable differences between the

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hanafi and the shl'T schools' view on the law of succession. Concerning the Christian and the Hindu minorities that are not specifically recognised by the constitution, like the shit, one has to consider the general rationale of the constitution: on the one hand, it guarantees equality and on the other hand, it implies that every group is bound by its set of rules. Kamali said that it was the duty of Parliament to pass a law executing its mandate to create a legal framework for these minority issues. In any case, he supported the view that shl'T jurisprudence should be taught in the law faculties of Afghanistan and suggested that the Supreme Court might recruit and appoint experts on shl'T jurisprudence 1 . 2. Polygamy as grounds for

divorce?

The Afghan family law was last codified in the civil code of 1977 that is based on hanafi jurisprudence and to some extent on the French code civil. The Afghan civil code, in principle, confirms the validity of polygamy but makes it contingent on certain conditions, like financial means and personality (comp. Art. 86, 89 AfgCC). Justice Asifa Kakar (Kabul) reported that today it is not uncommon for men to take a second or a third wife without the consent or even the knowledge of the first wife. In case the non-informed wife goes to court to ask for a divorce, she will be deprived of all the benefits of married life and her status as a respected, married women. Given these conditions, how can women's rights be achieved and safeguarded? Which positive impact could amendments of the law have? Kamali explained that according to his understanding of Afghan civil law, the legal position is as follows: if the husband does not seek and attain the consent of the new wife and marries a second time, the law gives the new wife a right to divorce. The first wife can also demand a divorce on the basis of injury that is such as to render marital life with her husband impossible, but not on the mere fact of her husband's polygamous union. She can only demand divorce based on Art. 88 AfgCC. Under this article a woman may stipulate in her marriage contract that if her husband marries a second wife she will be authorised to get a divorce. One of the conditions for engaging in a second marriage is that the man needs to be of 'just character'. Here, probably the first wife is the only person who can assess whether her husband is just or not and in some countries her consent is a requirement. Kamali adjoined that it is complicated to establish

1 In January 2005 an Interim Supreme Court was constituted. President Karzai appointed nine judges, all of them Islamic scholars, including one shl'T scholar.

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that someone is of unjust character. The only obvious case is the conviction of the husband. In order to overcome this dilemma, he drew on the example of family law in Pakistan. In Pakistan a so-called Union Council has been established. The Council's permission is required for a proposed case of divorce based on injury. All forms of divorce must, in fact, be reported to this Council and no divorce is final within 90 days after the report of the Council. An intervening procedure such as this is likely to lighten the burden of the wife to provide evidence. Basedow argued that the establishment of a state registry of personal status is needed. This registry could provide information on changes in the personal status of every Afghan citizen. Consequently, if the married man and his designated second bride wanted to get married, they would have to produce evidence that the first wife agreed to their marriage. Another speaker suggested that in practice, polygamy is not one of the main issues among Muslims in Afghanistan. Out of 20 million Afghans probably only 2,000 men had more than one wife, he estimated. He doubted that the enactment of different rules on polygamy could change a lot and that it would be very difficult to ensure complete adherence. 3. Iranian family law - suitable for

Afghanistan?

The speech held by Nahid Shid (Tehran) gave rise to the discussion of concepts of Iranian family law in view of problems and possible solutions in Afghan law. One participant wanted to know whether Iranian law differentiates between children born in a temporary and those born in a permanent marriage. Another guest was interested in hearing about disputed areas in Iranian family law. A third speaker commented that the number of divorces was much higher in Iran than in Afghanistan and other neighbouring countries, so if polygamy was restricted, would that cause an increase in divorces? A fourth questioner asked, whether the concept of engagement was known in Iranian family law, and if so, what happened when an engagement was dissolved. Lastly, Shid was asked about custody, particularly who would have custody of a child that is old enough to stay with the father, but whose father has disappeared. According to Shid, children born as a result of a temporary marriage are considered legitimate and have a legal linkage to their father. Within six months after the birth of the child the mother must tell the (former) husband that the child is his. With regard to the social problems inflicted by mufa marriages, Shid declared that she is not in favour of these marriages and disagrees with the current legal status that allows for their existence. One important and disputed area nowadays is that of financial obligations of the husband vis-à-vis his wife or wives and his children. These questions deserve a balanced view, Shid argued. Freezing the dower or placing undue

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financial burdens on men may prove to be inefficient in the end; a lopsided position ought to be avoided. As regards polygamy, she reported that it is practiced in Iran. To avoid the negative effect of polygamy and to discourage it, many marriage contracts contain a clause in which the husband agrees to transfer half of his property to the first wife in case he marries a second wife. It is hoped that this may prevent the increase of polygamy. Pertaining to engagement, she stressed that engagement is different from marriage under Iranian law. Any benefits or grants that a party has given to the other party shall be returned when the engagement is dissolved; at least anything that was not expendable. On custody, Shid explained that under Iranian family law the mother has the right of custody of her children until the age of seven, after that custody is awarded to the father. If the father has disappeared, a family court will decide on the matter of custody. Whenever the father is financially not in the position to provide for his children, they will be given into the mother's care. 4. Divorce procedures - accepting

khufa?

Throughout the conference family law and the issue of divorce in particular remained a permanent topic of discussion. Many viewpoints were put forward. The presentation by Sherif opened the floor for more detailed questions. Yassari inquired about case law in respect to khufa, a kind of divorce initiated by the wife that had been introduced in Egyptian law in 2000. She pointed out that a khufa would grant the wife a divorce from her husband, but excluded any financial claims of the wife against her husband after the dissolution of the marriage. Considering the fact that this rule existed in all three countries under consideration, she asked whether a need for reform was felt. Sherif responded in the negative and predicted that there would be no need for further reform. An Afghan participant asked how women may initiate divorce proceedings. Sherif gave a short account on divorce procedures under Egyptian law: a woman who seeks divorce from her husband can go to court and claim that (a) her husband has harmed her, or (b) it is impossible for her to live with her husband anymore, even if he has not harmed her at all {khufa). Since a woman has no right to divorce herself, she must seek recourse to a judge to instigate the divorce procedure. In case she wants a divorce without fault on the side of the husband, she will have to return her mahr (dower) and renounce maintenance. These principles may be applicable not only in Egyptian law but in Islamic law in general, Sherif said. The marriage contract between the wife and the husband may, however, contain a clause in which the husband entitles the wife to initiate divorce on his behalf (so-called talaq-e tafwld).

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III. Economic and commercial law 1. Afghanistan's new market economy Civil war and foreign occupation have limited the possibilities for development and growth of Afghanistan's economy. Now that the state is being slowly but steadily reconstructed, the question is how to foster economic development. Art. 10 Constitution 2004 provides that the state act on the basis of a market economy system. The implications that this orientation entails gave rise to intense debates. Given the socialist and fundamentalist economic history of Afghanistan and the traditional economic structures, one can well understand the question raised by Justice Fazelahmad Shirin-Agha Mahnavi (Kabul) whether it was at all useful to include the term 'market economy' in the constitution. Prof. Behrooz Akhlaghi (Tehran) shared the concern that a free market economy can lead to unfavourable developments and said he preferred a 'mixed economy' approach in which vulnerable groups in society were supported. 2. Foreign investments in Afghanistan Due to the war-time experience many Afghans have become sceptical of foreign ideas, foreign promises, and sometimes also foreign people. Therefore it cannot be assumed that foreign investors per se will be well-received as benefactors of the national economy. There is the fear that foreign influence will have negative effects on the Afghan way of life and that investments from abroad could once more lead to foreign domination of Afghanistan. Consequently, questions arose, such as how the Afghan people can both accept foreign investments and successfully keep their values. Justice Murad Ali Murad (Kabul) for example enquired about the criteria applied by the Iranian decision-makers to allow or disallow foreign investment. Prof. Abdul Rahoof Mokhles (Herat) pointed out that there might be unfavourable competition between foreign and national investors. Concerning the fears of moral decline, Akhlaghi was of the opinion that 'if values are affected by foreign investors, then this means that these values do not have a strong foundation [in society]'. He referred to the countries Korea and Japan. They were both embroiled in World War II and came under the influence of the USA. Nevertheless, they managed to protect their traditional values and at the same time showed enormous economic growth and enjoyed successes under a free market system. According to Akhlaghi this exemplifies that 'foreign investment cannot affect values negatively, if the nation adheres to and protects its values'. When the question was raised how foreigners, especially non-Muslims, are received in Afghanistan, the Afghan delegation unanimously held that anyone

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who believed in humanity and worked for the betterment of humankind would be welcomed in Afghanistan, while anyone who comes as an invader will not. It was emphasised that Afghanistan has struggled long and hard for its independence. Now that it has achieved this milestone, the people of Afghanistan want to set up friendly relations with all countries of the world, provided that they do not infringe on Afghanistan's national sovereignty, disrespect Islam or disregard Afghan customs. Moreover, it was argued, without Afghanistan's sacrifices and the resistance of the Afghans against the Soviets, the Berlin Wall would perhaps not have fallen. 3. Islamic principles of commerce and riba Since the Afghan constitution states that 'no law may be contrary to the beliefs and provisions of the sacred religion of Islam', no commercial practice can be condoned that violates norms of Islamic law. One of these fundamental norms on commerce is the prohibition of usury, riba, that has often been interpreted as a proscription of charging interests. The strict enforcement of such an interpretation would, however, provoke negative effects on any financial services system, in particular banking. Mokhles stated that in the field of commerce, Islam upholds two or three major principles. Within the framework of these principles there must be room to manoeuvre. Akhlaghi commented also in a pragmatic way: the prohibition on charging interest stems from a time when inflation rates did not exist; but today's economy requires a system that is adaptable to new challenges. In this regard, many creative ideas were put forward in the last century in order to reach a new balance between the adherence to traditional Islamic principles and fostering profitable banking transactions. Akhlaghi gave several examples from Iran, illustrating how this strict prohibition of interest was softened by allowing the establishment of a mudarabah-system (partnerships between a capital provider and a managing trustee) or the taking of commissions and 'gifts'. He concluded that in this respect 'substance [= charging interest] never changes, just the format'. So far, the issue of riba has engendered detailed research in a previously unprecedented scale, Shalakany said. He doubted that in Egypt a general consensus on the question of whether banking interest is riba or not, has emerged. Many questions were in fact still unanswered. Shalakany presented the example of a recent legal opinion given by An-Aznar, who concluded that interest rates which are administered by banks cannot be considered riba, because these banks simply seek to perform well in an economic system that requires them to manage funds according to current market values, which do change. As a result, one can say that the provisions on interest in the Egyptian statutory laws are not riba-provisions, but regulations on limited interest rates and a prohibition of

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compound interest (ie interest on interest). Thus the Egyptian laws are in conformity with the rules of the Shari^a. B. Concluding remarks I.

The situation in Afghanistan

The political instability and the constant military engagement of different forces in Afghanistan during the last decades have triggered the collapse of the Afghan state and in turn have lead to a revitalisation of traditional Islamic institutions and values. The weakening of the state was contrasted by new forms of regional and sometimes ethnic self-organisation that often concurred with the continued application or comeback of customary law. Thus, today, the picture is that of legal pluralism and all too often power-based decision-making rather than consensual decision-finding. During these decades of upheaval the influx and influence of foreign and modernising ideas were extremely limited. The reform movement that took root in other Islamic countries has passed Afghanistan by largely unnoticed. Moreover, the record of most Afghan regimes of the 20. century is characterised by the disregard of the rule of law, human rights abuses, war-time atrocities, and impunity. Over the years this also had a detrimental impact on the educational system in general and the legal system in particular. The collapse of educational institutions left the country with very few scholars and many insufficiently trained legal practitioners. At no point in time could a functioning legal press be built up, and most legal archives were destroyed. Therefore, in many ways the Afghan legal system today needs not only re-construction, it needs a fresh start from scratch. The economic and political isolation of Afghanistan - tragic as it was in many ways - may, however, have benefits as well. Afghanistan can look abroad and avail itself of the lessons that other societies needed to learn in a long trialand-error process. Through the study of comparative law and the sharing of experiences with other Islamic states a constant exchange of ideas can be initiated that may become a reservoir and a germ cell for the creation of Afghan solutions to Afghanistan's current problems. Although there are major differences in the understanding of Islamic jurisprudence within the Islam world, Islam provides a common foundation on which new approaches can be developed and transplanted. Two of the most influential and self-contained Islamic legal systems, namely that of Egypt and Iran, were presented to the Afghan participants at this conference. The question is whether or to which extent these legal systems can serve as models for the judicial reconstruction of Afghanistan.

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II. Iran as a model? Afghans can look to Iran to see how a formerly secular state has transformed itself into an Islamic Republic based upon shT'T jurisprudence and the (then reformist) teachings of the spiritual leader Ayatollah Khomenei. In many respects historical developments in Afghanistan and Iran display parallels, eg a time of foreign domination (the Soviets in Afghanistan, the British in Iran), the collapse of a disputed constitutional order (1977 in Afghanistan, 1979 in Iran), and an imbalance between rural ways of life and urban culture (the capitals Kabul and Tehran in comparison to the provincial areas of the countries). The Iranian speakers underlined that Islam is not an obstacle to modernisation and that legal debates do not stop just because a political system is called an Islamic Republic. Questions concerning the rights of women, the formation of a checks-and-balances system in the state apparatus or the acceptance of foreign direct investments must be asked. These and other questions will have to be answered in Afghanistan in the near future as well. The answers for Afghanistan may not be the same as for the Islamic Republic of Iran. Reasons for differing responses may be the cultural background (sunnl, not shi°I Islam), the unalike geopolitical position, the dissimilar relations to the USA, Russia and Europe, the respective economic histories, the state of security, the concepts of gender relations, and so forth. III. Egypt as a model? Egypt is currently one of the most influential countries in the Islamic world. The Egyptian legal system has been in many respects a model for other Middle Eastern, African and Asian states. Afghanistan's scholars and decision-makers are thus in good company when they make use of Egyptian laws as points of reference for their own legal development. Egyptian and Afghan experiences diverge more strongly as far as their histories, economic development or political stability are concerned. Nonetheless, a closer look reveals that both countries display similar patterns of conflict and cleavages, for instance the problem of Islamic fundamentalism and the question of the appropriate influence of the military in state affairs. Most importantly, the Afghan and the Egyptian legal systems share a common hanafT imprint and have at a certain point in time experienced the influence of the French legal system. However, whereas Egypt has constantly 'modernised' its laws, the state in Afghanistan collapsed. In fact, the discussions on the application of the SharT°a in Egypt had nothing in common with the enforcement of the SharT°a by the Taliban in Afghanistan. Now that Afghanistan has a new government, it may be time to again concentrate on the similarities and the links between hanafT jurisprudents.

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IV. Prospects This conference aimed to give the participants an impression of the diversity of Islamic jurisprudence and the legal issues that may arise within the paradigms of Shar^a, republicanism and a free market economy. The Afghan participants mentioned that the reports from Iran and Egypt were indeed very informative and thought-provoking. The speakers demonstrated that the adjustment of Afghanistan's laws to these new times requires complex analyses of the social, political and economic environment. It is hoped that this conference experience may serve as a source of inspiration in contexts where a comparative law approach seems fruitful. Afghanistan's lawmakers will hopefully opt to train and inform themselves thoroughly before taking seminal decisions. Preliminary nation-wide research and consultation will be of pivotal importance for any new legislation, be it in traditional fields like family law or in 'modern' areas like foreign investment law.

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Participants Abdul Aziz, Prof., Sharfa Faculty, University of Kabul, Afghanistan Afsah, Ebrahim, B.A. M.Phil. M.P.A., Max Planck Institute for Comparative Public Law and International Law, Heidelberg Ahrens, Dieter, Dr., Lawyer, Hamburg Akhlaghi, Behrooz, Prof. Dr., Faculty of Law, University of Tehran, Lawyer, Iran Alhuj, Mohammed Sediq, Shar^a Faculty, University of Herat, Afghanistan Asemi, Basir Ahmad, Faculty of Law and Political Sciences, University of Herat, Afghanistan Askari, Fateme, Iranian Consulate General, Hamburg Bälz, Kilian, Dr. LL.M., Lawyer, Frankfurt am Main Barekzai, Shoukouria, Member of the Constitutional Review Commission, Afghanistan Barmaki, Hamida, Prof., Faculty of Law and Political Sciences, University of Kabul, Afghanistan Basedow, Jürgen, Prof. Dr. Dr. h.c. LL.M., Max Planck Institute for Foreign Private Law and Private International Law, Hamburg Besmallah, Besmel, Faculty of Law and Political Sciences, University of Herat, Afghanistan Dupret, Baudouin, Dr. LL.M. G.D., Research Fellow at the Centre National de la Recherche Scientifique (CNRS), Damascus, Syria Eckert, Julia, Dr., Max Planck Institute for Social Anthropology, Halle a.d. Saale Elliesie, Hatem, Max Planck Institute for Comparative Public Law and International Law, Heidelberg Fakoor, Ali Ahmad, Commissioner of the Afghan Independent Human Rights Commission (AIHRC), Afghanistan Fallah, Mohammad Yasin, Sharfa Faculty, University of Balkh, Afghanistan Haars, Martin, Max Planck Institute for Foreign Private Law and Private International Law, Hamburg

204

Participants

Hoss, Cristina, Max Planck Institute for Comparative Public Law and International Law, Heidelberg Ismail Hassan, Hala, Consul General, Egyptian Consulate General, Hamburg Jacobi, Bernd, Dr., Former Judge at the High Court of Hamburg Johansen, Baber, Prof. Dr., Ecole des Hautes Etudes en Sciences Sociales, Paris Kakar, Asifa, Deputy Chief Justice of the Commercial Division of the Supreme Court of Afghanistan, Kabul Kamali, Mohammad Hashim, Prof. Dr., International Islamic University Malaysia, Kuala Lumpur Kolaei, Elaheh, Prof. Dr., Former Member of the Iranian Parliament, Faculty of Law, University of Tehran, Iran Lau, Martin, Dr., Head of the Law Department, School of Oriental and African Studies, London Mahnavi, Fazelahmad Shirin-Agha, Deputy Chief Justice of the Supreme Court of Afghanistan, Kabul Mohabat, Akbar, Max Planck Institute for Foreign Private Law and Private International Law, Hamburg Mohammad, Ala, Sharfa Faculty, University of Balkh, Afghanistan Mohammad, Homayoun, Sharfa Faculty, University of Nangarhar, Afghanistan Mohseni, Noorullah, Faculty of Law and Political Sciences, University of Balkh, Afghanistan Mokhles, Abdul Rahoof, University of Herat, Afghanistan Mostofian, Babak, Max Planck Institute for Comparative Public Law and International Law, Heidelberg Murad, Ali Murad, Deputy Chief Justice of the Supreme Court of Afghanistan, Kabul Rahmani, Mohammad Sharif, Sharfa Faculty, University of Nangarhar, Afghanistan Rasekh, Mohammad, Dr. LLM. Ph.D., Department of Law, London School of Economics and Political Sciences, U.K. Rasouli, Anissa, Judge, Head of the Children's Court Kabul, Afghanistan Saboory, Hamid, SCHMITZ Rechtsanwälte Scholarship-holder, Research Fellow at the Max Planck Institute for Foreign Private Law and Private International Law, Hamburg

Participants

205

Saqeb, Naqibullah, Faculty of Law and Political Sciences, University of Nangarhar, Afghanistan Scheuermann, Thomas, Dr., Lawyer, German-Iranian Law Association, Hamburg Schmitz, Winfried F., Dr. M.C.J., Lawyer, SCHMITZ Rechtsanwälte, Düsseldorf Schneider, Irene, Prof. Dr., Seminar for Arabic Studies, University of Göttingen Shalakany, Amr, LL.M. S.J.D., Assistant Professor at the American University Cairo, Egypt Sherif, Adel Omar, Dr. Ph.D., Deputy Chief Justice of the Supreme Constitutional Court in Egypt, Cairo Sherzad, Mangal, Faculty of Law and Political Sciences, University of Nangarhar, Afghanistan Shid, Nahid, Lawyer, Head of the Family and Women Association, Tehran, Iran Silem, Mohamad, Prof., Sharfa Faculty, University of Kabul, Afghanistan Tresselt, Eckart, Former Judge at the Court in Hamburg Wasil, Iqral, Prof., Faculty of Law and Political Sciences, University of Kabul, Afghanistan Wünschmann, Philipp, Commerzbank AG, Global Shipping, Hamburg Yama, Sharaf, Faculty of Law and Political Sciences, University of Balkh, Afghanistan Yassari, Nadjma, Dr. LL.M., Max Planck Institute for Foreign Private Law and Private International Law, Hamburg Zoll Rahman, Prof., Faculty of Law and Political Sciences, University of Kabul, Afghanistan

Appendices

Annex A

"W*^

Constitution of Afghanistan1

(jUjuùlàtil ^ ml I 111 ( j j j l a

October 1, 1964

Preamble Chapter 1: The State Chapter 2: The King Chapter 3: The Basic Rights and Duties of the People Chapter 4: Shura (Parliament) Chapter 5: The Loya Jirga (Great Council) Chapter 6: The Government Chapter 7: The Judiciary Chapter 8: The Administration Chapter 9: State of Emergency Chapter 10: Amendment Chapter 11: Transitional Provisions

1

mr v

ì

cJjj oLÌjLI< J«aâ t j j U à j j J jia. ipjtM J^aS ^ I ni I ni tjjjà

AÉja. AjjI f ' • '-«

; ^ Ami (JmoS

ojlJ j l j U . ^ I cJU. ( U J j b J«aâ

The English version is based on a translation published by Franklin Book Programs, Kabul Education Press, 1964.

210

Afghan Constitution 1964

Constitution of Afghanistan 1964 In the Name of God, Most Gracious, Most Merciful Preamble 1. To reorganise the national life of Afghanistan according to the requirements of the times and on the basis of the realities of national history and culture; 2. To achieve justice and equality; 3. To establish political, economic and social democracy; 4. To organise the functions of the State and its branches to ensure liberty and welfare of the individual and the maintenance of the general order; 5. To achieve a balanced development of all phases of life in Afghanistan; and 6. To form, ultimately, a prosperous and progressive society based on social cooperation and preservation of human dignity; We, the people of Afghanistan, conscious of the historical changes which have occurred in our life as a nation and as a part of human society, while considering the above mentioned values to be the right of all human societies, have, under the leadership of his majesty Mohammed Zahir Shah, the King of Afghanistan and the leader of its national life, framed this Constitution for ourselves and the generations to come.

CHAPTER 1: THE STATE Article 1 Afghanistan is a Constitutional Monarchy; an independent, unitary and indivisible State. Sovereignty in Afghanistan belongs to the nation. The Afghan nation is composed of all those individuals who possess the citizenship of the State of Afghanistan in accordance with the provisions of the law. The word Afghan shall apply to each such individual. Article 2 Islam is the sacred religion of Afghanistan. Religious rites performed by the State shall be according to the provisions of the Hanafi doctrine. Non Muslim citizens shall be free to perform their rituals within the limits determined by laws for public decency and public peace.

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CHAPTER 5: THE LOYA JIRGA (Great Council) Article 78 The Loya Jirga consists of members of the Shura and the chairmen of the provincial councils. In the event of the dissolution of the Shura its members retain their position as members of the Loya Jirga until a new Shura comes into being. Article 79 Subject to the provisions of Art. 19, 21 and 22 of this Constitution, the Loya Jirga is summoned by a royal proclamation. Article 80 When the Loya Jirga is in session, the provisions of Art. 51 are applicable to its members. Article 81 The deliberations of the Loya Jirga are open unless the Government or at least twenty members of the Loya Jirga request a secret session and the Loya Jirga approves this request. Article 82 The President of the Wolesi Jirga, and in his absence, the President of the Meshrano Jirga presides over the Loya Jirga. The Loya Jirga, at its first meeting, elects one of its members as Secretary. Article 83 Except in cases clearly defined in this Constitution, the decisions of the Loya Jirga shall be by a majority of the votes of its members present. The procedure of the Loya Jirga shall be regulated by law, subject to the provisions of this Constitution. Article 84 The Loya Jirga enjoys the powers defined in this Constitution.

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Article 95 The Council of Ministers lays down the basic lines of the policy of the Government and approves those regulations which are within the competence of the Government. The Prime Minister presides over the Council of Ministers, directs and guides the activities of the Government and secures co-ordination in its work. The Prime Minister is also responsible for maintaining liaison between the Government, on the one side, and the King and the Shura on the other side. The Ministers discharge their duties, as heads of the administrative units, and as members of the Government, under the order and guidance of the Prime Minister within the limitations established by this Constitution and the laws. Article 96 The Prime Minister and the Ministers are collectively responsible to the Wolesi Jirga for the general policy of the Government, and individually for their prescribed duties. The Prime Minister and the Ministers are also responsible for those actions of the Government concerning which they obtain a Royal decree, in accordance with the provisions of this Constitution.

CHAPTER 7: THE JUDICIARY Article 97 The Judiciary is an independent organ of the State and discharges its duties side by side with the Legislative and Executive Organs. Article 98 The Judiciary consists of a Supreme Court and other courts, the number of which shall be determined by law. It is within the jurisdiction of the Judiciary to adjudicate in all litigation brought before it according to the rules of law, in which real or legal persons, including the State, are involved either as plaintiff or defendant. Under no circumstances shall a law exclude from the jurisdiction of the Judiciary, as defined in this title, a case or sphere, and assign it to other authorities. This provision does not prevent the establishment of military courts; but the jurisdiction of these courts is confined to offences related to the armed forces of Afghanistan. The organisation and jurisdiction of the military courts shall be determined by law. Article 99 The judges are appointed by the King on the recommendation of the Chief Justice. Whenever a judge commits an offence, the Supreme Court considers the case of the judge, and after hearing the defence of the judge can recommend his dismissal to the King. In case the recommendation is approved by the King, the judge is dismissed from office.

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CHAPTER 1: THE STATE Article 1 [Islamic Republic] Afghanistan is an Islamic Republic, an independent, unitary, and indivisible State. Article 2 [Religions] The religion of the State of the Islamic Republic of Afghanistan is the sacred religion of Islam. Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the law. Article 3 [Law and Religion] In Afghanistan, no law may be contrary to the beliefs and provisions of the sacred religion of Islam. Article 4 [Sovereignty, Ethnic Groups, Citizenship] National sovereignty in Afghanistan belongs to the nation that exercises it directly or through its representatives. The nation of Afghanistan consists of all individuals who have the Afghan nationality. The nation of Afghanistan is comprised of the following ethnic groups: Pashtun, Tajik, Hazara, Uzbak, Turkman, Baluch, Pashai, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, Brahwui, and others. The word Afghan applies to every member of the Afghan nation. No member of the nation may be deprived of his Afghan citizenship. Affairs related to citizenship and asylum shall be regulated by law. Article 5 [Territorial Integrity] The basic duties of the State shall be the implementation of this Constitution and other laws, the defence of the independence, the national sovereignty, the territorial integrity, and the safeguard of security and of the defence capability of the country. Article 6 [Purposes] The State shall create a prosperous and progressive society based on social justice, the protection of human dignity, the protection of human rights, and realisation of democracy; ensure national unity and equality among all ethnic groups and tribes and provide for balanced development in all areas of the country. Article 7 [International Law) The State shall respect the United Nations Charter, international treaties and conventions that Afghanistan has ratified, and the Universal Declaration of Human Rights. The State shall prevent all types of terrorist activities, the production and consumption of intoxicants, and the production and smuggling of narcotics.

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Article 16 [Languages] Amongst the languages of Pashtu, Dari, Uzbeki, Turkmani, Baluchi, Pashai, Nuristani, Pamiri and other languages spoken in the country, Pashtu and Dari shall be the official languages of the State. In areas where the majority of the people speak one of the languages of Uzbeki, Turkmani, Pashai, Nuristani, Baluchi, and Pamiri, these languages shall be considered - in addition to Pashtu and Dari - as the third official language. The practical implementation of this provision shall be regulated by law. The State shall adopt and implement effective programs to strengthen and develop all languages of Afghanistan. The print media, radio and television programs may be broadcasted in all languages spoken in the country. Article 17 [Education] The State shall adopt necessary measures for the promotion of education in all levels, the development of religious education, the organisation and improvement of the conditions of the mosques, and the religious schools and centres. Article 18 [Calendar] The beginning of the calendar of the country shall be based on the hejra of the Prophet (PBUH). The basis of work for State offices is the solar calendar, beginning with the hejra. Fridays, the 28 Asad (April, 28), and the 8 Sawr (August, 19) are public holidays. Other public holidays shall be regulated by law. Article 19 [Flag, Insignia, Emblem] The Afghan flag consists of three equal parts, in black, red, and green positioned from left to right perpendicularly. The width of every coloured stripe is equal to half of its length. The national insignia shall be in the middle of the flag. The national insignia of the State of Afghanistan is composed of the prayers place and the pulpit in white colour. Two flags are located on its two sides. In the upper-middle part of the insignia the sacred phrase of "There is no God but Allah and Mohammad is his prophet, and Allah is Great" is placed, along with a rising sun. The word "Afghanistan" and the year 1298 (solar calendar 1919) is located in the lower part of the insignia. The insignia is encircled with two branches of wheat. The law shall regulate the use of the national flag and emblem. Article 20 [Anthem] The National anthem of Afghanistan shall be in Pashtu and mention "Allahu Akbar" and the names of the ethnic groups of Afghanistan. Article 21 [Capital] The capital of Afghanistan is the city of Kabul.

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of Afghanistan, I swear to obey and safeguard the provisions of the sacred religion of Islam, to abide by the Constitution and other laws of Afghanistan and supervise their implementation; to safeguard the independence, national sovereignty, and territorial integrity of Afghanistan and the fundamental rights and interests of the people of Afghanistan, and to make great and sincere efforts for the happiness and progress of the people of Afghanistan with the assistance of God and the support of the nation. Article 64 [Powers and Duties] The President is vested with following powers and functions: 1. Supervision of the implementation of the Constitution; 2.

Determination of the fundamental policies of the State with the approval of the National Assembly;

3. Command-in-Chief of the armed forces of Afghanistan; 4. Declaration of war and ceasefire with the approval of the National Assembly; 5. Defence of the territorial integrity and protection of the independence; 6. Deployment of armed forces to foreign countries with the approval of the National Assembly; 7. Call for a Loya Jirga except in the cases of Art. 68 of this Constitution; 8. Declaration and revocation of the State of Emergency with the approval of the National Assembly; 9. Inauguration of the National Assembly and the Loya Jirga; 10. Acceptance of the resignation of the Vice Presidents; 11. Appointment, dismissal and acceptance of resignation of the Ministers, the Attorney General, the director of the Central Bank, the Head of the National Security Directorate and the President of the Afghan Red Crescent Society with the approval of the Wolesi Jirga; 12. Appointment of the Head and the Members of the Supreme Court with the approval of the Wolesi Jirga; 13. Appointment, retirement, acceptance of resignation and dismissal of judges, officers of the armed forces, police and national security forces, and highranking officials in accordance with the law; 14. Appointment of the Heads of the diplomatic missions of Afghanistan in foreign countries and international organisations; 15. Acceptance of the credentials of the diplomatic missions to Afghanistan; 16. Signature of laws and legislative decrees; 17. Issuance of credential letters for the conclusion of bilateral and international treaties in accordance with the law; 18. Reduction of penalties and granting amnesty in accordance with the law; 19. Issuance of medals and honorary titles in accordance with the law; 20. Establishment of commissions for the improvement of the administrative structure in accordance with the law; 21. Exercise of other authorities in accordance with this Constitution.

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2004

Article 80 [Restrictions] The Minister shall not act according to linguistic, ethnic, religious, political, and regional preferences during their term of office.

CHAPTER 5: THE NATIONAL ASSEMBLY Article 81 [National Assembly] The National Assembly of the Islamic Republic of Afghanistan is, as the highest legislative organ, the manifestation of the will of its people and shall represent the whole nation. Every Member of the National Assembly shall take into consideration the general welfare and supreme interests of all the people of Afghanistan when casting a vote. Article 82 [Two Houses] The National Assembly consists of two Houses: the Wolesi Jirga and the Meshrano Jirga. No one shall be Member of both Houses simultaneously. Article 83 [House of Representatives] Members of the Wolesi Jirga shall be elected by the people in free, general, secret, and direct elections. Their mandate ends on the 1st of Saratan (June, 22) in the fifth year after the elections, thereafter the new Assembly starts its work. The election of the Members of the Wolesi Jirga shall be held 30 to 60 days before the expiry of the term of the Wolesi Jirga. The number of Members of the Wolesi Jirga shall be proportionate to the population of each region and shall not exceed 250. Matters of electoral constituencies and other related issues shall be determined by election laws. The election laws shall adopt measures to guarantee an election system providing for general and just representation for all the people of the country; and ensure that as a national average at least two female delegates be elected from each province. Article 84 [Senate] Members of the Meshrano Jirga shall be elected and appointed as follows: 1. From each Provincial Council, a member shall be elected for a period of four years; 2. From each District Council, a member shall be elected for a period of three years. 3. The remaining one-third of the members shall be appointed by the President from among experts and experienced personalities, including two representatives from the disabled and impaired and two representatives from the Kochi nomads for a period of five years.

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Afghan Constitution 2004

This Article shall not apply to the special courts mentioned in Art. 69, 78 and 127 of this Constitution and military courts. The structure and competence of these courts shall be regulated by law. Article 123 [Judiciary] The structure, competence, and performance of the courts and the duties of judges shall be regulated by law in accordance with this Constitution. Article 124 [Judicial Administration) Civil servants and administrative personnel of the Judiciary shall be subject to specific laws regarding civil servants and administrative personnel; their appointment, dismissal, promotion, pension, rewards and punishments shall be regulated by the Supreme Court in accordance with the law. Article 125 [Judicial Budget] The Supreme Court shall prepare the budget of the Judiciary in consultation with the Government and be presented to the National Assembly by the Government as part of the State budget. The Supreme Court shall implement the budget of the Judiciary. Article 126 [Remuneration of the Supreme Court] Members of the Supreme Court shall enjoy public financial benefits for the rest of their lives, provided they do not occupy any Governmental or political positions. Article 127 [Judicial Impeachment] Whenever more than one-third of the Members of the Wolesi Jirga demand the prosecution of the Chief Justice, or any Member of the Supreme Court for crimes committed while performing his duty, and the Wolesi Jirga confirms this demand by a two-thirds majority vote, the accused shall be dismissed from his position and the case shall be referred to a special court. The composition of this court and the procedure of the trial shall be regulated by law. Article 128 [Publicity of Courts] The courts of Afghanistan are open to public and everyone is entitled to attend trials in accordance with the law. The court may exclude the public in cases specified by the law or in cases where secrecy is deemed necessary; the announcement of the court's decision shall, however, be public in all instances.

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Constitution of the Islamic Republic of Iran

Principle 81 [Foreign Business] The granting of concessions to foreigners for the formation of companies or institutions dealing with commerce, industry, agriculture, service, or mineral extraction is absolutely forbidden. Principle 112 [Exigency Council] (1) Upon the order of the Leader, the Nation's Exigency Council shall meet at any time the Guardian Council judges a proposed bill of the Islamic Consultative Assembly to be against the principles of Sharrah or the Constitution, and the Assembly is unable to meet the expectations of the Guardian Council. Also, the Council shall meet for consideration on any issue forwarded to it by the Leader and shall carry out any other responsibility as mentioned in this Constitution. (2) The permanent and changeable members of the Council shall be appointed by the Leader. (3) The rule for the Council shall be formulated and approved by the Council members subject to the confirmation by the Leader. Principle 115 [Qualifications] The President must be elected from among religious and political personalities possessing the following qualifications: - Iranian origin; - Iranian nationality; - administrative capacity and resourcefulness; - a good past record; trustworthiness and piety; and - convinced belief in the fundamental principles of the Islamic Republic of Iran and the official school of law of the country. Principle 139 [Property Claims] The settlement of claims relating to public and state property or the referral thereof to arbitration is in every case dependent on the approval of the Council of Ministers, and the Assembly must be informed of these matters. In cases where one party to the dispute is a foreigner, as well as in important cases that are purely domestic, the approval of the Assembly must also be obtained. Law will specify the important cases intended here. Principle 156 [Status, Functions] The judiciary is an independent power, the protector of the rights of the individual and society, responsible for the implementation of justice, and entrusted with the following duties: 1. Investigating and passing judgement on grievances, violations of rights, and complaints; the resolution of litigation; the settling of disputes; and the taking of all necessary decisions and measures in probate matters as the law may determine;

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Article 7 In order to facilitate and expedite issues related to the admission and activity of Foreign Investments in the country, all relevant agencies including the Ministry of Economic Affairs and Finance, the Ministry of Foreign Affairs, the Ministry of Commerce, the Ministry of Labour and Social Affairs, the Central Bank of the Islamic Republic of Iran, the Customs Administration of the Islamic Republic of Iran, General Directorate for Registration of Companies and Industrial Property, and the Organisation for Protection of the Environment are required to designate a fully authorised representative to the Organisation by the highest authority of the agency. These representatives shall act as the liaison and coordinator for all issues related to their respective agency vis-à-vis the Organisation.

CHAPTER 4: Guarantee and Transfer of Foreign Capital

Article 8 Foreign Investments under this Act shall equally enjoy all rights, protections, and facilities available to local investments. Article 9 Foreign Investments shall not be subjected to expropriation or nationalisation, unless for public interests, by means of legal process, in a non-discriminatory manner, and against payment of appropriate compensation on the basis of the real value of the investment immediately before the expropriation. Note 1: Application for compensation shall be submitted to the Board within one year from the date of expropriation or nationalisation. Note 2: Disputes arising from expropriation or nationalisation shall be settled in accordance with the provisions of Art. 19 of this Act. Article 10 Assignment of the whole or a part of the Foreign Capital to a local investor and/or, upon approval of the Board and confirmation by the Minister of Economic Affairs and Finance, to another Foreign Investor is permissible. In case of assignment to another Foreign Investor the assignee who shall have, at least, the same qualifications as the initial investor, shall replace and/or become a partner to the former investor from the standpoint of this Act.

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