The practice of Adat Law (Family law) in Afghanistan

Family is the fundamental pillar of the society, and shall be protected by the state. The state shall adopt necessary measures to attain the physical and spiritual health of the family, especially of the child and mother, upbringing of children, as well as the elimination of related traditions contrary to the principles of the sacred religion of Islam.

Constitution of Afghanistan, Article 548

It is very vital to understand the bond that the Afghan people, especially Pashtuns, have throughout the history of Afghanistan. Since 1923, when the first constitution of Afghanistan was formulated and written, the influence of the family law is very visible when it comes to women’s rights, inheritance matters, marriage, and settling divorces, which in some cases is difficult for women to practice it at all. At the same time Family law plays a very crucial role in issues of protecting women’s rights. Women, especially girls, are always vulnerable and also the targets of human rights violations in their homes and in their communities where they have grown up and live.

If Family law is effectively enforced, it becomes a very effective means for the government to protect all its citizens in public spheres and more importantly in their own privacy of their homes. Historically, the Afghan law has been based on sharia law but in the early 20th century; king Amanullah khan who ruled from 1919 to 1929, introduced legislative law to step up the modernization of Afghanistan. Regardless of all the reforms and developments in the area of the legal rights and family law, the Adat Law still dominates the legal interpretation of the constitution and all other forms of legislative decision making.

The use of Family law with the patriarchal traditions and customs has enormous weight to such an extend that it has influenced the practice of Sharia Law and Islam which has only hurt the women’s rights and their place in the Afghan society. The clerics (Qazi) claim that they base their rulings on the Hanafi fiqh which is not entirely true because they are outrageously influenced by the family law and other customs that are related to the family law. The evidence to prove that the clerics are not honest about the use of Hanafi faith exists everywhere in the legislations regarding women’s rights in Sharia Law like the women’s right to inheritance, custody of children in matters of divorce, trade and ownership, freedom of a widow to choose if she wants to remarry or not, giving of dower to the bride not to her father, marriages of minors, and polygamy. The tribal nature of the Afghan society and the extremely protective family code in family matters is making it difficult to incorporate it into a western style constitution, that is the latest constitution of Afghanistan, and to meet the terms of international human rights norms or to make a law based on the family law.

In the past two decades, the attempts to develop a new family law in the Afghan society are mainly just to protect women’s rights within the premises of their homes and also to give them the right to leave their homes so they can participate as equals in a public sphere. It was finally, in 2004, the new Afghan Constitution and other international agreements such as CEDAW, ANDS, and NAPWA have provided the legal structure for the protection of the Afghan women. Despite, all the new agreements and a new constitution, the afghan society is still bound by the Adat Law as tradition and it is very interesting to observe that there are still people who are willing to swim against the current and promote women’s rights in Afghanistan. It is important to understand the role of the family code that its practice is seen openly in inside the privacy of the homes. The new constitution and the new government is trying to reform the family code so it is also effective in the privacy of the homes. If this role is understood in a proper manner then, and only then, can the new constitution will be a protector of women and children on an international standard.

Historically, the reforms were undertaken by the small group of elite intellectuals during the monarchies of the twentieth century and same was during the communist regime in the 80s. Both had one thing in common which made them ineffective in reforming the family code, they were both modernists and they had no connection of the traditional and conservative rural population of Afghanistan. The Taliban were masters of the family code but they used it for their own benefit and now everyone understood the manipulation of the family code by the Taliban. In order to separate the family code and the legal structure of Afghanistan literacy should be the top agenda. Another reason for the code to be more dominant than any other legal legislative document in Afghanistan is the corruption and slow process of the decision making of the western legal structure. In such a case, people of Afghanistan turn to local shorahs which base their decisions on the family code and the sharia Law, which is usually far quicker in reaching a decision. This has to change if the modernists and the new government want to be more effective in legislative matters and in matters of human rights, namely women’s rights and child protection.

Afghanistan’s constitution is a mixture of the four different legal systems: secular, statutory, Islamic, and customary or pashtunwali. Among these systems the afghan people prefer all the systems but the secular one which is honored by the 2004 constitution. The people prefer the traditional justice system both formal and informal over the new western style justice system.

In the past and even now the reform of the Family Law is happening with the presence of the international community. In the past the reforms started to happen with the presence of the British during the Amanullah’s rule and then during the communist era with the presence of the soviet and now in the post-Taliban Afghanistan in the presence of the international community. Every time the reforms happened were in the presence of the “foreigners” and same is now so it becomes a foreign threat. Even though, the real players behind the reforms are the afghan people still it is foreign so it is a threat because the foreigners introduced new norms and standards of international human rights.

In the same manner, throughout the 20th century and in current post-Taliban era reformation of the family code is politicized. Women’s rights are always used as a pawn or a bargaining chip in the political sphere of Afghanistan. The conservative Islamists in Afghanistan argue that the equality based family law is a feminist influence and since feminism is against Islam hence, the reforms in favor of women’s rights is also considered non-Islamic. A significant population which is also part of the new government is opposed to the strong family laws but cannot protest or reform it because there is no police or a security service that will provide them with protection against the extremists and terrorists. There are also government officials and parliament members who are opposed to the strong family laws but they are too afraid to do something so they just vote along with the Islamists for more strong family laws. The laws are being reformed in the favor of the strong family laws and it is because of the lack of education both religious and non-religious. The Islamists believe that if women are given equal rights then the concept of family will not exist like in the west. If a woman is given the right to divorce she will used it in mere dissatisfaction with the husband or with the children. This cannot be tolerated in Afghan culture because a woman is considered pride and honor of a family and of a man.

In February 2009, the Shia Personal Status Law (SPSL) passed by the parliament and was signed by the president without a debate or anything of such sort. This is another step and evidence of the Afghanistan’s constitution be becoming more codified. This is the first time that the shia minority has a codified family law now. The shia community of Afghanistan were always considered liberal but sadly that is not true anymore. The (SPSL) is a violation of the international agreements like (CEDAW, ICCPR, ICESCR, CRC). The parliament is now formulating a Sunni Family Law (SFL) but that has not been drafted or proposed yet. It is hoped by everyone that (SFL) will propose a Law that it will be under the Afghan Constitution law and will honor the international human rights agreements.

The example mentioned above is one of the many steps taken to codify the afghan society further more. Women are the direct targets of such laws and tradition is now confused and a very serious form of idiocy. These people in power that are legislating these laws are lacking both religious and non-religious education which are making the afghan culture and the ancient family laws look like a senseless and sexist cult rules.

The people of Afghanistan of all ethnicities and religious background need education. These people don’t understand the difference between Islamic law and the family Law. Both have been adjusted by different regimes for their own benefits and that have completely interwoven the two with each other. The Family Law has become more strict because the narrow interpretation of the Sharia Law and the Islamic Law has lost some important laws regarding women and their rights. This is all because of lack if education and the small elite take advantage of the laws by manipulating the lack of knowledge of the people.

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