Comparative Analysis of Family Law in the Context of Islam
Report by Orzala Ashraf Nemat
The Family Law in Afghanistan is part of the Civil Law under the judiciary and legal system.
The Civil Law of Afghanistan, however, was endorsed 30 years ago in 13551 (1976) and to date no amendments have been made. The law has mainly been made with reference to Egyptian and French laws.
In general, the laws in Afghanistan derive from Islamic Sharia Law. Article 3 of the Constitution of Afghanistan of 1382 (2003)2 further emphasizes this: "In Afghanistan no law can be in contrary to the sacred religion of Islam and the values of this constitution".
In addition, based on its Constitution, Afghanistan is obliged to implement and respect its international commitments. As mentioned in Article 7 of the Constitution: "The state should abide by the UN Charter, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights".
Meanwhile, Article 54 of the constitution clarifies the obligation of the government to support and ensure the family's safety and eliminate those customary traditions contrary to Islam.
However the laws and articles of the Constitution mentioned above are perceived to be contradictory to each other in one way or another. At the very least there is some incompatibility and inconsistency in parts of one or more aspects. Some articles of the International Declaration of Human Rights are conflicting with the constitution or vice versa.
The Heinrich Böll Foundation/ HBF in partnership with the Afghanistan Independent Human Rights Commission/ AIHRC, conducted a roundtable titled "Comparative Analysis of Family Law in the context of Islam" between August 15 and 17, 2006 with the participation of experts on law from Bangladesh, Egypt, Malaysia and Pakistan. The objective of the round table was to examine the status of the Civil Law of Afghanistan within an international context and analyze impacts of this law on the lives of families and especially women in Afghanistan.
Opening the roundtable conference, Ahmad Fahim Hakim from the AIHRC discussed the importance of strengthening family relations, the role of customs and traditions within family relationships as well as issues such as domestic violence with their roots in male dominance and customary traditions.
The deputy speaker of the National Assembly of Afghanistan, Ms. Fauzia Kofi discussed the importance of legislative institutions such as the parliament in the process of legal reforms. She also raised the need for supplementary laws which can avoid misuse of existing provisions and set preventive measures.
Mr. Bahauddin Baha, member of the Supreme Court of Afghanistan, in his opening remarks spoke about gaps in Afghan civil laws and mentioned that it is not only important to focus on reforming laws. Rather there is a need to ensure that existing laws are being implemented sufficiently. He also discussed the difference between permission and obligation with some examples. Baha described conditions under which polygamy can be practiced that are far from what is seen in the reality of current society. ‘Women’s access to the legal system is also crucial for reforming the laws.’ Baha said.
The following document is an analysis of the roundtable recommendations. It suggests initial steps that should be taken in the future for better implementation of laws and towards a process of reforming civil law in Afghanistan.