Some months ago, Hamid Karzai, the Afghan president, signed a controversial law called “Shiite’s Personal Status Law”. The law was drafted according to “Article 131” of the Constitution and was approved by the country’s legislative bodies.

The president’s signature on the law caused huge national and international outrage and since then, it has drawn much condemnation in Afghanistan and internationally.

The Law’s Controversial Articles
Much of the outcry has been caused by articles related to family affairs, but “Article 132” and “Article 133” have been the most controversial. A clause in “Article 132” states: “It’s necessary for the wife to give a positive response to the sexual desires of her husband.”
“Clause 5” of “Article 133” states: “A wife cannot leave the house without the permission of her husband, unless for reasons to address a serious pressure or difficulty”.

The Personal Status Law from Mojtaheddin’s (Religious Scholars) Viewpoint
Shiite’s religious scholars have expressed varying opinions about personal affairs.

Opinions Agreeing with the ‘Shiite’s Personal Status Law’
A number of revered Shiite religious scholars, such as Shahid Sani (a Lebanese philosopher and religious scholar who lived in the 16th Century), Alami Helli (an Iraqi religious scholar from the 13th Century) and Mohaqiq Helli (an Iraqi religious scholar from the 12th Century) all state that a wife cannot leave the house without her husband’s permission.

Some living religious scholars, such as Ayatollah Fazil Lankarani and Ayatollah Behjat from Iran, have given similar edicts. Ayatollah Fazil Lankarani states that, “A wife cannot leave the house without her husband’s permission even for the purpose of visiting relatives and parents”.

Another conservative cleric, Ayatollah Makaram Shirazi (a famous Iranian religious scholar) believes that if a wife leaves the house without her husband’s permission, then her husband is no longer required to support her. 

Opinions Opposing the Law
There are many living religious clerics who have given more moderate opinions about wives’ rights. Clerics such as Sheikh Mohammad Mehdi Shamsuddin and Sayed M. Hassan Fazlullah, both Lebanese religious scholars, have stated that a wife can leave the house without her husband’s permission if her leaving doesn’t violate her husband’s marital rights. (Marital rights can be interpreted as the psychological and sexual needs of a husband or wife, and the financial needs of a wife.)

Ayatollah M. Mehdi Bejnawardi (an Iraqi-Iranian religious scholar) also believes that a wife doesn’t have to ask for her husband’s permission as long as her husband’s marital rights are met. According to him, when a husband is at work, his wife can leave the house without his permission.

Ayatollah Janati, an Iranian religious scholar famous for his moderate opinions, believes that both husband and wife must enjoy freedom in their marital relationship. The husband is not the wife’s slave, nor is the wife the husbands’ servant. A husband has some rights that his wife must obey, just as the wife has some rights her husband needs to respect.

Viewpoints of Some Critics within the Afghan Shiite Community
There are many intellectuals and educated people in the Shiite community who oppose the law and want some of its articles to be revised. Some jurists and highly educated Shiites, who are lecturers of Kateb Institute of Higher Education, conducted a seminar where they revised many articles of the law. Now, they have published their proposed edition of the law on the Institute’s website. (www.kateb.edu.com)

Kateb jurists have stated that the law has some technical problems and that some of the articles are not related to the personal status matters.

The Law and Contradictions in the Constitution
Critics believe that the law contradicts the article of the constitution that states “any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman have equal rights and duties before the law”.

Those who support the law, reject such claims by relying on “Article 3” of the constitution which states: “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan”. Supporters also rely on “Article 131” of the constitution which has clarified that, “The courts shall apply Shiite jurisprudence in cases involving personal matters of followers of the Shiite sect in accordance with the provisions of the law. In other cases, if no clarification in this constitution and other laws exist, the court shall rule according to the laws of this sect”.

International Treaties and the Law
Any country that signs an international treaty is obliged to observe the articles of that treaty. This burden of obligation is particularly great for Afghanistan since Afghanistan is receiving enormous technical, financial and military support from the international community.

Establishing and maintaining mechanisms that support democratic structures and respect for human rights and freedoms are the important commitments that Afghanistan has made.

Some parts of the ‘Shiite Personal Status Law’, contravene the country’s international commitments.  As long as Afghanistan aspires to be connected to the larger international community, the contradictions between the treaties it has signed and the law it has just passed cannot be ignored.

Religion versus Political Agendas
One aspect of the ‘Shiite Personal Status Law’ that cannot be ignored is the political motivation behind its conception by Shiite leaders who are anxious to put their ‘stamp’ on the rights and obligations of the Shiite minority in Afghanistan and by President Karzai who is anxious to win Shiite voter support in the August election.

The author is a male member of the Shiite community in Afghanistan