SHIA FAMILY LAW DETAILS

UNCLAS SECTION 01 OF 03 KABUL 000868 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: KDEM PGOV AF PREL PHUM SUBJECT: SHIA FAMILY LAW DETAILS REF: A. KABUL 837 ¶B. KABUL 845 ¶1. (SBU) SUMMARY. The US Embassy has translated some 15 articles of concern in the Shia Family Law signed on March 31 by President Karzai (ref A). See para 4 for that translation. The basis for such a law is found in Article 131 of the Afghan Constitution. At an April 4 meeting between the diplomatic community and the Ministry of Justice, Justice Minister Danesh asked foreign governments to review official translations before commenting on the legislation (ref B). Karzai has directed the MoJ to review the legislation for possible conflicts with the Afghan Constitution or international protocols on human rights signed by Afghanistan. SRAP Holbrooke raised this issue with Karzai today. Details of that conversation will be reported septel. End Summary. Current Status of the Law -------------- ¶2. (SBU) The law is currently under review by MoJ and not yet published in the government's official legal gazette (similar to the US federal register). Opinion is divided over whether the law takes effect after the president signs the legislation or whether the act of publication brings the law into force. The law's final article (253) states "this law will be implemented after its approval and should be published in the official gazette." Deputy Justice Minister Hashimzai told EmbOffs he believes this ambiguous wording would allow some to argue the law was effective upon the President's signature, but Karzai could still withdraw the law up until the time it is published in the official gazette. Other legal experts have disputed this position or said the question has not yet been resolved by the country's judicial system. Several embassies, including the US, have requested that MoJ delay publication of the law in the gazette. ¶3. (SBU) There is confusion over which law is the final version. A USAID-funded parliamentary assistance organization provided Parliament's final copy to the Embassy, which includes four changes (such as removing an article legalizing temporary marriage) made by Parliament's Lower House before both houses referred the legislation to the Supreme Court. However, as the legislation's chief supporter, Ayatollah Muhammad Asif Mohseni has demanded the original legislation be published without Parliament's changes in order to respect Shia tradition. Given irregular legislative procedures in passing the law, it's possible Mohseni's influence could lead to a reversal of some or all of Parliament's amendments. In addition, Education Minister Farooq Wardak, a close advisor to Karzai, told one Canadian diplomat that Article 122 (marriage of a minor by a father) was removed from the version signed by Karzai. A Dari-language copy of the law with Karzai's signature we obtained from a Palace source, however, includes that article as well as the changes passed by Parliament. These reports demonstrate confusing and non-transparent procedures that are common to Afghanistan's legislative process, and complicates outsiders', and some insiders', abilities to understand the overall situation. Notable Articles of Concern -------------- ¶4. (SBU) The following articles and sections of those articles may violate human rights protections in the Afghan Constitution and international protocols signed by Afghanistan, or have raised other human rights concerns among Afghan civil society groups and the international community. The below translation was provided by Embassy local staff. Article 30: (1) A mentally ill person is a person who lacks a sense of understanding in all affairs of life. (2) The possessions of a mentally ill person as defined in paragraph 1 of this article are considered forfeit in assets and financial rights. Article 45: (1) Guardianship, in accordance to the provisions of this law, is the power and authority to perform duties for others in limited circumstances. Such a person is called the guardian. The person in custody is called the ward. (2) Guardianship consists of the following two types: 1- General Guardianship: is an authorized judge for the person who lacks ability or has mental weakness. 2- Specific Guardianship: is the appointment of some specific persons for specific affairs. There are two types: Compulsory guardianship: is guardianship by father and paternal grandfather. KABUL 00000868 002 OF 003 Appointed guardianship: is a person appointed by the father or paternal grandfather for the affairs of the ward. (3) The guardianship by a father or paternal grandfather is in accordance with the law and has no requirement by the court to implement them. If the provisions of paragraph 1 of this article are not there, the Court then appoints a team for the ward (child). (Embassy comment: Article 45, along with Article 47, give men superior custodial rights over women, in violation of the Constitution's Article 22, which guarantees equal rights.) Article 47: (1) Guardianship of children is granted to the father and paternal grandfather, both of whom are of the same value, and do not cancel the effect of each other. In case of disagreement on the question of guardianship by father and grandfather, the guardianship by grandfather holds prime importance. (2) Father and grandfather, in the absence of each other, can authorize someone to be the guardian of the child. If one of them remains alive, another guardian cannot be chosen. Article 99: (1) The marriage of a mentally ill minor (male or female) may be decided by a compulsory guardian, authorized guardian, or court. (2) A mentally ill minor (male or female) has the right to reject a marriage that has been arranged by a compulsory or authorized guardian. (Embassy comment: this article allows a father/grandfather to compel the marriage of a mentally ill minor. It is unlikely a mentally ill minor would have the capacity to exercise the right to reject a marriage given in Section 2.) Article 100: Intercourse with one's wife before puberty is prohibited. If virginity is lost due to intercourse, the person who has conducted the intercourse shall be responsible to financially support the woman for the rest of her life, even if she gets divorce. (Embassy comment: this article implies marriage to a post-pubescent minor is acceptable.) Article 101: If an underage girl is raped or loses her virginity due to intercourse, the perpetrator shall pay the equivalent of a woman. This provision does not apply to an adult woman's loss of virginity either through rape or legal intercourse. Article 102: (1) The marriage of a virgin girl depends upon her and her compulsory guardian's will. (Embassy comment: this article requires a guardian's consent to marry. No age limit for women is imposed on this right of control given to male guardians.) Article 122: (1) If a minor's marriage is arranged by the father or paternal ancestors, the dowry is paid by the child. However, if the child is unable to pay then a compulsory guardian shall pay. If the compulsory guardian dies and he has yet to pay the dowry, it is then taken from the deceased's assets. (2) If the father pays for the dowry of a minor female and that child reaches puberty without sexual intercourse and divorces, the husband can demand half of the dowry back. (Embassy comment: this article condones marriage of minors.) Article 132: (3) A couple should not commit acts that create hatred and bitterness in their relationship. The wife is bound to preen for her husband, as and when he desires. (4) If the husband is not traveling, he is bound to have intercourse with his wife once in each four nights. This requirement is not enforceable if it harms one of the spouses or if one of them has a sexually transmitted disease. It is the duty of a woman to defer to her husband's sexual desire. It is the duty of a husband to not delay intercourse with his wife for more than four months without his wife's permission. (5) If a man has more than one wife, it is his duty to give one night to each of them in the course of four nights, according to the provision of paragraph 4 of this article. One wife's right can be bestowed to another if the other wives and the husband agree. (6) A husband can provide more than one night to each wife, on the condition that other wives are not harmed. (7) A wife is bound to do only the household work at home that has been assigned to her by her husband, as condition at the time of wedlock. She is not bound to do anything else. Article 133: (1) A husband is responsible for the family's financial maintenance, unless this right is given to the wife by the decision of a court due to husband's mental illness. KABUL 00000868 003 OF 003 (2) If a wife is employed before marriage and the continuation of the job is conditioned at the time of wedlock, the husband cannot oppose the wife's employment after marriage, unless it is opposed to the interest of the family or of one of the spouses. (3) A husband can prevent a wife from any unnecessary activity or those activities for which she is not bound by Sharia and are not contradictory to customary responsibilities. (4) A wife cannot leave her house without her husband's permission, unless she has an urgent problem. If there is an urgent problem, she may leave the house without her husband's permission only to solve the problem. In case of disagreement the issue shall be resolved by a court. (5) A wife is the owner of her assets and can possess them in any form without her husband's permission. Article 143: The presence of the following disabilities and illnesses are pertinent to the cancellation of the marriage contract on condition that the man was not aware of these elements in advance: Qaran: the presence of extra flesh or bone in the woman's vagina, even if it does not prevent intercourse or pregnancy. Afza: the combination of urinary and menstruation ducts or menstruation with excrement. Other disabilities: having a physical disability, blindness in both eyes, insanity, leprosy. (2) If these disabilities, according to the provision of paragraph 1 of this article, appear after the marriage, the husband does not have automatic grounds to divorce. Article 161: A divorce should be given in front of two righteous men and both should hear it. If it is known later that one or both of them were not righteous then the divorce is considered canceled. A righteous person obeys the orders of Allah for His fear. Article 177: (4) The duties of the wife are deference or willingness to her husband's sexual enjoyment and not leaving the house in the absence of urgency or emergency without her husband's permission. Violation of any of the above is considered a disobedience to the husband. Article 190: (4) A mother can keep custody of a daughter up to 9 years of age and a son up to 7 years. After the completion of that age, fathers may take custody of daughters and sons, unless a court decides otherwise. (Embassy comment: this article, in violation of Article 22 of the Constitution, gives unequal rights to men and women by giving the option of sole custody of children after the listed ages only to men.) Article 226: A husband can inherit all inheritance from a wife, but a woman may inherit only the moveable inheritance and cannot inherit the exact price of real estate even if the land is pure or covered with construction, trees, or agriculture. However, she can inherit value from the construction, trees, and other fixed assets. The family of the husband can pay the wife the equivalent value. RICCIARDONE