As part of the legal remaking of Afghanistan, President Karzai signed a law on the Shia minority which stipulates that “a wife is obliged to fulfill the sexual desires of her husband.” The law is commonly interpreted to effectively licence marital rape. It also limits a woman’s right to have an education unless she can get her husband’s consent (Article 133: “The husband can stop the wife from any unnecessary act”), and even a woman’s ability to leave the home. Simultaneously, a video has surfaced from Pakistan showing a woman being flogged publicly in the Swat valley, apparently for having declined a mariage offer to a Taliban. The threat to women in Afghanistan has created an international outrage, much Western soul-searching about the reasons for an international presence in Afghanistan (including by such prominent figures as Ban Ki-moon, Navi Pillay and Hillary Clinton), and may have some implications for NATO’s involvement.
In both cases, legal pluralism seems to have advanced in great strides – the “state” essentially outsourcing norms to certain communities – and human rights, particularly women’s rights, seem to have been the victim. Although the international media only become attentive to this by the time it has burgeoned into a scandal, legal pluralism in Afghanistan in particular was long in the making and is part of a legitimate attempt to allow a degree of normative autonomy. It takes hold in what is an exceptionally multi-layered and complex legal environment, rich with customary and religious laws, alongside the legacy of Soviet reforms and, increasingly, the influence of international law. It is also important to note that the new Afghan constitution, adopted in January 2004, coincides with adherence to the main international human rights conventions. In Pakistan, although the details of legal autonomy in Swat remain slightly fuzzy, religious courts will coexist with the possibility of going to the appeal courts under the federal judicial system, itself a mixture of British colonial law and Sharia regulations.
Of all the ways of reconciling universality and diversity, entrusting the law to the power of men is clearly not what legal pluralism consonant with fundamental rights was meant to be. In both cases, the laws were adopted as a result of dubious political tradeoffs. In the case of Afghanistan, it seems designed to boost Karzai’s chances of being reelected, by pandering to the demands of a minority. In the case of the Swat valley, it is part of a dangerous gamble by the Pakistani military that, having failed to defeat them, the Taliban can at least be appeased by allowing imposition of the Sharia. Pluralism in this context can be a slippery slope. It creates an incompatibility with the Afghan constitution which is supposed to guarantee equality between men and women (but also, problematically, makes Sharia the supreme law), and inequality between different women or different groups. Moreover, it is already begging the question of “whose pluralism?” given competing interpretations of the Sharia. The few protests by women, including one in Kabul by members of parliament alleging that the law was an “insult to the dignity of women”, were quickly dispersed. It is difficult not to tie the adoption of the law to growing insecurity for women, and indeed growing insecurity anywhere in Afghanistan. The murder of a senior Afghan female member of Parliament is part of a very worrying trend. Pakistani and international critics are talking of the official “talibanisation” of the North West territories.
Yet, there is also some support for this sort of legal pluralist decentralization in a context where the state’s legal system is thoroughly discredited, as a result of corruption and incompetence. Although the status of women has rightly created indignation, there is evidence that Shariah courts in Swat for example are up to the task of litigating property disputes. Communal forms of justice in Afghanistan may be much more acceptable locally, and thus much more effective. The emphasis on consensus in addition to Koran interpretation may be more suited in some cases. Moreover, there is no doubt that legal pluralism in some cases is the a possible prescription to protect minority autonomy and rights, especially in a context where, like in Afghanistan, a minority has historically been oppressed (this was particularly the case of the Shia Hazara minority). Finally, pluralism is also a away to address the specificities of a country like Afghanistan or even Pakistan, rather than simply imposing a unitary system based on the Western experience, a point made emphatically by some local women (not to mention that the West is a bit quick to forget how its own legal tradition long tolerated marital rape and condoned various forms of oppression of women, not to speak of continuing difficulties). Shia family law supporters include women who staged a peaceful counterprotest in Kabul and, however imperfect, Afghanistan is now supposed to be a democracy.
This is why there is much need for the sort of intermediary position that the Afghan government itself highlighted (even though it seems to have fallen short of it), in which it held that it:
“must engage with the traditional system, to seek to eliminate its unacceptable elements and maximize its positive features. The aim should be to improve the quality of traditional justice, perhaps offering training to elders and others, incentives to follow the best approaches, and linkages to the state system where agreed procedures are followed”
Of course, that is more easily said than done. The debate on legal pluralism and human rights is nonetheless definitely worth more than the inevitable simplifications that will arise as a result of the recent revelations. The tension is not simply between just and unjust laws, but also between law in the books and law in practice, law that people recognize as their own and law that is only applicable in Kabul or in theory. In many ways, it is not the central governments that created legal pluralism, as much as the persistence and even dominance of certain pluralist practices that makes it necessary for central authorities to recognize them.
Different concepts of rights also seem involved (during the Kabul demonstrations both sides chanted “We want honour and dignity for women”, thus vividly illustrating the divide). For some, dignity is based on the ability to come under the jurisdiction of one’s community’s religious laws; for others, it is based on the ability to either be free from community bounds, or to redefine those bounds.