The Position of Women in the Islamic and Afghan Judiciary

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The Sharr'a in the Constitutions of

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-Implications for Private Law

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Abbreviations

Amn esty Intern ationa l Afghan Interim Administra tion

Act on Intern ationa lCo mmercial Arbitratio n01'1997,Iran Afghanci vii code01'19 77

article(s)

Agreement on Provisio nal Arrangements in Afghanistan Pend-ingthe Re-Establishment01' Permanent Government Institutions 01'2001

CentralRank01'Iran civilcode

code01'eivilprocedu re

United Nations Convention for the Elimination01'All Forms 01' DiscrirninationAgainstWomen

confer chapter(s) conuucrcia lcode com pare

Corporate RegistrationBureau

died

DraftConstitut ionoftheIslamicState 01'Afghanistan Dan ishIm mi gra tio n Service

Act on the Ame ndme nt 01'theDivor ce Provisions01' December 10,1992, Iran

editor(s)

exemp Iigratia[forexample] Egy pti an civilcode01' 1949

Civil Judgem en t EnforcementAct01'19 77,Ira n et cetera

following

InternationalFederation01'Consulting Engineers

Act on thc PromotionandProtection01'ForeignInvestment,Iran Festschr ift

His Majcsty

Hu man Rights Princip lcs Intern at ion al Crisis Group Intern ationalCornmission01'Jurists

Intern ati on alDevelo pm entLaw Organisation id est

Internat ional LegalFoundation internationa l

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x

IRI Constitut ion ISAF J. Jh. JVC LAPFI lit. LJOC MPI MPs

New YorkConve nt ion NGO No. OD! OlETA PCM PDPA pI. POW p.lpp. SCC sect. stud.

Truth Commission

UDHR UN UNAMA UNCITRAL UND P US USA USSR WCLRF 1933Act Abbreviation s

Cons ti tution of theIsl am icRcpubli c ofIran of197 9 Inte rna tiona l Security Assista nce Force

Journal

Jahrhund ert [century ] JointVentureCompany

Act for the Attraction and Protection of Forcign Investments.

Iran literall y

Law on the Jurisdictionand Organisationofthe Courtsof 1907,

Afghanistan

Max-Planc k-Instit ute

Memb e rsof Parliament

Uni te d NationsConve nti onon the Recogni tion andEnforcement

of Fo rei gn Arb itra lAwardsof1958

Non-Governmental-O rgani sation

number(s)

Oversea sDevelopmcntInstitute

Organisation for Investment, Economic and Techn ical As

sis-tancc0fIran

CommunistPartyof Morocco

Peopl es'Democratic Part yofAfg hanis tan plural

prisoners ofwar

pag es

SupremeConstitu tio na lCourtofEgy pt

sectio n

stud ies

SpecialCourt of Human Rightsof Afghanist an

Universal Declaration of Human Rightsof1948

United Nations

UnitedNationsAssistanccMissionfor Afghanistan United Nations Comm iss ion on InternationalTradeLaw

United NationsDev el opment Programme Uni te dStates

Un ited StatesofAmerica

Unio nof So viet SocialistRepublics

Women and ChildrenandLegal Research Founda tion

Act on the Observanceof the Personal Statu sofnon-Shi'TI

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The Position of Wornen in the Islarnic and Afghan Judiciary

IRENESCHN EIDER

A. Introduction B. Women asJudges

I. Classical Islamic Law 11. Operative IslamicLaw

C. Women as Witncssc s I. Classical Islamic Law 11. Operative lslamic Law

After two decades of conflict and civil war, Afghanistan is facing the task of re-establishing the rule of law and rebuilding its political and judicial structures. After the devastating experience of thc Taliban rcgime (1996-200 I), which imposed a very regressive version of the Shari'a and was rcsponsible for grave human rights violations, the rebuilding and reform of the judiciary and justice system is of special importance.Womcn wcre the main victims of this regime.

This article analyses the position and role of women in classical Islamic and modern Afghan judiciary, focusing on thc situation of female judges in the judiciary and the role of female witnesscs in procedural law. As such, it connects questions on international human rights standards as laid down in the Universal Declaration of Human Rights of 1948 (UDHR) with classical and modern Islamic judiciary and proecdurallaw.

A. Introduction

Afghanistan has a rich and complex legal culture. Besides those of the Hindu and Jcwish minorities, the main legal system is the Islamic legal system of the

hanafi madhhab or school of law,which has dominated Afghanistan ever since thc region became Islamic. Hut there is also a strongsh"flminority to be found in thc country. Thus, the Shari'ia, the Islamic law, has always played an

impor-tant rolc in thc development of the Afghan justice system.At the beginning of thc 20.century, statutory law was introduced by Amanullah (r. 19 I9-1929) in thc nizämndma as an ambitious plan to create a modern Afghan state.Along with tradition al customary law, the hanafi school provided the basis for the cmerging Afghan justice system. This reform programme had far-reaching cffects.On the legislative level, the codification of many of Afghanistan's laws

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84 Shariaarid Private Law

was achieved in the 1960s and 1970s. On the jurisdictional level, a modern three-tiered court system was created.The Afghan Consti tution of 1964, and especially the Lawon theJurisdictionand Organisat ion of theCourtsof 196i (hcrcaftcr:

uoq

,

laid downrulcs forthc creation of a modern judiciary.After

thc military coup in 1978, thc Marxist govcrnmc nt attemptcd to introduce a Soviet-style judicial systcm,but thcsc changcs were rej ected bc fore they took

root. Of greater importance is the strong customary law, espccially the pashtunwali' and other regional customs which constitute an important part of

the Afghan legal culture . With regard to the jurisd ictional system, thc tradi -tiona ljirga/shürä, informal institutions mainly serving to settle disputes by ensur ing that the involvedparties reached an agreernent, are of great practical

importance. These insti tutions enjoy a great deal of acceptance amongst the population, espec ially in rural and tribai areas. Their competence and legiti -macy stems from the renowned skill the tribai and rural - but also urban -populations display in settlingdisputesonthebasis of consultation.

In January 2004 the new constitution (Constitut ion2004) was ratifiedbythe Constitutional Loya Jirga .This new consti tution is the latest development in Afghan legal culture , which includes the adherence to such international conventions as UDHR and the Convention for the EliminationofAllForms of Discr imination Against Women (CEDAW) (Art.7 Constitution 2004) as weil as to the respect for the religion ofIslam(Art. 3 Constitution2004).

All these different kinds of rules,customs,and laws havecontributed to the richness of the Afghanlegal culture and judiciary system, and they can be used as a source for rebuilding anew and modern legislation and a modernjudiciary

bascd onthc Islamic cultureofthe country .

A uscful tool for analysing this complex situation is the conceptof'oper

a-tive lslamic law' as explicated by the Pakistani lawyer and jurist Shaheen Sardar Ali in her book Gender and Human Rights in Islam and international Law3. Islamic lawhas always shown a certain flexibili tyandpluralism.While it is based on the Qurän and thc rulingsof the Proph et Mohammad,the jurists (f aq fh) have to deducethe actual legalrulings from these textual sources using hermeneutical methods. The plurality of opinions resulting fro m this process was institutionalised in different schools oflaw whichcoexisted forcenturies.

But even inside each schoo l it was considercd acccptable for jurists to hold

different opinions . The acceptan ce ofsuch a plurali stic situation had its legal

justificati on in the Prophet' s saying: 'Blessing upon the plurality in my community.'Beginning in the 19.century, it was furtherexpanded thro ugh the

1 DecreeNo.588-2189 of September24, 1967,qän ün-esalählyatva tashkllät-eqadä'r-c dawlat-cshähi-ycAfqänest än.

2 SeeGlatzer,ZumPashtunwalialsethnischesSelbstportrait,in: Subje kteund Systeme, FS Sigrist(2000) 93-102.

1 AIi, Gender and Human Rights in Islam and International Law . Equal Before Allah, UnequalforMan? (2000).

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The Position ofWomen inthe lslamicand Afghan Judiciary ₈₅

influence of modern Western law. Secular legislation (qänün) inspired by European models was introduced, espeeially in the field of commereial law. This, in turn, madc the implementation of a modem judiciary necessary. Thus, the legal systems in the Islamic eountries and in Afghanistan today are marked by legal pluralism".'Operativelslamiclaw' as defined by Sardar Ali is the law that has evolved over the eenturies and, in particular,since the emergenee of sovereign natio n states and global isat ion. It differs in formal and material aspects from classical Islamic law because it comprises not only this form of law, but has also integrated modern developmcnts in Islamic law, Western concep ts of law, and populareustom. 'Operative Islamic law' thrives in a plural legal system composed of constitutional/statute law, Islamic law, and custom-ary norms.Allthree systems coexist and draw on each others' conceptual and normative sourees.The socio-economic and political circumstances prcvailing within the country also playa crucial role in determining the seleetive use of these three sets of regulatorynorms',

However, SardarAli points tothe fact that while 'operative Islarnic law ' has apotential advantage in thataninteractionbetween differentlegal systems may advance justiee,the opposite may also bethe case", Referringto the situation in Pakistan,she argues:

Provisionsoflaw advoca tingequalitybetwee n the sexes (as requiredby theconstitution

of Pakistan) are disregarded and watered down by reading into these an elernent 01' inhcrent infcriority01'women (undercertain religious and customary norms).The e

mer-gent 'operat ive Islarniclaw' thcrc foreevolves on thepremise of male dominanceand perpetuation01' gender hierarc hies7.

As the Musli m countr ies are signatories to differ ent internationa l treaties, in partieular the UDHR, 'operative Islam ic law' also compri ses the dimensio nof intern at ion allaw . Beca use the standard ofpacta sunt servanda,for example, is alreadymad eobligatoryin theHoly Qur ' än (sura 5, verse I; sura 17, verse 34), it is clear from the ratification of thesetreaties that thc Islarnic countries have given upthe classi calconce pt ofji had as anoffens ive conce pt of war in favour of peacefulcoex istence with the othercountri es of the worl d8. Conccrning thc

national level and materi al law , the abolishm ent of slave ry by all lslamic countries - an institut ion whichexistedthroug hthe Middle Ages inIslamic as weilasChristian countries andexisted in the US until thc 19. century - can be take n as an example of the flexibil ity of Islamic law, its view toward the well -being/welfare of society tmasl aha v, and the principle of justice ("adäla) . In Afghan istan, for example, the hazara slaves were set free in thenizämnäma

4 Dupret/Berger/Al-Zwaini,lntroduction,in: LegalPlura lisminthe ArabWorld,Dupret el

al.(eds .)(1999); see Yassari,in this volume,45ff. 5 Ali(note 3) 188-189.

6 Ali(not e 3) 188.

7 Ali(not e 3) 188. 8 Ali(note 3) 218.

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86 ShariaandPrivateLaw

period in the 1920 s9. The question which has to be dealt with here is: what specificfeature does 'operativeIslamiclaw' display in Afghan istan withregard to thejudic iaryandto procedural law?

With reg ard to class ica l Islam ic judiciary,the sequence ofcourtstobe found today in Afghanistanand othe r Islam iccountries represents a developmen t,an expression of 'oper ative Islamic law ' or Islamic law in a modem form. In

elassica llawaslaid downin the adab al-q ädi'"literature, the institution ofthe

judge (qäclf; is the sole and centra l institution, with no use being made of

institut ion s of review. According to the classical adab al-qädi, a review of a

judgement was only perm itted in rare cases, and then normall y only by the

judge hirnself orhis suecessor inofficeI I.The rulernever had the right to inter-fere with the judge'sjurisdiction.On the other hand,the ruler always had thc right toappoint and dism iss thejudge and to either givehirn full jurisd iction or restriet his jurisdiction to certainareas or to certain cases12.Throughthe power afforded bythesiyäsa (Iit. 'poli tics, power to administrate the law ' ),the popu -lation wasgiventhe chanc eto turn directly to the ruler and hand inpetitions of complaint, especially about the abuse of power by state officials. This instit u-tion was called maziilim (lit. 'acts of injusti ce ")!'.Thus, the modern judieiary

system- for example,the three-tieredcourt system ofAfghan ista ntoday - can be seen asan institutional adaptation and develo pm en t of the classica l system

tomodern times", fullyin line withtheprinc iple ofmaslah a centra l to classical

Islami claw.

The main aim ofIslam icprocedural lawhas always been the implementation

of justice.This is clearfrom the strictrules regarding the interrogation of lit

i-gants and witnesses,andthe strict prohibition ofinfluencin g their evidence or ofthe cxertio n of pressur e to gain eviden ce ". Islami c procedural law g uaran-tees the rights of witnesses and litigants and strictly forbids arbitrariness and

force used by the qaqi:16•The main aim ofclass ical and modern lslam ic law is to ens ure that a fairtrialisconductedandto prot ecttherightsof the litigant s.

9 Kamali, Law in Afghanistan: A Study of the Constitutions, Matrimonial Law and the Judiciary (1985)204.

10 Theexpression meansliterally 'the right behaviour of thejudge'. It is the titleofthat part ofIslamie legall iteratur e whieheomprises rules for the behaviourof thejudge and also Islamicprocedural law.

11 Schneider, Das Bild des Richters in der adab al-qädl -Literatur (1990) 224-226; Schnei der, Die Merkmale der idea ltypis chen qädi-Justiz - Kritisc he Anmerku ngen zu Max Webers Kategorisierungder islamischen Rechtspr echu ng:DerIslam70 (1993) 154-159.

12 Schneider, Das Bild des Richt ers in deradabal-qädi -Litera tur(1990)247-2 52.

13 Schneider, (note 12) 237; see alsoSchneider, State, Soeietyand Power Relations- A

Studyin theLate 14th_/1₉th_Cen_t_{ury Petitioni ng System of}_{Iran (f}_{orthcom in}_g₎_.

14 Coulson,A History ofIslamic Law (1964) 163-166,172.

15 Schneider(note 12) 66-68,127-141.

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The Position of Women in theIstamteandAf ghan Judiciary ₈₇ Concerning the judiciary and procedural law of Afghanistan, mention needs to be made of the nizämnäma of Basic Organisations of 1923,which alread y provided for a three-tiered court system: the primary court (ma hka ma-ye ibtidii 'zya) in every administrative district, the court of appeal (ma hkama -ye muräfi{a) in each provincial capital,and the Cas sation Board (hayat- e CälI-y e

tamyizv in the capital".Art.97 Constitution proclaimed the judiciary to be an "independent organ ofthe statewhich discharges its duties side by side with the legislative and exeeutive organs .' The aforementio ned LJOC 1967 set the framework necessary for the establishment of a modern judiciary. A Supreme Court(St era Mahkama) headed by the Chief Justice18_and _s_{eated in Kabul h}_ad the exclusivc power to interpret the law and to ascertain the conformityof the law withthe principlesof the constitut ion.

In the Afghan judieial system established immediately after the Taliban reign,wornen were greatlyunderrepresented.No reliable statisticsexist, but in 2003 out of approximatelytwo thousand judges, very few were women19.While womendo hold so me key positions - for example,as heads of the juven ile and fami ly courts in Kabul and as members of the Supreme Court - their overall representation in both the judic iary and the university law faculties is low.In interviews with Amnesty International (AI), a number of senior judges ex -pressed a lack of concern Ior, and even resistance to, the greater inclusion of women in the judiciary.This lack of concern with the under-representation of women is evident , aceording to Al, in the fact that neither the Supreme Court, the Ministry of Justicc, nor the Attorney General's Office possessesanystatis -tical data on the number of women judges and prosecutors/". Furthermore, in interviews with Al delegatcs, manysenior judges expressed outright opposition to increasing the number of womenjudges . Otherjudges informed the organi -sation that if there were to be more women in the judiciary,then it would only be appropriate forthernto scrve in the family andjuvenile courts". This relu c -tance to acceptfemale judges inpenallaw can also be seenin a statement made by the Deputy Ministerof Just ice in March 2003.He stated that,according to

17 Kamal i (note9) 212-2 13. I~ Kamali (note9)223.

19 Johnson/Maley/Thier/Wardak, Afghani stan' s Pol itical and Constitutio nal Developm ent

(2003) 26;Amnesty Intern ational (AI), Afghanistan: Re-establi shin g the ruleof law (August 2003), AI Index: ASA 11/021 /2003 (hereafter: AI- Report 812003). According 10this report,

outof a total of 2,006 sitting judges,onlyapproximatel y 27 were femalein 2003.However,

theactualnumberof femalejudgcsand professorsmight be high er.Iwouldlike to thank my

Afgh an colleagues at the eonfere nce who supplied me withinformation about women in the Afghanjudiciary,especiallyMs Barakzai ,amember of theformer ConstitutionalConuuission;

Prof. Barmaki from the law faculty of the University of Kabul; Ms Kakar, a judge at the Supreme Court in Kabul;and Ms Rasouli,Head of theChildreu' sCourt inKabul.

20 Iam thankfulto DeputyChiefJustice Mahnavi for informingmein the discussionofmy

paper thatthe numberof femalej udgesin Afghanistannowamounts to about 200. 21 AI-Report8/2003(note 19).

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88 Shari a and PrivateLaw

the Qur' än, there are certain typ esofcases whic h sho uld not be dealt with by womenv'.However, these types ofpen al cases wcrenot tried inAfghan istan in

the time before and after the Taliban, and Art. 29 Constitutio n 2004 explicitly

forbi ds pun is hme ntcontrary to human integri ty.The question thus arises as to what theposition of women in 'operative Islamic law ' in Afgha nis tan actually

is. As 'operative lslamic law' is strongly inf1uen ced by the Shari''a, it is first necessa ry to analyse the pos ition ofwomen in class ica l Isl arnic law and the

judi ciar y before trying to determine the positio n of wom en in themodernjudi

-ciary.

B. Wome nasJudges

I. Class ica l IslamicLaw

Clas sical Islarniclawis based , as is weilknown , on the textof the HolyQur'än and the Sunna,the rulings of the Prophet. In the Holy Qur'änthere is no text that explicitly forbids women to becomejudgesorto part ici pate in the judici ary

system . As a result, there is no unanirnou sly shared opinion in all scho ols of

law that would deny women the right to bejudges, but the topi c is certai nly controversial.

Mälik (d.795),Shä ficT(d .820),and Ahmad b.Hanb al (d.855),the epony ms of the main sunni madhhab , were all of the opi nion that women lack the

compe ten cy to hold the post of qäqT23. Mäwardi (d. 1058),the famo us Shäfi'I jurist and author ofal-ahk ämal-sultäniyya, a normat ive book on the const itu-tional syste m of medieval Islam ,basedhis view on the argume nt that jurisd ic-tion (qäc{ä')is apart of political leadership (imä ma),forwhic ha wom an is not eligible/". He maintainedthat oneof the requi re ments forajudge isthat hehas to be male .Basinghis argumentsonthe traditionalexegesisofthe Qur' än, sura

4, verse 38 'Men are in charge ofwomen,25 heactually interpreted the part of the verse that says 'what God hasprovided to them over what he has prov ided

to women ' as meaning reason (aql) and insight(raCy).Thus, hecon cluded : 'It

isnot allowed tha t they (ie women) stand above men ,26.

How ev er, in the hanafilaw scho ol- whic his dominan tinAfgha n ist an- one

finds a different op ini on based on Abü Hanifa (d. 767), epo ny m of the hanafi

22 SeeDanish Immigrati on Service, The politieal, seeurity and human rights situation in

Afghanistan, Reportonfaet- findingmissionto Kabul , Afghanistan,22 Septemberto 5 October 2002(7/2002),<www.udlst.dk>(hereafter:DlS-Report2002) 36.

23 IbnRushd,Bidäyatal-rnugtahid"II(1983)460.

24 Al-Mawardi, Adab al-qädlII (197 1) 625-627; Tanzil-Ur-Rahman,Adabal-qädi:Islamie

Studies 5 (1966)199-207 (20 1), onthis problem see also :Moosa, Wornens E1igibility forthe Qadiship:Awraq 19 (1998)203-227 .

25 At-Mäwardi(note24) 627. 26 Al-Miiwa rdi(note24).

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ThePosition0/WOII/en in the/slamic andAfghan Judiciary ₈₉

school. According to hirn, a woman could act as a qädi , But Abü Hanlfa

restricted a woman's judge me nt to those matters wherein the evidence of a woma nwas held to bepermi ssibl einlaw.This meant an excIusionofwomcn in the law ofcrimina l pro cedu re, espe cially incases ofIllldii d27

and qisäs'", The han afijurist Käs änl (d. 1191)thus did not incIud e- as Mäwa rdi had- the male sex as one of the conditions for thc appointmentas a judge, because,according to hirn, a woman could preside as a judge over property cases for example, excIuding hudüd and qisäs cases". This seems to match the aforement ioned situat ion inAfghanista ntoday,where altho ughthere are female judges,thcy are few and there is a stro ng reluctance tolet them preside over pena lcases.

Womenare not unan imou sly den ied accessto penal jurisdicti on.Mälik who den ied women the right to even preside over civil matters, collected and inser tcd an interestin g report in his main legal work, the muwattä,Jo.It is a trad ition reported by"Amrabt. "Abdarrahmän (d.around 721) from "Ä'isha (d. 678), the Prophet' s beloved wife. CÄ'ishä played an important role in the tra ns missionoflegal and religiou s rulings from the Prophet and is accepted in the Islamic traditional literature as one of the main authoritieson the opinions of thc Prophet Muha mma d". According to this trad ition, "Ä'isha, whom Muhamrnad is said to have loved most among his wives, acted as ajud ge in a crimi na lcase, that is, ina judge me ntof hud üd, in a case of theft. CÄ'isha inter-rogated a slave suspectedof the ftand thengavethe order for his hand to be cut off. She reIicd ona saying of the Prophet: 'A thief' shan d is cut off fora quar-ter of a dinar and upwards .' "Amra bt. "Abdarrahmän, the transmi tte r of this tradition and a weIl-kno wn and acc epted tradit ionalist'", correcte d the judge-me nt ofher nephew when he wan ted to cut off the hand of a man who stole some worthless ironrings.She wroteto hirn:'CAmra teils you nottocutoffthe

hand except fora quarter of a dinar or mor c.' Bygivin g this verdictshe obv i-ously did not re fer to "Ä' isha ' s dec ision but consi dered hersel f comp etent to correct the deci sion ofa male judge onthe basisof aruling of the Prophet she

knew Of33. "Ä' isha and "Amra both acted as indepe ndent judges basing their

dec ision s on the ruling ofthe Prophet. Whereas the actions ofthecompanions and the wives of the Prophet (and here especially "Ä'isha) are usuall y

con-27 Hudüd,pI. ufhadd (lit. 'borders") are the erirnes for whiehpunishrnentswere fixed in the Qur'än,eg, theeutting off of the hand for theft; sec Schacht, An Introduetion to Islarnie law (1964)175.

2~ Qisäs (lit.'retaliation'), see Schacht(note 27) 18 1.

29 Al-Kä sii ni,Bad ä'i"as-sa nä'i "fi tar tThal-sharä 'i'2VII(1982)3;Ibn Rushd(no te23) 460; AI-Mäwardl( no te24)625-628 .

30 Mälik binAnus,Al-Muwatta '(1988)634.

31Roded ,Wornen inIslamieBiograph ieal Colleet ions(1994)26-29 . 32Roded(not e31)48.

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90 Shari:a and Private Lall'

sidered to be normative arnong the Islarni ejurists, this report is never referred to in discussion sof whetherwornen should participate in lslamicjudiciary.

Furthermorc, the renowned historian and faqi h AbüJarirat-Ta bari (d. 923), author of the classical exegesis(ta/sir) of theQur'än,who held the opinion that the jurisdiction of wornen is possible in all legal matters,bascd his opinionon another reason ing'". He drew an analogy between jurisdiction and leg al re

-sponses (futyä) . Wornen were never denied the competence to givc legal

opin ions (fatawä) and thus act as muft iaccording to all sehools oflaw. This is

why,Tabariargued ,they were also capabl eof passinga judgem ent thukm).

Thus, on the level of legal discourse, there is no c1ear argumen t prohibiting wornen frorn beeorn ing judge s in clas sical lslarni e law. This refle ets the fact that no text (1/{I~'~) in the Qur'än and Sunna unarnbiguously spea ks out agains t theparticipation of wornen in the judiciary. In legal practice,howe ver, wome n wereobviously denied access to judgeship .When we consider the role wome n played in Islarnic scholar ship, however, it is clearly evident that they were aetively involved in teaching and transmitting the rulingsof the Prophet", but not in teachingIslamiclaw and jurisprudence(fiqh). In his analysis on 'Wo rnen and Islarnic Education ' in the Marnluk period (Egypt 13.-16.ccnt ury), Bereky states that rnany women were associated with college s (madäris) as bene -factors, supplying the endowrnents necessary to establish and maintain the schools. But they played virt ually no role,eitheras profe ssoror students,in the systernatic legal education offer ed in the rnad äris36. Roded , who analyse d the biographical colleetions with regard to the role ofwornen, state d that arnong the nurnerous learned women in the dictionaries, wornen's knowled ge of Islarnic law is only speeified in about a dozen cases. She quotes the ease of Fätirnaof Sarnarqand (12.eentury) who lived in Aleppo and stud ied hanafi law with her father. Legal deeisions were issued under both of their narnes. She married her fathers student, who was noted for his trcatisc on legal inno va-tions. Neverthc lcss, Fäti ma's profieieney in law was such that when her hus-band prepared legal opinions, she wou ld eorrect his errors, and he defer red to her judgernent. His accornplishrnents notwithstanding, his name was added to leg aldeeisionsissued by Fätimaandher father".

34 Al-Mäwar di(nole 24)626 f.

35 Rod ed (notc 31) 80-84;Schn eider, Gelehrte Frauendes 5.111.bis7.113.Jhs.nach dem

biographischen Wcrk des nahahi (st,74 8/1 347): Proceedings of thc XVIII.Congr ess 01'the

Union Europeenne des Arabi santsct Islamisants, heldat the Katholickc Univcrsiteit Leuven September 3-9(1996) 107 ff.

36 Berkey; Womenand Islami c Education in thc Mamluk Period , in: Women in Middlc

Easte rn History, Keddie/Baron(eds.)(1992) 144-145. 37 Rod ed (note31)80-8 1.

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ThePosition of Womenin theIslamicand AfghanJudicia ry 11. OperativeIslamicLaw

91

Modern interpretershave tried to dealwith theproblem bypointing tothespirit of equality implicit in Islam, which, according to them, includes equal ity between the sexes. J. Moosa writes ":

The controv crs ial question amo ng the different schools ofIslami c (common) law (or Shari' a) iswhethcra woman iscompctc nt to be appoin tedas aqädi.The views ofthe

jurists (founders of thcse schools) on the matter , althou gh based on(their) interpre ta-tions of the primary sources ofIslam [...]are nonetheless subje ctiveand man-mad e.It

can,for cxample,be argued thatwomencan/ca nnotbe judges or that Muslim countries

can/cannot rati fy human rights instruments becaus c a basis and validation for con

-flictin g views onparticul ar human rights issue s can be found in the same corpusof

Islami c law which is ambig uous in man y respects. The same pattern is evident with mattcrs relating to the existence -ex pansion/no n-existence-co nstrict ion of women 's rights . Thispaperass ertsthat in order to deal withthese conflicts guida nce must ulti-matelybe soug ht in thespirit ofequa lity implicitin (canonic al)Islam.

Putting aside the different possible interpretation s, which only repr ese nt the

pluralism inherent in Islamic law, it would see m more useful to analyse the

situation of 'operative Islamie law' as aetively praeti sed in Afghanistan and

-for reasonsof comparison- inother Islamie eountries.

In 1971 the judge of the Supreme Court of Afghanistan ,Walid Huquqi,gave

the following statement regardingthe controversy about femalejudges":

The IIolyQur' ändoesnot forbidwomen from participation in public functions includ-ing the very important area of judicial scrvice.Notw ithstanding many good reaso ns in

suppo rt ofemployi ng women in jud icial posts, fanatici sm practic all y foreclosed the possibility ofwomen 's particip ationin the j udiciar y.

On the basis of the 1964 Constitution, the Supreme Court employed women in judicial posts for the first time in 1969. The LJOC 1967 eontains no rule barring women from partieipating in the judieiary. Art. 75 LJOC deals with the neeessary requirements for the appointment of a judge. It states that judges

musthave possessed the Afghan.nationality for atleast 10years, must not have

been depri ved by a court of their political rights,must be at least 26 years of age, ete. No mention is made of the male sex as a neeessary eondition. The

preamble to the 2004 Constitution states Afghanistan' s eommitm ent toeomp ly with the United Nations Charter and to observe the UDHR.Afghanistan has

also signed the CEDAW. Furthermore Art. 22 Constitutio n2004 states that the citizens of Afghanistan- whether men or women- have equalrights and dutics before the law. So the question arises as towhy only few women are practising asjudges and why there is reluctanee to admit women to the beneh in penal proeesses. Thc argument brought forward by the Deputy Minister of Justiec

3~ Moosa(note24)204-205 .

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92 Sharia and PrivateLaI'.'

refers to the Qur' än ic punishm ents, ie the aforementioned hud üd''". However,

thereis notext on prohibitingwomen from becomingjudges in these cascs,

As there is no clear nass that spcaks out against women participating in thc

judiciary, the reasons for the low number of female judges must be sought

elsew here. In this context it seems neccssary to compare the situat ion in Afghanistanto theactual situation inotherIslamic coun tries.

In Iraq, where politic al structures broke down duc to the interventionof US

military forces, the US Marine Colonelsupervising thc rcconstruction of Najaf

indefinitelypostpon edtheswearing inofitsfirst-ev erfema le judge on July 31,

2003, after her appointment had provoked a wave of rescntmcnt, including

fatäwä, legal responses, fro m senior Islamic cler ics and heated protest by the

city'slawyers'".In Iran,womencan onlybecome assistant judges and may not

be signator ies to a judgem ent. However, in 2003 the first Muslim woman,

Shirin Ebadi, won the Nobel Peace Prizc. Ebadi had been Iran's first fema lc

judge in 1969,priortothe Islamic Revoluti on,andcurren tlyworks as anatto

r-ney, providing lega l represe ntation for vict irns of politi cal persecution and

fighting forthe rights of women and children in lran42• InAlgeria,women can

becomejudgcs,and in 1998 out of2,324 judges 547 were women worki ng in a11 legal fields. In the Aigerian Ministryof Justice there are 29 fernale judges out ofa total of 95. But it isnot c1ear from this report whet hcr fem alejudges are also permitted to passjudgement in penal cases'". In Tunisia, women have

access tojudicialoffice as we1l44. lthasbeen reporte d that 25%of thejudiciary

was represent ed by women in 2002 . In Nigeria the first female Chief Justice,

Justice Rosaline Omotosho, succee ded a male judge; she held the office of

Chief Justice from April 12, 1995, to Fcbruary 27, 199645. In Sudan, women

have been integ rated into the judiciary after receiving training in spec ial courses forjudges,equipping them to dealwithall domains of the law, i nclud-ing penal law and entailing the setting of hadd punishme nts. There is evidence of women being nominated to the civil chamber with in the court of the Mudiriyy a in Khartoum and toaCourtof Appea l. In Novemb er 1984President Numayri decidedto form an Intern ation alJudicial Council(Majlis al-qiidä'al

-cAlami) and committed hirnsel f to appointing a woman to Sudan's Supreme Court".InEgypt, which isnormallyconsidered one of theprogressive Islamic

·'0DIS-Report 2002(notc 22).

41 middl eeast info.org/art iele31 18.html.

42 Midd le East Media Research Institute, Specia l Dispatch Series, No. 596, October 24,

2003; sec also: <www.memri.org/bin/latestnews.cgi.!ID=SD59603>; Inter view with Amir Taheri ofO ctober19,2003.

43 <www.un.org/womenwatch/daw/cedaw/cedaw20/algeria.htm>. 44 <www.un.org/News/Pre ss/docs/2002/w om134 8.doc.htm>.

45 <www.nigeria-law.org/LagosStateJudiciarylnBrief.htm>.

46 Layish/Warburg,The Reinstatement ofIslamic Law in Sudan under Numayri (2002) 255.

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ThePositionof WomeninthelslumicandAfg hanJudiciary ₉₃

countries,the first femalejudge didnot assume her post until 2003. Msal-Jibali

was appointed to the Supreme Constitutional Court47• Egyptian women have

been striving to attain the ben ehforover 50 years, Egypt beingthe eradle of the

Arabwornens movemen t. However,the campaign for women judges has come

up against entrenched attitudes.Negus reports that, if asked,a large percentage of thepopulation would say that wornenare not fit to sit on the ben ch , claiming that they are too easily swayed by their emotions and would be too so ft on criminals . However, both major state theolog ians, the Grand mufti and the Grandshaykhofal-azhar,have made statements favourable to the appointment of women judges;so has the SupremeGuide of the Muslim Brothcrs.

Ana lys ing the situation in other Islamic countr ies, it becomes elear that fema lejudges in the lslamic world are not a normal feature of the legalsystem.

At the same time, though, exact statistics and information are difficult to

obtain, andas of yet 1ittle research hasbeen done on the topie.In comparisonto these coun tries, Afgha nistan may even be regarded as one of the more progres

-sive Islam ic countries. This is not only shown by the statement of Walid

Huquq i quoted above as an expression of'operative Islamic law' in Afghani-stan,butis also evide nt in the aforementioned statutory law and the practice of

appointing women that began in 1969. There are, as it seems, no general

restrictions imposed on female Afghan judges. Unlike their female colleagues

in Iran, Afghan female judges can sign the irjudgements and, it appears, may also be crim ina l law judges,at leastaccording to thestatutebook.Thus, we can

infer that there is obviously a strong tendency in Afghan 'operative Islamic

law ' to aceept female partieipation in the judiciary, a tendeney that is indeed olde r than those in other Islami c countries and pred at es sueh developments even inEgypt'".

Whenconsidering the partieipation of women in the jurisdictionalsystem in 'operative lslamielaw ' , itis necessary not only to investigatethe existinglaws and the position ofthe Sha rl''a, but also to take into consideration legal practice

in partie ular. This is the point where the informal justiee meehanisms of

Afghanista n, known as jirga/shürä, have to be eonsidered. What is the role of

wom en in these institution s? The emphasis on informal, non-judicial mecha -nisms for resolving dispu tes has been described partly as a reaetion to the imposition of foreign models of justice (especially in the time of Soviet rule), whic h were perceiv ed by Afgha ns as being incapab le of properly serving the

41 Negus,Cai ro Makes Bclated Progress on GenderEqua lity (2003) :<www.lebanonwire.

com/0301/030 12020DS.asp>.

48 Discriminatio n does occur, however: in 2002 the Supreme Court disrnissed a female judge for not wearingthehegäbduringameetingwithUSPresident George W.Bush. Marziya

Basil was among a group of 14 fema le govemment offieials who attended computer and

management courses in Washin gton. She was sacked days after her return to Kabu l. See: <www.lists. kabissa.org/ lists/archivcs/pub1ic/womensrightswath-nigeria/ msg00571.html> from 12.03.04.

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94 Sharia and Private Law

inter ests ofjustice.The prevalen t lack ofconfidence in for mal justice mecha-nisms,combined with recent delays in rebu ild ing a for mal judici al system,has perp etuated a strong reliance on infor maljustice systerns in many areas.It is notew orthythatprior to the Talibantakeover,itseemsnot to have been unusual

fo r villag es in some districtstohavehad women'sshürä,01' even sometimesfor women to parti cip ate in a mixed shürä'". And, what is more important: in the Constitutional LoyaJirga,one-fifth ofthe members were women. This impo r-tant jirga on the national level could weil serve as a top-down model for the jirgas and shüräs on the loeal levels",Ithas to be stated here that in the 1970s the Minis try of Justi ee had already intro duee d an experime nta l scheme for estab lishing loea l reeone iliatio n eouncils, the so-called jirga-ye solh. Eight eouneil swere setup invario us locali tiesacro ss the province of Kabulin 1974. These were authorisedto deal with minor eivil, property, and family dispu tes;

they were orga ni scdunder the supervis ionofthe local primary courts;and the ir main funct ion was to settle disputes through the agreeme nt of the parties . Sure ly,asKamali argues in his bookin 19855\, thissche me wouldalso flourish

at the beginn ing of the 21.century amon g tribes men known for their skill in emp loyingconsultatio n tosettle disputes.

Howeve r,at the same time, these institutions on the local level pose several probl em s: First,women arenot alwaysallowed to participate.Second,as there are no court record s, the re is so farno transparency in terms oflitigation and settlement. And, third, these jirga/sh ürä often act as instan ces of criminal justic e. In the past, customa ry practice s which are somet imes abso lutely con tradic to ry to Islam iclawhavebeen sanctione d by localjirga/shür a, such as the custom of badd .This means, for example, that girls are brokcrcd to mcct debts or are offered as a settle ment to rcsolve conflicts arising from tc udS52.

These practiccs contra dict not only intern ati on al human rights standards, but also contravene Tslam ic law and the statut ory law of Afghanistan". The Marriage Law of 197 1 simpl y enacted that 'rnarr iage maynot be contracted in exchange of pore and badd' (Art.21). The solutio n to this probl em is to be found in the question of wheth er and to what exte nt it will be possible to pre serve, on the one hand , a useful decision-makin g instituti on such as the jirga/shürä, rooted parti cularly in rural and tribaIsociety and baeked by tradi

-49 Johnson/Maley/Th ier/Wardak(note 19) 30.

,0Ali(note 3) 135 also argues for the usefulness ofthe top-down approach to womens

participation inpublic life,citing for instance the example ofBenazir Bhutto,elected Prime MinisterofPakistan in1988.

51 Kamali(note 9)198-199.

52 AnotherpracticeforbiddeninIslam is shighär,the exchange of womento minimisethe

dowry.

53 Kamali(note9) 91;John so n/Mal ey/Thier/Wa rdak(note 19) 7,argue that is necessaryto

hamess theauthorityof theselocalcouncils. They write: 'Whilethey areunab leto domuch

about major warfarc, elders and community groups have shown themsc lvcs capa ble of

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ThePosition of Women in theIslamic andAfghan Judiciary ₉₅

tion,and to control,on the other hand ,the scope of jurisdiction to becxercised

by theseinstitutions.

To sum up: in all parts of operational Islamic law in Afghanistan , even in

traditiona llawas reprcsented in themeetingsof thejirga/shürä, women can and

do participate ,but are outnumbered heavily bymen.There isstilIan extremely

strong reluctance, asevident in statem ents made by malejurists andjudges, to

accept women in these positions.

As in other Islamic countries,the socialpractice and the traditional structure

of society,based on a patriarchal system, playan important role in Afghani stan.

As Sardar Aliarguesfor Pakistan,women have a layered identity,each 'Iayer'

outlining certain rights and obligations. Customary practices are not uniform

and vary from region to region; this is true not only for Pakistan, where

Pashtuns live aswell,but also for the multi-ethnic soeietyofAfgha nistan. Yet

the same trend scems to be asserting itself in both Pakistan and Afghanistan

(andother Islamic countries): women being forced into sub ordinatepositions in

line with traditionalperception sofsocietyand familylife.Aliargues":

Thisnot ion is sodeepl y cntrenched in the popul arpsyche,that cve nwherereligio nand formallaw gives a certainrighttowomen , its dcnialby sheerforccofcustom invariably prevail s,

This social perception of women' s subordination is often justified by pseudo

-scientific and pseudo-psycho logical arguments: a wornan's mental state and

sensitivity, her biological disposition as the bearer of children, etc. make her

unable to take part insociety on the same levelasmen.This 'biolcgical' theory

is, by the way, not altogether unknown in Western history:in late 19.century

Europe, biology was used to argue that women were ruled by their- unr uly

-ernotions, less likely to listen to the voice of reason , and were therefore a

potential danger that had to be contained". This pseudo-scien tific perspe ctive

was turned in late 19. century England and other European countries into a

powerful and convincing argument again st the fulI public participation of

women". Schwarz argues conviricinglythat, given thedramatic social transfor

-mation stemming from the IndustriaJ Revolution and confronted with the

unccrtainty of a life in which relations and gen der concepts ehanged in line

with its material conditions, men employed the Janguage of science to (re-)

define woman ' s 'proper'place ofsubordination57.

However ,'operativeIslamic law' in Afghanistan, which had already granted

women the right to be judges in the 1970s, and the argument put forward by

54 Ali(notc 3)174.

55 Schwa rz ,'They cannot choosc but to be WOl11cn' :Stereotypes of Feminin ityand Ideals

ofWomanlin es s in Late Victorian and Edwar dian Britain, in: Pol itical Reform in Britain,

1866 -1996,Jordan/Kaiser(eds.)(1997) 133-150 (147).

56 Schwa rz(note55)133-150.

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96 Shari'aand PrivateLaw

Walid Huquqi, show that this kind of biological argumen tation, rooted in the traditional structure of Afghan society, no longe r seems to be appro priate in Afghanista n, where women have acted and still act as female judges. This impression is underlined by Art. 54 Constitution 2004, which explicitly calls for 'the elimina tionoftraditionscontrary tothe principlesofthesacred religion of Islam' .To overcome the difficultics women still confront in a highly tradi

-tional society, Kama li has arguedin his analysisoftheAfghanjudiciarythat, in a first step, thc numbcr of women in family courts should be increased. He argues that in both urban centres and ruralareas the people could be persuaded bythc logic ofhaving awomanjudge presiding over family disputes, as tradi

-tionally it is even more acceptable for women to communicate with other

women. Any legislation and court regulation that concerns women should

ernphasise attendance in person and eliminate, as far as possible, womeu's

representation through agents, guardians, and proxies". Concerning the pe r-centage of women at law and Sharfafaculties, Iran inparticular is an example of an interestin g deve lopment: the numberofwomen with atradi tionaltraining in the classical sources of law such as the Qur'änandthe sayings of the Prophet are increasing, and many feminists - even if they believe in different social roles for men and women - are trying to accomm odate to current needs by reinterpreting the scriptures". They actively takepartinthe legal discoursesin theircountri es and voteon the basisof the inherentdynami smof the Shart''a for an interpretation ofthe textsthatgivesmore emphasisto the cquality bctween the sexes.

C. Wornen asWitnesses

I. Classical Islamic Law

Regard ing thc question of therole ofwornen as witnesses,thereis a textinthe HolyQur ' änsura 2, verse 282:

o

ye whobelieve! When yedealwitheaehother,Inlransaetions invo lvingfuture obli

-gations In afixedperio d oftime, Redue e themtowriting ...And get two witness es,Out

of yourownmen.And if there are nottwornen,Then aman and two women,Sueh as

yechoos e,For witnesses,Sothatifone of them errs.Thc other ean remind her.

The opinion prevails that in class icalIslamic procedur al law a woman's t esti-mony has thusbeen normally considered worth half that ofa mans . Hut the problem is more complicated than it seems at first sight. All schools of law agreethat the number of witnesses in all cases with the except ion of unlawful

5RKamali (note9)198.

59 Kar, Women' s Strateg iesin Iran from the 1979Revolu tionto 1999, in: Globalization,

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ThePosition of Womenin thelslamicand Afghan Judiciary ₉₇ intercourse(zinä )is to be two male s, andthat in prop ertycascs there have tobe two male witnesses or one man and two wom en. There are, howe ver, di ffer-ences in the acccptance granted to thetestimonyofwomen in thehudüd,which

is not acceptedby thc majority of juristsbut by theziihirimadhhab ifthere is a man amongthem and if there is morethan one wom an ' ". Ab ü Hanlfa acce pted womcn as witnesse s, not in hudüd but in cases concern ing the body, such as divorce, returning to one's wife after divorce, marriage , and manumission; Mälik, however, refused toaccept the testimony of women in cases concerning the body'". On the other hand , in issue s of fact dealing exclusi vel y with the

female body, the testimony of two female witnesses, when corroborated by a

male witness, is enough to win the clairn'" . In his article Two Women. One Man,Mohammad Fadel argues'" :

Instead01'the cliche that in Is lam ic law, a woman's word is worth half01'a man's,a

rnoremeaningfulcharacterization 01'Islamic evidentiarydiserimination aga inst women would be that medi eval Islamie law imagines legal disput es taking place across a

publ ic-private eontinuum.Becausepublic space isregarded asman ' s spaee, the admis

-sibility of womeu' s testimony gradua lly decreases as the nature of the claim acquires more and more ofa public qual ity.Thus, in adisput e regarding whether a baby was

stillborn or died after birth, for example, the testimo ny 01' two women is sufficient, despite thefact thatthedispute isboth financia l.in that thefact in question esta blishes right s01' inheritanee , and bod ily, in thatitestablishesnon-monetary legal obligations. The privatenature ofthe eventpreeludes amale (public)presen ce, and thereforethe law admittedthetestimony01'women uncorroborated bythe testimonyof men.

Furthcrmore, the han afi Khassäf(d. 874) interestingly wrote on the process of certifyi ng the reliability of witnesses: 'Only those women from among the witnessesshould be questi oned who are inte lligen t(barza)andmingle and have

contact with the people. Many things are reported from them and they can

distinguish(mumayyiza).' Jassäs (d. 980) added in his commentary: 'Because a woman, if she is like this, she is like the men in the chapter of transmission (istikhhär)64., This arg ument seems to point to an equality of the testimony of

men and women in cases where the women were considered intelligent and

believedto have insight into affairs, faculties stemm ing from the fact that they did not live in seclusio n but mingled with other people and thus knew the society and the public sphere as weil as the privatesphere.This argument was used by the two hanafijurists, but only in the context of certifying the reli-ability of witnesses.

60 AI-Alm, Confess ion and Other Methods 01' Evidenee in Is lamic Procedural

Jurisprudenee ,in: Criminal Justice in Islam: Judicial Proeedure in the Sharia, Haleem et al.

(cds.)(2003)111-129 (120-121).

61 IhnRushd(note23) 464;Al-Käsiini(note 29) 277.

62 Fadei, Two Wornen,OneMan:Knowledge,Pow er and Gender in MedievalSunniLegal Thought: Int. J.Middle East Stud.29 (1997) 185-20 4 (194).

63 Fadel(note62)185-204 (194).

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98 Sharia andPrivateLall'

The a11eged fact thatwomenwere more prone to error was explained by the

eommentators of the Holy Qur' änas a result of their 'nature'. Fakhral-Dinal

-Räzi (d. 1210) explained that a woman's different biological naturemade her more prone to forget than a man. However, Fadel shows that Ibn Qayyim a l-Jauziyya (d. 1350) argued that if a woman wasbelieved to be reliable in her

testimony regarding financial dealings,she must be assum ed, a11 things being equal, to also be reliable in other areasof life'", According toFade l'sresearch, both Ibn Taymiyya(d. 1328) and Ibn Qayyim al-Jauziyyarcjected the rule that

two women equal one man.They argued that this rule resulted from ignoring the difference betweenrecording testimony for the purpose of protectingaright in the event of a future dispute, known as tahammulal-shahiida, and testifying

before a judge, known as add ' al-shah iida.Theyargued that the admissibility

of testimony is not determined by gender, but rather by credibili ty'" . This would point to the existence of differentopinions,also with regard to the testi -mony of women, and that ar least in the hanbali school of law,to which Ibn Taymiyyaand IbnQayyimbelonged,the verse eould be understood differently.

Ibn Taymiyya and Ibn Qayyim al-Jauziya are not only outstanding figures among the medieval jurists, but also have influence d modern ist reform dis

-eourses on Islamiclaw and are held in high esteem in modern Saudi Arabia.

II. OperativeIslami cLaw

Modemists have triedto find more appropriate interpretations for this verse.In

his interpretation of Holy Qur'än sura 2, verse 282, the celebrated Egyptian modernist and reformer Muhammad CAbduh (d. (905) denied that the require -ment of two female witnesses was based on the different nature of men and women; instead, he argued that both men and women have the same eapacity

for remembering and forgetting, the sole differenee being that the different

economic roles of men and women in society made each vulnerable to forget -ting those things which were not part of his or her daily experiencc'" . Sayyid Qutb(d. 1966), on theother hand,arguedthat it was thewoman'spsycho logy

-specifica11y her motherl y instincts - that prevented her from possessing the objectivity necessary for a witness'".

Fazlur Rahman undertook a newinterpretationof the verse. He criticisedthe c1assical understanding of Holy Qurän sura 2, verse 282, according to which it has to be seen as a generallaw to theeffect that under a11 circumstances and for

65 Ibn Qayy imal-Jauziyya ,I'I äm al-muwaqqi 'tncanrabbal-iälamtn III, 95; Fade!(no te62) 185-204 (197).

66 Fm/ei(note62) 185-204(196- 199).

67 See Muhammad "Abdiih in Ridii, Tafsir al-Qu r'än al-haki m al-rnashhü r bi-ta fsir al

-Manär, TafstrXII (1999)3,105; secFadel(note 62) 185-204 (187).

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The Positionof Women intheIslamicandAfghan Judiciary ₉₉

allpurposesa woman'sevidence is inferior to a man's. Rahman argued that the

verse doesno t show the slightestintention ofpro ving any rational deficiency in

wome nvis-ä -vis men.He pointe d to the fact that womenha ve not been denied the abi lity to be wit nesses. This, he argued, is clear from classical Islamic law whic h regards wome n with knowledge of gynaecology as the most competent witnesscs in ca ses inv o lv ing gyna eco logica l issucs'". Thus it could be arg ued

that the verse hastobe und erstood instead againstthe background of 7.century

Arabia n society, inwh ich women did notparticipa te in the pub lic sphere of life

at all. The ver se could hen ce indee d be understood as a corrective of the

complete non-r ecog nitio n of womenas legal persons inpre-Islamic tirnes".

Mus lim modernists arg ued that the apparent rule establis he d by this verse

was neither universally appli ca ble acros s time nor generally appl ica ble to all

cases tried by a court. With regard to fiqh litera ture, Fadel has analysed the

gender-baseddistincti on s establis hed in the medieval Islamic law of testimony

and reached the concJusio n that the argume nts have to be cons idered political

and not epistemo logical. As women were alwaysgiven the right to equality in

the tran sm iss ion of knowlcdge as weil as in the contcxt of fatäwä, theysurely

wer e not generally con sidcred unabl e to gain, prescrve, and communic ate

know ledge to others. Fadel wants to show that the line drawn was betw een

testimony (shahä da) and vcrdict (hukrn) on the one hand and narration and

fatäwä on the other. He co ined these two discour ses the political and the

normative discou rse71•

Putting aside these intellec tua l discourses, it seems ncces sa ry to take a look

at the lega lpractice as refle cted in the leg isl atio n of the Islami c eountri es and

thei rjurisd iction and 'operative Isl am ie law' .An analysis of the mod e rn proce

-dural law in legi sl at ion as weil as criminal and eiv il jurisdic tion is

unfortu-nate ly be yond the scope of this arti cle. He re only piec em eal info rm at ion form ing the basi s of such an ana lysis can be collected and indicated. R egret-tably , in his richl y docu m ented analys is of the application of Islamic law in Saud i Arabia, Fra nk Voge l doesnot refer to the role of female witnesses. This

would have been of spec ia l inter est, because the Saudi jurisdiction seems to

rely hea vily on Ibn Taymiyya and Ibn Qaiyyi m al-Jauziyya , the two hauball

jurists arguing in fav our of more equa lity for femal e witnesses". However, cons idering the conse rvative posit ion of Saudi Arabia in family law and legal ques tio ns conce rn ing the positio nof womenin Saudi Arabia women are even proh ib ite d to drive - it is not very likely tha t a single womans testirnony is

accepted in Saud i courts. In Tunisia n law, female and male witness es are

69 QuotedinAli(note3) 7I. 70 Ali (note3) 71.

71 Fadel(note62) 185-204(188-194).

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100 Shart a and PrivateLall'

equa l" . Stephan ie Wa1etzki, however, reports that in a case of marriage in Bardo in 1994, the judge rejected a female witness and summoned two fcma1e witnesses". The 1aw onevidence in Pakistanformerly made no reference10any such conditio ns, and the evidenceofmale and femalewitnesses was,according to Sardar Ali, alway sconsidere dequal. The periodofislamisation inthe 1970s made this equality a thing of the past. However, acco rding to Ali, the law of evidence has never yet been invoked in a court of law. Ali takes this as an argument for the strength of an 'operative Islamic law ' that has evolved over the years.Shewams,however,that althoug hthe lawdevaluing theevidence of a woman hasnever been invoked , this is no assurance that it will not be put to suchuse inthe future, leaving women in a very uncertain andindee dvulnera ble position withregard totheir legalpersonhoo d";

InIran, Art. 73 ofthe Penal Code of 1991 requiresfor the proof of zinä four male witnesses or three male and two female witnesses.The lran ian legislator thus followed a minority opinion of the shf Tmadhhab.Outsi de of penal law, the testimony of a woman isconsidered equa l to thatofaman76. In their analy -sis ofIslamic law inSudan under Numayri,LayishandWarburg state thatsect. 3 of the Sudanese Evidence Act of 1983 clearly manifested the norm that a woman's testimony is tantamountto halfthat of aman ' s and thisnorm is also app1iedin practice.On issues of criminalprocedure, according to sect. 316(2) ofthe Penal Code of 1983,four male witnesses are required whilst women's testimony is not accepted at all. The code does not mention whether the wit-nesses must bc male or female, appare ntly because this is not necessary given the known Sharfa norm and the Judgements Basic Rules Act of 1983, whic h provides thatajudge shall presum ethat the legislator sdid notintend to contra-dict the Shart''a".As women have been trained in Sudan to becomejudges in criminal case s aswell", thiswould mean thatwomen could be judges in cases where womenwere notadmittedaswitnesses.

Perhaps better than anything else, this situation prevai ling in Numayri's Sudan demonstrates the incon sistency of 'operative Islami c law ' and the discrepancy between different interp retation s, caused on thc one hand by the inherent flexibili ty of Islamic law and by the social, economic, and politica l conditions for apply ing a modern lawon the other. Especially in cases where nass is given, it seems difficult to find solutio ns on a level of intellectual disco urse for ensuring the consis tency ofIs1am ic law and the mies of gender equalityaslaid downin the UDHR- to whichallMuslimcountries arc signato

-73 Waletzki, Ehe und Ehescheidung in Tunesicn: Zur Stellung der Frau in Recht lind

Gesellschaft(200 I) 156. 74 Waletzki(note73) 156. 75 Ali(note3) 102-103 .

76 Tellenbach,Stra fgesetze inderIslamischenRepubli k Iran(1996) 14.48.

77 Layish/Warburg (no te 46) 252. 78 Layish/Warburg (note 46) 255.

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ThePosition of Women in the lslami cand AfghanJudiciary 101 ries. The example of Tunisia shows that even where the legislation adheres to this standard of equality, juridical practice may be different. However,as Ali states for Pakistan, an important dimension of 'operative Islamic law' at the domesticlevel is the use of international human rights standards". This is espe -cially applicable to Afghanistan,where in the coming years the legislation will have to revise the whole body of existing statutory laws in the light of the new constitution, which includes adherence to such international conventions as um·IR and CEDA W as weil as to the religion of Islam. As has been shown above, the aim of c1assical Islamic procedural law is the implementation of justice. At the beginning of the 20. century, the abandonmenl of the classical

system of judiciary consisting of the qädä' without any other institutions of appeal was not considered to be a problem in achieving this aim and imposing a

modem system of jurisdiction. In almost every Islarnic country, a sequence of courts can be found today. Furthermore, no substantial arguments can be brought forward agairrst women as judges.This could pave the way for wornen to being accepted as full witnesses in procedural law. Justice, it seerns, can only be archieved with the full participation of wornen. Fortunately, however, the irnplementation of the equal status of a female witness is guaranteed in Afghanistan, because the 2004 Constitution itself guarantees the equality between rnen and women before the law.