بسم الله الرحمن الرحیم (In the name of God, the most merciful, the most compassionate). As each speaker before the legislative committee began his presentation with these words, it was readily apparent that religion would play a large role in the decision-making process. The committee, composed of approximately 20 women and 1 man, all legislators in the Wolesi Jirga, or lower house of the Afghan legislature, were considering whether a female should be appointed to the Supreme Court. As a fraternity brother of mine astutely recognized, this took the United States 189 years; the Afghans were trying to do it in year 6 of their young republic.
All speakers, both those for and against the proposal, agreed that Article 22 of the Afghan Constitution mandated non-discrimination among Afghan citizens and that this included a prohibition on gender discrimination. However, the question quickly devolved into arguments regarding whether Islamic law permitted a woman to assume such a lofty position as Supreme Court Justice. The Afghans follow the Hanafi school of Islamic Jurisprudence, the largest in Islam. It is considered one of the more conservative schools of Islamic legal thought.
In hearing the arguments in favor of a female appointment to the Court, I was not surprised to hear arguments that the Quran posed no prohibition on the proposal; after all, if it was clearly prohibited we wouldn’t be there arguing the point, right? A religious scholar argued that the western concept of gender equality (his words not mine) is not proscribed by the Quran, Sunnah, or Hadith. Of course, the Quran is the holy scripture of Islam, something most of us are familiar with given the recent actions of some jackass “preacher” in Florida (one of our bases was attacked as a result of that episode and several UN workers died in Mazar-e Sharif).
Sunnah refers to the words and living habits of the prophet, Mohammad. Basically, it includes anything he said, did, or showed approval/disapproval regarding. Hadith is similar in the sense that it consists of narratives of what the Prophet said as passed down through followers of Mohammad. The exact differences between the two are disputed within Islamic jurisprudence, but the varying schools of Islamic jurisprudence mainly differ on the validity of particular Hadiths. Thus, the Hanafi school may reach a different conclusion on a particular issue than other schools of thought.
Aside from demonstrating the compatibility of gender equality with Islamic legal thought, the supporters also pointed to Afghanistan’s republican form of government. I don’t know why, but I was surprised to hear this argument -pleasantly so, but surprised nonetheless. Conceding that the Afghan Constitution did not require a quota for women, the argument was that the Constitution required consideration of women’s issues. Moreover, female representation would enhance rule of law since it would demonstrate to half the population that the system understood their issues. This, it was hoped, would bring legitimacy from half the population to a system that desperately needs it.
The opposition seized on this concession by supporters that Islamic law controlled the issue. On this, the opponents are absolutely correct as Article 3 of the Constitution says that no law can contravene Islamic law. The first opponent, a religious scholar, argued that justice is paramount in Islam, as it is in the Constitution, but justice does not necessarily imply equality. The Quran gives women more rights than men, he said, but there are differences. These differences lay in a woman’s emotional ability (his words not mine; damn, I don’t need half my readers pissed at me). He felt that the inability of a woman to control her emotions prevented her from issuing fatwas and that such emotive aspects would cloud her judgment. He said that although he may sound like Taliban, his research proves he’s right. I immediately thought that the least of his concerns would be an association with Taliban thought if my wife or some of my female friends from law school were in the room.
The next guy, the head legal advisor to the Wolesi Jirga, also came out against the proposal for many of the same reasons the first guy did. He began by saying that “the standard for us is not western standards, it is Islam.” Fair enough I thought, but equality is a natural, God-given right (my opinion, google natural rights and you’ll see what I mean). He then called out the first speaker in support of the proposal in a classic ad hominem attack (really, a lawyer did this?). The first guy defended himself, but head legal advisor stood his ground and said that the first guy should relearn Islam so he could be a good Muslim. “I did not accuse you of blasphemy,” he said, but of committing a sin.” Wow, shades of neo-con accusations of un-Americanism toward Iraq war opponents.
Given this forceful argument in opposition to adding a female Supreme Court Justice, I couldn’t help but notice the irony in the fact that the nearly all female committee had their tea served by men.
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