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Sep 17

Written by: Diana West
Saturday, September 17, 2011 3:24 AM 

From the Guardian, an essay by Naina Patel, a 30-year-old barrister who spent last year bringing law to Afghanistan. Only what kind, pray tell?

During the year, I began to understand how fortunate we are to have only one set of laws in Britain. Afghanistan is really three legal systems within one: the state system, dating back to the reign of King Amanullah, inspired by the codes of Turkey and Egypt; sharia, founded on ancient religious texts and their interpretation; and customary law, such as Pashtunwali, the strict honour code of the Pashtuns. Only the first two of these are explicitly recognised in the country's constitution. Still, the result is a confusing labyrinth of rules and norms, which only heightens the challenge of providing high quality and consistent justice.

The problem was illustrated in one of the training sessions held on criminal law and procedure. A heated debate erupted between an elderly Pashtun judge and a persistent young man from the national human rights commission. "Why were women in prison for running away from home?" the young man asked. It was not a crime that appeared in the penal code. "Sharia," answered the judge from under his imposing turban, with a glance that told the young man not to ask any more. A worried training coordinator, concerned at the way this exchange was going, decided to call a tea break while we discussed with the trainer how to respond. Understanding the importance of clarifying the issue, the trainer spent the remainder of the afternoon with both the code and religious text, explaining where one began and the other ended, and the centrality to both of asking why the woman had run away – adultery was clearly problematic, abuse was a very different matter. And custom, he made clear, had no basis in law.

No further elaboration follows. The way it is phrased, Patel makes it sound as if it is one thing in Afghanistan under the law -- as made enforceable by Western blood and treasure -- if a woman runs away for "adultery" and another if she runs away for "abuse." That in itself is already "problematic," as she might say. Under sharia, the two are usually intertwined; indeed, "adultery" is often a trumped up charge to rationalize abuse. Even more alarming, it sounds very much as if this Western "justice" project is also rationalizing both -- the continued subjugation women by Islam.

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