By Stephen Kaufman
Washington File Staff Writer

Washington -- Afghanistan's new constitution, while containing an article guaranteeing equal rights for women and men, as well as measures promoting human rights and democracy, does not entirely ensure protection from the types of abuses Afghan women suffered under the Taliban regime, according to Masuda Sultan, a program director for the New York-based advocacy group Women for Afghan Women.

Sultan, speaking February 10 at the Woodrow Wilson International Center for Scholars in Washington, said the equality clause is a "huge victory" for Afghan women.

But she noted that the constitution also contains an article declaring that no law can be contradictory to the beliefs and practices of Islam, adding that many of the Taliban-era bans on women's freedoms of movement, education, marriage, and employment could continue to have legal sanction since the former regime often justified the measures according to their reading of Hanifi jurisprudence.

In a February 24 interview with the Washington File, Afghanistan's Ambassador to the United States, Said Tayeb Jawad, countered that the new constitution sets forward clear priorities of how legal decisions will be made, which would limit the possibility of discriminatory measures being upheld.

"[T]he way it works in any given case is, first the constitution applies, then the civil law system of Afghanistan, and then if there are no provisions, the Hanifi jurisprudence will be applicable," he said. He added that the constitution institutionalized the Afghan civil law system, including penal and commercial codes, which are now being revived or reformed.

Atiq Sarwari, a program associate at the Wilson Center's Kennan Institute, said the new constitution generally embraces human rights and democracy, but "no question about it, this is also a religious constitution."

"The difficult part is how to reconcile the two in the constitution and offer a way to, at least in a moderate way, provide for the protection of some of these provisions," he said. But the extent to which Afghan authorities manage to do that is very "vague, ambiguous and open to a wide range of interpretation," he added.

Both Sarwari and Sultan foresee that the document will be tested in Afghanistan's courts as women seek to claim their rights. "There is no other mechanism in place to deal with these issues except the Supreme Court," said Sarwari, but he expressed his opinion that the institution is unaccountable to other branches of government and still has many conservative judges, including some who served under the Taliban.

To illustrate this argument, Sultan recounted the recent case of a female singer's appearance on Afghan television in January, the first such broadcast in twelve years. She said the deputy chief justice of Afghanistan's Supreme Court had objected to the broadcast on the grounds that it was in violation of Islam. The Afghan Minister for Culture, however, noted that no such prohibition existed against male singers and said the broadcast was consistent with the constitutional article declaring men and women to be equal. Ultimately, Afghan President Hamid Karzai intervened in favor of the broadcast.

Sultan said she was concerned that eligible Supreme Court appointees could be trained in either religious or civil law, and that most have been trained in the former, which has no central accreditation system. "There's really no check on them," she said.

As a result, Afghan women could be faced with justices who are unsympathetic to women's rights. "We didn't want a constitution that's going to leave the struggle to the courts," she said.

"How does a woman ... do something that's considered contrary to the beliefs and provisions of Islam, [and] whose Islam?" she asked. "[T]he battle for that is really going to be waged in the Afghan courts."

Ambassador Jawad told the Washington File that the constitution calls for the Supreme Court to have nine new judges that will be appointed by the president, subject to approval by the Afghan parliament.

Currently, the country is in a transitional period in which most of the existing institutions are being reformed to comply with the constitution's new requirements, he said. In order to help smooth the transition, initial judicial appointments will cover periods of three, six and nine years, and then all subsequent appointments will be for nine years.

Sultan said that she and Women for Afghan Women organized a September 2003 conference in Kandahar where 45 grass roots Afghan women leaders met to discuss the then unpublished draft constitution.

The result of the conference was a document entitled the "Afghan Women's Bill of Rights," which listed 16 articles that the delegates wanted to be included in the draft constitution. These would have given women full rights in marriage, divorce, employment, education, voting, inheritance, and property.

But despite expressions of support from the constitutional commission and President Karzai, the demands were not included in the document.

Sultan expressed her belief that the drafters of the constitution did not want to generate excessive controversy that would jeopardize the overall approval of the document. "They wanted to get this through very easily ... and this was the best compromise they could get," she said.

In defense of the final document, Ambassador Jawad said Afghan women delegates actively participated in its adoption by the Constitutional Loya Jirga.

"More than 20 percent of the delegates were women and they actively participated," he said. They introduced a number of significant amendments to the constitution, including one that requires that at least 25 percent of the members of the parliament will be women in Afghanistan," adding that very few countries "provide for such a high quota of women's participation in the legislative branch."