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PP RUEHDBU RUEHPW
DE RUEHBUL #0868/01 0951616
ZNR UUUUU ZZH
P 051616Z APR 09
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC PRIORITY 8263
INFO RUCNAFG/AFGHANISTAN COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 03 KABUL 000868 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: KDEM PGOV AF PREL PHUM
SUBJECT: SHIA FAMILY LAW DETAILS 
 
REF: A. KABUL 837 
     ¶B. KABUL 845 
 
¶1. (SBU) SUMMARY.  The US Embassy has translated some 15 
articles of concern in the Shia Family Law signed on March 31 
by President Karzai (ref A).  See para 4 for that 
translation.  The basis for such a law is found in Article 
131 of the Afghan Constitution.  At an April 4 meeting 
between the diplomatic community and the Ministry of Justice, 
Justice Minister Danesh asked foreign governments to review 
official translations before commenting on the legislation 
(ref B).  Karzai has directed the MoJ to review the 
legislation for possible conflicts with the Afghan 
Constitution or international protocols on human rights 
signed by Afghanistan.  SRAP Holbrooke raised this issue with 
Karzai today.  Details of that conversation will be reported 
septel.  End Summary. 
 
Current Status of the Law 
------------ 
 
¶2. (SBU) The law is currently under review by MoJ and not yet 
published in the government's official legal gazette (similar 
to the US federal register).  Opinion is divided over whether 
the law takes effect after the president signs the 
legislation or whether the act of publication brings the law 
into force.  The law's final article (253) states "this law 
will be implemented after its approval and should be 
published in the official gazette."  Deputy Justice Minister 
Hashimzai told EmbOffs he believes this ambiguous wording 
would allow some to argue the law was effective upon the 
President's signature, but Karzai could still withdraw the 
law up until the time it is published in the official 
gazette.  Other legal experts have disputed this position or 
said the question has not yet been resolved by the country's 
judicial system.  Several embassies, including the US, have 
requested that MoJ delay publication of the law in the 
gazette. 
 
¶3. (SBU) There is confusion over which law is the final 
version.  A USAID-funded parliamentary assistance 
organization provided Parliament's final copy to the Embassy, 
which includes four changes (such as removing an article 
legalizing temporary marriage) made by Parliament's Lower 
House before both houses referred the legislation to the 
Supreme Court.  However, as the legislation's chief 
supporter, Ayatollah Muhammad Asif Mohseni has demanded the 
original legislation be published without Parliament's 
changes in order to respect Shia tradition.  Given irregular 
legislative procedures in passing the law, it's possible 
Mohseni's influence could lead to a reversal of some or all 
of Parliament's amendments.  In addition, Education Minister 
Farooq Wardak, a close advisor to Karzai, told one Canadian 
diplomat that Article 122 (marriage of a minor by a father) 
was removed from the version signed by Karzai.  A 
Dari-language copy of the law with Karzai's signature we 
obtained from a Palace source, however, includes that article 
as well as the changes passed by Parliament.  These reports 
demonstrate confusing and non-transparent procedures that are 
common to Afghanistan's legislative process, and complicates 
outsiders', and some insiders', abilities to understand the 
overall situation. 
 
Notable Articles of Concern 
------------ 
 
¶4. (SBU) The following articles and sections of those 
articles may violate human rights protections in the Afghan 
Constitution and international protocols signed by 
Afghanistan, or have raised other human rights concerns among 
Afghan civil society groups and the international community. 
The below translation was provided by Embassy local staff. 
 
Article 30: 
(1)  A mentally ill person is a person who lacks a sense of 
understanding in all affairs of life. 
(2) The possessions of a mentally ill person as defined in 
paragraph 1 of this article are considered forfeit in assets 
and financial rights. 
 
Article 45: 
(1) Guardianship, in accordance to the provisions of this 
law, is the power and authority to perform duties for others 
in limited circumstances.  Such a person is called the 
guardian.  The person in custody is called the ward. 
(2) Guardianship consists of the following two types: 
1- General Guardianship: is an authorized judge for the 
person who lacks ability or has mental weakness. 
2- Specific Guardianship: is the appointment of some specific 
persons for specific affairs.  There are two types: 
Compulsory guardianship: is guardianship by father and 
paternal grandfather. 
 
KABUL 00000868  002 OF 003 
 
 
Appointed guardianship: is a person appointed by the father 
or paternal grandfather for the affairs of the ward. 
(3) The guardianship by a father or paternal grandfather is 
in accordance with the law and has no requirement by the 
court to implement them.  If the provisions of paragraph 1 of 
this article are not there, the Court then appoints a team 
for the ward (child).  (Embassy comment: Article 45, along 
with Article 47, give men superior custodial rights over 
women, in violation of the Constitution's Article 22, which 
guarantees equal rights.) 
 
Article 47: 
(1) Guardianship of children is granted to the father and 
paternal grandfather, both of whom are of the same value, and 
do not cancel the effect of each other. In case of 
disagreement on the question of guardianship by father and 
grandfather, the guardianship by grandfather holds prime 
importance. 
(2) Father and grandfather, in the absence of each other, can 
authorize someone to be the guardian of the child.  If one of 
them remains alive, another guardian cannot be chosen. 
 
Article 99: 
(1) The marriage of a mentally ill minor (male or female) may 
be decided by a compulsory guardian, authorized guardian, or 
court. 
(2) A mentally ill minor (male or female) has the right to 
reject a marriage that has been arranged by a compulsory or 
authorized guardian. (Embassy comment: this article allows a 
father/grandfather to compel the marriage of a mentally ill 
minor.  It is unlikely a mentally ill minor would have the 
capacity to exercise the right to reject a marriage given in 
Section 2.) 
 
Article 100: 
Intercourse with one's wife before puberty is prohibited.  If 
virginity is lost due to intercourse, the person who has 
conducted the intercourse shall be responsible to financially 
support the woman for the rest of her life, even if she gets 
divorce. (Embassy comment: this article implies marriage to a 
post-pubescent minor is acceptable.) 
 
Article 101: 
If an underage girl is raped or loses her virginity due to 
intercourse, the perpetrator shall pay the equivalent of a 
woman.  This provision does not apply to an adult woman's 
loss of virginity either through rape or legal intercourse. 
 
Article 102: 
(1)  The marriage of a virgin girl depends upon her and her 
compulsory guardian's will.  (Embassy comment: this article 
requires a guardian's consent to marry.  No age limit for 
women is imposed on this right of control given to male 
guardians.) 
 
Article 122: 
(1) If a minor's marriage is arranged by the father or 
paternal ancestors, the dowry is paid by the child.  However, 
if the child is unable to pay then a compulsory guardian 
shall pay.  If the compulsory guardian dies and he has yet to 
pay the dowry, it is then taken from the deceased's assets. 
(2) If the father pays for the dowry of a minor female and 
that child reaches puberty without sexual intercourse and 
divorces, the husband can demand half of the dowry back. 
(Embassy comment: this article condones marriage of minors.) 
 
Article 132: 
(3) A couple should not commit acts that create hatred and 
bitterness in their relationship. The wife is bound to preen 
for her husband, as and when he desires. 
(4) If the husband is not traveling, he is bound to have 
intercourse with his wife once in each four nights.  This 
requirement is not enforceable if it harms one of the spouses 
or if one of them has a sexually transmitted disease.  It is 
the duty of a woman to defer to her husband's sexual desire. 
It is the duty of a husband to not delay intercourse with his 
wife for more than four months without his wife's permission. 
(5) If a man has more than one wife, it is his duty to give 
one night to each of them in the course of four nights, 
according to the provision of paragraph 4 of this article. 
One wife's right can be bestowed to another if the other 
wives and the husband agree. 
(6) A husband can provide more than one night to each wife, 
on the condition that other wives are not harmed. 
(7) A wife is bound to do only the household work at home 
that has been assigned to her by her husband, as condition at 
the time of wedlock.  She is not bound to do anything else. 
 
Article 133: 
(1) A husband is responsible for the family's financial 
maintenance, unless this right is given to the wife by the 
decision of a court due to husband's mental illness. 
 
KABUL 00000868  003 OF 003 
 
 
(2) If a wife is employed before marriage and the 
continuation of the job is conditioned at the time of 
wedlock, the husband cannot oppose the wife's employment 
after marriage, unless it is opposed to the interest of the 
family or of one of the spouses. 
(3) A husband can prevent a wife from any unnecessary 
activity or those activities for which she is not bound by 
Sharia and are not contradictory to customary 
responsibilities. 
(4) A wife cannot leave her house without her husband's 
permission, unless she has an urgent problem.  If there is an 
urgent problem, she may leave the house without her husband's 
permission only to solve the problem. In case of disagreement 
the issue shall be resolved by a court. 
(5) A wife is the owner of her assets and can possess them in 
any form without her husband's permission. 
 
Article 143: 
The presence of the following disabilities and illnesses are 
pertinent to the cancellation of the marriage contract on 
condition that the man was not aware of these elements in 
advance: 
Qaran: the presence of extra flesh or bone in the woman's 
vagina, even if it does not prevent intercourse or pregnancy. 
Afza: the combination of urinary and menstruation ducts or 
menstruation with excrement. 
Other disabilities:  having a physical disability, blindness 
in both eyes, insanity, leprosy. 
(2) If these disabilities, according to the provision of 
paragraph 1 of this article, appear after the marriage, the 
husband does not have automatic grounds to divorce. 
 
Article 161: 
A divorce should be given in front of two righteous men and 
both should hear it.  If it is known later that one or both 
of them were not righteous then the divorce is considered 
canceled. 
A righteous person obeys the orders of Allah for His fear. 
 
Article 177: 
(4) The duties of the wife are deference or willingness to 
her husband's sexual enjoyment and not leaving the house in 
the absence of urgency or emergency without her husband's 
permission.  Violation of any of the above is considered a 
disobedience to the husband. 
 
Article 190: 
(4) A mother can keep custody of a daughter up to 9 years of 
age and a son up to 7 years.  After the completion of that 
age, fathers may take custody of daughters and sons, unless a 
court decides otherwise. (Embassy comment: this article, in 
violation of Article 22 of the Constitution, gives unequal 
rights to men and women by giving the option of sole custody 
of children after the listed ages only to men.) 
 
Article 226: 
A husband can inherit all inheritance from a wife, but a 
woman may inherit only the moveable inheritance and cannot 
inherit the exact price of real estate even if the land is 
pure or covered with construction, trees, or agriculture. 
However, she can inherit value from the construction, trees, 
and other fixed assets.  The family of the husband can pay 
the wife the equivalent value. 
RICCIARDONE