Interview with Nabila Nayeb Khyle the attorney lawyer in Women Support Organization or Medica Afghanistan and member of Drafting Committee of family law.
Thanks Nabila Nayeb Khyle the attorney lawyer in Women Support Organization or Mediaca Afghanistan.
What necessity caused that ministry of women affairs and civil community institutions decided for drafting a new law in spite of existence of family law appendix of civil law?
Thanks for your question, As we know apart from being a lawyer , when the community develops , new needs appears and the community requires new law because the previous law has not considered the current needs, when new law comes into existence it takes into consideration the new needs of the community to be answerable for the new needs.
Who has prepared the draft of new law and what are the standards?
The draft has been prepared by the Ministry of Women Affairs through cooperation of High Court, civil community and personalities of other organization by a committee including 11 women and 6 men.
What are the differences between new draft and family law appendix of civil law?
There are differences in some of the issues. According to civil law put in force in year 1355 solar year the marriage age was 16 years for the girl and 18 years for the boy but in new law no discrimination exists and the age of 18 complete years has specified for boys and girls. As we see in our culture, the people do not let the boys to choose the spouse much less to girls, in the new law the equity has been considered into account and right of choosing the spouse has been given to both boy and girl. Marriage plurality has been allowed based on four following Quran conditions: Justice among the wives, ability of preparation of the proper alimony for wife and children, being abortive the wife with no hope of pregnancy, being the refractory the wife with no hope of healing. The four mentioned conditions have been also mentioned in civil and family law and are according to the Quran. According to the new law nobody can remarry under other pretexts or for the sake of violent desire. The other change which is very beneficial to the women is this that condition in marriage contract has been set in the new law, It means when the women sits in marriage contract she can put condition and can say that I put a condition if my husband remarry the right of divorce will be mine hereby the wife herself becomes the attorney of her husband divorce. The age of fostering in civil law was 9 years for girls and 7 years for boys but I new law this age was specifies 12 year for both boys and girls. Age of 7 years is an age that the child can put distinction between right and wrong and starts going to school. The separation of child from warm bosom of the mother in this age and the case of divorce between mother and father the child is injured. The separation creates spiritual confusions for the child due to which it cannot go to school. But in new law the fostering age is 12 years that the child is ready to accept the challenges, there are more changes as well that I cannot mention all of them.
Why the legal capacity has been decided 18 years for boys and girls?
In article 22 of constitution we read that all subjects of Afghanistan are equal in front of law namely they have equal rights and responsibilities, but discrimination was in civil law in which the girl should complete 16 years and boys and should complete 18 years for marriage. We effaced this discrimination and specified the age of 18 years for boys and girls. The other standard is this that by 18 years the girls can finish their baccalaureate studies and then can marry, because we some families that were given their daughters to marriage when they were in seventh or eighth grade that the girls would face with numerous difficulties and could not continues her studies as properly as she could in her fathers’ house for that reason they should complete age of 18 years which very useful for the women.
Now the law is in the elementary phase, considering the existed acute family problems in Afghanistan, what is your anticipation will this law solve these problems?
Family law is an effective and supporting law for women and children it covers all the family, but we see that due to indecent custom that we have the women and children are mostly exposed to violation .The law will support the women and children and will bring positive changes .The law of year 1355 was in big volume and the families cannot study it , the people don’t know which part is about the families as many issues have been inserted in. If the family law be written concisely and be given to the people, all the people can use it and can be effective.
Ministry of justice says that 90 percent of draft of new law regarding the family is extraction from civil law, if there were defects in civil law, ministry of women affairs and civil institutions could suggest the amendment of the law, not to include 210 new articles reflected in civil law in the new draft with same orders ?
If we suggest the amendment, there was less hope for approval. High court would definitely reject it. Due to this reason ministry of women affairs wanted to prepare a law that should be with small volume, should be understandable for common because vague and complicated words had been inserted .There are legal words that a common person cannot understand them to defend its rights or request its rights from the court . I am a member of this committee and we prepared in simple and fluent language. The volume is small and we can publish in ministries, universities, schools and media and distribute in the schools and ministries. As an attorney lawyer I feel bad that there are women who don’t know what rights God and Islam and the law has given because our civil law and other laws are extracted from the Islam and has accordance with Islam . The law which is not accordance with Islam is not enforceable in our country. The rights that Islam has given to women has been has been clearly written in the law .Most of the women don’t know about their rights for instance when a woman is exposed to beating or violation , instead of going to judicial and justice places for complaining where punishments for all instances of violation are existent , she see around herself and say that nobody is there to support me , I should flee, when she flee from the husband’s house and e enters a stranger’s house e, the first word that her husband would tell “My wife has become immoral and has fled from the house”. The husband surrender his wife to the police, and herby the destiny of the wife damages. Culturally when a woman goes to police, court or being imprisoned in women jail or confiscated she would not be acceptable again for the family, the family tells her you were a confiscated or imprisoned woman we will not let you come in. Hers is the situation that the women remain unaware of their rights. If the law be given to every family there would be at least one literate person to read it and state its benefits to other women, to the neighbors, relatives, sisters and hereby all the women can get awareness about their rights. They will not perpetrate the crime, they will defend their rights and can appeal to the court comfortably and tell that my husband has beats me , the court calls the husband and gives her right. All the problems arises from the unawareness of law , legal and Islamic rights.
Considering the believes which are existent and dominant in the community , the draft is in the elementary phase what is your expectation will this draft be approved, signed, and become dominant finally , what hindrances do you see in the way of approval, signing, and becoming dominant of this law?
Our community is a man lordism community, it is being tried that the Hadiths( sayings of Prophet Mohammad Peace be upon him) be interpreted for the benefits of men and the law should be in the favor of the men the rights of women and children are trampled, for that reason the draft has been postponed we hope the ministry of justice approve the draft and send to the parliament, there are bright people in parliament who always works for the children’s and women’s rights, we hope they approve it send to president Karzai and he sign it, because for two years work was going on the law, this is not an ordinary law or hackneyed thing, skilled lawyers of Egypt, Maghreb and other countries has supervised the law and has removed all the difficulties and their ideas have been inserted in.
You told that that there are light people and partial to this law in the parliament, do you think they are in the level that they would pass the by casting positive votes?
Well, we never thin negatively, as much as the human being is positive it will be more hopeful, and the life will be pleasing and decent. We have hero women in the parliament that always defend rights of the women and children. Yes we believe that the law will be passed by parliament and the people will get it. If everyone think that this law is useful for myself ,for my sister, for my child , positive results will come out.
A campaign has been led for the amendment of the family law, can give us some information about this campaign that who has led this and what was the purpose?
The campaign has been arranged by civil society and the offices that are working in the field of women rights and children rights and continued for 12 days. The media had a good role in the campaign. The people who were partial to women and children rights gave interviews through radio and televisions and were able to state the benefits of the family law. They made clear to the people if this law be supported by people and people know that the law is beneficial to them the law will be passed soon.
The article 54 at constitution, make the government obligated to support the families , what do you think how much the government has enforced this basic order?
We don’t want to slight the government because the government is also trying. The two decades of fight has imposed the people and the government to be back warded namely we could not stand on our feet, but government has worked for support of families for example we have family court for legal issues of the families. We have rights’ offices in all 17 districts of Kabul when a wife want to apply for separation the offices of rights help them. There are four types of separations: Separation due to harming, if the husband harms or beat the wife; Separation due to absence of the husband if the husband is absence for more than three years; Separation due to defect if the husband has a defect for example if he is abortive; separation due to disability on preparation the alimony for wife and children. The women who want to separation they apply to the rights’ offices, these offices help the women and refer the case to family or civil courts, the courts call the husband and rights of women are given. But if a woman wants separation due to small and pity issues and destroy the family in that case the court sends two mediators from families one from each side to settle the issue, If there is nobody in the family of two sides to act as mediator the other mediators are chosen who are well aware of life condition of two sides. The mediators should be well wishing and benevolent people not wicked people. The assigned people mediates between two sides and solve the problem. Destiny of child is very important .When separation happens, they both (Wife and Husband) keep their way but children are injured strictly, for that reason the government tries to prevent the separation. The Islam is also strict against separation and is partial to mediation. If it was seen that the issue was as big as the wife and husband couldn’t continue the life together the court orders on the separation. The government supports the family as in article 54 it is said that the government will support the family corporally and spiritually. There are health facilities which give consultations to the women during pregnancy and recommend the families that the standstill between deliveries should be three years. The health facilities also gives anti pregnancy medicine freely and help them in health facilities, as I am a lawyer not a doctor to know more about but I know that government helps the families.
At present there are acute family problems in Afghanistan, what do you see these problems in?
Emerging the problems relates to poverty and illiteracy which is very common. We see in our country that majority of people are illiterate and are involved in poverty, the government has responsibility to create job opportunities through establishing the factories. The government can develop its capacity as the ministry of women affaires has been able to solve some of the families. The government can establish some institutions for solving the difficulties of the people. The government can have role in raising awareness level of the people on legal and Islamic rights through media, radio, and television and through other educational programs throughout the country. If they can not eliminate the poverty at least they should defend their rights and can get their rights legally.
Which ways are existent for the enforcement of this law, and which ways will be used in order to the people get well awareness about the law?
The 12 days campaign had good role in the raising awareness of people. In order to the law be supported by the people and be enforced, the people who are working in this filed can inform the people about benefits of the family law through media and radio or through their friends.
Considering the dominance of the customs and existent credence in the community what do you think will the law be welcomed by people especially by the people of remote areas where the customary issues are common when the law be approved, signed and enforced?
I would like to define the law; law is an explicit prescription which is enacted by capable authorities and its enforcement is linked with compulsion, namely people agreement is not required that they whether they implement or not the law on themselves because when a law enacts it gets compulsory shape and then be implemented on the people whether they want or don’t want.
Thanks is it clear when the law will go to parliament, how long it will take to be signed and enforced if the law be passed by the parliament?
We hope that ministry of justice sends the law to parliament as soon as possible and the parliament approves it and the presidents sign it.
Thanks Miss Nabila Nayeb Khyle the attorney lawyer in Women Support Organization or Midika Afghanistan.
