Before discussing the states in question, it is worth mentioning two examples of the latest human rights violations in Iran. In the examples discussed below, the Iranian government suspends human rights by breaching provisions of the Iranian constitution. The use of judicial and military methods like prolonged imprisonment, forced confessions and the utility of legislative techniques aimed at reducing women’s civil rights, all contravene Iranian constitutional guarantees. According to unofficial statistics, there are more than 1000 political prisoners in Iran.[3] In contravention of article 37 of the Iranian constitution, political prisoners are often first tortured and then forced to confess. [4] One of the numerous female human rights activists in Iran, Bahareh Hedayat, received 16 charges for participating in a peaceful march. The charges vary from “Propagation against and blackwashing of the regime,” “Active participation in gatherings after the elections,” “Interviews with and news propagation to foreign press,” “Insulting the Leader,” “Insulting the President,” and “Mutiny and congregation and actions against national security”[5]. These charges are all in contravention of the freedom of assembly and association, and freedom of the press constitutional guarantees in the Iranian constitution (articles 24-27). The Iranian government’s denial of human rights also involves the tabling of legislation that severely undermines women’s civil rights.

A bill was proposed this month in the Iranian government which would give men the right to take additional wives without requiring the wife’s permission, as under current laws. The law would also impose restrictions on alimony for women.[6] This is another manifestation of the Iranian government’s undermining of its own constitution. Article 3, 9 and 21 guarantee the status of women and the need for special protection as a way to advancing their status.[7] Contrary to these constitutional provisions, the bill in question aims to limit women’s civil rights and is thus anti-constitutional. Despite gross human rights abuses by the Iranian government, numerous states in the last Universal Periodic Review on Iran effectively denied such abuses by failing to discuss them.

Among the countries that abstained from criticizing Iran’s deplorable human rights record was Pakistan who commended the “high standards set out in the area of economic, social and cultural rights”.[8] Bahrain, Sri Lanka, Lebanon, Venezuela and Libya recognized Iran’s commitment to promoting economic, social and cultural rights and Nicaragua acknowledged the country’s compliance with “several human rights treaties”. Qatar, Tajikistan, Kyrgyzstan, Malaysia, India and Syria noted the recent advances made by Iran in terms of the provision of welfare, education and the protection of refugee populations. Russia, Vietnam, Kuwait, Bangladesh and India abstained from criticizing and commended Iran’s progress, whether in combating illiteracy or in cooperating with international human rights bodies like the OHCHR.

While Iran’s trade partners maintain ambivalence towards the regime’s severe post-election crack-down, the remaining members of the delegation did not spare the opportunity to shame the Iranian government’s denial of human rights. Strong statements were made by Denmark, who expressed concern about the post-election crackdowns and cited reports of extrajudicial killings, rapes, torture and violations of the rights of freedom of assembly and expression, as well as thousands of arbitrary arrests. Chile was alarmed at the excessive use of force against demonstrators and expressed concern about the use of the death penalty. The remaining states were equally alarmed, expressing varying degrees of concern about the status of women and minorities, political prisoners, the treatment of detainees and Iran’s failure to comply with international human rights legislation. Given the gross human rights abuses, it is time international law proves its effectiveness as an enforcement mechanism for human rights. Clearly, the Iranian government has so far failed in enforcing its own constitutional provisions and has instead fixated itself  entirely on tightening its grip on power for as long as possible.

Indonesia is a country of over 230 million people, spread out amongst 17,000 islands and islets along an archipelago that stretches for more than 5,000 kilometres. The province of Aceh, lying at the archipelago’s most westward tip, is itself a diverse region, where some fifteen languages are spoken, and where, for the better part of 150 years, conflict and outright war have been the norm.

Islam came to Aceh in the 9th century. It has long been a unifying force throughout the country, but the Acehnese people in particular focus on Islam as a defining characteristic of their identity. As such, the creation of a system of Islamic law (Syariah in Bahasa-Indonesia) was a central factor of the peace plan agreed to by the Acehnese liberation group Gerakan Aceh Merdeka (GAM). However, it must be noted here that GAM was a purely secular movement, and that the achievement of Syariah was just one of many negotiation goals – and one that was proposed by the Indonesian federal government, not by GAM.

Following the signing of the peace agreement, the Acehnese government highlighted the need to draft a series of fifty-nine qanun (pieces of legislation influenced by Islamic principles and vetted by the religious leadership of the province) to begin the process of re-organizing the Acehnese legal system into a system of Syariah law. Two of the qanun called for were a consolidated criminal code and a women’s empowerment law. Both of these pieces of legislation were originally slated to be tabled before the Dewan Perwakilan Rakyat (DPR, translated as the “National House of Representatives) during the 2007 calendar year, but they did not appear until 2008. As predicted by many, they were not voted upon until this year.

In brief, the women’s empowerment law was a breakthrough document for this part of the world. It was written after widespread consultation amongst political leaders, women’s activists, international government organizations, and religious leaders. It was meant to dispel the myth that Islamic principles cannot help to foster basic human rights. From the very beginning, the drafting of this qanun had a great effect upon other pieces of legislation being drafted, including the now infamous criminal code. The women’s empowerment qanun specifically promotes education, health, and economic and political integration rights, among other things. At several times during the drafting of the criminal code qanun, legislators were forced to re-draft sections to bring them into compliance with the women’s protection qanun, thus demonstrating that the women’s rights lobby was far from weak.

So how did the offending provisions of the criminal code come to pass through the DPR? It is very likely that the law passed because of a mixture of reasons. Firstly, there is no doubt that many Acehnese are strict adherents to Islam, and that at least in part, the proposed bill was popular amongst some of the electorate. Secondly, harsh physical penalties for crimes are common in some regions of Southeast Asia, particularly in Singapore and Malaysia. Third, adultery is indeed viewed in the Acehnese culture as a crime, akin to rape in terms of seriousness. Fourth, and this phenomenon probably merits much more serious study – Aceh has been inundated with aid workers, foreign diplomats, and Indonesian federal officials since the tsunami disaster of 2004 and the 2006 peace deal. The lame-duck legislators, recently voted out of office in provincial elections, probably took this an as opportunity to take a (cheap) parting shot at the outsiders present in Aceh, the ever popular Acehnese Governor, Irwandi Yusuf, and the incoming and more moderate government. Despite federal laws promoting women’s rights, and Indonesia’s obligations under several international treaties and conventions, local legislators may have passed this law in order to take a ‘nationalist’ stand.

A fifth reason that this law may have passed also deserves a more nuanced analysis. There is serious speculation amongst scholars of the Acehnese legal system that should a constitutional challenge to the system of Syariah be mounted, the entire legal system of Aceh could be wiped away by the federal courts. This is particularly true of the laws covering criminal law (jinayat in Bahasa-Indonesia), which Aceh scholar Hasnil Siregar believes is very limited by a presidential decree from 2001. It is at least possible in theory that some lawmakers supported this law because they knew it would be struck down, along with the system of Syariah.

It is very important to note that some of the ruling elite of Aceh were not happy with the way the federal government implemented Syariah. Some would have preferred an open referendum process. The passing of such a tough law, one that would violate Articles 18 and 28(d) of the Indonesian Constitution, could provide activist Acehnese lawyers with all of the ammunition they need to poke holes in whole swaths of Acehnese legislation. Article 18 does not allow Aceh the flexibility it would need to pass such laws, as it limits such legal autonomy. Article 28(d) provides Indonesians the right to “legal certainty”, and the proposed law would have contravened this article. Sulistiowati Irianto, Director of the Centre for Women and Gender Studies at the University of Indonesia, also claims that the invoking of Syariah as it stands now violates Article 27 of the Indonesian Constitution, which calls for “equality before the law.” Reconciliation between Acehnese qanun and the Indonesian Constitution has not yet occurred.

Lastly, it is very important to point out that an alarmist Western press may have once again missed the mark in assessing the characteristics of Syariah. Professor Arfian Shah of Institut Agama Islam Negeri Ar-Raniry (The State Institute of Islamic Studies) in Banda Aceh has stated that there seems to be a misinterpretation of the word rajam as it is used to describe punishments for adultery. Stoning is theoretically a possible interpretation, but by merely honing in on and defining a meaning for the word in the law itself, lawmakers could have avoided this uproar. One need only look to other established qanun in Aceh to see that caning is the most severe form of punishment currently permitted. Even then, caning is usually offered up for convicted offenders in lieu of paying heavy fines or serving jail time.

Of course, this entire discussion is now moot. Governor Irwandi Yusuf exercised his executive prerogative and has refused to sign this bill. The coming of a new DPR session, with a newly elected body, hopefully means that all of this can be rectified. Aceh made some very progressive leaps towards offering equal rights to all of its citizens. In practice, women are highly respected in Acehnese culture and history. Solidifying this in the new legal system, after a tumultuous era of conflict, is very important to peace building in Aceh. However, Western observers should take heed. If the New York Times and similar publications do not take the time to understand the reasoning behind the Acehnese legal system, they end up sounding alarmist, and run the risk of isolating the Acehnese people when the West should be attempting to become closer to potential political allies in a moderate Muslim nation with strong geopolitical pull.

[The author lived in Banda Aceh, Indonesia working on legal development projects from May-August 2008. He is the author of “The Struggle for Women’s Rights in Nanggroe Aceh Darussalam Province: A Look at History and Emerging Legislation”, published in the Singapore Law Review, December 2008.]

Increasingly, recent scholarship on Afghanistan has suggested that the way forward for the country’s legal system is greater cooperation between state and customary laws (2). This assertion simply reflects the reality that most Afghans, particularly those in rural areas, have far more trust in legal mechanisms at the local level than at the state level. In a 2008 survey done by the Asian Foundation, less than half of respondents trusted state courts, versus customary mechanisms, which have the support of the overwhelming majority of respondents. As of 2007, up to 80% of legal claims were being handled by customary dispute mechanisms. Sharma & Sen show why customary mechanisms yield so much trust and confidence:

“First, it is focused on substance than on procedure. Second, it aims at compensation and reconciliation and not at punishment. Third, the concerned parties believe that justice is being done.” (p. 49)

Allowing customary law to operate within a state system is not an entirely new concept. Several other countries have legal systems where authority is shared with customary rule of law. In Bangladesh, India and Malaysia, certain indigenous communities conduct their legal affairs through customary legal mechanisms. The scope of such affairs is usually confined to civil, property, and marriage issues as well as minor criminal matters. In India, this limited legal autonomy is constitutionally entrenched. Similarly, South Africa has set up a Law Reform Commission that has been actively exploring, and facilitating (albeit cautiously), interaction between state and customary legal systems. Scholarship on legal pluralism within Africa is a rich domain, with literature spanning the better part of the last century (3).

Scholarship on Afghanistan’s legal system may not have the same depth as in other areas of world; however, a wealth of literature on the potential of legal pluralistic approaches is now available. Drawing from this literature is not only instructive in terms of the success stories, but also in terms of the dilemmas that must be addressed when state and customary legal systems clash. Two such points of conflict are worth mentioning:

1. Normally customary legal systems function “under” (or within) the state legal system. The interface of these two systems regularly challenges those engaged in the process. State law, particularly in Afghanistan which has a civil code, aspires to consistency and predictability in the laws applied. This understanding of law generally contrasts with customary law, which allows the various parties to negotiate and find a solution which best suits their needs. One approach suggested for facilitating the interaction of the two systems is to codify customary law when possible, thus adding a level of consistency. This approach has been sharply criticized, as to codify customary law would be to add rigidity, altering its very essences of fluidity and adaptability (4). Moreover, in a country where the vast majority of the population is illiterate, one must question the practicality of adding in another legal text to the growing pile of written laws already in existence. The other approach is to allow customary law to function as it does with the caveat that it is governed by the country’s constitution. Thus, the state would play a role in ensuring that the customary laws do not contravene broad constitutional principles. However, this approach may give customary mechanisms more control (and less accountability and consistency) than some may find desirable.
2. Customary legal norms must be cautiously reconciled with human rights practices. One should approach customary law with the intention of respecting diverse normative values. Nonetheless, gross violation of rights, particularly those committed against women, must also be added. Customary practices vary according to region. For example, in some regions the swapping of women between families is as accepted a practice as recompense for major crimes (i.e. murder). Practices which constitute human rights violations must be circumscribed accordingly if customary mechanisms are to be given authority.

The task of starting nearly from scratch and setting up a functional legal system in Afghanistan may appear daunting. However, co-opting the assistance of customary legal mechanisms that are already in place, while remaining cognizant of the issues which normally arise when aspiring to legal pluralism may provide a fruitful avenue for progress.

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1: Much discussion and controversy in modern scholarship surrounds the use of the term “customary” law, in part because it raises the image of an archaic social order. At times, it is alternately called informal law, chthonic law, or tribal law.

2: Amongst those who have written on this topic are: USIP, Wardak, and the Norwegian Refugee Council.

3: Some notable individuals who have contributed to the relevant scholarly discourse: Gluckman, Bennett, and Bekker.

4: T. W. Bennett and T. Vermeulen, Codification of Customary Law, Journal of African Law, 1980, Vol. 24 No. 8, p. 206