Membership of Women in Afghanistan’s Supreme Court According to the Afghan Constitution and Hanafi Jurisprudence (Dari)

Abstract

The issue of women’s judgment (in law) among Islamic jurisprudents has been a long-standin g argument and Muslim scholars have expressed different views on this issue. Some Islamic jurists stipulates the condition of being male in judgment and do not allow women to judge. But Hanafi school of thought have had a different view and thereupon given permission to woman’s judgment under certain conditions. In our country, the majority of citizens follow the Hanafi school of thought; and thereby the beliefs of therein school have a special place in the country. Moreover, Hanafi jurisprudence is also manifested in the laws of the country. Although according to the jurisprudential beliefs and the enacted law, the condition of only being male in the judiciary has not been set, however, by introducing a woman to the Supreme Council of Supreme Court, a woman’s membership in the Supreme Council has been questioned, as if this is the case against Shari‘a. In this paper, with utilization of authoritative sources of Hanafi jurisprudence and laws of the country, the issue of female judgment has been analysed and the conditions of judiciary criteria are discussed in terms of Hanafi religion and the prevailing laws of the country. The findings of this paper show the gender is not the issue in judgment, but other conditions, that justice can be guaranteed by their existence. As a result, the findings of this paper show that according to the rules of Hanafi jurisprudence and the laws of the country, woman’s right of judgment is a permissible act and has no juridical and legal restriction. Therefore, the introduction of a woman to the Supreme Council of Supreme Court is a legal and juridical matter and is not in conflict with any of the principles of Hanafi religion and the laws of the country, especially in regards to the constitution.