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Abstract

The recent drafting and ratification of the Constitution of the Islamic Republic of Afghanistan in 2003 and 2004 sparked contentious debates over the compatibility of democratic governance, Islam, and Islamic law in Afghanistan as well as the impact of these institutions on women's rights. Many women's rights advocates struggled to secure the inclusion of constitutional provisions promoting sex and gender equality and reserving over twenty percent of all seats in the Afghan Parliament for women. While they succeeded in this regard, advocates have since expressed concern that the impact of these provisions will be undermined by existing interpretations of Islamic law that treat women differently-and less favorably-than men. They point to the potential tension between Article 22 of the constitution, which explicitly states that "[a]ny kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man or woman, have equal rights and duties before the law," and Article 3, which mandates that "no law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan" and empowers the unelected jurists on Afghanistan's Supreme Court to strike legislation for incompatibility with the latter provision. While the constitution falls short of requiring Islamic law to form the basis of all legislation in Afghanistan, it opens the possibility that a judiciary long-dominated by hard-line Islamist jurists will use its power to subvert gains or women's rights won in the battlefield of the Afghan Parliament.

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