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Syria and Personal Status Law

July 8, 2009

Last week President of the Syrian People’s Assembly Mahmoud Abrash canceled the draft legislation for a new set of laws governing Personal Status in Syria, ordering the Justice Ministry to rewrite the bill.  While conservative religious leaders figured prominently in the drafting of the bill, after a copy of the proposed law began circulating in late May reformers and advocates of women’s rights vocally agitated against it.

In Syria, as in other countries, Personal Status Law governs procedures and individual rights on issues such as marriage, divorce, inheritance, and custody.  The present Syrian Personal Status Law, adopted in 1953 and amended in 1975, is essentially codified Hanafi Sharia law with some qualifications for Druzes, Christians, and Jews.   Unsurprisingly, it discriminates against women in a number of ways.  For example, under the current law, pending a judge’s discretion, a girl as young as 13 can be married.  On matters of custody, a mother has the right to custody of a girl until the age of 11 and a boy until the age of 9.  However, this formal safeguard is in practice contravened by a stipulation that allows the father to assume custody regardless of age if the mother is declared unfit to raise the children.  Clearly legal protection for women and children does not currently go far enough.  Therefore, one would expect that a new Personal Status Law would address these problems and enjoy broad support from women’s rights organizations and reformers.

Unfortunately, the recently rejected draft proposal fell far short of improving women’s rights and even took some steps backwards.  A full text of the draft in Arabic can be found here and below are a few remarks and translated excerpts.

First, the draft failed to guarantee either a woman’s right to freedom of movement, receive education, or to work, leaving each of these decisions to her male guardian.  Thus, on these important issues for women, and particularly young women and divorcees, the status quo is reaffirmed.

Second, one of the most problematic issues for girls in Syria today is the issue of a girl’s consent to marriage and the minimum age.  The current law certainly does not go far enough on these matters and what little protection exists is only loosely enforced.

Here draft law says:
 

المادة 45
1-إذا ادعى المراهق البلوغ بعد إكمال الخامسة عشرة أو المراهقة بعد إكمالها الثالثة عشرة وطلباً الزواج يأذن به القاضي إذا تبين له صدق دعواهما واحتمال جسميهما.
2-إذا كان الولي هو الأب أو الجد اشترطت موافقته.

Section 45:

1 – If a mature male older than 15 years or a female older than 13 years request marriage, a judge may permit it if [the request] appears sincere to him and their bodies are able.

2- If the guardian is the father or the grandfather then [the marriage] is conditional upon his consent.

Thus, the minimum age at which a girl can be married remains at 13 and the draft law includes no protection against marrying a teenage girl against her will so long as the father consents.

However, just as troubling as the draft law’s failure to improve the position of women, is the attempt to further ensconce sectarianism at the expense of national citizenship.  One the one hand, the draft fails to acknowledge those Syrians who are secular and don’t want their religion to determine the scope of their civil rights.  Even more problematic is the fact that the draft affirms that the Hanafi school of Islam is the source for law and that it applies to all Syrian citizens regardless of whether they are even Muslims:

لباب الأول
تطبيق القانون
المادة 617
1-تطبق نصوص هذا القانون على جميع المسائل التي تناولتها في لفظها،أو في فحواها.
2-كل ما لم يرد عليه نص في هذه القانون يحكم به بمقتضى القول الراجح في المذهب الحنفي.
3-وأما فيما يتعلق بتوضيح أو تفسير مسألة جزئية فرعية نص على أصلها في القانون فيرجع فيه إلى المذاهب الفقهية التي استمد منها القانون نصوص هذه المسألة.
المادة 618
تطبق أحكام هذا القانون على جميع السوريين سوى ما تشبه المواد الآتية:

Chapter One
Applying the Law
Section 617

1 – The texts of this law, on all the matters that it deals with, are to be applied as stated or in essence.

2 – All that is not addressed in text in this law is to be decided according to the prevailing view of the Hanafi school.

3 – However, that which pertains to clarification or interpretation of a secondary matter whose source is stipulated in the law, refers to the schools of jurisprudence upon which the texts of the law rely.

Section 618

The decrees of this law apply to all Syrians expect for what appears in the following sections:

These “following sections” place some qualifications on the Syrian brand of Hanafi law for Druzes, Christians, and Jews.  Still, this does not appear to override the above clause that Hanafi law applies for all matters of Personal Status Law not explicitly addressed in the draft.

While the draft law was rejected, it reflects the influence that conservative Sunni religious sentiments hold in contemporary Syria.  However, there is some cause for optimism as Bassam al-Kadi, Director of the women’s rights advocacy group Syrian Women’s Observatory writes.  First, despite the role that conservative religious figures played in the writing of the draft law and Abrash’s attempts to implement it, Syrian civil society groups managed to bring about sufficient pressure to stymie the legislation.  Second, the wording of Abrash’s press release announcing the cancellation of the draft suggests that when the Personal Status Law is revisited by the Ministry of Justice it will “reconsider the subject in coordination with all parties concerned by the matter”.  This can be read as a vague promise to include advocates for women’s rights in the drafting process.  If true this would represent a notable victory for Syrian reformers and democrats.

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