Legitimacy and Citizenship in the Arab WorldSectarianism and Personal Status Law in Syria: could an Optional Civil Law be the Answer?
Dy Dr Ibrahim Draji and Dr Rim Turkmani
Current Personal Status Law in Syria:
The current Syrian constitution established that matters relating to personal status are subject to the laws of the various religious communities. It stipulates that ‘The personal status of religious communities shall be observed and safeguarded.’. This is in line with similar provisions in previous Syrian constitutions since 1920. Hence, Syrians are subject to more than one personal status law according to their religious and sectarian affiliation and they are given no option to resort to a civic law.
In accordance with these constitutional provisions, on 17 September 1953, the president issued legislative decree No. 59/1953 which included the personal status law. It included provisions related to personal status, comprising rules related to marriage, divorce, birth, descent, custody as well as eligibility, legitimate representation, testamentary matters and inheritance.
Article 306 of the personal status law states that the provisions of this law are to be implemented on all Syrians, except the provisions in two articles that exclude the Druze, Christian and Jewish communities. This is in consideration of the religious provisions specific to each sect. Article 308 also states: ‘Christians and Jews are governed by each sect’s religious provisions related to engagement, marriage conditions and contracts, alimony and child support, marriage annulment, marriage dissolution, separations, dowry and custody.’ This means that Christian and Jewish communities are subject to the provisions of the general personal status law specified for Muslims, with the exceptions of the matters included in this article, whereby they are subject to the relevant religious legislation.
So, the Syrian constitution divide citizens into communities and subject them to different religious, sectarian and legal systems. This entails differentiating between citizens based purely on their sectarian affiliation and violating the principle of equality and non-discrimination which is itself stipulated in the constitution. This also confirm the custodianship of the ‘religious’ class over other social classes, as guaranteed by the state itself. They also deprive women in particular of some of their rights as and when these rights contradict religious texts and their various interpretations. The personal status law governs, first and foremost, the relationship between a man and a woman, opening the possibility for the violation of women’s rights, as does any classification that is based on anything other than citizenship, but particularly an exclusively sectarian one.
The Syrian government has, crucially, held on to these discriminatory constitutional provisions as a way to justify discrimination against Syrian women and to legitimise the discriminatory personal status law, which is also consistent with the provisions of the discriminatory constitution. The Syrian government, in its periodic reports to the CEDAW, pointed to difficulties in amending the personal status law, and justified the delay by writing in its 2012 report:
It must be recognized that some bills, particularly those that directly touch upon the cultural and religious heritage of the country, require the broadest possible input and frequently encounter opposition from several groups, which occasionally impedes the promulgation of such laws. … The personal status law in Syria guarantees many rights. What are needed are knowledge and the ability to exercise these rights. The Personal Status Law harmonizes with the country’s Constitution with respect to freedom of faith based on social and cultural diversity for all religious denominations and sects for both males and females. Some articles of the law are derived from religious texts which are quite difficult to amend in a conservative, largely religious society. While international conventions supersede national laws, they do not supersede divine law and what it stipulates in this regard.
Optional civil personal status law as a possible compromise
Amending personal status laws is expected to be a particularly controversial issue in any future constitutional process in Syria, between those who support establishing a civil code for personal status matters in place of the current religious laws, and those who wish to keep them as per the current set-up. One of the options put forward for deliberation to resolve this issue the adoption of an optional civil personal status law alongside the current, operative personal status laws which fall under a religious framework. According to this model, each citizen would have the right to choose the system which is agreeable to him or her for marriage contracts, whether in the civil or religious framework as per official laws. This option is rooted, firstly, in the acknowledgement of how difficult it would be, at the current time, to rescind the operative, religion-based personal status laws and replace them with a comprehensive civil code applying to all citizens; and secondly, in the acknowledgement of the unjustness of imposing religious models on citizens who do not wish to submit to them. A compromise which does not allow for the religious and civil advocates to overpower one another, but which rather concentrates efforts on writing a civil law while maintain sect-specific personal status laws, would perhaps be the most suitable option.
Under such a system, for example, any two people who wish to get married would have the freedom of choosing between the civil law and the religious law, or even integrating the two frameworks. The civil option does not necessarily mean that a couple may not carry out a religious marriage ceremony. However, where the couple choose to combine the civil option with religious ceremonies at the same time, and if a conflict arises, the application of the law is derived from civil law in some countries, such as Turkey and the UK, and from the religious law in other countries, such as Lebanon.
Some proponents of this option see that equal citizenship necessitates that the legal models put forward before citizens relating to personal status matters should not automatically be derived from the sect in which they were born, without any choice in the matter. They also consider the imposition of the religious model as the sole option a violation of the rights of citizens who do not want to adopt religious or sectarian classifications and frameworks. In order not to infringe upon the rights of those who want their personal status matters to remain governed according to religion and sect, adding the civil option in parallel to the religious option would be an acceptable compromise solution.
On the other hand, those advocating establishing a civil personal status code as the sole model argue that marriage is a civil concept, related to the rights of civilians, and not one which should be imposed or intervened in by religious institutions. As such, they argue, issues such as marriage, the decision of a married couple to divorce, or inheritance, should not be under the authority of a religious power. Such a law, moreover, would eliminate the religious, confessional and racial disparities between the couple, who would obtain all their civil, social and political rights according to the country’s laws. The success of this kind of demand in Middle Eastern societies would be dependent on certain prerequisite steps, such as the consolidation of the culture of human rights and citizenship, and amending incorrect educational material.
France was one of the first countries which adopted a civil personal status law, civil marriage falling under a law introduced in 1804, which was developed and promoted by Napoleon Bonaparte. The core of this law was the compulsory nature of civil marriage and the voluntary nature of religious marriage, meaning that the former is a necessary obligation, with the latter an optional supplement to this. As such, it is mandatory for a couple to first sign their marriage contract with the relevant government authority. This marriage would by itself be legally binding, with the supplementary religious marriage having spiritual significance alone. It is worth noting that the French law has been strict on the necessity and primacy of civil marriage, with clergymen who conclude a marriage without ensuring that a civil marriage has already been conducted subject to penalty of a fine or a prison term.
In Turkey, civil laws began to be adopted in parallel with religious laws in 1839. However, from 1926 onwards, civil laws came to be the only legal source in relations to personal status matters. Although civil marriage is the only recognised and official type of marriage, people in Turkey are still able to get a religious marriage after registering a civil marriage. In order to bypass the civil system, some families in Turkey decide to hold a religious ceremony only, without registering a civil marriage, which is in violation of the law. In order to prevent these unofficial religious marriages, the government issued a law allowing clergymen to perform civil weddings. This way, Muslims in Turkey were able to combine a civil marriage with Islamic ceremony; this is done as per the couple’s wish, with Islamic weddings not being a legal necessity.
Today, civil contracts are a legal requirement for marriage in many countries across the world, including Sweden, Germany and Latin American countries, and some Muslim-majority countries such as Turkey and Indonesia. In many European countries, it is possible to combine civil and religious marriage on the condition that the marriage is registered with the country’s civil authorities. In other countries, such as the United Kingdom, one can get a religious marriage without having to register it under civil law; however, in this case, it means that such marriages are not considered legal by the state, and as a result couples do not have the option of recourse to civil courts for disputes or divorce.
In the United States, there are several religious courts assigned by religious sect. The Catholic Church, for example, has around 200 courts under the authority of dioceses, which work with various kinds of cases. For example, these courts consider the annulment of approximately 15,000 to 20,000 marriages per year. However, recourse to the religious option is voluntary in the United States, since the First Amendment of the US Constitution prohibits the government from adopting religious law as a mandatory legal authority.
It should be noted that some Arab countries adopted the idea of ‘civil marriage,’ but apply different conceptions and restrictions to this model depending on the country, in terms of implementation, conditions and provisions. In Egypt, civil marriage is linked only to the Copt community, who face difficulties in matters such as divorce and second marriages; Egyptian Muslims, meanwhile, have no recourse whatsoever to civil marriage. In Algeria, civil marriage takes on a different form; it is recognised so long as it is ‘legitimate and does not violate Islamic law.’ The Ministry for Religious Affairs and Endowments issued a decree stipulating the registering of a civil contract before a religious one; this was in order to prevent problems arising from customary marriages and to protect women’s rights. Tunisia, meanwhile, is considered the only Arab country to fully recognise civil marriage after separating religion from law and citizens’ personal status matters in 1956. President Habib Bourguiba introduced amendments to the personal status law, including the prohibition of marrying multiple wives, and prohibiting any kind of marriage outside civil marriage.
Other Arab countries, meanwhile, permit the registration of civil marriages once the contract has been signed outside of the country, one example of which is Lebanon. Some Lebanese individuals who wish to get a civil marriage rely on a gap in the law to avoid a sectarian-based marriage; they remove their religious affiliation from the civil registry, a process known as ‘civil registry reference deletion,’ and is simply an administrative procedure, and does not prevent people from being able to practise religious ceremonies. After completing this procedure, such individuals are able to get a civil marriage; however, the absence of a Lebanese civil marriage code means that, when recourse to the judicial system is needed, their options are either to go through the religious courts, or to name a civil marriage law from another country as the legal basis for the marriage upon registration. If a couple in Lebanon opts to combine a civil and religious marriage, the legal preference is given either to the religious law or to civil law, at the discretion of the judge. The Lebanese Bar Association, Lebanese civil society, and some political parties have been calling for a civil personal status law since the early fifties. At the start of 2019, the Ministry of Interior began working to open up a serious discussion on an optional civil law for personal status matters in Lebanon.
In 2018, the possibility of introducing a law for an optional civil marriage was put forward in Syria. This gave rise to significant controversy, with arguments circling about its ineligibility and poor timing. Advocates for an optional civil marriage draft campaign clarified that working on this law would happen over two phases. The first phase would be a comprehensive and precise legal review, in order to ensure it would not conflict with other Syrian laws, and in order to draw on other countries that apply similar laws. The second phase would be on the social level, namely an attempt to foster an acceptance of this law among society, given the amount of tumult and misconception over the notion of civil marriage. As one of the supporters of such a campaign explained:
Part of the explanation that still requires further clarification is that it is an optional law, and not a compulsory one. This means that one would be able to choose between a religious or a civil marriage. Everyone would be free to utilise the model they choose, and we should not prevent them from opting for a model in which we personally might not believe.
Advocates for such a model consider civil marriage to be part and parcel of the concept of a civic state; namely, it denotes equality between all members of society. They also argue that marriage is strengthened by laws and legislation guaranteeing the sustainability of the family, from which a secular state and society could begin to be built.
Of course, calls for a comprehensive civil code have been met with significant criticism, levelled by conservative religious circles from across the sectarian divide. They consider such campaigns attempts to break down the idea of the family, and to legalise marriage which goes against nature and human instinct. Some religious movements, however, see the option of an optional civil personal status law to be the embodiment of a legal principle from the Quran, which reads: ‘There is no compulsion in religion.’
The text of this article is taken from our publication ‘The question of religion in the Syrian Constitutions’ which could be downloaded using the links below.
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1 The Palace of Justice in Damascus where the Sharia court is based