Posted by Alex on Tuesday, November 16th, 2010
Syria’s Challenge: A Modern Secular Family Law,
By Elie Elhadj, for Syria Comment
Equality between women and men before the law is an inalienable human right–a natural justice. Gender equality is crucial for economic growth and human development.
Syria’s 2008 Gender Gap Index was a poor 107 out of 130 countries, scoring 0.618. It ranked in economic participation and opportunity; 107, educational attainment; 101, health and survival; 65, and political empowerment; 112. In 2007 (the first time Syria participated in the index) Syria ranked 103 out of 128 countries, scoring 0.6229 (Euromed Gender Equality Program report on Syria, p. 12, please see below).
Syria’s discriminatory laws against women should be abrogated. A modern secular personal status law for all Syrians should replace religious laws, including Shari’a laws and courts.
That a man can marry four wives, divorce any one of them without giving reason (with limited child custody rights, housing, or alimony); that a Muslim woman is prohibited from marrying a Christian or a Jewish man while the Muslim man is allowed to marry Christian and Jewish women; that a woman cannot pass her nationality on to her husband and children while the man can; that a woman must have a male family relative as guardian overseeing her actions; that “honor killing” of a woman by a male relative can effectively go unpunished; that Syria’s First Lady and the Republic’s Vice President are equal to one illiterate man in a Shari’a court of law in testimony, witness, or inheritance reflect the unsuitability of seventh century laws of the Arabian Desert to Syria’s way of life today.
Such anomalies are all the more serious in light of Syria’s government’s keen interest to project itself as a modern “secular” society. Further, such anomalies violate Syria’s constitution, which guarantees equality among citizens before the law in their rights and duties (see below).
All provisions in Syrian laws that infringe on the equality of women with men should be brought before Syria’s High Constitutional Court to be declared unconstitutional.
Such anomalies are also all the more surprising in light of the contradictions between Shari’a laws and the Prophetic Sunna, which tells us of the Prophet’s monogamous and exemplary treatment of His first wife of 25 years, Khadija.
Equality between women and men before the law is crucially important not only to accord natural justice and human rights to Syria’s women but also for economic and human developmental reasons. Treating women like chattel leaves its scars on women’s personality, defining their view of themselves as lesser beings and inhibiting their contribution to the country’s economic, scientific, artistic, and political developments.
Treating women like chattel causes women to demand large dowries in order to protect themselves from the vagaries of a Shari’a divorce system that would otherwise leave them practically destitute. Large dowries are responsible for delaying marriages for years among young men and women. Such a situation precipitates unhealthy social conditions that transcends all walks of life. A modern secular family law would reduce the risk of destitution from divorce and with it the size of dowries. As dowries size come down, marriage costs become affordable; solving a serious social problem for young men and women in Syria today.
In what follows, the findings of a 2010 report on Syria by the Euromed Gender Equality Program will be presented. The report elaborates upon the discriminatory practices women in Syria endure. Financed by the European Union Commission, the Euromed Gender Equality Program aims at enhancing equality between men and women in the Euromed Region.
Finally, a letter sent by Human Rights Watch to President Bashar AL-Asad in July 2009 will be presented. The letter summarizes the plight of Syrian women and seeks the President’s help to achieve gender equality.
The Euromed Gender Equality Program
In a study published in 2010 titled “National Situation Analysis Report. Women’s Human Rights and Gender Equality – Syria”, the Euromed Gender Equality Program addressed Syria’s discriminatory laws and practices against women. For the full report.
Equal constitutional rights for women and men
It is significant that Syrian women enjoy full constitutional rights, like men (Euromed Gender Equality Program report on Syria, p. 13):
Article 25: “Citizens are equal before the law in their rights and duties, and the government guarantees the principle of equal opportunities among citizens”.
Article 26: “Every Citizen has the right to contribute to the political, economic, social and cultural life”.
Article 27: “Citizens practice their rights and enjoy their freedoms”.
Article 45: “The State guarantees women all opportunities enabling them to fully and effectively participate in the political, social, cultural and economic life. The state removes the restrictions that prevent women’s development and participation in building the society”.
Discrimination against women in the Personal Status Act, the Nationality Act, and the Penal Code
However, notwithstanding their constitutional rights, provisions that discriminate against women exist in various laws relating to the family and women’s personal lives, such as the Personal Status Act, the Nationality Act, and the Penal Code (Ibid., pp. 14-18).
Family issues in Syria fall under the Personal Status Law of 1953, and its amendments of 1975. The law is applied to Syrians, except certain rules on issues related to Christians and each sect has its own religious rules regarding engagement, marriage, alimony, divorce and custody. The main articles that discriminate against women in Syria’s Personal Status Law are:
- Article 16 stipulates that the legal age of marriage is 18 for boys and 16 for girls with scope of judicial discretion for males of 15 years and females of 13 years if either the father or grandfather serving as wali consents and the parties appear physically able, and if he fears for the young girl’s “morals and reputation”;
- Matrimonial guardianship is mandatory for women only (Art. 21). Muslim women are not allowed to marry non-Muslims, but Muslim men are allowed to marry non Muslims (Art. 48.2);
- Polygamy is permitted up to 4 wives (Art. 17);
- Divorce: Art. 91 gives the right of repudiation to the husband (one-sided and unconditional); while according to Art. 105-115, the wife can petition for divorce under very restrictive conditions. The law makes no reference to providing habitation to the divorced mother and her children. Divorced women are often forced to return to their relatives houses with their children while their former husbands are allowed to stay in the marital house. Syrian women always feel threatened by divorce, as a husband can just dispense with her without giving compensation;
- Child custody is the prerogative of the father;
- Maintenance and obedience: according to Art. 74, the wife owes obedience to her husband in return for maintenance; and Art. 73 and 74 stipulate that the wife forfeits her maintenance rights if she works outside the home without her husband’s consent;
- Discrimination against women also relate to nationality. A woman cannot pass her nationality on to her husband. According to Article 3 of the Nationality Law, only Syrian fathers can pass their nationality on to their children and to their foreign wife.
- In terms of Penal Law, Article 548 states that men can be exempted from punishment if they kill or hurt their spouse, sister, or any of their female ascendants, whom they unexpectedly discover committing adultery or out-of-wed sexual relation with another person. Furthermore, the man is not deprived from inheriting from her. Article 548 was amended on 1st July 2009 by legislative decree No 37, 2009, raising the penalty for honor killing to least two years. According to Article 192, men who murder, beat or cause injury to their allegedly adulterous wives and sisters can claim extenuating circumstances before the law.
Further discrimination against women in the Syrian Penal Law relate to:
- Rape. A rapist can be acquitted if he marries his victim. As such, the woman suffers three times. First, when she was raped, secondly when she is married to her rapist and thirdly when he inevitably divorces her after a few months.
- A murderer pays compensation (fedya) to the family of a female victim half what would be paid for a male victim.
- Adultery. According to Articles 473, 474 and 475, a woman who commits adultery is subject to punishment double that of the man’s, if she is not killed by her family. Men’s adultery is considered allowable when committed outside the martial house and is punished only when it occurs inside the home. Women, however, are punished for adultery no matter where it is committed. Under the law, male guardians are given the right to bring a suit of adultery against an unmarried woman, but they have no right to bring such a suit against an unmarried man.
International Agreements signed with Syrian reservations
The Syrian Commission for Family Affairs (SCFA) prepared three studies comparing the CEDAW articles and national legislation (personal status law, nationality code, and criminal code). In May 2006, it wrote a memorandum submitting it to the Cabinet with a request to remove all reservations on the CEDAW. In April 2007, the SCFA developed a draft for a presidential decree forwarding it to the Cabinet in order to be transferred officially to the parliament (Ibid.).
Syria ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by Legislative Degree 330 dated 25/9/2002, with reservations believed to contradict Shari’a principles related to bestowing the nationality of mothers to their children; freedom of movement and housing; equality of rights and responsibilities linked to custody, kinship, maintenance and adoption, during and after marriage; legal effect of the children’s engagement or marriage; arbitration between countries to solve disputes (Ibid., p. 21).
Syria signed the Convention on the Rights of the Child (CRC) in 1990 and ratifying it in 1993, with a general reservation to any provisions that are not in conformity with Syrian legislation or the principles of Sharia, and particular reference to children’s freedom of religion, and adoption.
In 2007, a committee was set up to draft a new Personal Status Law. The draft proposal was presented in 2009. It received many critics.
Letter from Human Rights Watch to President Bashar Al-Asad
Human Rights Watch sent a letter on July 28, 2009 to President Bashar Al-Asad urging him to to enhance and protect the legal status of women consistent with Syria’s Constitution and international human rights standards.
July 28, 2009
President Bashar al-Assad
Presidential Palace, Damascus
Syrian Arab Republic
We are writing to express our support for your decision, as reported in the media, to set aside the draft personal status law, which would have continued the unequal treatment of Syrian women. The current draft would leave a number of problematic articles in the existing law intact, and would fail to enhance and protect the legal status of women. We understand that the draft law has been returned to the Ministry of Justice, which we hope will create an inclusive process to revise the draft law so that it will be fair to all Syrians.
There is a growing trend in the Arab world to amend laws on the subject to ensure equal treatment for men and women. A few years ago Morocco amended its family code or mudawannah to grant equal rights to men and women in family matters. Morocco, Egypt and Yemen have also recently granted women the right to pass on their nationality to their children. We hope that other countries in the region, including Syria, will soon follow suit.
We would like to share our concerns about some of the discriminatory provisions in the draft law and the supporting documentation in the hope that it will assist you in revising the law, consistent with Syria’s Constitution and international human rights standards. Article 25 of Syria’s Constitution states that “freedom is a sacred right and the state guarantees its citizens’ individual freedoms and protects their dignity and security. Article 25(3) further notes “the citizens are equal before the law in their rights and duties.”
Here are provisions that cause concern:
The draft law is discriminatory with regard to marriage age, allowing marriage for males at age 18 and females at 17 in one provision and boys at 15 and girls at 13 in another if they have reached puberty and have been granted permission by their guardians.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by Syria in 2003, states in article 16 (1) that state parties must take appropriate measures to eliminate discrimination against women in all matters related to marriage and family relations. The Committee on the Rights of the Child, which provides the guiding interpretation of the Convention on the Rights of the Child, also ratified by Syria, has also addressed this issue. In its General Comment no. 4 (2003) the Committee expressed its concerns about early marriage and pregnancy, which it described as significant factors for problems related to sexual and reproductive health. It states clearly that the Convention requires states to ensure the minimum age for marriage is the same for both girls and boys, and goes on to strongly recommend States Parties to increase the minimum age for marriage with and without parental consent to 18 years, for both girls and boys.
The draft law does not allow Syrian women married to non-citizens to pass on their nationality to their children, while it does not restrict men in this way.
Article 44 of Syria’s Constitution clearly states “The family is the basic unit of society and is protected by the state.” By denying Syrian women the right to pass on their nationality to their children, the Syrian government denies equal protection to their families.
The draft law’s system of guardianship for women subjects female decision-making in family matters to male supervision. Specifically, article 20 requires adult women to receive consent from a male guardian to marry. In instances where a marriage has occurred without consent, article 27 stipulates that a woman’s male guardian may invalidate her marriage if her husband was found incompetent.
Article 15 of CEDAW specifically requires states to “accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity.” State parties are also required to ensure that all contracts with a legal effect directed at restricting the legal capacity of women will be voided.
Numerous articles in the draft law deny women autonomy and freedom of movement. These include provisions in article 37 (1) that state that women are not permitted to work outside the home without their husbands’ permission and that even a divorced woman can lose her alimony payment if she works without her former husband’s permission. Article 70 also denies women the right to travel outside Syria without permission.
Article 15(4) of CEDAW obliges states to grant women the same rights as men with regard to freedom of movement. In addition, article 13 of the Universal Declaration of Human Rights (UDHR) states that “everyone has the right to freedom of movement and residence within the borders of each state” and that “everyone has the right to leave any country, including his own, and to return to his country.” Article 12 of the International Covenant on Civil and Political Rights (ICCPR)acceded to by Syria in 1969, requires all state parties to implement the right to freedom of movement both within a state and the right to enter and leave one’s own country.
The draft law also creates a discriminatory system for divorce. Under article 86, men have the right to divorce by simple repudiation while women must prove that there is a “valid” reason. In instances where a consensual decision has been reached by both spouses, the woman must repay her dowry to her husband.
Article 16 (c) of CEDAW says that state parties are responsible for guaranteeing “the same rights and responsibilities during marriage and at its dissolution.” The ICCPR obliges states to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In addition, as the body responsible for interpreting the ICCPR, the United Nations Human Rights Committee has noted that “any discriminatory treatment in regard to the grounds and procedures for separation or divorce, child custody, maintenance or alimony, visiting rights or the loss or recovery of parental authority must be prohibited.”
On another matter, we commend your efforts to reform article 548 of the penal code, an important step to reform laws that effectively grant immunity to men who murder their female relatives. However, we remain concerned about other provisions in the law that urgently need changing to address adequately the issue of so-called honour crimes and to protect women and girls from violence.
Article 548 of the penal code still provides a 2-year minimum sentence for killing a female relative on the basis of honour. Articles 548, 239, 240, 241 and 242 grant immunity or a reduced sentence to a man who murders his female relative. In addition, Article 192 states that if the criminal act was based on an honourable intent, then the judge has a number of options to reduce the sentence, including short-term detention or imprisonment.
Violence, of any kind, against women has long been considered a human rights violation that all states have a responsibility to eradicate. The United Nations General Assembly resolution 61/143 on the Intensification of efforts to eliminate all forms of violence against women notes that states need to condemn such violence and to “refrain from invoking any custom, tradition or religious consideration to avoid their obligations with respect to its elimination as set out in the Declaration on the Elimination of Violence against Women.”
We ask your government to abolish all articles that reduce sentences for “honourable intent” and that effectively grant reduced sentences for crimes provoked by passion. We also ask your government to amend the unequal treatment of women under these provisions in the penal law and to consider all cases of murder as such.
We urge you to ensure the revision of the above – mentioned articles in Syria’s Personal Status Law. We also urge you to withdraw Syria’s reservations to articles 9(2) and 16 (1) (C) of the Convention on the Elimination of All Forms of Discrimination against Women concerning equal rights between men and women to pass on their nationality to their children and the equal rights and responsibilities of men and women during marriage and its dissolution.
Finally, we recommend the Ministry of Justice grant the Syrian Commission for Family Affairs (SCFA) the responsibility for redrafting this law, under its mandate, issued by presidential decree in 2003. We ask that this process be open and transparent, with consideration given to the knowledge and perspectives of all parties who offer their views and the full participation of civil society organizations, including women’s rights organizations and legal experts.
Personal status laws affect the lives of ordinary men and women, and as such they should treat both equally, and in particular should enhance, not reduce, women’s rights. Lessening the inequality that women face in their families will ultimately assist women to advance in Syrian society. We welcome the opportunity to discuss these matters further and look forward to your response.
Executive Director of the Women’s Rights Division
Human Rights Watch
CC: Ministry of Justice
Prime Minister of Syria