The Syrian Penal Code: Regressive Articles in the “Progressive” State
By Adnan Mouhiddin
On 11th June 2000, immediately after the death of Hafez Al Assad (ruler of Syria since 1970) the Syrian Parliament amended Article 83 of the Syrian Constitution of 1973. The amendment process took no more than two hours and the parliament agreed unanimously to reduce the age of the Syrian president from 40 to 34, which enabled Bashar Al Assad, the son of Hafez Al Assad to succeed his father in ruling the country. Yet when the Syrian government attempted to revoke article 548 of The Syrian Penal Code of 1949 in 2009, which had been used as a leverage to acquit males committing ‘honour killings’, the Syrian society strongly objected and consequently the government yielded to the public pressure by amending the Article in question rather than abolishing it all together. In fact, a mere survey asking in 2006 ‘Do you support making an honor crime a criminal, punishable offence?’ created an outrage in Syria (Abu Halawa 2006: 44-47) and the researchers were banned from analyzing the survey findings (Maktabi 2010: 563-64).
Article 548, however, is not a single case. Many what we may call ‘regressive’ articles are still embodied in the Syrian Penal Code and are observed in the Syrian courts. This imposes a glaring contradiction for various reasons. It is unclear how the Syrian government, which is capable of imposing any law it wants and manipulating the existing ones, and which holds itself to a progressive, secular and social agenda, is unable to change these articles or abolish them all together. Also, it is questionable how such articles exist with what the women has achieved so far in Syria. This paper will therefore attempt to find an explanation for these two points. It will give an account of the nature of the Syrian legal system and a brief historical background of how the current legal system developed. This will enable the reader to appreciate the social, cultural, political and economic background that influenced the formation of the Syrian criminal justice system in general, and the Penal Code provisions in particular. It will then proceed to describe the specific articles in question. Reading them in the light of the circumstance under which they were drafted will shed some light on the reasons that precluded the successive Syrian governments from revoking them, which then will be discussed in detail. This, however, should take into account the status of women in Syria through the lens of the society and religion since ‘she’ is the subject to the atrocities of the regressive articles.
1. The Syrian Law
While citing the Articles enable us to understand their direct application, it is worth considering the social, historical and cultural background of the time when they were drafted to understand the scope of their applicability and how they came to exist and continued to influence the sentencing sphere in the Syrian criminal justice system.
In his book The Social Reality of Crime (1970), Richard Quinney stated that crime is a social and political construct. He explained that human conduct is categorised as a crime when the social and political class, who has the authority to create laws and form public policies, prescribe it as such, especially when the given behaviour conflicts with their interests. Prima facie, the situation of the aforementioned articles in the Syrian Penal Code might defy Quinney’s thesis. This is because Syria has been led by Al-Ba’ath party since 1963, who presents itself as a socialist and progressive party with a secular agenda to dismantle and implement (Seale, 1992). However, the articles were enacted in 1949 before the Al-Ba’ath takeover of the power in 1963. Therefore, the question should be why the Syrian government did not amend or abolish them all together rather than holding it (the government) responsible for drafting them. Before we answer this question, we should review the historical background of the Syrian laws and therefore understand how they influenced the drafting and consequently their applicability.
Until its collapse in 1918, Syria was ruled for four hundred years by the Ottoman Empire whose laws and rules derived from the Sharia laws (Findley, 1991). This was followed by the French Mandate which ruled the country from 1922 to 1946, its independence year. During that time, the French Mandate tried to introduce secular personal status laws, which was faced by fierce opposition by the Syrian clerics who objected the implantation of any laws that contradicted the Sharia laws (Hourani, 1947). In 1949, the Ottoman Penal Code of 1858 (which drew from the Sharia law) was abolished and replaced by the Lebanese Penal Code which mainly drew from the French code. It was the aim of the then-president Husni Al Zaim, who seized power by toppling a democratically elected president Shukri al-Quwatli, to implement new laws that corresponded to the social, economic and intellectual developments in Syria (Diab, 2010). Many laws were promulgated during that period and the 1949 Penal Code remains one of the main legal instruments governing the Syrian Justice System until this moment (such as the Civil code of 1949 and the Code of Personal Status of 1953). The Syrian Civil Code drew from the Egyptian Civil Code (Kuwatli, 1959), which in turn drew from the French Civil Code that was applied between 1776 and 1883 and Sharia law. In fact, Article 1 of the Syrian Civil Code provides that Sharia is the source of the Code which judges should resort on first instance, followed by the customs and then by the natural law (SCC, 1949). The Egyptian Civil Code was adopted due to the social, religious and cultural similarities between the two countries (El Hakim, 1995). In other words, the Syrian legislators probably felt that what worked in Egypt could also work in Syria.
Now how modern the Penal Code is (as per the wish of President Al Zaim) is a matter of speculation. The Code incorporated various provisions that observed cultural habits which otherwise would be viewed as a crime. For instance, in a solid recognition of cultural practice known as an ‘honour killing’, Article 548 of the Syrian Penal Code states that ‘he who finds his wife or one of his ascendants, descendants or sisters committing adultery or illegitimate sexual acts with another and he killed or injured one or both of them benefits from a reduced penalty, that should not be less than 2 years in prison in case of a killing’, leaving to the judge the option to opt for reduced punishments (such as short-term imprisonment) if the killing was done with an honourable intent as set in Article 192. Moreover, Article 489(1) opens the door to marital rape by punishing the man who rapes other than his wife with 15 years of imprisonment. However, the judge shall suspend the imprisonment and exonerate the perpetrator should he agree to marry his victim.
2. The Law makers
The influence of the Sharia law in the promulgation of Syrian laws is evident for various reasons. Islam has been the dominant religion in Syria since it was conquered by the Arab armies in AD 640, which had a direct impact on the Syrian demography. In 1947, during the period in which the aforementioned laws were enacted, the Sunni Muslims composed 66% of the Syrian population which counted nearly 3 million (Hourani, 1947). As a majority, the laws reflected their beliefs and understanding as to what law is, or as Quinney observed, ‘law-making represents the translation of specific group interests into public policy’ (1970:43). Such interest was vested in the clerics who during the 1950s assumed the position of the guardians of the morals and portrayed entertainments such as radio and cinema as a form of moral corruption (Pierret, 2013). In fact, ‘traditionalists have always constituted the vast majority of the clergy’ (Pierret, 2013:102). Their influence in the public, social and political life in Syria was not limited to the period of the Ottoman Empire, but also during the French mandate whereby notable scholars and clerics cooperated with the French forces, which ensured their close observation of any attempts to alter the religiously conservative life in Syria in which Islam is the main inspiration and source of laws. Therefore, the influence of those scholars was not limited to education and endowment, but extended to political and social fields. In 1955, a group of clerics established a ‘committee of scholars to check on the Islamic character of all laws passed by the parliament (Pierret, 2013:164).
3. How did this impact women?
When referring to the status of women in Syria, one should note that Syrian women voted for the first time in 1949. A year before that, Alice Kandalaft was the first woman to represent Syria in the United Nations (Shaheen, 2016). Also of note is Nazek Al Abed, the Arab’s ‘Joan of Arc’ and the founder of the Syrian Red Crescent, which is modelled on the Red Cross. Al Abed fought in the Syrian Army as a Captain and led a brigade in the Battle of Maysaloun in July 1920. Although this caused an outrage among the conservative Syrians, she was upgraded to an Honorary General in the Syrian Army (Moubayed, 2004).
The aforementioned articles, however, should not be regarded as indicative of the status of women in Syria. Rather, the articles should be approached based on the principle of morality, since they claim to enforce what is moral. ‘Justifying punishment must give an account of why it is morally justified to subject an individual to it’ (Wilson, 2002:54). The strong presence of Islam in the public life, through the Syrian clergy, shaped the public opinion as to what is moral. As a consequence, the attitude toward women was also influenced by the views of the Sharia law and its clergy. Due to the sexual nature of the ‘honour killing’, it is worth examining briefly the Islamic and cultural view on sex. The presence of the ‘honour killing’ in the Syrian Penal Code is not a coincidence. After all, criminal law attempts to control personal behaviours that are contrary to the morals of some members of the community (Quinney, 1970:86). The influence of religious principles towards sexuality within law is not a phenomenon which is unique to Islam. Puritans Christians, who traditionally follow a sexually conservative moral code, regard themselves as ‘being an elite chosen by God to represent him on earth’ (1970:61), and furthermore believe that ‘the determination of law belongs properly to God’ (Morris, 1959:35). There has been a resulting long-standing harmony between Judeo-Christian morality and the American Constitution and laws (Barton, 2010). Quinney drew from this heritage to conclude that ‘to be moral in America is to be sexually discreet’. This kind of social control over the sexual behaviour of the society aims at protecting the family system and the ‘chastity of women before marriage’ and ‘sexual relations outside the marriage bond’ (1970:86).
Similarly, the Syrian society is solidly impacted by fundamental social and cultural concepts such as honor and shame as well as the authority of Islam. The honor of the man, in a male dominated society, is his ‘land and female siblings’ (Husseini, 2008). The views of Islam on matters such as sex, sexual discretion and sex before marriage, adultery and the relation of those aspects to women are also strongly present. As cited in the Quran, unmarried adulterers are punished with 100 lashes publicly (Quran, 24:2). However, married adulterers are punished by death by public stoning (Bukhari, 1986). To say that Islam cited honor killing as a punishment is far from right. However, the case will be made here that Islam has been instrumental in shaping the perception of women in Syria, which in turn has influenced the Syrian Penal Code.
Under certain provisions, Islam arguably legitimized marital rape. It has been narrated from the Prophet that ‘if a husband calls his wife to his bed (i.e. to have sexual relations) and she refuses and causes him to sleep in anger, the angels will curse her till morning’ (Bukhari, Book 59:48). Ibn Taymiyyah (AD1263-1328), a prominent Sunni scholar, theologian and jurist (Sheikh, 2017) cited verse 34 from chapter 4 in the Quran as a response to such a scenario (Fatawa Ibn Taymiyyah, 32/279). The verse addresses Muslim men that if their wives showed ‘disloyalty and ill-conduct’, then they should admonish them, and then refuse to share their beds and then beat them’ as a last resort (Quran 4:34). The direct implication of this authority is Article 489(1) of the Penal Code. Moreover, the influence of the Quran, the highest authority in Islam, on women is evident in portraying them to be less than men (Quran, 2:228), and worth half that of men in their legal status in relation to inheritance (Quran 4:11), court testimony (Quran 2:282) and also as sexual subject (Quran, 2:223).
Such heritage, if we may call it so, is so strong that it undermines the existing laws (the aforementioned articles in our case) or the ability of the state to pass new laws (Hajjar, 2004). All the customs and ethics inherited from the Quran are forms of social control, and weaken the law (Anleu, 2010). They are probably so strong that even a totalitarian and authoritarian regime could not abolish them.
4. Progressive leap
In 1963, Al Baath Party seized power in Syria delivering a socialist, secular, religiously diverse and progressive officer to power. However, following an internal conflict in the party, Hafez Al Assad, who was the Minister of Defence, led what his regime later called the ‘Correctional Movement’ (a coup d’état) in 1970 against the comrades of yesterday. During the following three decades, he consolidated his power by allying with the Sunni commercial and religiously conservative elites in the country, and mainly in the large cities such as the capital Damascus, Aleppo, Homs and Hamah where the Sunni majority were concentrated. These elites were the principal supporters of the clergy society (Van Dam, 1996, Pierret, 2013).
In its relationship with them, the regime interfered only when Islamic debates threatened its existence leading to jihadist movements. Otherwise, when debates remained related to the religious and social fields, the regime remained neutral. Where the latter case was impossible, it supported the opinion of the majority. By doing so, Pierret says that the Ba’athist regime supported such opinions so ‘they structurally reinforce state control over society’ (2013:101). Anleu called it coexisting. This cohabitation exists ‘where a dominant secular legal system is applicable to most areas of social life, while a religious law, for example the Sharia, will regulate the marriage and family status of Muslim citizens’ (Anleu, 2010:71). Mestura described this dynamic as making ‘legal exceptions by acknowledging and accepting the existence of customary laws that may have a controlling force in certain circumstances’ (1994: 474). This strategy proved to be viable during the conflict between the Syrian regime and the Muslim Brotherhood who aimed to topple the former by force during the late 70s. The movement did not receive any popular support and proved unsuccessful (Seale, 1992).
The fruits of this ‘coexistence’ could be found in the Syrian Constitution. Although the Muslim Brotherhood were present in the drafting of the 1950 constitution which stipulated that Sharia law is a source of legislation in Syria, the 1973 Constitution which was drafted under the close supervision of the progressive Ba’athist regime provided in Article 3(2) that Islamic jurisprudence is the main source of legislation. Moreover, the 1950 Constitution did not specify the religion of the head of the state, whereas the 1973 one states in Article 3(1) that the president should be Muslim. Nevertheless, under this regime Mrs. Najah Al Attar, who ironically is the sister of Issam Al-Attar, the Supreme Guide of the Syrian Muslim Brotherhood, assumed the position of vice president in 2006. She has also served as the Minister of Culture from 1976 to 2000 (Seale, 1992).
5. Why nothing has changed?
In 2003, Syria signed and ratified the Convention on the Elimination of All Forms of Discrimination Against Women. However, it expressed its reservations to articles 9 and 16 that grants women equal rights with men (CEDAW, 2007). How is it that the Syrian regime, who maintained an absolute dominion over the legislative, judicial and executive departments, could not sign and ratify this Convention with articles 9 and 16? The key answer might be that the regime yearns for stability, and lives in the shadow of fear of the various coups that took place in Syria between 1946 and 1970, so therefore fears to transgress Sharia law. The situation between the regime and the Syrian society could be portrayed in Wilson’s observation in that:
‘in some households…children are not subjected to punitive regime because the parents concerned treat bad behaviour as an inevitable by-product of conflicts of interest. Children want fun. Parents want order. Neither desire is more worthy than the other. Punishment, therefore, reduces to a method of advancing one person’s interest at the expense of another’s’ (2002:48).
Even the regime’s ability to impose those provisions that would oppose the culturally and religiously motivated laws is debatable. In his book Law and Social Change, Anleu drew from the Soviet experience to impose gender equality on the Islamic societies in Central Asia in the late 1920s. This step resulted in those laws being evaded and an increased hostility and violence on the part of Muslim men towards women. In the Syrian case, the state could not criminalise the ‘honour killing’ by showing disapproval. Rather, it must furnish ‘prudential’ reasons to the citizens not to offend (Wilson, 2002). Something it obviously failed to do when it attempted to abolish Article 548 in 2009. Despite the ultimate support which the initiative received from the Grand Mufti Ahmad Hassoun, Syria’s highest-ranking Islamic teacher, who condemned ‘honour killing’ (McClain, 2012), the Syrian society opposed the attempt fiercely because the new amendments oppose the Sharia law. Consequently, the regime restored the article with a minor amendment, in that the perpetrator should serve a minimum of two years. Besides, it is unclear how the judges, the ‘bastions of orthodoxy and moral rectitude’ (Wilson, 2002:134) would have applied the amendment while sentencing, since the latter ‘like all social actions, is a human endeavour (Quinney, 1970:186). They (judges) carry similar moral values of those within society. So when given the authority of Article 192, they will apply their own convictions, ethical and emotional values, resulting in ‘substantive irrationality’ (Anleu, 2010:24).
To blame the Ba’athist regime for all our problems is an inherited habit in Syrian society. On this instance, however, this attitude proves to be invalid. The regime, whatever its motivation might be, attempted to abolish Article 548 but failed due to the public and social opposition who hold specific conception of what constitutes an ‘honour’. It is true Islam does not endorse honour killing. Nevertheless, its views and doctrines on women have shaped the way its followers view women.
What is needed today is a clergy with the spirit of reformation; clerics like Muhammad Abduh, Jamaluddin al-Afghani and Abd al-Rahman al-Kawkibi who appeal to the layman rather than a cleric of the ruling class opposing a deep-rooted practice (honour killing). This clergy needs to demonstrate that such practice has no evidence in Islam and assist the social reformers to generate new interpretations of ‘honour’ and ‘shame’ that appeal to the layman. Until Syrian reformers (clergy and seculars) descend from their marble towers and reach out to society, the cradle of Articles 548 and 489, it is a matter of when rather than if a Syrian woman will lose her life to the regressive laws in the “progressive” state.
Photo A graphic of Rasha Bseis, a Syrian woman who was brutally murdered in October 2018, by a man reported to be her brother. This tragedy shone a renewed spotlight on so-called “honour killings” in the country.
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