Amendments to the Personal Status Law: Violation of Sharia or equity for women?
Since 1953, the Personal Status Law has resisted all the changes in the Syrian society. It has undergone only minor amendments, which have changed the features of some of its articles, and have not been satisfactory to some legal communities calling for deep amendments to the current law.
Most of the amendments to the law were made before 1975 and after 2000, and focused on matters related to marriage, but the more comprehensive amendments waited 66 years until they were approved.
On February 10, Syrian President Bashar al-Assad issued Law No. 4 of 2019 amending 23% of the articles of the Personal Status Law. The amendment included a large number of articles, most of which are intended to improve the status of women.
The Personal Status Law is one of the most sensitive laws, as it regulates matters related to public life and personal affairs of individuals. It deals with issues of divorce, marriage, inheritance, custody of children, and other issues affecting the lives of citizens.
Since the Personal Status Law is based on Islamic Sharia as a basic reference, any amendment must open a wide area of controversy and raise contradictory views, some of which demand a civil the Personal Status Law, and then carefully consider the items and points that could possibly contradict with Islamic Sharia.
Enab Baladi examined the amendments to 71 out of 308 articles in the Personal Status Law No. 59 of 1953, compared them before and after the amendment, and also made interviews with three Syrian lawyers to explain these amendments and see the different views on them.
Infringement to Sharia?
The Islamic Sharia, on which the Syrian Personal Status Law is based, defines issues related to marriage, divorce, custody of children and inheritance, based on explicit Koranic provisions or Prophetic traditions. The details which are based on the doctrinal views of the different Muslim sects and communities are abundant.
Since the amendments affected a relatively large number of Personal Status Law articles, a significant part of them were criticized as constituting an infringement to Islamic Sharia.
Lawyer Muhammad al-Habal, director of Family Reform Association in Istanbul, believes that most of the amendments are contrary to Islamic Sharia and will lead to irregularities, and problems among people will be widened because of the paradoxes in the laws.
In his interview with Enab Baladi, al-Habal criticized more than an amendment to the law, including the amendment to the second item of Article 12, which stated in the text that “If the father married off his mature daughter out of her own free will and satisfaction and she was herself present during signing the marriage contract, the marriage is valid in the presence of one male witness or two female witnesses together with the father.”
The article in the Basic Law only requires for the validity of the marriage contract “the presence of two male witnesses, or a man and two women who are rational Muslims and who can hear affirmation and acceptance and understand what it means.”
Al-Habal thinks that the testimony requires the presence of two men. He added that the amendment “abolished the role of father as a parent and considered him as a witness, but the Prophet peace be upon him said that no marriage is valid except with the presence of a parent and two witnesses.”
In item 3 of the same article, it is stipulated that a witness may be from the wife’s religion, that is, if the wife is a Christian, for example, one of the witnesses can be a Christian, which al-Habal considered as “invalidating the contract”.
Al-Habal also saw that Amendments to Article 26, which determine the guardian of a girl at marriage, a violation of Sharia, as the amendment granted the mother of the future wife the right to be the guardian when signing the marriage contract in the absence of the father, or the absence of a guardian who is a blood relative of the girl (grandfather, uncle, brother ..), which al-Habal thinks is contrary to “the Sharia rule, which says that the judge is the guardian of the person who does not have a guardian.”
Syrian judge Ibrahim al-Hussein, a member of the Independent Syrian Judiciary Council, has a different opinion. He finds it “natural” that the debate over these amendments is raised, particularly by those who think that it is forbidden to amend the doctrinal views with which they have long been familiar and which constituted a main reference to the Syrian Personal Status Law when it was issued in 1953.”
Different doctrinal views considered
Al-Hussein added in an interview with Enab Baladi that “as long as we say that they are doctrinal views, it necessarily means that they can be modified according to the circumstances of time and place, noting of course that this does not contradict the approach of the scholars themselves. Imam Al-Shafi’i has amended his doctrine according to the nature of the society in which he lived.”
Al-Hussein thinks that reconsidering the arrangement of the child custody in the new amendments is one of the controversial issues. Article 139 of the Basic Law stipulates that “the right of custody is granted for the mother, then her mother and if she is unable, the father’s mother; and if unable the full sister, then the sister etc.” In the new amendment, the father has the right of his son’s custody before mother’s mother custody.
However, lawyer Muhammad al-Habal does not consider this amendment which “was made by Imam Ahmad ibn Hanbal” contradictory to Sharia.
Al-Habal expressed surprise at the adoption of the Hanbali doctrine in the amendment, while “the law is often based on the Hanafi doctrine and rarely resorts to the views of other doctrines except in case of a public interest.”
Article 100 of the law, which has been amended so that khul’ became regarded as a cancellation of the contract and not as a divorce, is also considered one of the controversial articles that lends itself to different doctrinal views, according to al-Habal who agrees with the viewpoint that considers khul’ as a cancellation.
What is women’s situation in the law?
In the new amendments to the Personal Status Law, many matters related to the situation of women as wives or mothers have been approved as part of an effort to improve the situation of women in Syria.
The Head of the Personal Status Department at the Faculty of Sharia in Damascus, Mohamed Hassan Awad, told pro-regime newspaper al-Watan on February 2 (before the approval of the amendments in the People’s Council of Syria) that the amendments have addressed discrimination against women, facilitated some judicial legal proceedings including the handling of the main cause of customary marriage in addition to the facilitation of other procedures in the judiciary to achieve the purposes of the law. The amendments have equally given a wider space for women in some aspects that were not previously stipulated by the law.
However, some lawyers consider that the amendments do not contribute to a significant improvement in women’s situation, like a female Syrian lawyer living in Damascus, who refused to be named, and who told Enab Baladi that what has happened to the law was “tinkering” rather than amending substantive points.
The lawyer cited the example of the amendment of the age of marriage for girls in article 16 of the law. The eligibility of marriage for boys and girls has been amended to 18 years of age, while the age of eligibility for the girl was 17 years.
Although this may contribute to removing the legal cover for the marriage of underage girls, a Sharia judge may marry off a girl or a boy under the age of 18, in case he sees they are eligible for marriage. This is according to article 18 of the law, which states: “If the female or male adolescents claim hitting puberty after the completion of 15 years of age and they request to be married, the Sharia judge can authorize the marriage, in case he sees that they are truthful about their claim, their bodies’ growth would make it possible for them to get married, and that they know about marital rights.
Judge Ibrahim al-Hussein, agrees with the female lawyer that the amendments were not fair enough to women. The new amendment has not granted the girl the right to marry herself off, even if she is 18 years old and has not yet been married, but the law still requires the consent of the guardian. In case of the guardian’s intransigence and refusal, the girl has the right to submit the case to the judge, who would either authorize the marriage or not, with the condition of capability and the dowry,” referring to the amendment to Article 20.
Al-Hussein considers that “this means that the law will continue to follow the trend that the woman is still unable to determine her own destiny and that she still needs someone to protect her.”
On the other hand, al-Hussein does not deny the existence of some positive points in the law amendments regarding women, such as Article 21, which stipulates that: “If the guardian of the girl married her off without her permission and then she found out, the contract can be suspended under her explicit permission.
In addition, according to the amendment to Article 73, a woman may stipulate in her marriage contract to work outside the house, and, unlike in the past, this does not prevent her from her right of pension if she does not take her husband’s permission later.
In the case of the husband’s arbitrary divorce, “the judge may judge in favor of the divorcee woman in accordance with the husband’s case and the level of arbitrariness with a compensation not exceeding three years’ alimony for similar cases, in addition to the alimony of Iddah (Wikipedia: the period a woman must observe after the death of her husband or after a divorce, during which she may not marry another man), according to the amendment to Article 117, after the main law used to require that women must be afflicted with poverty and misery due to arbitrary divorce to be granted the alimony. This amendment is therefore supposed to contribute to reducing the arbitrary divorce that some men force their wives to accept.
Are these amendments sufficient?
Judge Ibrahim al-Hussein and the female lawyer living in Damascus agree on the need for amendments to the Personal Status Law, while Lawyer Muhammad al-Habal believes that it is preferable not to amend the law.
Judge al-Hussein pointed out that “the personal status law was in dire need of amendments, regardless of the regime’s legitimacy and eligibility to issue these amendments and the way in which they were prepared,” adding that “only few amendments were fair and in line with community needs.”
The female lawyer sees that the amendments do not meet all the needs, but they are as expected, “as those who made the amendments to the articles could not have done more.”
The female lawyer cited the example of Article 146, under which the custody period for a male or female child is terminated at the age of fifteen, after the custody period for the male child used to be terminated at the age of thirteen. She considers this as good, but believes that there is still a problem that “there is no house for the custodian mother.”
As for Judge al-Hussein, he believes that the amendments “do not reach the level of making the lawfully free of errors. There is no doubt that the lack of mutual dialogue in the discussion of these amendments, the lack of examination of experts and community competencies of these amendments, and the passing of them in a rushed manner has already raised a wide reasonable criticism.”
“I cannot understand how the People’s Council studied all these articles in one day, although reading them and examining them individually would take several days. This is nevertheless not strange to the Syrian regime, which only cares about conveying messages, and this time the message is addressed to western countries to introduce itself as a defender of women’s rights,” al-Hussein added.
Lawyer Muhammad al-Habal agrees with this point of view, as he believes that “the general feature of these amendments is the imitation and favoring of European laws.”
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