نبيل فياض

حوارات ولقاءات

Speech at Georgetown University

09/10/2015

Email: عنوان البريد الإلكتروني هذا محمي من روبوتات السبام. يجب عليك تفعيل الجافاسكربت لرؤيته.

Nabilfayad.com

Dear ladies and gentlemen,

There is no doubt that the ongoing war in Syria is an unprecedented tragedy, a catastrophe that has resulted in the death of hundreds of thousands and the displacement of millions. The souls of all Syrians are bereaved; in each household there is a martyr. 

As the international community is still unable to find a solution or a compromise that would eventually solve the Syrian problem, the responsibility of Syrian intellectuals becomes increasingly bigger. Syrian intellectuals have to cut through the controversy and discern the roots of the problem in Syria. Maybe this way we can hope to usher Syria into a new era of democratic plurality, more secularism, and true social justice, instead of letting our country and its age-long culture plunge into the Dark Ages.   

As I have mentioned a couple of days ago in a lecture at BYU, the origin of the Syrian problem is not very hard to understand. What it simply boils down to is a clash between two ideologies: Islamism, on the one hand, and secularism, on the other. That is to say, there is a clash between 7th-century Arabia and 21st-century Syria. Nothing reflects this more than the way the 1953 Syrian Personal Status Law contradicts the 2012 Syrian Constitution. In a bitter irony, the severity of this contradiction gives one the illusion that the two documents were issued by two different states. One should still note here that the new Syrian Constitution is still far from perfect, and some of its articles are in need of serious reconsideration.

In this lecture, I attempt to detail the contradictions between the Syrian Constitution and the Personal Status Law, explaining the danger the latter constitutes on the unity of Syria and the coexistence between its different subpopulations.

Civil marriage does not exist in Syria. Civil marriages performed outside the country will be subject to the Personal Status Law and its provisions.

The Syrian Personal Status Law is mainly based on the provisions of the Hanafi Madhab (school of thought) of Islam. The jurisprudence of this madhab was codified, at least as practiced in Syria today, in the book Legal Provisions in the Personal Status by Mouhammad Kadri Pasha (1821-1886), an Egyptian-Ottoman scholar.  Factoring into the prominence of Hanafi thought, article 305 of the Personal Status Law states that “everything that has not been covered in this law shall be resolved according to the most relevant provisions of the Hanafi school of thought.” Lawyers and judges alike depend on this rule to deal with family affairs.

The sad reality, nevertheless, is that the Hanafi Madhab alarmingly discriminates between men and women, as well as between Muslims and non-Muslims. In a blunt infringement on the rights of Syrian atheists, agnostics, secularists, and followers of untraditional monotheistic religions, the law is supposed to apply to all Syrian citizens apart from “recognized” religious groups, meaning Christians, Jews, and Druze.  

These three communities follow their own religious codes for matters of engagement, alimony, and divorce. As per article 308, “for the Christian and Jewish communities, they should [respectively] apply their own religious provisions for the matters of: engagement, dowry, marriage, marriage contract, alimony, child support, divorce, [and] child custody.”

The Personal Status Law of the Christian community in Syria forbids marriage between Christians and followers of other religions. This means that only those who are baptized into recognized churches in Syria can actually legally marry as per the in-effect Christian legislations.

Article 48 of the Syrian Personal Status Law states that “marriage between a Muslim and a non-Muslim [other than the people of the book] is void and [therefore] children born into such a marriage are deemed illegitimate.” In order to recognize a marriage, a woman who is married (or to be married) to a Muslim man and does not belong to the recognized Christian or Jewish denominations in Syria should confirm to the relevant authorities her conversion to Islam. This article was recently re-ratified by a Sharia judge in Damascus on the 10th of September 2014.

Though a Muslim man is allowed to marry a Christian woman without her conversion to Islam, the marriage will be subject to the Syrian Personal Status Law which is exclusively Islamic. This will deprive the Christian woman from her right to inherit her husband or her children, as per article 264 of the Personal Status Law and article 125 of Kadri Pasha’s previously-mentioned book.

The children born into such a marriage will be automatically Muslim, according to article 124 of the latter book. Furthermore, in case of the death of the father, the Christian mother can lose custody of her children (Kadri Pasha, article 381). This stems from the orthodox Islamic view that a Christian cannot be a guardian of a Muslim (Kadri Pasha, article 178).

Ironically, in spite of his/her religion, a child who does not have a legal guardian can be put under the guardianship of a Sharia judge (Personal Status Law, article 24). This can be attributed to the fact that all Christian denominations in Syria have to follow Islamic jurisprudence in matters of guardianship, trusteeship, and custodianship.

When a Muslim and a Christian marry, the children usually follow the religion of the Muslim parent; this is based on the Islamic Sharia principle that a child is to be dependent on “the more honorable or the best of his parents.” Islam expectedly, according to this draconian principle, is considered the “most honorable” religion.

Recently, there was an incident in Damascus where children born into a marriage between a Christian man and Muslim woman were forcibly registered as Muslim, while the marriage of the parents was deemed illegitimate and therefore was not registered in Syria.    

To further complicate the situation and infringe upon the personal freedoms of the citizens, courts do not automatically recognize contracts of marriage performed outside Syria. The couples have to comply with the Syrian Personal Status Law and its ludicrous provisions.

The Syrian Personal Status Law, through its treatment of religious minorities, facilitates conversion to Islam and forbids Muslims to convert to other religions. Despite the fact that there is no law that criminalizes blasphemy in Syria and although Syria has no official state religion, thanks to the Personal Status Law, Muslims who convert to other religions are subject to serious harassment and sever alienation. Traditionally, such individuals have been denied inheritance, custody of their children, and the right to testify in courts.

Such a treatment renders these converts defenseless in the face of the extrajudicial persecution fanatic Muslims are so eager to inflict upon them. Persecution ranges from harassment to murder. The latter is usually committed under the pretext of “passion” and may receive a lesser sentence than a premeditated murder.

Even the terminology used in marriage contracts in Syria is misogynist and demeaning to women. For example, the word that is usually used to refer to “marriage” in a marriage contract is “nikah,” which simply means “penetration.” The woman thus is referred to as “al-mankouha,” meaning the “penetrated.” The man, on the other hand, is referred to as “al-nakih,” meaning the “penetrator.” Such a language clearly reflects the misogynist culture of 7th –century Arabia, a culture that is in many parts of  the country today is considered by Syrians, including moderate Muslims, as backward and oppressive. 

Further confirming the sexist attitude of orthodox Islam towards women, the Personal Status Law forbids adult women from marrying without the consent of their male guardians. A guardian is defined as an adult male relative (a father, a brother, an uncle, a grandfather . . .) who has the authority to marry off the woman and to request the annulment of a marriage in case he can prove that the marriage was performed without the approval of a guardian.

In another draconian provision, the Personal Status Law states that “if an adult marries herself off without the approval of her guardian, the latter can ask for the annulment of the marriage if the husband is unfitting.” The husband in this case can be considered “unfitting” if he is from a different sect/religion or from a lower social class.

Moreover, the Personal Status Law does not view the testimony of women as equal to that of men. Thus, it stipulates: “the validity of a marriage contract requires the presence of two [Muslim] witnesses, [that is] two men or a man and two Muslim women who are adults” and are physically fit to perform their duties. This echoes the fact that the testimony of two non-Muslims is equal to that of one Muslim.

The Personal Status Law has greatly demonized mixed marriages in the eyes of many conservative Syrians. This has resulted in some dire repercussions on interreligious couples, especially on women. Family members of women who marry someone from another religion/sect may sometimes go as far as committing an “honor” crime. Despite the heinous nature of their crime, they still benefit from the provisions of article 192 of the Penal Code related to “honor crimes.” Originally derived from the old French Penal Law, the law provides a reduced sentence for murdering a female relative in order to protect or avenge one’s honor. As of the beginning of 2014, the Syrian Ministry of Interior has recorded 60 honor crimes.

Along with the many infringements on personal freedoms and the systematic dehumanization of women that this law endorses, child marriage—while frowned upon by the majority of Syrians—is still technically legal. The Law says that “if a teenage male claims adulthood after he has reached the age of fifteen and if a teenage female has reached the age of thirteen” they can be married to adults upon their request if their respective guardians approve.

To recap, it is obvious that the Law studied in this paper opens the door to religious discrimination and greatly disturbs coexistence and national unity. The reasons can be summarized as follows. First, according to the Personal Status Law, a Muslim always has the upper hand when it comes to family disputes. Second, atheists, agnostics, and irreligious people are forced to marry and arrange their marital affairs according to religious dogmas which they do not adhere to. Third, in case a Syrian wishes to marry a Buddhist, a Mormon, or a Hindu, he/she cannot do so without the future partner changing his/her religion and converting to one of the recognized religions in Syria. These recognized religious groups are the ones mentioned in the Quran: Christians, Jews, and Sabians. This is mainly because when the Quran was written, other religious or irreligious communities had not been encountered yet by the early Muslims. The Personal Status Law hence is the product of an ancient, outdated religious worldview.

Finally, there is a clash in Syria that one must underscore and examine, which is the clash between the mostly secular constitution and the Islamic Sharia that one can definitely trace in certain laws, most notably the Personal Status Law. For example, the issue of concubinage, which has a long history in Islam and had been practiced well into the early years of our modern time, is still permitted by Islamic scriptures.

To rephrase what Sheikh Mohamed Said Ramadan Al-Bouti (1929-2013) writes in his book These are their Problems (Hathih Moshkilatohom), concubinage, although illegal and uncommon in our modern times, is still allowed according to Islamic Sharia. His main argument is that if there is a change in the sociopolitical structure of the country that would bring back concubinage, then there is no moral or theological objection to it. This is, as he further illustrates, because it is permissible according to the Quran, a book that he—like all mainstream Muslim theologians—considers valid for all times and all places.

 The concubinage issue is just one out of many examples where orthodox Islam will permit condemnable practices based on the traditional rule of thumb that the Quran is valid for all times and all places. Certainly, the same goes for beheading, torture, and summary execution—practices that have become trademarks of the militant Islamist groups fighting in Syria and elsewhere.

Therefore, only secularism can solve such problems. When we have a secular law that explicitly condemns 7th-century Bedouin laws of warfare, only then could we have a society that does not go from coexistence to extreme violent sectarianism when it faces a crisis or undergoes a change. Though a sizeable and influential minority of Muslims in the Middle East still frowns upon secularism, such a minority still does not understand that it is secularism that guarantees the freedom of worship that Muslims enjoy in the West, including fanatic Muslims.   

This brings us again to the core of this study, the Syrian Constitution and its conflict with the Personal Status Law. After several decades of shy secularism in Syria, to combat terrorism there is only one solution: to further improve the Syrian Constitution and delete all the articles that treat Islam as exceptional and to do away with theological (fiqh) books that infringe upon the most basic of human rights. Nothing shows how antiquated theology curbs the rights of individuals more than the Syrian Personal Status Law which is mostly derived from The Marginalia of Ibn Abidin (Haishiat Ibn Abidin) by the Damascene Muslim jurist Muhammad Amin Ibn Abidin (1783–1836).

Since that this book, in an ironic twist of fate, is used by a secular country like Syria and terrorist Islamist groups like Taliban, the issue can be summarized in one rhetorical question: how can we fight extremism if we have not yet discredited its theological sources?

Syrian Constitution

Personal Status Law

Article 33. 3: discrimination among [citizens] on grounds of sex, origin, language, religion or creed [is not allowed]

Discriminate against non-Muslims and women

Article 42.1: Freedom of belief shall be protected in accordance to the law

Forces atheists, agnostic, and followers non-traditional Abrahamic religions to govern their marital affairs according to Islamic Sharia

Article 54: Any assault on individual freedom, on the inviolability of private life or any other rights and public freedoms guaranteed by the Constitution shall be considered a punishable crime by the law

Individual freedoms are not fully protected in relation to marriage

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