Freedom of Religion in Syria - History of The Constitutional Clauses

History of The Constitutional Clauses

On March 8, 1963, the Ba'ath Party seized power. The Ba‘ath theoretician Michel Aflaq associated religion with the old corrupt social order, oppression, and exploitation of the weak, seemingly influenced by a mixture of radical Hobbesian and Marxist views on religion. The constitution of 1963, however, still made it clear that "Islamic jurisprudence shall be ‘the’ main source for legislation." Despite this proviso there were a number of Sunni Muslims who felt that the secularization of the law had gone too far. Muslim Brothers pressed for Islam as a state religion, by demanding that all laws contrary to Islam should be abrogated. Their beliefs encompassed the understanding that the essential elements of the unity of Syria is the shari’a which includes laws adequate to organize all aspects of this worldly life and the hereafter, at the level of the individual, the family, the nation and the state.
Already back then there was an underlying tension that stemmed from sectarian differences between the majority Sunni Muslims and the minority ‘Alawis. The immediate focus of the opposition to the government was the demand by Sunni Muslims that Islam be declared the state religion in the Constitution. A new draft Constitution was adopted by the People’s Council at the end of January 1973 but had no provision to that effect. Viewing the Constitution as the product of an ‘Alawi dominated, secular, Ba‘athist ruling elite, Sunni militants staged a series of riots in February 1973 in conservative and predominantly Sunni cities such as Hamah and Homs. Numerous demonstrators were killed or wounded in clashes between the troops and demonstrators. As a result of these demonstrations, the Assad government had the draft charter amended to include a provision that the president of Syria must be Muslim. On March 13, 1973, the new Constitution (which is still applicable today but on the verge of being amended) went into effect. Islam was not declared the state’s religion, but instead a compromise was adopted in that the Constitution reads, in Article 3(1) and (2):

Paragraph 2 of Article 3 declares that Islamic jurisprudence is "a" source of law, but not "the" absolute source. Bernard Botiveau notes that from a Ba‘athist perspective "Islam was one of the fundamental components of Arabness, but required to be located at the religious, and not the political end." The provision constitutes a political compromise. Sunni Shaykh, Muhammad al-Habash, interprets the provision to mean that "a refers to the situation where there is another source of law. Islam is a main source, but not the unique source. There are other sources for a wide area of law." Scholarly commentator Nael Georges supposes that if there is no Islamic law that regulates a specific circumstance, secular law is applied. However, Georges concludes that there is not strict separation between Islam and the state in its present constitutional setup. Despite this proviso, it can hardly be said that the Syrian state adheres to an official Islamic ideology. But there is an express appeal to one particular ideology that should constitute the prime source of the state’s regulatory and normative functions.