Legal code has been drawn up by Muslim scholars, judges and top anti-Assad politicians to stop hardline interpretations of Islam from becoming entrenched. Phil Sands reports
Syrian opposition to establish moderate form of Islamic law
The legal code was drawn up by Muslim scholars, judges and top anti-Assad politicians in advance of meetings this week in Istanbul convened by the Syrian National Council (SNC), where transitional justice arrangements are being discussed.
The opposition hopes that an interim government, as yet unformed, will apply a version of the new legal system nationwide, after it goes into effect in areas currently controlled by the insurgents.
Different systems of Sharia now govern pockets of Syrian territory controlled by the rebels. Some are enforced by Jabhat Al Nusra, a militant group affiliated with Al Qaeda, prompting fears that its interpretation of Islamic law is filling the legal vacuum.
Launching the initiative on Monday, Moaz Al Khatib, president of the SNC and himself a widely respected Islamic cleric, appealed for a moderate, fair legal system, which would meet demands for justice and head off the growing influence of extremists.
"I want to talk frankly. When there is injustice, there is a revolution against that injustice. In the same way there should be a revolution in religious thought," he said.
"The goal of religion is to liberate human beings, all of the prophets came to liberate the people."
Extremists, including groups such as Al Nusra, one of the most powerful rebel factions, should not be allowed to spread their ideas, Mr Al Khatib said.
"We do not need ignorant people coming to Syria and teaching us the meaning of religion," he said, chiding members of Al Nusra for trying to enforce an uncompromising version of Islam on a country with traditions of greater religious tolerance.
"Some in Al Nusra have told women they must wear hijab and that is not right, if you want to preach, do it well, you can talk, you cannot command, there is no compulsion in Islam," he said.
Since the revolt against Mr Assad began in March 2011, central government control has collapsed across vast swathes of Syria.
Local courts, often headed by respected members of the community and delivering a rough-hewn frontier justice, have sprouted in rebel-held areas, meeting a demand of communities to prevent crime and deal with offenders in the absence of a functioning state legal system.
Al Nusra has won respect in zones under its command for an uncompromising attitude towards justice, and its willingness to investigate complaints made by civilians against its own fighters and harshly punish them if found guilty.
Senior Syrian clerics allied to the more moderate SNC, as well as judges and lawyers who have sided with the rebels, have been working on their own legal guidelines for months.
According to internally circulated opposition documents, the first clause of the legal code states that "justice and equality are the basis of governance, as are the rights of litigation and defence, which are all guaranteed and will not be compromised".
Further clauses assure that all people are to be treated equally before the courts, with no discrimination permitted and no exemption from prosecution for anyone on the basis of their position.
Clause three of the code, as presented in documents circulated among opposition legal experts, states that "governing justice will be in accordance with the provisions of Sharia law".
An opposition activist familiar with the closed-door discussions on the legal system said it had been widely agreed on pragmatic grounds that it would be an Islamic legal system.
"Most of the people who are fighting now, the rebels, have an Islamic background and they believe what they are doing is God's will" he said. "They would not accept it if you suddenly said to them, 'No, let's bring a system of law like the Europeans have.' They are believers. They made Islamic courts on the ground already because that is what they and the people wanted."
Despite the widespread perception that Syria is governed by a secular regime secular state, the most recent constitution passed by Mr Al Assad's regime has Islamic jurisprudence as "a main source of legislation", although much of the legal system is based on a French model.
Still, any reference to Syrian law or the country's constitution has always struck most Syrians as irrelevant, given the unchecked power of the Syrian regime and its security apparatus in practice.
Nonetheless, the proposed rebel Sharia system seems likely to upset some in religious minority groups and secular Syrians, both pro and anti-regime.
"We've not gone through all the trouble of a revolution to have an Islamic state," said a secular activist familiar with the plans.
However he stressed there are different forms of Sharia, and that if moderate it would be widely accepted.
"As long as they're not talking about turning Syria into Afghanistan under the Taliban it will be probably be okay," he said.
Non-Muslims often criticise Sharia, saying it accords them a second-class status, belying any promise of equality in the eyes of the law.
Exactly what type of Sharia will be chosen by the rebel government remains to be seen. Respected moderate clerics, including Osama and Saria Rifai, popular Damascus imams who spoke publicly against Mr Al Assad, have been involved in drafting early proposals. So too has the Association of Syrian Scholars, which encompasses clerics close to the Muslim Brotherhood.
George Sabra, vice president of the SNC and a Christian, has backed the new legal code, saying it will ensure equal rights. Haitham Al Maleh, a former judge, has also been involved in the drafting process.
The activist familiar with the high-level discussions on the subject, and the internally circulated drafting documents, described the system as a compromise. Although likely to disappoint liberals and Muslim hardliners alike, it would be broadly accepted in the country, he said.
According to the documents, people accused of crimes will not be afforded a lawyer. Instead, their case will be heard by a trained judge - the ranks of rebels include many magistrates who have defected from the regime. These judges will determine guilt or innocence and then, in conjunction with an Islamic legal expert, they will hand down a punishment.
Major decisions, especially cases involving the death penalty, will be reviewed by a higher committee of Islamic judges.
The judicial system is to be based on the Hanafi school of jurisprudence, a widely followed Islamic legal framework, but experts in the three principle other schools - Shafi'i, Hanbali and Maliki - also will be attached to the courts, with Muslim defendants allowed to choose judgment according to their own beliefs.
The system also proposes bringing military courts, dealing with crimes committed by rebel fighters and regime troops, under the administration of a supreme court.
Islamic courts have been operating for months in Aleppo. There are 150 judges already in place in Aleppo province under the SNC system, the draft documents state, each paid a monthly salary of US$1,000 (Dh3,672).
More fledgling courts are also working in elsewhere, including in rebel held areas of Damascus and its outskirts.
The task of bringing these courts under SNC control, especially the independent courts run by Al Nusra and its allies, is certain to prove difficult.
"Nusra respects the idea, it respects the principle of Sharia but they have their own system when they are fighting and they are not saying they will be part of our system when it is in place," said an activist in Damascus familiar with the draft legal code.
"Unfortunately when it comes to military operations, many of the rebel brigades have their own legal system. They make the decisions on the ground and will do what they want."
"It's one thing to have a code on paper, but on the ground the reality is different."