According to the new article, “Anyone who catches his wife, kin or sister in the act of adultery or erroneous sexual conduct with another person, and ends up killing or injuring both of them or just one unintentionally, shall be imprisoned from five to seven years for committing manslaughter”.
Therefore, if the murderer proves that his wife or sister has committed adultery, and that he caught the victim in the act, he still benefits from a reduction in the sentence — namely, a minimum of five years and a maximum of seven years imprisonment, as determined by the court.
The honourable motive in Syrian law
Article 192 of the Syrian Penal Code mitigates the crimes committed in the name of honour in addition to providing lenient penalties for murders triggered by the honourable motive.
The Penal Code defines the “motive” as “the cause that drives the perpetrator to commit murder or any other extreme behavior against the victim”. However, it does not specify the nature of the honourable motive, leaving the task of determining its exact meaning to the judge’s discretion.
After several attempts to properly interpret the honourable motive, the Court of Cassation reached several definitions of the legal term, such as “an unbridled emotional impulse that drives the murderer to commit his crime under the influence of a sacred idea that is far from selfishness, hatred or revenge, notwithstanding a personal interest or a private whim or purpose”.
Moreover, in an effort to determine the implications of this problematic legal phrase, the Court of Cassation considered that the honourable motive is “an unbridled emotional impulse that causes the perpetrator to commit his crime under the influence of a sacred idea which he could not ignore, neglect or suppress, and which consists of preserving and protecting one’s honour. The honourable motive stands as a justification once the murder takes place due to committing an act that tarnishes the offender’s sense of honour regardless of the time of crime”, according to the second issue of the magazine Attorneys entitled “Interpretation of the Court of Cassation Decision No. 1157” and published on November 30, 1982.
According to Article 15, the presence of the surprise factor is necessary to grant the mitigating excuse for the murderer: “Anyone who catches his wife, kin or sister in the act of adultery (…)”. Yet, laxity in reacting to the incident or delaying the crime to the next day or later negates the element of surprise, which is the main trigger for the killer’s rage. Thus, in such cases the murderer becomes no longer eligible for benefiting from such legal excuse.
The Court of Cassation also affirmed that “the honourable motive should not be taken into consideration in case it is not directly related to the act of murder. Such discovery may occur by means of other strongly suggestive evidences that the corresponding motive did not exist in the time of the murder which might have happened for other reasons”. Accordingly, if a father kills his married daughter due to her misconduct before marriage, for instance, he would not be granted the honourable motive which serves in other homicide cases as a mitigating factor for sentencing, according to the 1979 issue of the magazine Attorneys.
The difference between the exculpatory excuse and the mitigating excuse in Syrian law – ‘honour killings’ in Islamic Sharia
Sharia rejects individual vendetta and urges that such cases must be referred to the competent judicial authorities to process the details of the crime in a fair trial based on legitimate evidence and reasoned arguments.
Syrian Islamic scholar, writer and former member of the People’s Council, Mohammad Habash, defines the term ‘honour killings’ as “a crime of retaliation against a woman or a man resulting from a suspicion of perpetrating sexually obscene conduct. Such terminology is objectionable and unacceptable, in either linguistic or Sharia terms”. Habash insisted that the use of the expression “honour killing” “was familiarised through media discourse rather than the words of Islamic scholars”.
In his study Honor Killings between Sharia and Law, Habash stated that Islam firmly prohibited adultery and considered it as an ethical and social crime, especially “when it includes marital infidelity. In this regard, the glorious Islamic Sharia preserves the stability of the Muslim family”.
He added that it is evident that, “Islamic law determines a punitive punishment against parties guilty of adultery if proven by strong evidence”. At the beginning, the Islamic penalty for adultery consisted of whipping adulterers, which was a common form of punishment among Muslims during that period. However, throughout the history of Fiqh (Islamic jurisprudence), the punishment for adultery has undergone many amendments to suit evolving lifestyles and different legislative norms in each country.
According to Habash, the punishment for adultery in Sharia is not a private matter that can be executed individually and at any given time. He clarified that this subject can only be addressed by legitimate authorities which have a duty to enforce the law. Thus, carrying out the punishment can only take place after a given nation chooses and approves to implement such a penalty through democratic institutions. Likewise, Hudud (punishments specified in the Quran and the Hadith) necessitates several necessary and accurate conditions in order to apply the Islamic sentence correctly.
Nevertheless, the Islamic scholar pointed out that these conditions are “extremely severe and rigorous” which makes them impossible to execute.
He considered ‘honour killings’ an unacceptable act according to principles of Fiqh: “We choose to punish the offender by applying Qisas (the right of a victim’s nearest relative to take the life of the killer), with the possibility of easing the punishment and considering the mitigating excuse if the surprise element and the guilt of adultery are proven to have taken place during the time of murder. The complementarity between these factors would enable Islamic jurists to fulfill the purposes of Sharia, namely justice and fairness for all.
Habash also called for banning all forms of honourable vengeance, which he referred to as a clear violation of the provisions of Sharia and its objectives.