Establishing the Rule of Law and the Independence of the Judiciary
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Chapter 7
Establishing the Rule of Law and the
Independence of the Judiciary
T
he judiciary is a basic branch of the modern state, would be appointed as military ruler, with the minis-
alongside the legislative and executive branches. ter of the interior as his deputy. The state of emergency
The raison d’être of the judiciary is to provide remained in force until 2012. When the peaceful
justice and equality before the law to all citizens, to demonstrations that demanded the fall of the Assad
decide on their conflicts accordingly, and to administer regime began in 2011, as an attempt to defuse pop-
the proper penalties when laws are broken.1 Thus, any ular unrest, the Syrian government brought the state
deflection in its basic principles of independence, of emergency to an end (among other procedures).
impartiality, and integrity will necessarily mean that However, even after the rhetorical end to emergency
the judiciary is unable to fulfill its purpose. Hence, law in Syria, the executive authority and the security
it is plausible that a fair, independent, and impartial forces continued to kill peaceful protesters, stripping
judicial authority is integral to the very existence of a this gesture of any perceived sincerity.
state, and by extension to its people and to full respect The 1973 constitution proclaims Syria as a demo-
for the rule of law. cratic, popular, socialist, and sovereign state.2 Despite
Syria has remained under a state of emergency for the fact that the constitution explicitly recognizes the
almost half a century, the longest continuous period principle of the separation of powers, the unconsti-
of emergency in history. This state of emergency has tutional, extended state of emergency and emer-
destroyed the foundations of the Syrian judiciary, gency law gives a wide range of powers to the exec-
reducing it to a tool in the hands of the executive utive authorities, the military governor, and various
authority. According to Legislative Decree No. 51 security services delegated by the military governor
passed on December 22, 1962 (Syrian Emergency and restricts a wide range of human rights, includ-
Law), a state of emergency and martial law was to be ing serious infringements of the independence of the
carried out in Syria. This was announced according judiciary. This law, and its implications, reduce the
to the military order issued by the National Coun- Syrian judiciary to a tool for the executive branch,
cil of the Revolutionary Command No. 2 on March and deprive the Syrian justice system of the basic
8, 1963. The order declared that the prime minister tenets of judicial integrity: independence, integrity,120 | Establishing the Rule of Law and the Independence of the Judiciary
and impartiality. Emergency law has thus hindered its decision is within its competence, as defined
the judiciary from performing its main task: provid- by the law.
ing justice to all Syrian citizens. 4. There shall not be any inappropriate or unwar-
The International Covenant on Civil and Political ranted interference with the judicial process, nor
Rights—which was released in 1966, was ratified by shall judicial decisions by the courts be subject
Syria in 1968, and came into force in 1979—deter- to revision. This principle is without prejudice to
mines the rights whose violation necessitates the judicial review or to mitigation or commutation
intervention of a judicial, administrative, or legislative by competent authorities of sentences imposed by
authority and ensures that the designated authority the judiciary, in accordance with the law.
shall implement the issued verdicts on behalf of the
5. Everyone shall have the right to be tried by ordi-
interests of the aggrieved.3 Although this covenant
nary courts or tribunals using established legal
allows the state party to take measures derogating
from their obligations in certain cases, it is expressly
stipulated in Article IV, to take these measures in
cases of emergency that “threaten the nation and the
existence of which is officially proclaimed . . . and
Syria has remained under
strictly required by the exigencies of the situation . . . a state of emergency for
and that such measures are not inconsistent with their
other obligations under international law and do not almost half a century, the
involve discrimination solely on the ground of race,
color, sex, language, religion or social origin.”
longest continuous period of
The Basic Principles on the Independence of the emergency in history.
Judiciarcy were released in Montreal in 1983, and
endorsed by the UN General Assembly in 1985.4 The
articles of the declaration regulate several matters
pertaining to the judiciary, so as to ensure that it will procedures. Tribunals that do not use the duly
fulfill its purpose. The declaration stipulates these established procedures of the legal process shall
regulations: not be created to displace the jurisdiction belong-
1. The independence of the judiciary shall be guar- ing to the ordinary courts or judicial tribunals.
anteed by the state and enshrined in the constitu- 6. The principle of the independence of the judiciary
tion or the law of the country. It is the duty of all entitles and requires the judiciary to ensure that
governmental and nongovernmental institutions judicial proceedings are conducted fairly and that
to respect and observe the independence of the the rights of the parties are respected.
judiciary. 7. It is the duty of each member state to provide ade-
2. The members of the judiciary shall decide matters quate resources to enable the judiciary to properly
brought before them impartially, on the basis of perform its functions.
facts and in accordance with the law, without any 8. In accordance with the United Nations’ Univer-
restrictions, improper influences, inducements, sal Declaration of Human Rights, the members
pressures, threats or interferences, direct or indi- of the judiciary are, like other citizens, entitled
rect, from any quarter or for any reason. to freedom of expression, belief, association, and
3. The judiciary shall have jurisdiction over all assembly—provided, however, that in exercising
issues of a judicial nature and shall have exclusive such rights, judges shall always conduct them-
authority to decide whether an issue submitted for selves in such a manner as to preserve the dignitysyria transition roadmap | 121
of their office and the impartiality and indepen- acts or omissions in the exercise of their judicial
dence of the judiciary.5 functions.
9. Judges shall be free to form and join associations 17. A charge or complaint made against a judge in
of judges or other organizations to represent their his or her judicial and professional capacity shall
interests, to promote their professional training, be processed expeditiously and fairly under an
and to protect their judicial independence. appropriate procedure. The judge shall have the
10. Persons selected for judicial office shall be indi- right to a fair hearing. The examination of the
viduals of integrity and ability with appropriate matter at its initial stage shall be kept confiden-
training or qualifications in law. Any method of tial, unless otherwise requested by the judge.
judicial selection shall safeguard against judicial 18. Judges shall be subject to suspension or removal
appointments for improper motives. In the selec- only for reasons of incapacity or behavior that
tion of judges, there shall be no discrimination renders them unfit to perform their duties.
against a person on the grounds of race, color, 19. All disciplinary, suspension, or removal pro-
sex, religion, political or other opinion, national ceedings shall be determined in accordance with
or social origin, property, birth, or status. Only established standards of judicial conduct.
the requirement that a candidate for judicial office
20. Decisions in disciplinary, suspension, or removal
must be a national of the country concerned shall
proceedings should be subject to an independent
not be considered discriminatory.
review. This principle may not apply to the deci-
11. The terms of office of judges—including their sions of the highest court and those of the legisla-
independence, security, adequate remuneration, ture in impeachment or similar proceedings.6
conditions of service, pensions, and age of retire-
ment—shall be adequately secured by law.
12. Judges, whether appointed or elected, shall have
Judicial Authority in Syria
guaranteed tenure until a mandatory retirement
during the Rule of al-Assad
age or the expiration of their term of office, where
such exists. The Theoretical Basis for Judicial Authority
13. Promotion of judges, wherever such a system The Permanent Constitution of the Arab Republic of
exists, should be based on objective factors, in Syria was adopted on March 13, 1973, and remained
particular ability, integrity, and experience. in force until 2012, when Bashar al-Assad passed a
new constitution. The 2012 constitution does not
14. The assignment of cases to judges within the
differ greatly from the previous one, particularly
court to which they belong is an internal matter
with regard to the role of the judiciary and the ruling
of judicial administration.
political system. Article 25 of the Constitution of 1973
15. The judiciary shall be bound by professional states that the “rule of law is a fundamental principle
secrecy with regard to their deliberations and to in the society and the State.” Article 50 of the 2012
confidential information acquired in the course of constitution declares that “all citizens are equal before
their duties other than in public proceedings, and the law in rights and duties and the rule of law is the
shall not be compelled to testify on such matters. basis of governance in the state.” Furthermore, the
16. Without prejudice to any disciplinary proce- “right to litigate and conduct remedies and defense
dure or to any right of appeal or to compensa- before the judiciary is safeguarded by the law”
tion from the state, in accordance with national (Article 28 of the 1973 Constitution and Article 51
law, judges should enjoy personal immunity from of the Constitution of 2012).
civil suits for monetary damages for improper122 | Establishing the Rule of Law and the Independence of the Judiciary
The third chapters of the 1973 and 2012 constitu- Before assuming their duty, the president and
tions are virtually identical. Articles 131 through 148 members of the Supreme Constitutional Court take
of the 1973 constitution (articles 132–149 of the 2012 an oath before the president of the republic in the
constitution) divide the judiciary into two sections. presence of the speaker of the People’s Assembly.
1. Public prosecution: According to articles 131 The Supreme Constitutional Court determines the
through 138, the judicial authority is independent. validity of the special appeals regarding the election
The president of the republic guarantees this inde- of the members of the People’s Assembly, to which it
pendence with the assistance of the Supreme Judicial submits a report on its findings. The Supreme Consti-
Council, which is headed by the president. The law tutional Court looks into and decides on the consti-
defines its composition, powers, and its internal oper- tutionality of laws, in accordance with the following:
ating procedures. 1. If the president of the republic or a quarter of the
The judges are independent and subject to no People’s Assembly members decide to challenge
authority except that of the law. The honor, con- the constitutionality of a law before its promulga-
science, and impartiality of judges are guarantees of tion, the promulgation of such law is suspended
public rights and freedoms. Sentences are issued in until the court makes a decision on it within fif-
the name of the Arab People of Syria. The law orga- teen days from the date the appeal was filed with
nizes the judicial system, along with its categories, it. If the law is of an urgent nature, the Supreme
types, and grades of judges. It also defines the reg- Constitutional Court must make a decision
ulations pertaining to the jurisdiction of different within seven days.
courts, as well as the terms of appointment, promo-
2. If a quarter of the members of the People’s
tion, transfer, discipline, and removal of judges. As
Assembly object to the constitutionality of a leg-
for the Public Prosecution, it is a singular juridical
islative decree within fifteen days of the date of
institution headed by the minister of justice. The law
the assembly session, the Supreme Constitutional
organizes its functions and powers.
Court must decide on it within fifteen days from
Alongside these judicial institutions, The Council
the date the objection was filed with it.
of State exercises administrative jurisdiction. The law
defines the terms of appointment, promotion, disci- 3. If the Supreme Constitutional Court decide that
pline, and removal of its judges. a law or a decree is contrary to the Constitution,
2. The Supreme Constitutional Court: Described whatever is contrary to the text of the Constitu-
in articles 139–48, it is comprised five members, of tion is considered null and void with retroactive
whom one will be the president, and all of whom are effect and has no consequence.
appointed by the president of the republic by decree
(under the 2012 constitution, the number of members The Supreme Constitutional Court has no right
of the constitutional court was expanded to seven). to look into laws that the president of the republic
It is not permissible to combine the membership of submits to a public referendum and are approved by
the Supreme Constitutional Court with a ministerial the people. At the request of the president of the
post or membership in the People’s Assembly. The republic, it gives its opinion on the constitutionality
law also defines other functions that cannot be com- of bills and legislative decrees and the legality of draft
bined with court membership. decrees. The law determines the procedure for hear-
The term of membership of the Supreme Consti- ing and adjudicating on matters coming under the
tutional Court is four years, subject to renewal. Fur- jurisdiction of the Supreme Constitutional Court. It
ther, members of the Supreme Constitutional Court also defines the court staff and the qualifications of its
cannot be removed from court membership except in members, and it prescribes their salaries, immunities,
accordance with the provisions of the law. privileges, and responsibilities.syria transition roadmap | 123
Official Bodies of the Judiciary 5. Recommending suspension of judges and their
Constitutional prosecution. Represented by the referral to the Supreme Judicial Council.
Supreme Constitutional Court, described above in 6. Suspending law clerks in cases deemed severe by
this chapter. the audit judge, withstanding that the audit judge
Public prosecution. Judicial Authority Law was must inform their hiring authority of the afore-
issued based on Article 135 of the constitution:7 “The mentioned suspension.
law organizes the judicial system along with its cat- 7. The suspension is void if no written confirmation
egories, types, and grades of judges. It also defines was issued by the hiring authority within fifteen
the regulations pertaining to the jurisdiction in the days.
different courts” to regulate the functions of the jus-
tice system and its relation to the Ministry of Justice. Supreme Judicial Council: Article 65 describes the
According to this law, the Ministry of Justice oversees organization of the Supreme Judicial Council. The
the judiciary, as is illustrated throughout this chapter. council is appointed by the president of the republic,
Ministry of Justice: Headed by the minister of jus- delegating the minister of justice to head the coun-
tice, who holds the powers pertaining to the ministry cil. The members are the president of the Court of
and is the highest authority for matters of administra- Cassation and his two senior deputies, along with the
tion, supervision, and overseeing judicial functions. deputy minister of justice, the general attorney, and
Audit Department: Its function is to audit judges the head of the judicial audit district. The council’s
and prosecutors and other judicial departments. It is sessions are closed, and a majority vote is required
composed of a president (chairman of chamber) and to pass decisions. A decree by the minister of justice
six counselors. They are appointed by the minister of (Article 66, 1, 2) implements decisions pertaining to
justice according to the Supreme Judicial Counsel’s appointing, promoting, transferring, reprimanding,
recommendation. The minister of justice is in charge suspending, retiring, and accepting resignations of
of the judicial audit district charter, after consulta- judges. According to Article 67, the Supreme Judicial
tion with the Supreme Judicial Council. Judges are Council has the following powers:
directly informed of findings pertaining to their work,
1. Appointing, promoting, reprimanding, and dis-
and audit judges report to the minister of justice and
missing judges by recommendation of the min-
the president of the Supreme Judicial Council.
ister of justice or the chairman of the Supreme
Article 15 of the Judicial Authority Law delineates
Judicial Council or three of its members.
the powers of the auditors, listed hereunder because
of its direct involvement with judges, and shows the 2. Retiring judges and accepting their resignations.
level of interference of executive authorities (e.g., the 3. Safeguarding the independence of the judiciary.
Ministry of Justice) in judicial matters. 4. Recommending draft laws pertaining to the judi-
1. Entering judicial departments. ciary, the immunity of judges, and the basis for
2. Accessing records and files of cases before the their appointment, promotion, transfer, repri-
courts. manding, and retiring.
3. Deliberating with judges and law clerks on mat- 5. Approve vacations longer than one month for
ters under audit pertaining to their work, and judges.
questioning them in writing on these matters to 6. The head of the council approves leaves of a dura-
which they must respond. tion less than one month.
4. Accepting complaints and investigating them Exceptional judicial systems. Despite the absence of
and calling involved persons for testimony when a clear constitutional text allowing for establishing
applicable. exceptional tribunals, their number is equal to, if not124 | Establishing the Rule of Law and the Independence of the Judiciary
greater than, the number of regular courts in Syria. trials and issue sentences. The Damascus Center for
Constitutional legislation authorities have categori- Human Rights Studies issued a report titled Justice
cally censured military jurisdiction and dubbed it an in Exceptional Jurisdiction? The Supreme Court of State
abnormal body inconsistent with the existence of a Security, which detailed the structure, powers, and
judicial authority. Exceptional tribunals are inconsis- procedures of this court.11
tent with democratic principles that separate military Military field courts were established by Legislative
and civilian rule, and consequently separate civilian Decree No. 109 in 1968, Article 1 of which states that
and military jurisdiction, which clearly does not allow one or several courts are established under the name
for trying civilians before military tribunals.8 Article “military field courts,” with jurisdiction over offenses
135 of the constitution states: “The law organizes the pertaining to the military committed during war,
judicial system along with its categories, types, and military operations, or in affiliation with the enemy.
grades of judges. It also defines the regulations per- The court’s jurisdiction has been in effect since June
taining to the jurisdiction in the different courts.” 1967. Article 5 allows for this court to bypass stand-
Exceptional tribunals detract from the judicial author- ing laws, and, according to Article 6, its decisions are
ity that should have complete jurisdiction over all legal final and not subject to challenge or appeal. Death
matters.9 Exceptional judicial entities were established sentences must be approved by the president of the
by legislative decrees, illustrated as follows: republic. Other sentences are approved by the min-
Military jurisdiction is one of the forms of excep- ister of defense.12 These courts played a major rule in
tional judicial systems in Syria and is affiliated with the conflict between the government and the Muslim
the ministry of defense, as opposed to a constitutional Brotherhood in the 1980s. Several trials were held in
judicial authority. This clearly violates the principle the cities of Hama, Idlib, Jisr Ash-Shugur, and Pal-
of equality before a sole judicial authority. Military myra’s infamous prison, Tadmour. In these examples,
jurisdiction was established by the penal code and death sentences were issued collectively and carried
fundamentals of military courts, which was issued in out immediately with the approval of neither the
1950 by Legislative Decree No. 61.10 president nor the minister of defense.13
The Supreme Court of State Security was estab- Military tribunals: Other than the above-men-
lished by legislative Decree No. 47 on March 28, tioned exceptional courts, Legislative Decree 87,
1968. Its formation was based on the provisions of passed on October 1, 1972, regulates the establish-
Decree No. 2 by the transient national command of ment of military tribunals in special circumstances.
the Ba’ath Party of February 25, 1966, and on cabinet Accordingly, the deputy commander in chief, branch
decree No. 47, dated March 20, 1968. commanders, brigade commanders, and commanders
Article 5 of the above-mentioned decree replaces of besieged units may form military tribunals with
the exceptional military tribunal established by jurisdiction over crimes pertaining to the military
Decree No. 6, dated January 7, 1965, with the both inside and outside Syria. Such a tribunal com-
Supreme Court of State Security. It can be contended prises three officers, one of whom serves as head of the
that if military jurisdiction is an exception to judicial court. These courts do not require general prosecution
authority, then the Supreme Court of State Security or investigation. The military personnel are referred
is an exception to the exception. Given that Article 1 to said court by a military order from the entity that
of Decree No. 47 established the court by a martial established the court. This court is not bound by the
order (in effect, due to the state of emergency), and, military penal code or standing laws. Its sentences
given that the state of emergency is unconstitutional, are issued independently and are implemented after
then all decrees issued by the martial governor are approval of the establishing military body.14
null and void and inconsistent with the law and the The Economic Security Court was established
constitution, thus rendering the Supreme Court of with jurisdiction over crimes and misdemeanors stip-
State Security unconstitutional and ineligible to hold ulated in Economic Penal Code No. 66/37 and itssyria transition roadmap | 125
amendments. This court was annulled by Legislative
Decree No. 16, dated 2004-2-14, and its cases were
transferred to the competent legal authority. There is a clear discrepancy
Judicial committees may be formed for specific
cases or subjects, like the committee for specifying
in the constitution
agricultural workers’ wages in Damascus, the com- inconsistent with the
mittee of layoffs, the disambiguation committee, and
the realty committee. principle of the separation of
powers.
The Independence of the Judiciary
under the Rule of al-Assad
to his duties, except in the case of high treason.
On the Separation of Powers A request for his indictment requires a proposal
Several Syrian constitutions endorsed the principle of of at least one-third of the members of the Peo-
the separation of powers, including the constitutions ple’s Assembly and an Assembly decision adopted
of 1928, 1950, 1953, 1962, and 1964. However, the by a two-thirds majority in an open vote at a
1958 constitution did not recognize the judiciary as special secret session. His trial takes place only
a separate power, unlike the legislative and executive before the Supreme Constitutional Court.” This
branches. As for the 1969 constitution, it termed all clause is contradictory to the separation of powers
the branches of the state “governing institutions.”15 principle, given that Article 139 of the constitu-
The first section of this chapter stipulated that tion states: “The Supreme Constitutional Court
the 1973 and 2012 constitutions divided the state’s is composed of five members, of whom one will
powers between legislative, executive, and judi- be the Head of the Court, and all of whom are
cial authorities. Articles 131–38 regulated judicial appointed by the President of the Republic by
authority. Article 131 stated that “the judicial author- decree.” Because the head of the executive branch
ity is independent. The President of the Republic (i.e., the president) is the one who appoints the
guarantees this independence with the assistance of Supreme Constitutional Court’s members (a judi-
the Supreme Judicial Council.” Article 133 stated cial authority), the president of the republic and
that “(1) the Judges are independent. They are subject his administration are constitutionally protected
to no authority except that of the law.16 The honor, from legal responsibility, which is a clear breach
conscience, and impartiality of judges are guarantees of the right to litigation and accountability.
of public rights and freedoms.” To regulate the func- 2. Article 131 of the constitution states: “The judi-
tioning of the judiciary, the Judicial Authority Law cial authority is independent. The President of
was issued by Legislative Decree 98 in 1961. the Republic guarantees this independence with
However, there is a clear discrepancy in the con- the assistance of the Supreme Judicial Coun-
stitution inconsistent with the principle of the sepa- cil,” which contradicts the text of Article 132:
ration of powers. The constitution has allowed for the “The President of the Republic presides over the
legislative and executive branches’ powers to detract Supreme Judicial Council. The law defines the
from the judiciary, which is contradictory to the prin- method of its formulation, its powers, as well as
ciple of the separation of powers. Some of the execu- its internal operating procedures,” which calls
tive powers detracting from the judiciary include: into to question the mechanism by which the sep-
1. Article 91, which states: “The President cannot aration of powers is kept intact if the head of the
be held responsible for actions pertaining directly executive branch is also the head of the Supreme
Judicial Council.17126 | Establishing the Rule of Law and the Independence of the Judiciary
3. Article 111 of the constitution gives the presi- suspended until the court makes a decision
dent of the republic the right to assume legisla- on it.
tive authority whether the People’s Assembly is in b. If a quarter of the People’s Assembly mem-
session or not. Despite this, clause 3 of this article bers object to the constitutionality of a legis-
allows the People’s Assembly to abolish said legis- lative decree, within fifteen days of the date
lation or amend it, but without retroactive effect. of the assembly session, the Supreme Con-
What would be the case if the above-mentioned stitutional Court must decide on it within
laws have violated other articles of the constitu- fifteen days from the date the objection was
tion and caused damage, for which the executive filed with it.
authority must take responsibility? This consti-
But Article 135 states that the members of the
tutes a clear breach of the judiciary function by
Supreme Constitutional Court are appointed by
both the executive and the legislative authorities.
the President of the Republic, who is also the
Clause 4 of the same article allows the president
head of the executive authority, which means
to assume absolute legislative powers in interim
that the authority that issues laws and decrees is
periods between assemblies. This legislation is
the same authority that—in effect—decides its
not referred to the People’s Assembly, and its
constitutionality.
validity in terms of amendment or abolishment is
the same as that of existing laws.18 6. Article 153 states: “Legislation in effect and
issued before the proclamation of this Constitu-
4. Article 144 states that “the Supreme Constitu-
tion remains in effect until it is amended so as to
tional Court determines the validity of the special
be compatible with its provisions,” which allows
appeals regarding the election of the members of
for the concurrent existence of two contradic-
the People’s Assembly and submits to it a report
tory legal texts until one is amended, and with-
on its findings.” Yet Article 62 has transferred
out a clear definition of a bounding time table
this right to the legislative authority, because
of amendment. Furthermore, the contradictory
it states: “The People’s Assembly rules on the
legislation could be unconstitutional according
validity of the membership of its members if it is
to the constitution in effect, which was precisely
challenged in light of investigations undertaken
the case with the Emergency Law. The state of
by the Supreme Constitutional Court within
emergency was declared by Decree 2 of the Rev-
one month of the Assembly’s notification of the
olutionary Command Council on March 8, 1963,
Court’s verdict. A member’s membership in the
which was an incompetent authority. The state of
Assembly is invalidated only by a majority vote of
emergency was declared in a manner inconsistent
its members.” This renders the Supreme Consti-
with the Emergency Law itself, which states: “
tutional Court’s findings useless, and allows for
the legislative authority whose members are chal- a. A state of emergency can be declared by
lenged for validity, to determine its own validity a council of minister’s decree in a session
of membership.19 presided over by the President, with a 2/3
majority vote, and this decree is referred to
5. Article 145 states that the Supreme Constitu-
the People’s Assembly on its first session.
tional Court investigates and determines the
constitutionality of laws in accordance with the b. The decree decides the rules and measures
following: allowed for the martial governor stipulated
in Article 4, notwithstanding provisions of
a. If the president of the republic or a quarter
Article 5. This contradicts the provisions of
of the People’s Assembly members challenge
the 1973 constitution currently in force, and
the constitutionality of a law before its prom-
in particular Article 101, which states: “The
ulgation, the promulgation of such law issyria transition roadmap | 127
President of the Republic can declare and in Article 135. Establishing such courts detracts
terminate a state of emergency in the manner from the judicial authorities’ jurisdiction. Further,
stated in the law.” detracting from this jurisdiction is a clear breach of
Article 14 of the International Covenant on Civil
The state of emergency was never referred to the and Political Rights, as well as Article 3 of the Basic
People’s Assembly, which rendered its continuation Principles on the Independence of the Judiciary.22
unconstitutional, and was inconsistent with inter-
national human rights—in particular the Interna- Violations of the Law of the Principle of Unity
tional Covenant of Civil and Political Rights ratified The Law of the Principle of Unity means that, in a
by Syria on April 21, 1969. The state of emergency specific legal conflict, the applicable law should be
allowed the executive authority and security services presented before the court system in terms of penalties
to control, hinder, and interfere with the judicial or litigation procedures. The Supreme Court of State
authority. A clear example of this was the establish- Security is the clearest example of the breaching of
ment of a Supreme Court of State Security by Decree this principle. According to this court’s law, it has
47 of 1968, which was issued by the martial governor jurisdiction over offenses stipulated in Article 3 of its
in power because of the state of emergency, which predecessor, the Exceptional Military Tribunal Law.
rendered his decisions null and void constitutionally. These offenses are referred to the court by a decree
Another example is Law 49 of 1980, which allows for from the military governor or his deputy, and this
the execution of any member of the Muslim Broth- referral is not obligatory, hence the case may still be
erhood in retroaction, which is contradictory to the reviewed under regular jurisdiction. This leads to:
constitution of 1973, and contradictory to all national 1. The investigating authorities in regular jurisdic-
laws and international conventions.20 tion are investigation judges and, while under
jurisdiction of the Supreme Court of State Secu-
On Equality Before the Law
rity, the authority is the general prosecutor, who
Contradicting the principle of the unity of jurisdiction. is a charging authority.
This principle mandates litigation before a unified
2. The decisions of judicial authorities are subject
court system, with no special or exceptional courts
to challenge by means of appeal to investigation
for certain individuals, groups, or social classes.21 The
and referral judges’ decisions, while the Supreme
Syrian constitution of 1973 specified three types of
Court of State Security’s decisions are final.
jurisdiction: regular jurisdiction, including religious
courts; administrative jurisdiction, represented in the 3. Courts’ decisions can be challenged according to
Council of the State; and constitutional jurisdiction, the Law of Basic Penal Trials, while decisions of
represented in the Supreme Constitutional Court. the Supreme Court of State Security cannot be
Although Article 135 of the constitution states: challenged. Breaching the principle of the unity
“The law organizes the judicial system along with of the law exists in other texts besides the law of
its categories, types, and grades of judges. It also the Supreme Court of State Security.23
defines the regulations pertaining to the jurisdiction
in the different courts,” it did not explicitly allow for The preceding paragraphs have demonstrated that
any exceptional courts. Despite this, the executive the legislator has made a clear distinction between
authorities have established several exceptional courts offenses committed by civilians, military, and judi-
listed above in this chapter. Hence, the establishment ciary workers, breaching the principle of unity before
of such courts is a clear breach of the constitution, the law. This constitutes an unconstitutional right not
which declares the judicial authority the sole entity applied to other public servants, because these laws
responsible for establishing justice independent are applied to offenses related to the post, while other
of other authorities, which was abundantly clear texts include all offenses regardless of the official128 | Establishing the Rule of Law and the Independence of the Judiciary
post. Furthermore, prosecution must be enacted with “competent entity” (which is the military admin-
permission, while for a normal public servant just a istration in this case), according to the rank and
legal motion is enough for prosecution.24 post of the military person being prosecuted.
E Article 114 of the Judicial Authority Law, which
On the Independence of the
states:
Judicial Authority
• Offenses committed by judges can only be
Independence from the legislative authority. As stated
prosecuted by the general prosecutor with the
above, Article 135 of the constitution dictates that
permission of a committee composed of the
the law regulates the functioning of the judicial
president of the Court of Cassation and two
authority, which means organization and assigning
of its senior counselors, or upon the request
responsibilities to different courts, the entirety of
of the Council when a disciplinary proceed-
which constitute full jurisdiction to the judiciary. This
ing concludes that there is a legal offenses.
means that the legislator (1) cannot deny the judicial
authorities a part of their rights and transfer it to a • The general prosecutor may refer the case to
nonjudicial authority in the process of regulating their the above-mentioned committee or to the
functions. Such a transfer would be unconstitutional. audit district. A judge accused in a penaliz-
(2) The legislator cannot deny anyone the right to ing offense is referred to the Court of Cassa-
litigation.25 The reality is that legislative authority tion for trial according to the law.
has detracted from the judicial powers in several E Article 8 of the Supreme Constitutional Court
laws, which caused the judicial authority to lose its law, which states “the president and members of
independence, and, consequently, the following the court are prosecuted according to the regula-
situations come into play. tions of prosecuting judges.”
Denying the right to litigation: The 1973 constitu-
tion stated in Article 25 that “the supremacy of law is Derogating judicial immunity. Above, this chapter
a fundamental principle in the society and the state.” stipulated the legal regulations for judicial immunity.
Article 28-4 stated that “the right of litigation, con- In reality, there are several violations that derogate
test, and defense before the judiciary is safeguarded this immunity and render it meaningless. Several
by the law.” This means that the right of litigation legislative decrees have been issued that are incon-
is a constitutional right, not a legislative one. Thus sistent with the Syrian constitution and the Judicial
the legislative authority cannot constrain or deny it Authority Law; for example: “Transfer immunity is
via legislation. Some examples of laws that denied the suspended in the case of promoting judges, and in the
right of litigation—and are thus unconstitutional— case of judges who have spent three years or more in
are as follows. their posts when necessary.” This means that trans-
E Legislative Decree 64, of 2008, which excludes fer immunity is theoretical because it is transient
offenses committed by police, political security, and impermanent. Previous legislations of judicial
and customs’ officials, from the normal judiciary’s authority did not allow transfer of judges with their
jurisdiction. The decree gives them immunity by written consent, even in the case of promotion (Arti-
making their offenses under military jurisdiction, cle 79 of Decree 80, 1947). The current legislation
and limiting the right of requesting legal motion allows for transferring trial judges to prosecution and
to the minister of defense, which contradicts vice versa by a decree from the minister of justice with
Articles 28 and 131 of the constitution. the approval of the Supreme Judicial Council of State
without the judges’ consent (Article 83).26 Thus, judi-
E Article 53 of the Military Penal Code does not
cial immunity is devalued and retractable. Further
allow prosecuting anyone under military juris-
examples include:
diction without prosecution orders issued by thesyria transition roadmap | 129
E Legislative Decree No. 40, May 29, 1966, which dismissed from their posts by a presidential decree
allows the council of ministers to recess for 24 with the consultation of the aforementioned com-
hours, and for undisclosed reasons, to retire mittee of discipline and plaints.”
judges from service or transfer them without jus-
tification. These decisions were not eligible for Annulling and delaying the enforcement of sentences.
any kind of appeal or legal challenge, and were Here are some examples of annulling and delaying
not subject to the jurisdiction of the Council of the enforcement of sentences, notwithstanding other
State or the Court of Cassation or any other legal cases that could not be described in detail. These cases
or administrative entity. According to this decree, are examples of the violation of judicial independence
the prime minister retired twenty-four judges by the executive authority and security services.
from their posts without divulging the reasons, The case of Beirut Declaration detainees, which
including Abdul-kader Al-Aswad, Haitham is briefly illustrated here, emphasizes the subject of
Al-Maleh, and Aly Al-Tantawy.27 the report represented in the legal situation of Michel
E Legislative Decree No. 32, dated February 6, Kilo. The events transpired after the arrest of the
1968, allowed the executive authority to retire Syrian writer Michel Kilo, president of the Hor-
any employee that was either older than fifty-five reyat Center for Defending Journalists’ Rights, and
years or had completed thirty years of service, at a member of the Civil Society Revival Committee in
the behest of the minister concerned. Syria. He was arrested on April 14, 2006, by inter-
nal security forces along with nine other individuals:
E Decree 95, dated October 3, 2005, revoked dis-
Mahmoud Marey, Ghaleb Amer, Safwan Tayfour,
missal immunity for 24 hours, according to which
Nedal Darwish, Mahmoud Eissa, Mohamed Mah-
eighty-one judges were dismissed by the cabinet
fouz, Soleiman Alshamr, Khalil Al-Hussein, and
without divulging the reasons, and without any
Anwar Al-Bunni. This was due to their signing of the
right to appeal or legal challenge, in clear contra-
Beirut-Damascus Declaration, signed by 134 Syrian
diction to the Syrian constitution and the Judicial
intellectuals, which called for mending Syrian-Leba-
Authority Law; both of which clearly state the
nese relations, defining the Syrian-Lebanese borders,
range of penalties applicable to judges—starting
and exchanging diplomatic representation.
with reprimanding, and increasing to the suspen-
On October 19, 2006, a Damascus referral judge
sion of salary, the delay of promotion, and, finally,
ordered the release of Kilo, after previously having
dismissal. Further, the judges should have been
released Eissa, Mahfouz, Al-Shamr, and Al-Hussein.
referred to a legal entity if the reasons for dis-
The general attorney denied receiving the release doc-
missal had a legal foundation.28
ument, despite the receipt confirming it was issued,
E Article 64 of the Council of State law, which is and despite the fact that Kilo was notified in prison
in charge of administrative jurisdiction, states:29 of his release. After the general attorney denied the
“Members of the council with the degree of an release, an investigation judge issued a decision on
assistant counselor and above are protected from October 21, 2006 (a day off), referring the case to the
dismissal. Deputies are protected from dismissal referral judge who had previously released Kilo. Con-
once they have completed three consecutive years sequently, on October 22, the referral judge accused
in their post or a similar post with the same immu- Kilo of “demoralizing national sentiments,” along
nities. They further enjoy all privileges and immu- with other infractions, and annulled the previous
nities of judges. Said deputies can be dismissed by release of Eissa, Mahfouz, Al-Shamr, and Al-Hus-
a presidential decree if they lost the credibility for sein, which had been issued a month earlier. They
the post, with the consultation of the committee were consequently rearrested; and Eissa was arrested
of discipline and plaints and after hearing their even before the decision of arrest was issued. Decree
statements. Other members of the council may be 58 of 2006, which included amnesty for offenses130 | Establishing the Rule of Law and the Independence of the Judiciary
committed before December 28, 2006, was applicable general amnesty. He consequently sent a notification
to two of the offenses for which Kilo was charged. He of this amnesty to the Damascus Central Prison, yet
was tried according to the provisions of articles 285 this decision was not enforced.31
and 307 of the Penal Code. A third example of annulling and delaying the
On May 13, 2007, the Second Criminal Court enforcement of sentences is the trial of two former
of Damascus sentenced Kilo to three years in prison members of Parliament, Riad Seif, and Ma’moun
for “weakening the national sentiment,” according to Al-Himsy. The board of defense requested motion
Article 285 of the Syrian Penal Code, and to three documents, but the request was delayed for several
months’ imprisonment for provoking sectarian intol- sessions. When the documents were provided, the
erance according to Article 307 of the Syrian Penal defense presented its case, which was rejected by the
Code. The higher sentence was applied. The court court. This convinced the defense that the court was
further sentenced the political activist Eissa to three not impartial, and consequently it withdrew from the
years’ imprisonment for “weakening the national sen- trial. Despite this, the court sentenced Al-Himsy
timent,” and found him not guilty of provoking sec- to a penalty without defense or legal representation.
tarian strife and subjecting Syria to hostile activities, A new defense joined the trial and appealed to the
according to Article 278 of the Syrian Penal Code. Court of Cassation, which confirmed the sentence of
On November 2, 2008, the Criminal Chamber the criminal court. After the defendants had served
in the Court of Cassation issued a decision granting three-fourths of their sentences, a plea was submitted
Kilo and Eissa amnesty and ordering their immediate to relieve the remaining time according to Article 172
release. However, the board of the Court of Cassa- of the Penal Code, but it was rejected by the court on
tion accepted the appeal of the general prosecutor on the grounds that good conduct was not proven.32
November 4, 2008, and annulled the decision issued Still another example of an executive authority
by the criminal chamber, in a clear breach of the law. interfering with judicial sentences—especially when
This is because the general prosecutor is not compe- the state is a party of the case—is Official Letter
tent to initiate legal motion of appeal according to No. 1/5687, dated June 24, 2004, sent by the prime
Article 11 of Criminal Trials’ Basic Law. Article minister to the Syrian Commercial Bank’s General
490-a of civilian trials law states: “Cases filed against Administration Department:
general prosecution representatives and Court of
We were informed by the Military Housing Organiza-
Cassation judges are referred to the board of Court of tion by letter (6095) dated 6/24/2004 that the Syrian
Cassation,” meaning that the general prosecution is Commercial Bank, Aleppo branch froze two amounts
accused before the board and not a plaintiff.30 in the organization’s account upon executive requests to
Another example of annulling and delaying the enforce legal sentences. Because the subject is under the
enforcement of sentences is the case of Aly Al-Sha- central organization for supervision and audit’s consid-
eration, we request that you order the aforementioned
haby. The president of the republic issued Legislative
branch and other branches to suspend freezing the
Decree 58 in 2006, which included amnesty for sev- organizations’ asset for issues still under investigation
eral offenses committed before December 28, 2006, by the central organization of supervision and audit.
and included most offenses stipulated in articles 287
and 288 of the Penal Code. Article 436 of the Crim- The prime minister has also formed a committee
inal Trials Law states that “public right of litigation to decide the validity of final decisions submitted
is annulled by general amnesty, and the same court to executive districts before enforcement upon state
of competence has jurisdiction of reparation motion.” organizations. Further, the legislative district of the
Shahaby was prosecuted according to articles 287 and minister of justice decided that a minister abstaining
288. On January 7, 2007, a fourth investigation judge from complying to a sentence is accountable only to
in Damascus issued a decision concluding that Sha- the president of the republic.33
haby’s offenses were included in the above-mentionedsyria transition roadmap | 131
Article 66-2 of the Judicial Authority Law, cur- general prosecutor, general attorney, and the head
rently in action pertaining to decisions taken by the of the Legislation Department. This decree granted
Supreme Judicial Council, states that “decisions per- the Council of Public Prosecution all the powers of
taining to the appointment, promotion, transfer, dis- the Supreme Judicial Council in terms of promoting,
cipline, dismissal, retiring, and accepting resignations dismissing, reprimanding, retiring, or accepting the
of judges are implemented by a decree issued by the resignations of only prosecution judges. Court judges
Minister of Justice.” This decree must be signed by the remained under the jurisdiction of the Supreme Judi-
minister of justice, the prime minister, and the pres- cial Council. On February 14, 1966, Decree 24 was
ident of the republic. A refusal to sign by any of the issued, abolishing the Council of Public Prosecu-
three will block the implementation of the Supreme tion and transferring its powers back to the Supreme
Judicial Council’s decision. Judicial Council after amending the structure of its
members. According to Article 65 of the Judicial
Independence from Executive Authorities Authority Law, the council comprises the president,
Constitutional and legal texts regulate the judicial delegating the minister of justice as a chairman, and
authority. However, the administrative and fiscal the membership of the president of the Court of Cas-
dependencies between the executive and judicial sation and his two senior deputies, the deputy minis-
authorities clearly show that the independence of ter of justice, the general attorney, and the head of the
the judiciary from executive authorities is practically judicial audit district. Of the seven members, three
impossible, thus allowing for interference and control directly report to the minister of justice: his deputy,
by the executive authority by the minister of justice the general attorney, and the head of the judicial audit
in the functions of the judicial authority, particularly district. Thus, the majority in the council fall under
in appointing, promoting, dismissing, reprimanding, the control of the minister of justice, giving the execu-
retiring, and accepting judges’ resignations, which tive authority the upper hand in the council’s matters
breaches the Syrian constitution. (see the discussion above in this chapter of the powers
The previous Judicial Authority Law No. 56 of of the Supreme Judicial Council).
1956 preserved the independence of the judiciary in Consequently, the judiciary cannot be an indepen-
Syria by mandating the Supreme Judicial Council to dent authority when the head of the executive branch
all decisions pertaining to judges. The council was (the president of the republic) also heads the Supreme
previously composed only of seven judges, consist- Judicial Council. Further, Article 131 of the con-
ing of the president of the Court of Cassation, who stitution is thus rendered meaningless, because the
served as chairman; his three deputies, who served independence of the judiciary is provided for by the
as members; the secretary general of the Ministry of constitution and does not need safeguarding by the
Justice; the president of Damascus Court of Appeals; president. This text is thus used as a pretext for inter-
and the most senior counselor of the Court of Cas- fering with the judiciary and controlling it through
sation. The minister of justice was only notified of interference with the composition of the Supreme
the decisions to implement them. Conversely, the Judicial Council.34
new Judicial Authority Law No. 98 of 1961, and its Decree 23, dated February 14, 1966, gives the
amendments, have allowed the minister of justice to minister of justice the power to appoint and transfer
directly interfere with the judges and the judiciary. court and prosecution judges of all ranks and degrees,
This is clear through the judicial authority law itself and appoint members of government legal districts,
and through several decrees: for a duration of six months. This breaches Arti-
Legislative Decree No. 120, dated September 11, cle 70-5 and Articles 72, 93, and 94 of the Judicial
1962, established a special Council for Public Prosecu- Authority Law.
tion headed by the minister of justice, with the mem- The Judicial Authority Law, in Article 14-1, man-
bership of the Ministry of Justice as secretary general, dates to district audit judges—who report to the132 | Establishing the Rule of Law and the Independence of the Judiciary
minister of justice, according to Article 12—the task Article 9: Judges are free to form and join judges’
of safeguarding the independence of the judiciary associations and other organizations to represent their
interests and further their training and protect their
from any external influence. This mandate is within
judicial independence.
the jurisdiction of the Supreme Judicial Council,
according to Article 67-3. This allows the executive
The preceding clauses show that not having polit-
branch to intimidate judges if the executive authori-
ical inclinations is a necessity for impartiality and
ties are displeased with them. The executive authori-
integrity. Yet that does not mean depriving judges
ties are in effect the only entity that has control over
from expressing their opinions on general matters
the judges’ affairs in terms of accountability, appoint-
like any other citizen.35
ment, promotion, and dismissal, making judicial
The facts are completely different. Although none
decisions biased and enforced.
of these laws have been abolished, the authority has
Legislative Decree No. 50, dated October 25,
been implementing a policy of maintaining an “ideo-
1961, attached the Council of State (administrative
logical army,” whose officers and soldiers solely follow
jurisdiction by Article 138 of the constitution) to the
the Ba’ath Party. Since 1965, this policy has caused
Council of Ministers by Article 1 of the Council of
a great tragedy in the military courts, which have
State law. Thus the prime minister, who has executive
been headed by Ba’ath Party loyalist officers. These
and administrative powers according to Article 115-1
courts have issued death sentences, life sentences, and
of the constitution, also has power over this judicial
imprisonment sentences without any regard to legal
authority and its members in terms of appointment,
procedures. Further, all legal sources in Syria con-
promotion, reprimanding, and dismissal. Further,
firm that no non-Ba’athist judge has been appointed
the salaries of Council of State judges and workers
in Syria in the last twenty years. There is a deliber-
are paid from the Council of Ministers’ budget. This
ate policy of having complete party domination over
entails subjecting judges to the unified labor law and
judges and prosecution attorneys; thus, it can be said
treating them in the same way as all public servants in
that it is a “jurisdiction of instructions.”36 Further,
terms of salary and official post.
Ba’athist judges hold their Ba’ath Party meetings in
On the Impartiality of the Judiciary the Justice Palace in Damascus; a chamber is reserved
for their party activities, as well as a hall for party
Article 81 of the Judicial Authority Law states:
celebrations.
“Judges are not permitted to express political opinions
or be involved in politics.” The Military Penal Code The Competence of Judges and
prohibits military personnel joining political parties Their Selection Process
or involvement in politics. In Articles 147 through
Despite the establishment of a Judicial Institute for
150, penalties ranging from six months’ to ten years’
training judges for two years before their becoming
imprisonment are applicable to breaking this law,
magistrate judges (Legislative Decree No. 42 in 2000),
including military judges.
the level of competence and qualification of judges
This text contradicts Articles 8 and 9 of the basic
has remained unaffected. Applicants to the institute
principles on the independence of the judicial author-
are accepted based solely on their grades, which is not
ity, which states:
the only qualifier of academic and legal competence.
Article 8: According to the Universal Declaration on Further, this institute is run by the Ministry of Justice
Human Rights, members of the judicial authority have and not the Supreme Judicial Council, which in
the freedom of opinion, expression, assembly, and asso-
turn leads to interference in the acceptance process
ciation, withstanding the proper conduct that is consis-
tent with the honor, integrity, and independence of the
by the executive authorities and security services.
judiciary. . . . Observations on this situation include:You can also read
