Constitutional Law and Courts’ System in the Syrian Arab Republic
By Khalil Mechantaf
Khalil Mechantaf is an Attorney at Law in Beirut, Lebanon. He is currently a Legal Associate in private practice with a main focus on international law and agreements. He has previously worked at the International Criminal Court and has published several studies on the judicial systems in the Middle East.
Published November/December 2010
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Table of Contents
Syria is a Democratic, Populist and Socialist Republic that attained independence from the French Mandate in April 17, 1946. Major military coups succeeded in the fifties and sixties of the last Century; leading to declaring the state of emergency since 1962. The country has been governed since 1963 by a single party, “the Baath” that holds the major powers in the Republic.
Syria is administratively composed of fourteen districts: Al Hasakah, Al Ladhiqiyah, Al Qunaytirah, Ar Raqqah, As Suwayda', Dar'a, Dayr az Zawr, Dimashq, Halab, Hamah, Hims, Idlib, Rif Dimashq, Tartus
The legal system is based on a combination of French and Ottoman civil law; Islamic law is used in the family court system.
The current head of State is Bashar al-Assad who has been the President since July 10, 2000. He was re-elected for a new 7-year term in a public referendum conducted on May 17, 2007.
The Syrian Constitution was adopted on 13th March 1973. It contains a brief preamble on the history of the Arab “Umma” and the role of the “Baath” party in reaffirming the unification of the Arab nations and the fight against occupational powers that ripped off the said unity. At the end of its preamble, the Constitution sets five goals/guidelines that the Syrian Arab Republic aspires to achieve: (1) Arab revolution towards unity, freedom and socialism; (2) any danger suffered by an Arab Country from occupational powers is at the same time a threat against the Arab “Umma”; (3) Socialist regime is a must for achieving the needs of the Arab society and for the fight against occupational powers; (4) Freedom and Populist Democracy is the ideal system that enables a citizen to practice his rights and protects his nation; (5) The Arab revolution is part of a worldwide resistance for freedom, independence and progress.
Most provisions in the Constitution refer to Syria as part of the Arab world.
Following the Preamble, the Constitution provides a set of political, economic, educational, civil and political principles.
Those include a definition of the system of Governance as Republican (article 2); Arabic is the official language of the State (article 5); Members of Parliament are democratically elected by the nation (article 10). Furthermore, article 3 provides that the religion of the President of the Republic shall be Islam, and Islamic law is a major source of legislation.
Socialism is the main system of economic planning and shall meet the economic unity of the Arab “Umma” (article 13). Inheritance is protected by Law (article 17), while property rights shall only be expropriated according to a judicial ruling or by Law that takes into account an appropriate compensation (article 15). Taxes are imposed on an equal basis (article 19).
The educational system shall prepare future generations for Arab unity, progress, freedom and socialism (article 21). Whereas Research and Development is a need towards the growth of the Arab socialist society, intellectual property and patent rights shall be fully protected by the State (article 24).
It is worth noting that due to the declaration of the emergency law that remains effective since 1962, major civil and political rights enshrined in the Constitution are suspended.
Personal freedom, dignity, security and equal opportunities shall be preserved by the State. All citizens are equal in their rights and obligations and the rule law is a major principle in the society (article 25). Further, the Constitution provides for the presumption of innocence, prohibition of torture and arbitrary arrest, access to justice, nullum crimen sine lege, non retroactivity of laws, right to work, education, privacy, movement and the practice of religious rights, freedom of expression and assembly (articles 28 to 39). Military service is mandatory under the constitution (article 40). The constitution also provides for the supervisory control of the nation’s citizens on the governmental bodies and political powers (article 49).
The People’s Council (Majlis al Sha’b) represents the legislative power of the Syrian Arab Republic. It is composed of a number of members determined by the Law, half of which are workers and peasants (article 53).
Members of the Majlis al Sha’b, two hundred and fifty in total, are directly elected by Syrian nationals for a period of four years (article 51), in a public, secret and equal ballot (article 50). The right to vote is limited to all nationals who have completed their eighteen years of age. Public servants and employees of the public sector are allowed to file their candidacy for the membership of the Council without resigning from their jobs (article 56).
Elections are held during the ninety days preceding the end of the period of the Council. In case no elections were held, the acting Council shall continue to convene appropriately until a new Council is elected (article 58). In the case a seat at the Council becomes vacant, a new member shall be elected within a period of ninety days from the date that seat has become vacant, unless six months remain from the before the end of the Council’s period (article 59).
The Council settles the validity of the membership of its members in light of the investigations undertaken by the High Constitutional Court during a period of one month from the date the Council receives the report of the said Court. No membership can be terminated except with the endorsement of the majority of the Council’s members (article 62).
The council convenes for a first time during a period of fifteen days by a Presidential decree to elect its Presidents and the members of the Council’s office. The Council convenes in three ordinary sessions a year for a period determined in the internal bylaws of the Council. The latter convenes as well for extraordinary sessions based on a decision of its President or a written request of the President of the Republic or the third of the Council’s members (article 61).
Members of the People’s Council enjoy immunity during the period of their membership, and cannot be subject to any criminal proceedings except by a previous authorization issued by the Council when the latter is holding its sessions, or by the Council’s President if such proceedings were initiated outside of the sessions’ periods (article 67).
Any member of the Peoples Council shall not abuse his membership in the said Council for personal purposes.
Members of the Council are entitled to propose laws and question the Council of Minister or one of the Ministers according to the People’s Council bylaws (article 70).
According to article 71 of the Constitution, the People’s Council is in charge of ratifying the laws and the budget, discuss the policy of the Council of Ministers, declaring the general amnesty, approve or reject the resignation of a Council’s member and withdraw the confidence from the Council of Ministers or one of the Ministers.
Confidence in the Council of Ministers shall not be withdrawn before the interpellation of the Ministers. Request to withdraw a confidence can be submitted according to the suggestion of at least five members of the People’s Council, while the confidence in the Council of Ministers may be withdrawn by the majority of the People’s Council members. In the latter case, the Prime Minister submits the resignation of the Council of Ministers to the President of the Republic (article 72).
The President of the Republic is an Arab Syrian national that has completed his thirty-four years of age, and fully enjoying his civil and political rights (article 83).
Candidacies to the President of the Republic are issued by the People’s Council according to the recommendations of the Arab Socialist Baath party, and submitted to the nation for ballot. The latter is conducted based on the invitation of the President of the People’s Council. The new President is elected during a period of one month before the end of the mandate of the current President by the majority of the votes. If such majority was not reached, the People’s Council issues another candidacy for ballot according to the same procedures (article 84).
The President of the Republic is elected for a period of seven years. The resignation of the President is submitted to the People’s Council. In the case of death or resignation, a new ballot is conducted in a period of ninety days from the date of the resignation or death, to elect a new President according to the aforementioned procedures provided in article 84.
In case the seat of the President of the Republic becomes vacant, the Vice President shall practice the former’s entire mandate until the election of a new President. However, if the President had no deputy, the Prime Minister shall be entitled to enforce the President’s entire mandate until the election of a new President in a period of ninety days (article 89).
The President of the Republic shall be only held liable during the term of his mandate for treason. The request for accusation is submitted by a third of the members of the People’s Council and shall be approved by two thirds of the Council in a secret session. The President of the Republic shall only face the trial for such accusation before the Supreme Constitutional Court (article 91).
The President of the Republic shall preserve the respect of the Constitution and the regular conduct of the public authority.
The President of the Republic practices the executive power on behalf of the people according to provisions of the Constitution (article 93). He shall define the general policy if the State in collaboration with the Council of Ministers.
The President shall appoint one or more of his deputies and delegate to them some of his mandate. He shall as well appoint the Prime Minister, the Ministers and their deputies, approve their resignations or relief them from their assignments (article 95).
The President of the Republic may request the Council of Ministers to convene under his presidency, and to request report from the ministers. He issues the laws ratified by the People’s Council. He may as well object on those laws in a motivated decree during a period of one month from the date of its notification to the Presidency. In case the People’s Council ratifies the law by two thirds of its members, the President of the Republic shall issue it accordingly (article 98).
Among other powers of the President, he issues decrees and decisions according to the laws in force, declares war and peace following the approval of the People’s Council, declares the state of emergency, approves diplomatic assignments, serves as the commander in chief of the armed forces, ratifies international conventions, provides amnesties, dissolves the People’s Council, prepares drafts laws, handles the legislative powers outside of the People’s Council sessions’ terms providing that he submits any new legislation to the latter when it convenes (articles 99 to 111).
The Council of Ministers is the legislative and administrative arm of the State and is composed of the Prime Minister, his deputies and the Ministers. The Council of Ministers supervises the enforcement of the laws and regulations and the good conduct of the State’s institutions. Both the Prime Minister and the Ministers are liable towards the head of State.
During their assignments in the Office, the Ministers are prohibited from holding other positions in the Board of Directors of Private companies, or participate in commercial or industrial businesses (article 120).
The head of State is entitled to refer a Minister to trial for the crimes he committed during office. During the trial, the Minister postpones all official assignments he may hold until the render of a decision regarding his accusations (article 124).
A Minister may also be a member of the People’s Council (article 125).
Among the competence of the Council of Ministers, participate with the President of the Republic in determining and implementing the general policy of the State, coordinate the work of the Ministries and public institutions, prepare the budget and draft laws, preserve the security of the State and the protection of citizens’ rights and State’s interests, issue administrative and executive decisions (article 127).
Local People’s Councils are committees that practice its powers in each administrative district according to the Law, which determines its mandate, elections, rights and obligations of its members.
The Judicial power is independent and the head of State preserves its independence in cooperation with the High Judicial Council (article 131).
The head of State presides the High Judicial Council, while the law determines the latter’s mandate and conduct (article 132).
Judges are independent. Their honesty and ethics are a guarantee for human rights and freedom (article 133). Judicial decisions are rendered in the name of the Arab Syrian people. The administration of the judiciary, including the powers to appoint, promote, and transfer judges, is vested in the Supreme Judicial Council, presided over by the Minister of Justice.
The General Prosecution is a judicial institution presided by the Minister of Justice. Its mandate and jurisdiction is determined by the Law (article 137).
The judiciary is comprised of separate secular and religious courts. The secular courts, which hear both civil and criminal matters, are divided in a four-tiered hierarchy, beginning with the Courts of Peace, or Courts of Conciliation (Sulh), and the Courts of First Instance, while the Criminal Court hears cases in which the punishment may exceed three years of imprisonment.
Decisions rendered by the Courts of conciliation, Courts of First Instance, and the Criminal Court may be subject to appeal before the Court of Appeal, which is divided into a civil and criminal branch. Decisions rendered by the Courts of Appeal may not be appealed, but may be nullified by the Court of Cassation, the highest Court in the judicial structure.
The Court of Cassation, located in Damascus, is subdivided into specialized branches. These divisions, including civil, criminal, religious, and military branches, are each composed of three judges.
The Courts with jurisdiction over personal status matters are shari’a courts for Sunni and Shii’a Muslims, madhhabi courts for Druze, and ruhi courts for Christians and Jews. There is one single court of first instance per district (except Damascus and Aleppo having three each). Each of three types of courts has its own appellate courts. Final appeal lies within the Family Chamber of the Court of Cassation in Damascus. Shari’a courts have general jurisdiction on all Syrians regardless of their religion and on non-Syrians from countries where Islamic personal status laws are applied, e.g. over matters of guardianship, inheritance, capacity, missing persons and matrimonial issues. The same courts have also special jurisdiction relating to Muslim Syrians in matters of personal status including marriage, dissolution, and custody. The Code of Personal Status applied on Muslims by the shari’a courts has specific exemptions for Druze, Christians and Jews.
The Council of State handles the administrative judiciary, while the law determines the conditions of appointment and challenge against its members (article 138).
The Judiciary also includes a high court, the Supreme Constitutional Court, which has a mandate to decide on the constitutionality of laws, hear disputes arising from the election of the members of the People’s Council, and try the president for allegations of criminal offenses (see above). The Supreme Court is composed of five members among which the President of the Court. They are all appointed according to a decree issued by the President of the Republic for a renewable period of four years (article 139). Judges at the Supreme Court are not entitled to hold office at the People’s Council or the Council of Ministers.
According to article 149, the President of the Republic is entitled to propose an amendment of the Constitution. Such right is also granted for a third of the People’s Council. The proposal should include the provisions to be amended and the motivations thereon. Upon notification of the proposal, the People’s Council constitutes a special committee to review it. The proposal is later on debated by the Council, which can ratify it by three quarters of its members. The proposal of amendment becomes final upon approval of the President of the Republic (article 149).
· Personal Status Law n° 59 of 1953, amended by Law n° 34/1975)
· Civil Code 1949
· Code of Civil Procedure 1953
· Code of Civil Status 1957
Law reporting is through the Official Gazette.