UPDATE: Constitutional Law and Courts’ System in the Syrian Arab Republic
By Khalil Mechantaf
Khalil Mechantaf is an Attorney at Law at the Beirut Bar Association. He is currently a Legal Associate in private practice in Abu Dhabi with a main focus on International Law and arbitration.
Published June 2012
See the Archive Version
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 1950’s (fifties) and sixties (1960’s) of the last Century; leading to declaring the State of emergency since 1962. Since, the country has been governed by a single party, the “Baath Party” 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 (Damsacus), Halab, Hamah, Hims, Idlib, Rif Dimashq and Tartus.The legal system is based on a combination of French and Ottoman Civil Laws; Islamic Law is used in the family Courts 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.
Since January 2011, the Middle East is witnessing a series of uprising that has overthrown as of the date of this article the ruling regimes in Tunisia, Egypt, Libya and Yemen. Syria is no strange to those demonstrations forming a part of the wider Arab Spring, and has been undergoing a series of protests since March 15, 2011 claiming, among others, the resignation of the current President Bashar Al-Assad and the toppling of the present regime. The demonstrations have degenerated into a nationwide internal violence between the protesters and the security forces, including the Syrian Army.
As a result, the Syrian regime initiated a task force to work on a new and modern Syrian Constitution in the hope that it will ease the tension. On February 27, 2012, a national referendum was organized where 89 per cent of those who took part in it have voted in favor of the new Constitution, the provisions of which are laid down below.
Where the previous Syrian Constitution referred in its preamble to 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, the new preamble abolished all references to the “Baath” and instead referred to the history and role of Syria as the heart of Arabism and the main resistant against the greed of empires on the wealth of the Arab nation. The new preamble abolished as well to the reference that the Socialist regime is a must for achieving the needs of the Arab society and for the fight against occupational powers. The new Constitution further provides that it came as a result of the fight of the Syrian people for Freedom and Democracy. It is divided into 6 Chapters providing a total of 157 Articles.
Those include a definition of the system of Governance as Republican (article 2.1); the religion of the President of the Republic is Islam (article 3.1); that Islam is the main source of legislation (article 3.2); that the State shall respect all religions in their practices as long as it does not violate the public policy (article 3.3); Arabic is the official language of the State (article 4). Article 7 provides for the constitutional oath of the President, which ensures that the latter shall aim to achieve the unity of the Arab “Umma”. Further, the political system shall be based on the principle of political diversity and the political parties shall contribute to the national political life (article 8). The new Constitution guarantees as well the cultural diversity of the Syrian community (article 9).
Private property is protected by the State (article 15). Taxes and other duties shall only be imposed by Law on an equal basis in the aim to achieve equality and social justice (Article 18).
The society is based on the respect of the principles of economic justice, freedom, equality and the human dignity of every person (article 19). The State shall protect the marriage, motherhood and childhood and will make appropriate circumstances available for the youngsters to increase their capacities (article 20). Right to health was also provided for and the State shall ensure the appropriate means for its citizens to for prevention and treatment against diseases (article 22). The State shall eradicate all obstacles that prohibit women from participating in the society (article 23), no clear reference is made though on the equality between genders. The economic principles further refer to the protection of the environment, equality in employment before public institutions, and equal development of the various regions that form the Syrian Arab Republic.
The right to education is guaranteed by the State and shall be subsidized in all of its stages. The law shall govern the situations of paid education at universities and governmental institutions (article 29). Primary education shall be mandatory and the State shall supervise private educational institutions (article 29). Archeological sites, historic, cultural and other works of art shall be protected by the State (article 32).
Rights and Liberties
Personal freedom, dignity, security and equal opportunities shall be preserved by the State. Citizenship is a major principle that enshrines the rights and obligations that each citizen enjoys and practice according to the Law (article 33). No discrimination shall be made on the basis of gender, origin, language, religion or ideology. Each citizen has the right to contribute to the economic, social, political and cultural Law, which shall be organized by Law (article 34). Privacy and housing shall be protected by Law (article 36), including the secrecy of communication by post and other electronic means (article 37). The extradition of citizens is prohibited by Law. Further, the Constitution provides for the right to work for every citizen and the State shall be in charge of making employment available. Wages in that regard shall be paid according to the services provided and shall not be below the minimum wage fixed by the Law (article 40). In addition, freedom of religion, expression, press and assembly is guaranteed by the State (articles 42 to 44). Military service is mandatory under the constitution (article 46). The constitution also provides for the right and obligation of every citizen to elect his representatives (article 49).
The new Constitution provides for the principle of nullum crimen sine lege, the presumption of innocence, access to justice, the right of defense, non-retroactivity of laws, prohibition of torture and arbitrary detention (articles 51 to 53).
The People’s Council (Majlis al Sha’b) represents the legislative power of the Syrian Arab Republic for a mandate of four calendar years starting from the date of its first session. Any extension to such mandate is prohibited unless in case of war (article 56).
Members of the Majlis al Sha’b, two hundred and fifty in total, are directly elected by Syrian nationals in a public, secret and equal ballot (article 57). The right to vote is limited to all nationals who have completed their eighteen years of age.
The Electoral Law shall define the number of the People’s Council members and the conditions that should be available in each candidate (article 60). At least half of the members of the Council shall be from farmers and workers.
The Electoral Law shall include, among others, the rules guaranteeing the freedom of the voters in choosing their representatives, the rights of the candidates to monitor the electoral process, and the regulation of the funding of electoral campaigns,
Elections are held during the sixty 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 62). In the case of a seat at the Council becomes vacant, a new member shall be elected within a period of sixty days from the date in which that seat has become vacant, unless six months remain for the end of the Council’s mandate (article 63).
The council convenes for the first time by a Presidential decree during a period of fifteen days from the date of the expiry of the mandate of the previous Council or from the date of the announcement of the result of the elections of its members. In the absence of such decree, the new Council shall convene automatically in a period of 16 days from either of the above dates. The new Council shall elect in its first session its President and the members of the Council’s Cabinet (article 64).
The Council convenes in three ordinary sessions each year for a total period that is not less than six months. The date and period of each session shall be determined by the internal bylaws of the Council. The latter convenes as well for extraordinary sessions following a request submitted by the President of the Republic or by the third of the Council’s members (article 65). The last legislative session of the year shall remain open until the State’s budget is decided.
Members of the People’s Council shall not be held accountable in any civil or criminal claim for the facts or opinions that they express or the vote that they undertake during the public and secret sessions of the Council, and during the committees’ work (article 70).
Members of the People’s Council shall enjoy immunity during the period of their membership, and cannot be subject to any criminal proceedings unless previously authorized by the Council except in red handed crimes. Where the Council is not holding any of its sessions, such authorization can be issued by the Council’s Cabinet, and the Council shall be notified accordingly upon the beginning of its next session (article 71).
Any member of the Peoples’ Council shall not abuse his/her membership in the said Council for personal purposes. The Law shall define the types of practices that cannot be undertaken by a member during his/her mandate.
Members of the Council are entitled to propose Laws and question the Council of Minister or any of the Ministers according to the bylaws of the People’s Council (article 74).
According to article 71 of the Constitution, the People’s Council is in charge of issuing the Laws and deciding on the budget, discuss the policy of the Council of Ministers, decide on development plans, conclude treaties and ratify international conventions in connection with the safety of the State, including peace treaties, and all other conventions related to the State’s sovereignty or that grants concessions to foreign companies and institutions, grating the general amnesty, approve or reject the resignation of a Council’s member and withdraw the confidence from the Council of Ministers or from one of the Ministers.
Confidence shall not be withdrawn before directing an inquiry to the Ministry or to one of the Ministers. Request to withdraw a confidence can be made by at least five members of the People’s Council. Confidence can 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. Such resignation shall also be submitted by the Minister against which confidence has been withdrawn (article 78).
The President of the Republic and the Council of Ministers shall exercise together the executive power. Any candidate to the Presidency should have completed his forty years of age, be Syrian by birth, be married to a Syrian woman, is fully enjoying his civil and political rights, and has been resident in the Syrian Arab Republic for a continuous and permanent period of not less than ten years when submitting his candidacy (article 84).
The President of the People’s Council shall invite for the election of a new President of the Republic in not less than sixty days and not exceeding ninety days before the expiry of the mandate of the current President. The candidacy shall only be accepted if it is endorsed by at least thirty five members of the People’s Council. No member of such Council shall endorse the candidacy of more than one candidate.
The President of the Republic is directly elected by the people for a period of seven years, renewable for one time only. The candidate who receives an absolute majority from those who have participated in the ballot shall be declared as the President of the Republic. Where none of the candidates receives such majority, an election shall be held again during a period of two weeks between the two candidates that received the highest number of votes from the members that participated in the ballot (article 86).
If the People’s Council is dissolved during the constitutional period for the election of a new President of the Republic, the current President shall continue his mandate until the elections of new members of the People’s Council are held. In such case, the new President shall be elected during a period of ninety days from the date the new People’s Council holds its first session (article 87).
The resignation of the President is submitted to the People’s Council. In the case where the position of the President becomes vacant or in case of permanent incapacity in undertaking his mission, the first vice President of the Republic shall assume the President’s mission for a maximum period of ninety days from the date when such post has become vacant, during which a new President must be elected. In the absence of a vice President, the post of the President of the Republic shall be assumed by the Prime Minister for a maximum period of ninety days from the date when such post has become vacant, during which a new President must be elected (article 93).
The President of the Republic shall guarantee the respect of the Constitution, the regular conduct of the public authority, and the protection of national unity (article 96).He nominates the Prime Minister and his deputies, the Ministers and their deputies, and accepts their resignations (article 97). He defines the general policy of the State in a session of the Council of Ministers.
The President shall appoint one or more of his deputies and delegates to them some of his powers. (article 91).
The President of the Republic may request the Council of Ministers to convene under his presidency, and to request reports from the Prime Minister or the Ministers themselves. He issues the Laws ratified by the People’s Council, and may object on any of 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 despite the President’s objection, the latter shall issue such Law in due course (article 100).
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 and terminates it according to a decree adopted by a two third majority of the Council of Ministers, adopts diplomatic assignments, serves as the commander in chief of the armed forces, ratifies international conventions and treaties and terminates their enforcement according to the Constitution and International Law, grants amnesties, dissolves the People’s Council based on his motivated decision, prepares drafts laws and send it to the People’s Council for review, handles the legislative powers outside of the People’s Council sessions’ or during those sessions when extreme necessity requires so providing that he submits any new legislation to the Council during fifteen days of its first next session, and who shall be entitled for either amending or annulling those decisions by a two third majority (articles 101 to 113).
In the case of extreme danger or a situation, that threatens the national unity, independence or security of the nation, the President shall be entitled to adopt quick measures needed to face such threat (article 114). The President shall not be held liable during his mandate except in case of treason. Such accusation shall be made in a decision adopted by a majority of two third of the People’s Council members in a private and secret session (article 117).
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 before the President of the Republic and the People’s Council. The Prime Minister oversees the work of his deputies and Ministers.
During their assignment to Office, the Ministers are prohibited from holding other positions in the Board of Directors of Private Companies, or directly or indirectly undertake any commercial or private practice (article 123).
The head of State is entitled to refer the Prime Minister, the deputies or Ministers to trial for the crimes they’ve committed during Office. During the trial, the Minister postpones all official assignments he may hold until the render of a decision related to any accusations (article 124).
The Council of Ministers shall automatically resign upon (1) the end of term of the President of the Republic, (2) the election of a new People’s Council, or (3) the resignation of a majority of Ministers. Under these circumstances, the Council of Minister shall act as caretaker government until a decree is issued appointing a new Cabinet (article 125).
A Minister may combine a mandate in the People’s Council and be assigned to the Cabinet (article 126).
The Council of Ministers puts the general policy of the State, direct the work of the Ministries and public institutions, prepare the budget and draft laws, determines development plans and invest in national resources, preserve the interest of the State and the protection of public liberties and citizens’ rights (article 128).
The Syrian Arab Republic shall be composed of administrative districts, the number of which, competency and financial and administrative independence shall be determined by the Law (article 130).
The organization of those Councils shall be based on the principle of the decentralization of institutions and powers. The Law shall define the relation between the said Councils and the central power. Each local district shall have its own elected Councils (article 131).
The Judicial power is independent and the head of State guarantees its independence in cooperation with the High Judicial Council (article 132).
The head of State presides the High Judicial Council, while the law determines the Judicial Council’s mandate and conduct (article 133).
Judges are independent. Their honesty and integrity are a guarantee for human rights and freedom (article 134). Judicial decisions are rendered in the name of the Arab Syrian people. The administration of the judiciary, including its various types and degrees and rules of competencies before national Courts shall be determined by Law. The Law determines as well the power to appoint, promote, and transfer judges.
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 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 can be subject to appeal before the Court of Appeal, which is divided into a civil and criminal branches. Decisions rendered by the Court of Appeal may not be appealed; instead, they can 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. Those include civil, criminal, religious, and military branches, and 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 Courts each). Each of those 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 Syrian nationals regardless of their religion, and on non-Syrians from countries where the Islamic Shari’a Law is the applicable Law on matters of personal status, e.g. 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 of its judges and grounds for challenges against them (article 139).
The Judiciary also includes a high court, the Supreme Constitutional Court in Damascus, which has a mandate to decide on the constitutionality of Laws, review challenges arising from the election of the members of the People’s Council and the President of the Republic, and try the President of the Republic for treason (article 146).
The Supreme Constitutional Court is composed of seven members including its President. All the judges are appointed according to a decree issued by the President of the Republic for a renewable period of four years (article 143). Judges at the Supreme Constitutional Court are not entitled to hold office at the People’s Council or the Council of Ministers.
According to article 150 of the Constitution, the President of the Republic is entitled to propose an amendment to the Constitution. Such right is also granted for third of the People’s Council members. 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, and can ratify it by three quarters of its members. The proposal of amendment becomes final upon approval of the President of the Republic.
· 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.