restructuring judicial system in future syria

Transitional Period Policy Research

Restructuring Judicial System in Future Syria

Prepared by Michal Shammas

Reviewed by Ammar Kahf

Edited by Ausama Monajed

Strategic Research & Communication Centre90 Hatton Garden, Holborn

London EC1N 8PN, United KingdomEmail: [email protected]

Telephone: +442030868989 Website: www.strescom.orgAll rights reserved for

Strategic Research and Communication Centre © 2012

Strategic Research & Communication Centre

The Strategic Research and Communications Center (SRCC) was founded in 2010 to provide high-quality

research and media services to media outlets, government departments, academic institutions and

research centers through research, information, analysis and commentary on Syria. SRCC produced a

series of original studies examining the main political and socio-economic challenges in Syria – poverty,

unemployment, social and political repression.

While this work is of great value and significance as an aid to understanding the region, Syria itself

suffers from a shortage of political and social research. Local researchers must therefore participate in

bridging this information gap. A deeper understanding of the issues affecting the country can be attained

through pairing the philosophy and methodology of Western research with a firsthand knowledge of the

situation, and information gathered in the field. The Strategic Research and Communication Centre has

therefore joined forces with Syrian and Western researchers and academics in order to achieve this result.

The political, economic and social data and the strategic studies will be made available to policy makers,

correspondents, journalists, academics with an interest in Syrian affairs, and to all stakeholders.

About Transitional Period Policy Research

In light of the current changes and challenges in Syria, SRCC launched a research and policy-oriented

program to revisit these inter-related issues within transitional research field in order to be a primary

resource for any new government, civic groups, and activists. The SRCC will convene the most important

indigenous stakeholders to formulate policy recommendations and implementation strategies, serve as a

platform for dialogue about competing approaches, and publish papers that lay plans for the impending

transition of power in Syria. The new series will focus on several areas including economic development,

legal reform, national reconciliation and transitional justice, energy policy, educational system reform,

health system reform and foreign policy among others.


Prepared by Michal Shammas

Reviewed by Ammar Kahf

Edited by Ausama Monajed

Contents

Executive Summary ................................................................................................................ 1

Introduction ........................................................................................................................... 2

Fundamental General Principles of Judicial Independence ..................................................... 4

Independence of the Judiciary ........................................................................................ 4

Freedom of Expression and Association .......................................................................... 5

Qualifications, Selection and Training ............................................................................. 5

Conditions of Service and Tenure .................................................................................... 5

Professional Confidentiality and Immunity ..................................................................... 6

Discipline, Suspension and Removal ............................................................................... 6

Obstacles Facing the Independence of the Judiciary in Syria .................................................. 7

The First Obstacle: The excessive number of judicial bodies and structures .................... 7

One: The judicial authority stipulated in the Syrian Constitution ............................. 7

Two: Exceptional Judiciary ...................................................................................... 9

The Second Obstacle: The legislative decrees, laws and legal articles which

prevent harmed parties from having recourse to the judiciary ..................................... 10

The Third Obstacle: Legislative decrees that restrict the jurisdiction of

ordinary courts or limit cases that can be considered by such courts ........................... 11

The Fourth Obstacle: Intervention in the affairs of the judiciary ................................... 11

The Fifth Obstacle: The weakness of the judiciary’s neutrality ...................................... 12

The Sixth Obstacle: The lack of concern for – and small number of – judges,

and the poor infrastructure of courthouses .................................................................. 13

Proposals and Recommendations ........................................................................................ 15

First: Proposals regarding the consolidation of the bodies of the judiciary ................... 15

Second: Proposals relating to the principle of non-intervention in the affairs

of the judiciary .............................................................................................................. 17

Third: Proposals regarding the application of the principle of judicial neutrality .......... 23

Fourth: Proposals regarding execution of and respect for final judicial rulings ............. 24

Fifth: Proposals regarding the updating of laws: .......................................................... 24

Sixth: Judicial oversight of the actions of the executive and legislature ....................... 26

Seventh: The Success of Judicial Reform is Firmly Linked to the Realisation

of Constitutional Reform .............................................................................................. 29

Conclusion ........................................................................................................................... 31

References and Sources ....................................................................................................... 33

1Transitional Period Policy Research


“There can be no freedom unless the judicial authority is independent from the legislature…

If it is joined to the executive the judge could become an oppressor.”

Montesquieu

Executive Summary

The subject matter of this policy paper is that of systematic policies for the radical reform of the

judiciary in Syria, in order to promote the success of the historic process of change underway in

the country. The Syrian people are driving this process in the direction of the establishment of a

democratic civil state. The study reviews the most significant obstacles hindering Syria’s judiciary,

commencing with the numerousness of the bodies exercising justice, the intervention in its affairs,

the weakness of its neutrality, the absence of respect for its decisions and the backward nature of

laws which erect a stumbling block before the judiciary with regards to the exercising of its role in

realising justice, preserving stability and social peace, and absorbing societal tensions.

This study proposes a set of policies which the transitional government must follow if it is to guide

the judicial apparatus in the proper direction towards a comprehensive reform that guarantees

its actual and practical independence from the executive and legislative authorities. It stresses

that judicial oversight of the actions of the legislature and executive plays an important role in

protecting individuals and groups from arbitrariness and abuses, in reducing transgressions, and

in providing justice as a guarantee of truth on the basis of equality. It is widely accepted that the

independence and neutrality of the judiciary constitute both a fundamental indicator of a sound

climate for economic growth and a spur for the promotion of investment.



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Introduction

Today, and at all times, countries’ development is measured by the extent of the sovereignty of law

within them and the independence of their judiciary, as the state in modern societies is subject to

the law. “The rule of law can only be established or realised where there is recognition and respect

for human rights in the fullest sense. Moreover, it is essential that these rights are protected by a

legal system, so that one is not forced in the end to revolt against tyranny and oppression.”(1)

The role of the judiciary today is no longer restricted to purely legal remedies in solving disputes,

or to inflicting punishment on the perpetrators of crimes or declaring innocence; rather, it now has

a societal role represented in the preservation of stability and social peace, and the absorption of

societal tensions which may occur as a result of a failure to find genuine solutions to economic

and social problems, in particular the issue of corruption and the confinement of people’s liberties.

The demand for the realisation of a fair society within our Arab states is not a luxury; rather, it

has become a pressing necessity for building bridges between the ideal and the reality we are

experiencing.

The independence of the judiciary represents one of the fundamental pillars of democracy, and an

essential buttress of a state of justice, law and institutions. The judiciary in developed countries

undertake the job of preserving stability and social peace as compared to Arab countries, where

judiciaries were transformed into mere flavourless and colourless skeletons as a result of blatant

intervention in their affairs and the transgression of their competences.

Islam stresses the importance of truth and justice. “If you judge between people, judge with

justice.” (Surah Al-Nisa Verse 58). Caliph Umar Ibn Al-Khattab’s letter to Abu Musa Al-Ashari is

considered the constitution of the judiciary in Islam: “Judging is a prescribed duty and a practice

to be followed. Understand when it comes to you, for there is no use in speaking of a right with

no impact. Truth is ancient and nothing will nullify it. Treat people equally in your council and

your judgment so that no noble man hopes for biased treatment and no weak man despairs of

your justice.” Similarly, Caliph Ali Ibn Abu Talib’s letter to his governor in Egypt, Al-Ashtar Al-

Nakhai’i, states regarding the selection of judges: “Choose to judge between people the best of

your flock. Make way for him in giving that which removes his illness and by which his need for

(1) No justice without democracy, and no democracy without justice. Michel Shammas. Al-Mustaqbal newspaper:

Lebanon. 17/10/2011.



people is lessened.” Meanwhile, when Britain was facing a violent attack

from the German forces during World War II Winston Churchill reassured his

people with his statement that: “Britain will arise and advance as long as

its judiciary thrives and rules with justice.”(2) In the year 1948, the United

Nations adopted the Universal Declaration of Human Rights to enshrine the

principle of the independence of the judiciary, the sovereignty of law and

its enjoyment of protection. Every person has the right that his case shall

be considered by an independent and neutral court (articles 7, 8 and 10).(3)

This was followed by the International Convention on Civil and Political

Rights (which Syria joined by means of legislative decree no. 3 of 1969),

which confirms in its article 14 that: “All persons shall be equal before the

courts and tribunals. In the determination of any criminal charge against

the accused, or of his/her rights and obligations in a suit at law, everyone

shall be entitled to a fair and public hearing by a competent, independent

and impartial tribunal established by law.” Its second article calls for all

states to guarantee every grievant that his rights, which he claims have

been violated, will be determined by a competent judicial, administrative or legislative authority.(4)

This policy paper will shed light on necessary policies the transitional government in Syria must

follow in order to institute the principles of judicial independence. The goal is to create an avenue

towards discussion of the conditions of the judicial authority in Syria, and the obstacles which

erect a stumbling block before the reinforcement of its independence.

(2) Standards of the Modern Judiciary. An article by Sirri Sarim published in Al-Muhamoun magazine. 1992. Page 256.

(3) Universal Declaration of Human Rights, adopted by the General Assembly in resolution 217 (III) (D-3) of 10

December, 1948.

(4) The International Convention on Civil and Political Rights adopted by means of the United Nations General

Assembly’s resolution 2200 (XXI) (D-21), of 16 December, 1966. Syria approved the Convention on 21/4/1969 in

legislative decree no. 3, which was published in the Official Gazette, edition 6 of 6/2/1969.

The role of the judiciary today is no longer restricted to purely legal remedies in solving disputes, or to inflicting punishment on the perpetrators of crimes or declaring innocence; rather, it now has a societal role represented in the preservation of stability and social peace, and the absorption of societal tensions



4

Fundamental General Principles of Judicial Independence

The principles adopted by the United Nations General Assembly to assist member states in the

task of guaranteeing and reinforcing judicial independence call for governments to respect these

guidelines in the framework of their national legislation and practices, highlighting their importance

for the attention of judges, lawyers, members of the executive and legislative branches and the

general public. The first section of these principles is focussed essentially on the independence

of the judicial authority, while the second group concentrates on the freedom of expression and

association. The third group centres on the qualifications, selection and training of judges, the

fourth group on their terms of service and tenure, and the fifth group on the disciplining, temporary

suspension and dismissal of judges. The principles are as follows:(5)

Independence of the Judiciary1. The independence of the judiciary shall be guaranteed by the State and enshrined in the

Constitution or the law of the country.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in

accordance with the law, without any restrictions, improper influences, inducements,

pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive

authority to decide if a case in question is within its jurisdiction as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor

shall judicial decisions by the courts be subject to revision. This principle is without prejudice

to judicial review or to mitigation or commutation by competent authorities of sentences

imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary civilian courts or tribunals using

established legal procedures. Tribunals that do not use the duly established procedures of the

(5) Basic Principles on the Independence of the Judiciary. Adopted by the General Assembly on 13 December, 1985.

http://www2.ohchr.org/english/law/indjudiciary.htm



legal process shall not be created to displace the jurisdiction belonging to the ordinary civilian

courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure

that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to

properly perform its functions.

Freedom of Expression and Association8. In accordance with the Universal Declaration of Human Rights, members of the judiciary

are like other citizens entitled to freedom of expression, belief, association and assembly;

provided, however, that in exercising such rights, judges shall always conduct themselves in

such a manner as to preserve the dignity of their office and the impartiality and independence

of the judiciary.

9. Judges shall be free to form and join associations of judges or other organizations to

represent their interests, to promote their professional training and to protect their judicial

independence.

Qualifications, Selection and Training10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate

training or qualifications in law. Any method of judicial selection shall safeguard against

judicial appointments for improper motives. In the selection of judges, there shall be no

discrimination against a person on the grounds of gender, race, colour, religion, political or

other opinion.

Conditions of Service and Tenure11. The term of office of judges, their independence, security, adequate remuneration, conditions

of service, pensions, and the age of retirement shall be adequately secured by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory

retirement age or the expiry of their term of office, where such exists.

13. Promotion of judges, wherever such a system exists, should be based on objective factors, in

particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong is an internal matter

of judicial administration.



6

Professional Confidentiality and Immunity15. The judiciary shall be bound by professional confidentiality with regard to their deliberations

and to confidential information acquired in the course of their duties other than in public

proceedings, and shall not be compelled to testify on such matters.

16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation

from the State, in accordance with national law, judges should enjoy personal immunity from

civil suits for monetary damages for improper acts or omissions in the exercise of their judicial

functions.

Discipline, Suspension and Removal17. A charge or complaint made against a judge in his/her judicial and professional capacity shall

be processed expeditiously and fairly under an appropriate procedure. The judge in question

shall have the right to a fair hearing. The examination of the matter at its initial stage shall be

kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour

that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with

established standards of judicial conduct.



Obstacles Facing the Independence of the Judiciary in Syria

The Syrian judiciary is suffering as a result of numerous obstacles to its independence including

the excessive number of judicial bodies that exercise justice besides the judicial authority; the

intervention of both the executive and legislative branches in the affairs of the judiciary; the lack

of concern for the judiciary and courthouses; the absence of judicial inspection; the bloated nature

of the Department of State Litigation; the disruption of the enforcement of judicial rulings, in

particular those in which the state is a party or one of the actors; the significant shortcomings in

the updating of laws, and their failure to keep pace with the process of development in the country

and the world; and the weakness of judicial oversight (and absence thereof in many cases) over

the actions of the executive and legislature.

The First Obstacle: The excessive number of judicial bodies and structures

Among the obstacles counteracting the independence of the judiciary in Syria is the large number

of bodies exercising justice. In Syria there are two types of judiciary: one which exercises judicial

power in accordance with the provisions of articles 131 to 148 of the Syrian Constitution; another

which exercises judicial power in contravention of the provisions of the Constitution (which is

known as the exceptional judiciary). These can be broken down as follows:

One: The judicial authority stipulated in the Syrian Constitution(6), Section Three of which authorises it with the right to exercise judicial power. It is divided into three categories:

n The ordinary judiciary: This is governed and regulated by Judicial Authority

Law No. 98 of 1961. It includes:

1. Magistrates’ Courts: These are composed of a single judge known as the magistrate. Such

courts adjudicate all civil, commercial and criminal cases falling under their jurisdiction

according to the laws of trial procedure, among other laws. Magistrates undertake the acts

(6) The Permanent Syrian Constitution was adopted on 13/3/1973.



8

of real estate judges in accordance with the laws and regulations relating to the registration

of real properties.

2. Courts of First Instance (trial court): These are composed of an individual judge known as the

first-instance judge. They adjudicate all cases for which no special authority has been set.

Their jurisdiction therefore encompasses all disputes which do not, as a result of their position

or type, fall outside the jurisdiction of this court. Article 77 of the Law of Trial Procedures

grants them the competence to consider all civil and commercial cases which are not within

the jurisdiction of another court, while Article 78 grants them the mandate to consider

summary matters. Similarly, the Law of Criminal Procedures authorises them to consider some

misdemeanours, with observance of the specified penalties.

3. Courts of Appeal: These courts are composed of a president, a number of presidents of

chambers and advisors. They are divided when necessary into chambers, for each of which a

president is appointed. They adjudicate matters which are open to appeal under the laws in

force.

4. The Court of Cassation: This stands at the top of the judicial pyramid. It is a court of law rather

than a trial court; it does not constitute a third degree of litigation as it does not consider the

facts of the case. It is composed of the president, advisors and a number of vice presidents. It

is split into divisions, the number of which can be increased as required.

n The State Judicial Council: This reports directly to the Prime Minister’s Office,

and receives instructions from him/her. It is composed of:(7)

1. The High Administrative Court considers appeals against rulings issued by the Administrative

Judiciary Court, the administrative courts, and disciplinary or labour courts.

2. The Administrative Judiciary Court adjudicates disputes relating to contracts for compliance,

public works and supply, or any other administrative contracts.

3. The Administrative Court specializes in reviewing petitions submitted by public servants

requesting the reversal of administrative decisions rendered by the disciplinary authorities,

as well as petitions submitted by public servants to review administrative decisions issued

transferring them to full or provisional retirement, or firing them by non-disciplinary means,

other than those related to employees of the first grade and above (with the exception of

decrees and decisions issued on the basis of article 85 of the Personnel Statute).

(7) The State Council Law was promulgated by declaration of Law No. 55 of 21/2/1959.



4. The Board of State Commissioners is composed of commissioned assistant advisors and

specializes in preparing cases for pleading. It distributes to the State Commissioners appeals

submitted in cases of the Administrative Judiciary Court, the Administrative Court, the first

instance and civil and disciplinary courts.

5. The Advisory Section of the State Council for Legal Opinion and Legislation undertakes the

expression of legal opinions on matters presented by the state institutions.

n The High Constitutional Court: This court considers the constitutionality of

laws at the request of the President of the Republic, or of four members of the

People’s Council. Its chairman and members are appointed and removed by the

President of the Republic. Its role has been obstructed since its creation, and its

decisions have been left in drawers, failing to find their way towards execution.(8)

Two: Exceptional Judiciary. The creation of this judiciary was not stipulated in the Constitution, and it does not provide the safeguards stipulated within the ordinary judiciary. Examples include:1. Military field tribunals promulgated by legislative decree 109 of 1967.

2. The Committee for the Specification of Wages for Agricultural Work in Damascus, promulgated

by legislative decree 218 of 1963.

3. The Committees for the division of common property, promulgated by Law No. 21 of 1986.

4. The Military Justice Department composed of the military prosecution, individual judges and

inquiry judges, criminal courts and a military chamber of the Court of Cassation.

5. The Supreme State Security Court, which was created then repealed.(9)

6. The cancelled committees for laying off workers.(10)

(8) The High Constitutional Court was created by law no. 19 of 27/6/1973, and its regulation permits only the President

of the Republic and four members of the People’s Council to appeal against the constitutionality of laws. It does

not have the right to appeal against laws issued by the President of the Republic, and the rulings and interpretative

decisions which it issues are not binding. The President of the Republic monopolises the right of appointment and

dismissal of the President of the Court and its members.

(9) The Supreme State Security Court was created in legislative decree no. 47 of 28/3/1968 and the amendments

thereof, and repealed by legislative decree no. 53 of 21/4/2011. It was an ill-reputed court which issued rulings

against thousands of the regime’s opponents. Its judgments were not open to appeal, and it did not comply with

the rules followed in the ordinary judiciary.

(10) The committees for cases of laying off workers were created by legislative decree no. 49 of 1962. They would

consider the dismissal of workers in the private sector without complying with the procedures and rules followed



10

The Second Obstacle: The legislative decrees, laws and legal articles which prevent harmed parties from having recourse to the judiciary, in contravention of article 28

(paragraph 4) of the Constitution (the right of litigation and conducting means of appeal and defence before

the judiciary protected by law). These include:

1. Legislative decree no. 14 of 1969 regulating the work of the General Intelligence Department,

whereby article 87 thereof stipulates the prevention of prosecution of any of its personnel for

crimes they commit during the performance of their duties, other than by means of obtaining

a prosecution warrant from the director of the Intelligence Department.

2. Articles 107 and 108 of the Law on the Regulation of the Legal Profession no. 30 of 2010,

which permit the Prime Minister to dissolve the general conference, the union council and

the branch councils in the event of a deviation by councils or boards from their mission. This

decision is not open to any form of review or appeal.

3. Article 137 of the Law of State Employees prohibits the filing of a case before the judiciary

regarding employees who are dismissed from service.(11)

4. Article 4 of the Law on the Creation of Military Field Courts, paragraph (c) stipulates that

decisions of the public prosecutor shall be final and not open to any form of appeal.(12)

5. Article 7 of the Law of Expropriation no. 20, specify that its decisions are final and not open

to appeal.(13)

before the ordinary judiciary. They were repealed by the issuance of the new Labour Law no. 17 of 2010, whereby

the Labour Court of First Instance was created to consider the cases of private sector workers.

(11) Article 85 of Labour Law no. 19 of 1959 permitted the Council of Ministers to dismiss personnel and employees

from service without reason, by means of a decree which cannot be appealed. The article number changed to 138

in the unified Law of Employees no. 1 of 1985, although the same content was preserved. In 2004 the new State

Employees Statute (no. 50) was promulgated, whereby the article number was changed to 137. Its content was

amended partially to permit an appeal against the dismissal decree before the judiciary. However, in practice the

courts continue to reject all cases submitted appealing decrees of dismissal from service.

(12) The military field courts were created by legislative decree no. 109 of 17/8/1967. They do not provide guarantees

of the right of defence, nor do they permit even lawyers to plead before it. Their decisions are irrevocable and not

open to appeal.

(13) Article 7 of the Law of Expropriation no. 20 of 1974: “Decrees of expropriation shall be irrevocable and not open to

any of the forms of appeal or pleadings.”



The Third Obstacle: Legislative decrees that restrict the jurisdiction of ordinary courts or limit cases that can be

considered by such courts. Examples include:

1. The first article of legislative decree no. 64 of 30/9/2008, limits the jurisdiction of Military

Courts as an exceptional judiciary “for crimes committed by officers, non-commissioned

officers, personnel of the internal security force, members of the political security branch and

members of the customs police, as a result of the performance of tasks with which they are

commissioned.” The perpetrators of such crimes had been subject to trial before civilian courts

according to the stipulation of the second article in the aforementioned decree, “provided

that the prosecution warrants are issued by the head of the army in accordance with the

provisions of article 53 of the Law of Procedures of the General Leadership of the Army and

the Armed Forces, and in accordance with the provisions of article 53 of the Law of Military

Trial Procedures.”

2. In the event a civilian is engaged in a civil or criminal court proceeding with a member of

the military or intelligence units, paragraph (i) of article 50 of the Law of Military Penalties

stipulates that the jurisdiction of such cases is transferred to military courts. The ordinary

judiciary is the natural place for the consideration of such crimes.

The Fourth Obstacle: Intervention in the affairs of the judiciary

The most serious issue facing the judiciary in Syria is that of broad interventions on the part of the

executive in the affairs of the judiciary. This is represented by the person of the Minister of Justice,

who chairs the Supreme Judicial Council on behalf of the President of the Republic, and by the law

regulating the work of the judicial authority which grants the Minister of Justice broad influence

over the judiciary. The executive authority is present and influential at all of the procedural

sessions which govern the affairs of the judiciary including appointment, promotion, disciplining,

and dismissal in the form of the Supreme Judicial Council that is appointed by the executive

authority. Article 65 of the Judicial Authority Law stipulates that: “The Supreme Judicial Council is

formed in the following manner: the President of the Republic, represented by the Justice Minister

as chairman, the President of the Court of Cassation as member, the two most senior deputies

of the President of the Court of Cassation as members, the Deputy Minister of the Ministry of

Justice as member, the Public Prosecutor as member, and the Director of the Department of Judicial

Inspection as member.



12

1. There have been many cases of direct interference in the affairs of the judiciary by the

executive authority. Immunity has been lifted from many judges on the pretext of reform. The

following are some examples:

2. 1948: In order to classify judges, the Syrian government issued a law that authorised the

government to dismiss judges whom the classification council decided were unqualified.

Under this law seventeen out of two hundred judges were laid off.

3. 1953: Judicial immunity was lifted by means of a further law and nineteen judges were

dismissed.

4. 1958: During the time of the union with Egypt, judicial immunity was lifted for a period of 24

hours, during which fourteen judges were laid off and six judges were transferred to notarial

positions.

5. 1966: Judicial immunity was lifted in accordance with a special law for a period of 24 hours,

and under this law twenty-two judges were laid off and five other judges transferred to non-

judicial positions.

6. 2005: Legislative decree no. 95 was issued, under which eighty-one judges were dismissed.

7. 2007: Enforcement of the decision of the referral judge in Damascus to release the opposition

activist Michel Kilo was obstructed.

8. 2009: At the instruction of the Minister of Justice, the Court of Cassation’s decision to suspend

the execution of the ruling issued in the case of the opposition activist Michel Kilo was also

obstructed.

9. 2011: The Criminal Court in Homs decided to release opposition activist Najati Tayyara. Before

he passed through the prison gate he was re-arrested again and referred to the judiciary on

the same charges from which he had previously been exonerated.

The Fifth Obstacle: The weakness of the judiciary’s neutrality

Many lawyers, interested parties and even ordinary citizens are complaining about the obstruction

of article 81 of the Judicial Authority Law, which stipulates that: “It is prohibited for judges

to express opinions and political inclinations. It is also prohibited for judges to be involved in

politics.” Most judges are selected from among those individuals who belong to the ruling Baath

party, in particular within the military courts where it is required that judges are Baathists, and

some of them hold high-ranking party positions. Meanwhile, they can be found presiding over



these courts in addition to their party capacity, in which they are sometimes involved in meetings

and the like dealing with matters of the judiciary. Similarly, one or more halls in the palaces of

justice are allocated to party meetings and activities, in which judges, lawyers and staff of the

Ministry of Justice meets. This conflicts with the principle of judicial independence and neutrality

as stipulated in Section Three of the Constitution and the international conventions and treaties

which Syria has signed. It is questionable if a judge can put his party loyalty aside, and rule in a

case according to his honour, conscience and integrity, and according to the swearing of the oath

of loyalty to the judiciary?

The Sixth Obstacle: The lack of concern for – and small number of – judges, and the poor

infrastructure of courthouses

A brief review of court records clearly demonstrates the enormous quantity of cases considered

by a judge during a single year, on top of tens of thousands of petitions for release, lifting of seals

and car impoundings, statements, among many others. This obliges judges to work until late in

the evening studying cases and considering claims, either at the office or at home. This state of

affairs has had a negative impact in terms of the weakness of the legal culture among judges,

and therefore in the inadequacy of the rulings they issue. An examination of recent rulings of the

Court of Cassation will reveal that they are mostly limited to a few lines, whereas the judgments

issued by the Court of Cassation forty years ago reflect a deep understanding of the law, a broad

comprehension of the facts of the caseو and a profound knowledge of the rules of the Arabic

language.

The number of civil cases of first instance heard at the Palace of Justice in Damascus in 2004

amounted to over fifty thousand, while the number of judges totalled no more than nineteen.

This means that each judge was responsible for deciding three thousand cases. In the year 1971,

there was one judge for every five thousand citizens; today there are more than twenty thousand

citizens per judge. The number of cases in 1971 in the various Syrian courts amounted to 250,000,

whereas the number of cases today has reached more than 1.5 million.(14) The following table

clarifies the huge number of cases at the Palace of Justice in Damascus alone, between 2/1/2011

and 10/12/2011:(15)

(14) An article by the lawyer Hazim Al-Jazar published in Al-Mizan magazine. Edition 8. October 2011.

(15) These figures are taken from the records of the Palace of Justice in Damascus between 2/1/2011 and 10/12/2011.



14

Name of court or division No. of courts and divisions No. of judges No. of cases No. of cases in each

division or court

Inquiry 10 10 16311 1631

Civil Conciliation 12 12 20775 1731

Criminal Conciliation 3 3 10442 3480

Civil First Instance 19 19 24425 1285

Criminal first instance 11 11 16541 1503

Civil Appeal 9 30 8230 914

Criminal Appeal 4 12 9520 2380

Criminal 3 9 3240 1080

Sharia 7 7 12053 1721Note: The number of public prosecution judges in Damascus currently totals only twenty-three judges, among them a senior advocate and two advocates, while Damascus’ judicial payroll is forty-two judges, among them a senior advocate and four advocates. This is according to table no. 11 of the rules of procedure of the Ministry of Justice of the year 1998, page 126.



Proposals and Recommendations

First: Proposals regarding the consolidation of the bodies of the judiciary

The judiciary derives its existence and essence from the Constitution, which entrusts to it alone

the matter of realising justice, independently of the other authorities. There should be no special

committees or exceptional courts or laws which prevent individuals from having recourse to the

judiciary, which holds the full mandate and comprehensive jurisdiction over the various forms of

dispute. The unity of the judiciary requires that litigants and disputants, regardless of whether

they are individuals or private or public institutions, are subject to the judiciary stipulated in the

Constitution. The mandate of the judiciary, whether ordinary or administrative, must include all

cases, whether criminal, civil or administrative. The following are recommended actions and

proposals:

1. The new Constitution must prohibit the creation of any special or exceptional court, judiciary

or committees.(16)

2. All existing illegal exceptional courts and committees must be cancelled. Examples of these

include the Military Field Court and the committees for specifying agricultural wages and

dividing common property.

3. All decrees and legal articles which prevent or obscure the right of litigation, or dispossess the

judiciary of part of its jurisdiction, must be repealed.

4. The jurisdiction of the military judiciary must be restricted to trying military personnel

alone, and for crimes which occur within military barracks or institutions. This requires the

amendment of paragraph (i) of article 50 of the Law of Military Penalties, in addition to a

stipulation in the Constitution preventing the trial of civilians before the military judiciary.(17)

(16) A prohibition found in the Syrian Constitution of 1950, which stipulated in article 10 (paragraph 8): “It is not

permitted to create exceptional criminal courts; trial procedures shall be established in the case of emergency.”

(17) The Syrian Constitution of 1950 already prevented the trial of civilians before the military judiciary, as it stipulated

in article 10 (paragraph 9) that: “No-one shall be judged before the military courts other than members of the army.

The law shall specify the exceptions to this rule.” This was also stipulated by the Syrian Constitution promulgated

in the year 1953, whereby paragraphs 8 and 9 of article 10 thereof provided two stipulations similar to that which

is set out in article 10 of the 1950 Constitution.



16

5. The executive authority’s domination of the State Council judiciary, the real estate judiciary

and any other judiciary under any name whatsoever must be removed, and it must be made

subordinate to the judicial authority under the supervision of the Supreme Judicial Council.

It is unacceptable that the Supreme Judicial Council is subsidiary to the President or the

Prime Ministers Office and its judges receive their instructions therefrom, or that the High

Constitutional Court is subordinate to the President of the Republic. This counteracts the

independence of the judiciary and the realisation of the principle of justice.

6. The bodies of the judiciary in Syria (the ordinary judiciary, the State Council judiciary, the real

estate, Sharia, spiritual and denominational courts, and the military judiciary (following the

restriction of its jurisdiction)) must be consolidated under the banner of the Supreme Judicial

Council, provided that all judicial bodies are represented on this Council.

7. Chambers specialised in commerce, commercial companies and banks must be created.

8. A court must be created with full jurisdiction to fight corruption.

9. A court must be created for family cases, benefiting from autonomy, appropriate rules of

operational procedure and its own buildings, to which shall be attached an independent

public prosecution specialising in family matters and a department to implement the rulings

issued by the family court. It shall be supported by an office of amicable dispute resolution,

composed of experts in psychology and sociology, under the presidency of a female judge.

This family court should preferably be composed of married judges. The establishment

of this court would by its nature ease the procedures of litigation in disputes of divorce,

inheritance, custody, the right to retain the marital home and the proportions thereof, while

demonstrating concern for the humanitarian, social and psychological aspects and preserving

the confidentiality and privacy of such cases.

10. The courts of appeal and referral must be repealed, by merging the courts of first instance

and appeal to form a single court composed of three advisor-judges. Judgments of this court

shall be open to appeal before the Court of Cassation, with both acting as trial courts. The

existence of all of these courts prolongs the duration of litigation and places a burden on

judges, lawyers and staff. The number of judges in each chamber of the Court of Cassation

must be increased to five judges, taking the place of the general board for considering

cases of bringing legal action against judges; the general board for considering cases for

the consolidation and renunciation of judgments must be abandoned; and the courts of



referral must be cancelled. Furthermore, a judge’s decision that is issued based on reasonable

evidence and an indictment shall be open to appeal by the higher court.(18)

Second: Proposals relating to the principle of non-intervention in the affairs of the judiciary

1- Organising the Ministry of Justice’s relationship with the judicial authority exclusively

through the Public Prosecutor Office of the Court of Cassation. The Minister of Justice

shall have the right, in the name of the government and whenever necessary, to only

communicate with the President of the Supreme Judicial Council and the Director of the

Department of Judicial Inspection. This requires the amendment of the first article of the

Supreme Judicial Council Law, whereby it shall become: The Supreme Judicial Council

shall exercise the following powers, rather than the Ministry of Justice:

1. Vigilance over the application of laws and judicial regulations.

2. Preparation of studies of draft bills relating to the procedures of litigation, trial procedures

and judicial organisation. It shall have the right to submit directly to the Parliament draft bills

relating to the procedures of litigation, trial procedures, judicial organisation, the Supreme

Judicial Council, judicial inspection, the Judges’ Disciplinary Council, and the rights and

obligations of judges. Furthermore, if a draft bill is being presented to Parliament relating to

such matters; it must be reviewed by the Supreme Judicial Council within a period of thirty

days.

3. The proposal of pardons, and the inspection of prisons and detention centres to ensure

humane living conditions and that health standards and other regulations are observed.

4. Proposing the appointment of trial judges, and their promotion, transfer, disciplining and

removal, and accepting their resignations and referring them to full or provisional retirement;

dispatching missions of judges to foreign countries for the purpose of specialisation or

educational training, in accordance with a special regulation established by the Supreme

Judicial Council.

5. No judge may be transferred from his position without his/her prior written agreement, other

than for serious reasons relating to his proper performance of his work in the aforementioned

position.

(18) Confer the proposal presented by the Advisor Nael Mahfouz, President of the Court of Cassation, in an interview he

conducted with Al-Mizan magazine. Edition 8. October 2011. Page 8.



18

2- Amendment of article 65 of the Judicial Authority Law as follows:

1. The Supreme Judicial Council shall be formed by the following members:

– The President of the Court of Cassation;

– Three members from the High Constitutional Court;

– Three members from the Court of Cassation.

2. Legal experience is required of no less than thirty years, and it must be witnessed that they

have knowledge and integrity. Their employment or professional record must be unblemished,

and they must enjoy good health. The age of retirement shall not be adhered to.

3. Nomination for the Supreme Judicial Council shall be performed by means of a letter signed

by a judge, a professor of law or a lawyer with legal experience of no less than twenty years,

containing the candidate’s résumé and academic qualifications supported by documentation.

4. The Minister of Justice shall publish an official announcement calling for the submission

of nominations. The Minister of Justice shall publish the names of the candidates and their

qualifications in the media, and invite them to confirm their candidacy in writing. He shall

also call for the lawyers’ union, the deans of the law faculties in Syria’s universities, and all

concerned, to submit their written observations regarding the publicised nominations within

fifteen days. At the end of the legal period the Minister of Justice shall prepare a file for each

confirmed candidate. These files are then delivered to the chairman of Parliament’s legislation

committee.

5. The competent committee of Parliament shall convene public sessions attended by the

candidates, lawyers who wish to attend, and those with the right to review candidates’ files.

Ten days after the conclusion of public sessions, the committee shall make a its decision

provided that they shall number no less than double the number of members required to

be selected. A copy of the decision is then delivered to the Speaker of Parliament and the

Minister of Justice.

6. The Speaker of Parliament will call for a special session of Parliament to vote for 15 members.

7. Members of the Supreme Judicial Council shall, in Parliament and in the presence of its

members, perform the constitutional oath.

8. Members of the Supreme Judicial Council shall elect a Vice President and a Secretary from

among its members for the term of one year.

9. The salaries and remunerations of the members of the Supreme Judicial Council, including

expenses of housing and transport, shall be specified by the Council itself.



10. The Supreme Judicial Council shall be considered the custodian of the independence of the

judicial authority, the guarantee of proper administration of justice, and the preservation

of constitutional rights and freedoms of the people. In so doing it shall enjoy the broadest

powers stipulated in the Constitution, provided that it shall have full power and authority

over all courts and judicial and administrative boards of a judicial nature.

11. The period of service by members of the Council is limited as long as they enjoy full physical

and mental capabilities to perform the tasks entrusted to them. Membership shall expire as a

result of dismissal for serious reasons whereby the member shall be judged before the Council

in secret, while all of the safeguards stipulated in the Constitution from the point of view of

accusation, inquiry and the right of defence shall be provided. The decisions of the Council in this

regard shall be passed by a quorum of no less than five members, and by a majority of at least

two-third of present members. These shall be signed and dated immediately on issuance under

penalty of voidance, and the decisions of the Council shall be published in the Official Gazette.

12. Members of Parliament, judges and lawyers may appeal against the constitutionality of decisions

issued by the Supreme Judicial Council, within a legal period. All interested parties may also

appeal against the aforementioned decisions owing to their contravention of the law or their

exceeding of the bounds of authority, in accordance with the rules of appealing for cassation.

13. The Supreme Judicial Council shall form the Judges’ Disciplinary Council, composed of seven

members from among those individuals possessing the conditions required for membership

of the Supreme Judicial Council, provided that they are not selected from current or former

judges. The Supreme Judicial Council shall nominate five members, and four others shall be

nominated by the Department of Judicial Inspection. They shall be appointed for a period of

five years, renewable once.

14. Any judge who dishonourably contravenes the law, or contravenes it repeatedly or for an

extensive period, or who commits a grave error or contravenes the decisions of the Supreme

Judicial Council and the instructions and interpretations thereof, shall be referred to the

Disciplinary Council.

15. The board judging each case shall be composed of at least three members, and the case shall

be put in motion by a petition signed by twenty-five judges or lawyers, or by a resolution of the

Department of Inspection or the Supreme Judicial Council. The case shall be forwarded to the

President of the Disciplinary Council containing the subject of the complaint and accusation.

The trial shall be conducted publicly unless the defendant requests that it be kept secret. In

such a trial the general civil trial procedures shall be observed. The Disciplinary Council shall

have the right to suspend the judge from work by means of a resolution adopted by it in the



20

deliberation chamber. Such a resolution will be conveyed to the Supreme Judicial Council for

implementation thereof.

3- Review of the method of selecting judges, and the standards followed in judicial

appointments, as follows:

1. They shall have a good record, praiseworthy morals and sufficient legal experience, and their

professional record shall be unblemished. A committee shall be formed to this end composed

of fifteen members with professional and legal experience of no less than twenty-five years.

The Supreme Judicial Council shall nominate four members, with the rest nominated by the

Department of Judicial Inspection.

2. This committee shall consider requests for nomination containing the candidate’s record and

academic qualifications.

3. The committee shall announce the names of candidates in the palaces of justice and at the

lawyers’ union and branches thereof, and the committee shall invite all concerned to submit

their observations within fifteen days.

4. The committee shall study the files of each candidate and issue its decision to accept the

candidates by a majority of two thirds. This decision shall be conveyed to the Supreme Judicial

Council and a copy thereof provided to the Minister of Justice and the Department of Judicial

Inspection.

5. The Supreme Judicial Council shall issue a decision on the appointment of those who have

been approved.

6. Judges, in whichever position they have been accepted, and before commencement of their

tasks, are obliged to state in writing and under oath their wealth and properties. This shall

also be conducted after the expiration of the judge’s term.

7. Paragraph (e) of article 70 of the Judicial Authority Law must be amended as follows:

– It is required of any person who enters the judiciary or public prosecution that he/she is

no less than thirty years of age, in addition to having been practising for five years if the

appointment is made to the position of assistant judge or public prosecutor;

– He/she shall be no less than thirty-five years of age, in addition to having been practising

for a period of at least eight years if the appointment is made to the position of magistrate,

first-instance judge, Sharia judge or prosecution attorney;

– He/she shall be no less than forty years of age, in addition to having been practising for a

period of at least sixteen years if the appointment is to the position of inquiry judge, appeal

advisor or advocate;



– He/she shall be no less than fifty years of age, in addition to having been practising for a

period of at least twenty-five years, and the conditions relating to the method of selection of

the candidate for membership of the Supreme Judicial Council must be observed.

8. The method of acceptance to the Judicial Institute, created by legislative decree no. 42/2000,

must be amended (in particular article six thereof) whereby it shall be as follows:

– The Vice President of the Supreme Judicial Council as chairman; and the remaining members:

“Dean of the Institute as deputy chairman, and from among the trial judges or the prosecution

those who have been practising judicial work for no less than twenty years shall be selected;

in addition to the Director of the Department of Judicial Inspection, and a lawyer who has

been practising the profession for no less than twenty years;”

– Wherever it occurs in this law, the phrase ‘Minister of Justice’ must be replaced with: ‘Vice

President of the Supreme Judicial Council’;

– The acceptance of applicants to the Institute shall be conducted not only on with reliance on

their overall grades, but rather also on the basis of a study undertaken by the Supreme Judicial

Council, in which it shall investigate the applicants, taking into consideration their academic

and legal ability and their reputable track record. The Council shall repeat the same study for

those successful at the end of the period of study at the Institute, and thereafter a decision

shall be taken on their appointment.

4- Concern for judges as regards salaries, remuneration, training and qualification:

The following procedures should be adopted:

1. Review of the subject of judicial collection duty by allocating an item in the state’s public

budget for the judicial authority. The Supreme Judicial Council must specify the expenses and

revenues required by the judiciary, whereby a respectable income is provided to its members

in which housing, transporttion and the cost of living are observed, ensuring in the end a free

and dignified life for the families of the judiciary.

2. Training judges and developing their academic and practical qualification for the practising of

judicial work (and also those working in the bodies supporting the judicial boards).

5- Increasing the number of judges as follows:

1. Increasing the number of judges to match the volume of cases, thereby preventing the

accumulation of cases and avoiding the prolonging of litigation. Slow justice is the harshest

form of oppression.



22

2. Increasing the number of palaces of justice and courthouses to match the number of judges,

making them fit for judges and litigants by upgrading facilities and automating them to

facilitate judicial work, and linking them with a central information network.

3. Activating the technical office of the Court of Cassation, supplying it with professional and

technical staff, and automating it in order to facilitate its work of storing judicial rulings and

legal information, and of accessing them when necessary, whereby it will become a bank of

information.

4. Concern for detention centres within the palaces of justice to make them suitable for detainees

and respecting their humanity.

5. Supplying courts and court offices with sufficient staff for the enormous volume of cases,

ensuring means of transport for employees and increasing their salaries. The work undertaken

by the director of the court office, the clerk, the executor, the typist, and the usher is important

and a vital supplement to the work of the judge. Staff monitors the registration of cases

and the organisation of complaints received by the courts, examining them and ensuring

the conditions for their registration are complete. They then present them to the judge, who

studies them and issues his final decision on them. This requires the adoption of a number of

demands, including:

– Raising the level of income and remuneration as befits the increasing volume of business

they perform.

– Ensuring means of transport for all workers to and from their places of work.

– Greater attention to places of work, making them more suitable and befitting for the work

of employees.

– Providing medical care and health insurance for all employees of the Ministry of Justice and

the judicial system.

The fulfilment of these demands, in addition to other just demands, would contribute towards

improving motivation and raising the level of work among all employees, in addition to

ending bribery and illegitimate earnings.

6- Reviewing the Department of Judicial Inspection:

The Department of Judicial Inspection must be completely independent in its capacity as an

oversight board. It is recommended that this board be composed of fourteen members, who are

treated in the same manner as members of the Supreme Judicial Council. They must be granted

the same wages and remuneration scale as members of the Supreme Judicial Council. The powers

and authorities of the Minister of Justice and the Ministry of Justice relating to inspection shall



be transferred to this Department, and its powers shall encompass all courts, judicial boards,

denominational, spiritual, special and exceptional courts, the real estate and quasi-judicial courts,

the public prosecution, secretaries of the real estate register, notaries, experts and bankruptcy

agents and lawyers, and it may consult therein whomsoever it wishes from lawyers, jurists and

administrators.

7- Reviewing litigation procedures by the Department of State:

Reviewing the situation of the Department of State litigation procedures has become an important

issue and a pressing necessity. It would be advantageous to repeal it and leave the matter of

contracting with lawyers to the public institutions and departments, provided that the method of

contracting and the fees which have today become paltry are reviewed.

8- The Central Board of Oversight and Inspection:

This Board has become a restraining factor for the spirit of initiative and invention among the people:

only those with influence escape its clutches. It would be preferable to cancel it or restructure it

afresh, rendering it completely independent of the Prime Minister’s office after supplying it with

neutral and independent personnel of efficiency and integrity, from among judges, lawyers and

law professors.

Third: Proposals regarding the application of the principle of judicial neutrality

It is of utmost importance that judges are neutral in their work. A judiciary by nature is characterised

by both independence and neutrality, and constitutions and positive laws confirm and protect

this nature. Any intervention in the judiciary breaches the balance of justice and destroys the

foundations of governance, because justice is the basis of rule. It was therefore not deemed

unusual in former times to venerate judges and shower them with dignity and reverence.

Neutrality is a necessary condition for establishing justice between people. It is true that Syrian law,

as with most Arab legislations, considers a judge’s lack of neutrality a possible cause for dismissal.

Moreover, article 81 of the Judicial Authority Law – which has been obstructed – stipulates that:

“It is prohibited for judges to express political opinions and inclinations. It is also prohibited for

judges to be involved in politics.”

The judiciary in Syria and throughout the world agree that it is insufficient for judicial rulings to be

fair alone; rather they must be beyond suspicion of bias in order to be a subject of confidence and

respect. The late eminent professor Nasrat Munla Haidar had a notable opinion on the neutrality of



24

the judge, stating that “the first condition of this neutrality is the judge’s abstention from politics.

However, it must not be understood from this condition that an absolute blockade is erected

between the judiciary and politics, because judges are citizens, and they have the right to have

an opinion on the political affairs of their country. Yet there must be a prohibition on joining a

particular politic as this draws the judiciary away from its neutral nature.”(19)

Therefore, this policy paper proposes the activation of article 81 of the Judicial Authority Law,

which prohibits judges from “expressing political opinions and inclinations…” and from

“involvement in politics,” following its amendment whereby it shall read: “Judges are prohibited

from expressing political opinions and inclinations as regards the issues considered before them.

They are prohibited from joining political parties and associations and involvement therein, under

penalty of dismissal.” There must be a prohibition of party meetings at the palaces of justice,

whether of judges, staff or lawyers, while judges must be permitted to join judges’ associations

and clubs similar to the Judges’ Club in Egypt.

Fourth: Proposals regarding execution of and respect for final judicial rulings

Procrastination and delay in executing decisions issued by the judiciary, and the obstruction of

their execution, give rise to a lack of confidence in the judiciary and an infringement of its dignity

and independence among the people. This matter also harms the country’s reputation abroad.

Therefore, the executive authority entrusted with guaranteeing the execution of decisions issued

by the judiciary must ensure the execution of such decisions without reservation or hesitation. It

must not disrupt them owing to personal, negative attitudes towards rulings in which the state

and its institutions are a party. It must guarantee their implementation by means of stressing the

punishment of contraveners, however high ranking they are.

Fifth: Proposals regarding the updating of laws:

Relationships and interests do not remain fixed; rather they develop and change. Laws are

therefore supposed to develop and be replaced; otherwise they will become an obstacle in the

path of growth and advancement. At least half a century has passed since the issuance of all

of the fundamental laws in Syria (such as the Law of Trial Procedures, Personal Status, the Civil

Law, Data, Penalties, Civil Status, the Land Register Law and so on). Despite the efforts of the

legislator in updating some laws, nonetheless this process is moving extremely slowly; this is

(19) The Principle of Equality Before the Judiciary. A study of Professor Justice Nasrat Munla Haidar, former President of

the High Constitutional Court in Syria. Published in Al-Muhamoun Magazine. 1993. Page 29.



inappropriate for the amazing developments we are living through today. The following are

proposed recommendations:

1. The cancellation of article 117 of the Law of Criminal Trial Procedures, sufficing with

notification of the adversaries once only.

2. Sessions must not be delayed for more than fifteen days.

3. Article 26 of the Law of Civil Trial Procedures must be amended whereby it is sufficient to

publish the notification in the press, forgoing the announcements board.

4. Paragraph 2 of article 104 of the Law of Civil Trial Procedures, which permits disputants to

plead before the courts without a lawyer, must be repealed.

5. The representative of the Department of State Litigation must be treated the same as the

other parties in the case.

6. A final solution must be put in place regarding notification of the Department of State

Litigation, whereby the court usher shall be authorised to treat it the same as individuals on

notification, or refraining from such notification.

7. Judicial fees, which are a burden on litigants, must be reduced.

8. Prosecution judges must be appointed within police stations and departments in order to

guarantee the organisation of protocol in a legal manner under the supervision of the judge,

whereby it will be possible to consider the arrest or release warrants. This will lessen the

burden on courts and end malicious complaints.

9. Article 117 of the Law of Criminal Trial Procedures relating to exoneration must be activated.

10. Article 548 of the Law of Penalties, which permits the killing of women for reasons of honour,

must be repealed.(20)

(20) The article formerly permanently absolved from punishment the perpetrators of honour crimes. Under pressure for

its cancellation it has been amended twice. Firstly, in decree 37 of 1/7/2009, the literal stipulation was as follows:

“Article 1: Article 548 of the Law of Penalties is hereby repealed, and substituted with the following text: Any person

who surprises his spouse, one of his ascendants or descendants or his sister in the crime of witnessed adultery, or in

sexual relations of fornication with another person, and he undertakes to kill them or harm them, or to kill or harm

one of them, without premeditation, shall benefit from diminished responsibility, provided that the penalty shall be

no less than detention for a period of two years for killing.” This was subject to a second amendment in decree 1 of

3/1/2011, whereby it became: “Any person who surprises his spouse, one of his ascendants or descendants or his

sister in the crime of witnessed adultery, or in sexual relations of fornication with another person, and he undertakes

to kill them or harm them, or to kill or harm one of them, without premeditation, shall benefit from diminished

responsibility, and the penalty shall be detention of from five years to seven years for killing.”



26

11. All articles which discriminate between women and men, in particular in the Law of Personal

Status, must be repealed or amended.

12. A law must be promulgated to combat illegitimate earnings.

Sixth: Judicial oversight of the actions of the executive and legislature

The Syrian Constitution does not grant the executive or legislative branches, or any other authority,

the power to create exceptional courts and committees. Nor does it permit them to obscure the

right of litigation in certain areas by means of the promulgation of a law. Rather, Section Three of

the Constitution reserves for the judicial authority the right to settle disputes between individuals,

and between individuals and the state.

In exercising its right to arrange and regulate the judicial authority and specify its jurisdiction,

the legislature may not oppose the authority of the judiciary itself, for example by depriving it

of part of its jurisdiction and awarding this to another non-judicial body. The mandate of the

judicial authority comprises the various forms of dispute, whether administrative, civil or criminal,

regardless of the nature of the case or of the disputing individuals. This mandate arises from the

independent nature of the judicial authority as stipulated in the Constitution, which entrusts to it

alone the matter of performing and realising justice. Every legislative item, law or administrative

decision which diminishes the mandate of the judiciary is tainted with unconstitutionality, and

will lead in the end to the thwarting of the principles of legitimacy, the sovereignty of law and of

equality before it. Article 25 (paragraphs 2 and 3) of the Syrian Constitution state that: “2- Citizens

are equal before the law in rights and obligations. 3- The state guarantees the principle of equal

opportunities between citizens.” This signifies that the people – the rulers and the ruled – must be

subject to the rule of law, together with the actions of the executive authority, whereby no act it

performs shall enjoy the privilege of legal impunity.

The Syrian judiciary has previously assented – on the basis of the absolute judicial oversight of

the legitimacy of administrative actions – to review administrative decisions, even where the

legislation on which such decisions are based stipulates that they are issued in an irrevocable

form and are not open to any form of appeal or review. One example of this is the conclusion

of the High Court regarding the application of article 85 of the Personnel Statute, which permits

management to dismiss employees from service without him having the right of review or appeal.

The Court’s decision in this regard states that: “The High Court’s oversight of decrees, decisions and

administrative business containing one of the defects of voidance is derived from the provisions

of the Constitution. The effect of the stipulation of article 85 of the Personnel Statute – that the



decree issued dismissing the employee from service is not subject to any form of review – does

not extend to the judiciary’s oversight of the exceeding of power, considering that it is impossible

to recognise the legal existence of a decree which fails to establish a realisation of the legitimate

aim of the legislator.”(21)

It should be noted here that the Egyptian Constitution explicitly states that it is prohibited for

laws to stipulate that any administrative act or decision is immune to judicial oversight. The right

of litigation, although not stipulated in the Constitution, is nonetheless a definite product of

the principle of legitimacy, which cannot be achieved unless the judiciary undertakes its task of

oversight to confirm this principle.(22)

The blocking of means of appeal or grievance, or preventing the hearing of cases against any

action or decision on the part of the executive or any other authority, is therefore equivalent to

absolving this authority of any responsibility arising from its actions (even if they contravene the

law and the Constitution) and depriving people of having recourse to the judiciary by any means

whatsoever. This will necessarily lead to the thwarting of the constitutional principle that the right

of litigation and conducting means of appeal and defence before the judiciary is protected by law.

1- Proposals regarding judicial oversight of the executive branch:

Judicial oversight of the administration’s actions constitutes the most important and beneficial

of the forms of oversight, and provides the best guarantee of individuals’ rights and freedoms.

This can be attributed to the independence and neutrality which characterises judicial oversight,

and the force and authority enjoyed by the rulings of the judiciary, whereby all (including the

administration) are required to implement and respect them, while contraveners face prosecution.

The judiciary’s oversight of the actions and decisions of the administration in Syria does not result

from the unconstitutionality of the legislation on which the decisions of the administration are

based; rather, it is based on the judiciary’s absolute oversight of the legitimacy of administrative

decisions.

The current State Council judiciary is not independent, but rather it is subordinate to the Prime

Minister’s Office, as stated in article 1 of the State Council Law: “The State Council is an independent

(21) High Court decision no. 248 of 30/11/1957, published in Al-Qanun magazine of 1958. Page 56. This is as regards the

application of article 85 of the Personnel Statute which prevents the appeal of the decision issued on the employee’s

dismissal from service. This was amended by decree 50 of 2004, whereby it became article 137 of the currently

enforceable State Employees Statute, which permits management to dismiss the employee without giving reasons.

(22) Article 68 of the Egyptian Constitution: “The right of litigation is protected and guaranteed for all, and every

citizen has the right of recourse to his natural judge. The State shall guarantee judicial bodies’ acknowledgement of

litigants, and rapid adjudication of cases.”



28

body annexed to the Prime Minister’s Office.” Furthermore, by means of decision no. 506 of

23/10/1994, the Minister of State for the Affairs of the Council of Ministers was commissioned

with supervising the State Council. Thus, the Council of Ministers achieved total domination of the

State Council, including appointment, promotion, disciplining and dismissal, while the salaries of

the judges and staff of the State Council are also paid from the budget of the Council of Ministers.

This policy paper proposes the separation of the State Council from the Council of Ministers, and

that it be made a completely independent judicial board within the judicial authority, supervised

by the Supreme Judicial Council.

2- Proposals regarding oversight of the acts of the legislature

The High Constitutional Court should be restructured as part of a special law centred on the

following general principles:

1. The High Constitutional Court shall be an independent, autonomous judicial body.

2. The Court shall be composed of a president and an adequate number of members, and its

rulings and decisions shall be passed by a total of seven members. Its sessions will be presided

over by its president or the most senior of its members; when the position of president is

vacant, or he is absent or indisposed, his place shall be taken by one of the members in order

of seniority.

3. It is required of members to meet general conditions required in accordance with the

provisions of the Judicial Authority Law, provided that his age is no less than fifty. He shall be

selected from among the following groups:

– Current members of the High Constitutional Court;

– Current and former judges of the State Council and the ordinary judiciary who have spent at

least ten continuous years in the position of advisor or the equivalent thereof;

– Current and former professors of law at Syrian universities with at least ten years in the

position of professor;

– Lawyers in practice for at least twenty years.

4. The president and members of the Court shall be elected by Parliament provided that a third

of the members of the Court are elected among the judges of the judicial authority.

5. The president and members of the Court takes the oath of office stipulated in the Judicial

Authority Law.

6. The High Constitutional Court shall be exclusively competent in the following:

– Trying the President of the Republic;



– Considering electoral appeals;

– Appeals related to the granting of a licence (or otherwise) to political parties;

– Judicial oversight of the constitutionality of laws and regulations.

7. Adjudication of disputes of jurisdiction.

8. Adjudication of disputes based on the implementation of two contradictory final rulings, one

of them issued by any of the judicial bodies or a board with judicial jurisdiction, and the other

issued by another such body.

9. Interpreting the texts of laws issued by the legislative authority and legislative decrees issued

by the President of the Republic, in accordance with the provisions of the Constitution, in the

event that they provoke a disagreement on application and of sufficient importance to require

the consolidation of their interpretation.

10. The Court may, in all cases, rule that any stipulation in a law or regulation presented to it is

unconstitutional.

11. It shall be permitted for all interested parties to appeal against the constitutionality of any law

or legislative decree before the High Constitutional Court.

12. The rulings of the Court and its decisions shall be issued in the name of the people, and in

final form not open to appeal.

13. The rulings of the Court in constitutional cases, and its decisions on interpretation, shall be

binding on all authorities of the State and on all people. A ruling that a stipulation in a law

or regulation is unconstitutional shall result in the impermissibility of its application from the

day following the publication of this ruling.

Seventh: The Success of Judicial Reform is Firmly Linked to the Realisation of Constitutional Reform

The new decision makers must commence first of all with the constitutional reform which forms

part of the comprehensive political reform need in Syria. The current constitution enshrined and

entrenched serious failings in the relationship between different branches of government and

with the citizens preventing the establishment of a governance system based on democratic

participation, the rule of law, transparency and accountability. The constitutional guarantees of

rights and freedoms provided by the current constitution have not succeeded, nor have the legal

safeguards of protection from grave and serious violations of the rights of the Syrian people.



30

The constitutional and political shortcomings from which Syria is now suffering are deeply

entrenched. Constitutional reform is only a starting point for the process of judicial reform. A

separate study need to discuss the following:

1. The principle of full, equal citizenship;

2. The people as the source of powers;

3. The rule of law;

4. Respect for the separation of powers;

5. Respect for rights and freedoms;

6. Recognition of the peaceful alternation of power between the majority and the

opposition.



Conclusion

The reform of the judiciary in Syria has today become a national task par excellence, given the

judiciary’s fundamental role in protecting people’s rights and freedoms and in providing a suitable

environment for the realisation of balanced development. The following summarizes fundamental

policy changes in the judicial system:

1. The principle of separation of powers must be fully applied.

2. The bodies of the judiciary (State Council, ordinary judiciary, and military judiciary) must be

united under the Supreme Judicial Council which is independent of the executive branch.

3. All exceptional courts and laws which obscure the right of litigation must be cancelled.

4. The court of appeals and the courts of referral must be dismantled.

5. The jurisdiction of the military judiciary must be restricted to purely military crimes.

6. Courts must be created specialising in families and children, in addition to commercial, and

courts competent in fighting corruption.

7. Laws must be amended to comply with international conventions and treaties.

8. The infrastructure of courthouses must be developed and updated, and they must be supplied

with trained staff.

9. Judges should be respected, trained, and protected from illegal dismissal and manipulation.

The number of judges must be increased, and they must be prevented from involvement in

politics.

10. Respect must be ensured for the execution of rulings issued by the judiciary, in particular as

regards cases in which the state is a party.

11. There must be concern for the dissemination of a legal culture among citizens by means of

audio-visual and written media programmes, and by designating a simplified legal curriculum

within education curriculums, thereby contributing towards raising legal awareness from a

young age.



32

Finally, the importance of disseminating a spirit of freedom and respect for law among both the

rulers and the ruled must be stressed. This spirit must be kept alive eternally in the hearts of the

people. What value do laws and legal provisions have if they crush the spirit of freedom and

respect for law and human rights within the hearts of the people? This freedom elevates mankind;

it does not diminish his value through fear, intimidation and insults. Without freedom we cannot

open a new chapter, throw off oppression or ward off hostility. The stipulations of the Constitution

and legislation will be valueless without their application by a free and autonomous lawyers’

union and an independent judiciary.



Books, laws and international treaties1. The Spirit of Laws. Montesquieu. 1953.

2. The Syrian Constitution of 1950.

3. The Permanent Syrian Constitution of 1973.

4. The Egyptian Constitution of 1971.

5. The Law of the State Council in Syria, created by law no. 55 of 21/2/1955.

6. The Emergency Law in Syria, promulgated by legislative decree no. 51 of 22/12/1962.

7. The Law of the Judicial Authority in Syria no. 98 of 1961.

8. The State Personnel Statute no. 19 of 1959.

9. The State Employees Statute no. 1 of 1985 and no. 50 of 2004.

10. The Law of Military Penalties in Syria, promulgated by legislative decree no. 61 of 27/2/1950.

11. The Law of Expropriation in Syria no. 20 of 20/4/1974.

12. The Law of Lawyers in Syria no. 30 of 2011.

13. Universal Declaration of Human Rights, adopted by the General Assembly in resolution 217 (III) (D-3) of 10 December, 1948.

14. The International Convention on Civil and Political Rights adopted by means of the United Nations General Assembly’s resolution 2200 (XXI) (D-21), of 16 December, 1966. Syria approved the Convention on 21/4/1969 in legislative decree no. 3, which was published in the Official Gazette, edition 6 of 6/2/1969.

15. Basic Principles on the Independence of the Judiciary. Adopted by the General Assembly on 13 December, 1985. http://www2.ohchr.org/english/law/indjudiciary.htm

16. Draft of the Campaign for Judicial Reform in Lebanon, established on 27/7/2001.

17. Records of the registration of cases at the Palace of Justice in Damascus.

Newspapers and magazines

1. Al-Muhamoun magazine, published by the Syrian Lawyers’ Union.

2. Al-Qanun magazine, published by the Court of Cassation.

3. Al-Mizan magazine, published in Syria regarding the law and the judiciary.

4. No justice without democracy, and no democracy without justice. Michel Shammas. Al-Mustaqbal newspaper: Lebanon. 17/10/2011.

5. Standards of the Modern Judiciary. Article by Advisor Sirri Sarem, published in Al-Muhamoun magazine. 1992.

6. Independence of the Judiciary. A lecture by the lawyer Hani Al-Baytar, published in Al-Muhamoun magazine. 1998.

7. An article by the lawyer Hazim Al-Jazzar published in Al-Mizan magazine. Edition 8. October 2011.

8. Advisor Nael Mahfouz, President of the Court of Cassation. In interview with Al-Mizan magazine. Edition 8. October 2011.

9. Judicial Highlights. An article by Advisor Anwar Hijazi published in Al-Qadah magazine. Edition 5. June 1969.

10. The Principle of Equality Before the Judiciary. A study by the late Justice Nasrat Munla Haidar, former President of the High Constitutional Court in Syria. Published in Al-Muhamoun magazine. 1993.

11. The Right of Defence Before the Judiciary. Michel Shammas. Syrian newspaper, An-Nur. 5/5/2002.

12. Defending the Independence of the Judiciary and the Rule of Law. Michel Shammas. Syrian newspaper, An-Nur. 4/11/2009.

13. Who will Save the Judiciary and Judges from the Domination of the Executive Authority? Michel Shammas. Syrian newspaper, An-Nur. 2/8/2008.

References and Sources

Attorney Michal Shammas, born in the city of Homs and now a resident

of Damascus, is a member of the Damascus Lawyers’ Union. He is active in

the field of human rights and the defence of freedoms. He is a long-term

and current participant in defending prisoners of opinion and conscience

and political detainees before the various Syrian courts. He is a member of

the Board for the Defence of Political Detainees in Syria and of the Syrian

Centre for the Defence of Detainees, which is chaired by the lawyer Khalil

Maatouq. Michel has published numerous articles criticising corruption in

state departments and institutions, in particular within Syria’s judiciary.

Strategic Research & Communication Centrewww.strescom.org

© 2012 Strategic Research and Communication Centre.

All rights reserved.

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