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Restructuring Judicial System in Future Syria

Prepared by

Michal Shammas Reviewed by

Ammar Kahf Edited by

Ausama Monajed

Transitional Period Policy Research


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.

Strategic Research & Communication Centre 90 Hatton Garden, Holborn London EC1N 8PN, United Kingdom Email: info@strescom.org

Telephone: +442030868989 Website: www.strescom.org All rights reserved for Strategic Research and Communication Centre Š 2012


Restructuring Judicial System in Future Syria

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


Restructuring Judicial System in Future Syria

“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 AlNakhai’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.

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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

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

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.

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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 Judiciary 1. 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

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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 Association 8. 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 Training 10. 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 Tenure 11. 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.

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Professional Confidentiality and Immunity 15. 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 Removal 17. 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.

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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.

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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)

8

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

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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

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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.�

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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.

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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 nonjudicial 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

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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 case‫ و‬and 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.

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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

1721

Note: 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.

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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.

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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

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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.

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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.

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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

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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;

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– 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.

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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

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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

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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.

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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.”

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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

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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.”

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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;

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– 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.

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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.

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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.

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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.

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References and Sources Books, laws and international treaties

Newspapers and magazines

1.

The Spirit of Laws. Montesquieu. 1953.

1.

2.

The Syrian Constitution of 1950.

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

3.

The Permanent Syrian Constitution of 1973.

2.

4.

The Egyptian Constitution of 1971.

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

5.

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

3.

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

6.

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

4.

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

7.

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

5.

8.

The State Personnel Statute no. 19 of 1959.

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

9.

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

6.

Independence of the Judiciary. A lecture by the lawyer Hani Al-Baytar, published in AlMuhamoun 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.

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

9.

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

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.

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.

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.

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.

Transitional Period Policy Research

Syria

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.

33


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 Centre www.strescom.org

© 2012 Strategic Research and Communication Centre. All rights reserved.

Restructuring Judicial System in Future Syria  

This policy research proposes a set of policy recommendations to the transitional government in Syria to guide the judicial apparatus in the...

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