The president of the Syrian Regime, Bashar al Assad, issued Decree 127 of 2022, through which he reconstituted the Supreme Constitutional Court. According to the decree published by the Regime’s news agency, SANA, al Assad appointed new members to the court, while he renewed the membership of six other members. The decree retained six of the former members, Lawyer Muhammed Jihad al-Lahham (former speaker of the People’s Assembly), as president of the court, Saeed Abdul Wahed Nahaili, Majed Rashid Khadra, and Mutasem Shaker. He also added four new members they are, Fares Mulhem Satouf, Dibo Abdel Selam Shehade, in addition to Maysa Anwar al-Mahrous, and Wissam Badi Yazbek.
The Supreme Constitutional Court of Syria updated by Law No.7 of 2014
The Supreme Constructional Court is defined as “an independent judicial body composed of eleven members, one of whom is president of the republic by decree, and the term of the membership extends to four years, subject to renewal, starting from the date of taking the Constitutional oath.”
Functions of the Supreme Constitutional Court
According to the country’s constitution the court is supposed to be:
1- Responsible for monitoring the constitutionality of the laws, legislative decrees, bylaws, and regulations.
2- Expressing an opinion, at the request of the president of the republic, on the constitutionality of draft laws and legislative decrees, and the legality of the draft decrees.
3- Supervising the election of the president of the republic, organizing the relevant procedures, examining and deciding on appeals regarding the validity of the election of the president and members of the People’s Assembly.
4- Suing the president for high treason.
Obstacles to the Constitutional Court’s Exercising its Jurisdiction in Syria:
“Every society in which there are no guarantee of human citizen rights, or where there is no separation of powers, is an unconstitutional society.” Declaration of the Rights Man and of the Citizen, promulgated by the French National Constituent Assembly on August 26 of 1789.
1- When the Baath Party seized power in Syria and Hafez al Assad drafted the 1973 constitution, and then Bashar al-Assad drew up the 2012 constitution, and what was stipulated in the constitution of 1950 was retracted, especially in terms of the independence of the court and the powers granted to it in several points listed in the following paragraphs,
A- The Constitution of the of 1950 stipulates that the members of the Supreme Court must be elected by a council from a list of seventy-four members, one of whom is its president, named by the president of the republic, while the constitution of 2012 is appointed by the president of the republic.
B- Depriving the Constitutional Court of the right of its own accord to consider laws issued by the People’s Assembly or decrees issued by the president of the republic and to monitor their constitutionality. This is because the law limited its jurisdiction to a request from the president of the republic or one-fifth of the members of the people’s Assembly, with oversight over the constitutionality of laws, legislative decrees, bylaws, and regulations. In addition to expressing an opinion on the constitutionality of the draft laws, legislative decrees, and proposals of laws based on request from the president of the republic, and the speaker of the People’s Assembly. However, the law did not specify whether or not the court’s opinion is binding on the president of the republic or the People’s Assembly.
C- Depriving the Constitutional Court of automatically taking control of the case, and also depriving individuals, associations, unions, and parties from restoring directly to the Constitutional Court. This made it difficult for the court to exercise its oversight role unless the head of the executive authority allowed it. Here, this law stipulates that in order for individuals to be able to challenge the constitutionality of a law, there must be an existing and pending lawsuit before the judiciary, so that one of the parties to the lawsuit challenges the unconstitutionality of the law applied by the Court of First Instance. If the court is convinced that the argument related to the unconstitutionality of the law is serious and valid, it must decide to stop the case and refer it in its current state to the Supreme Constitutional Court to express its opinion on the constitutionality of the challenged law. In practice, this complex mechanism made the acceptance of the individuals’ defense of the unconstitutionality of any law linked to an existing case and confined to the parties of the case. As a result, the decision to accept the referral of the payment to the Supreme Constitutional Court remains subject to the court’s conviction.
D- The court is responsible for supervising the election of the president of the republic, organizing the election’s procedures, considering and deciding the on appeal regarding the validity of the election members of the People’s Assembly. As well as suing the president of the for high treason. The Irony here is that accusation of high treason does not exist in the Syrian Penal Code, and there is no clear definition for it, so technically it is not possible to sue the president of the republic. Meanwhile, we find in the Constitution of 1950 that the Supreme Court was able to sue the president of the republic on charges of high treason, violation of the constitution, as well as ordinary crimes.
2- The Assad Regime issued many legislations, laws, and legal texts that are in violation of the constitution and international law, the aim of which is to restrict freedoms of the people and increases the tyranny of the regime. Here, the role that the Constitutional Court must play in clearing up previous legislation and laws that violate the constitution. The Constitutional Courts must accomplish this task, such as: Laws: Combating Terrorism- Judicial Authority Law- Constitutional Court Law- Trade Unions Law.
Legislative Decrees: prosecution of police and political security personnel- seizure of money and property of political opponents and human rights activists- organization of the state security department- general intelligence department- granting the security services the powers of the judicial and customs police.
3- Disrupting the work of the Constitutional Court despite the lawyers’ defense before the ordinary judiciary and the Supreme Security Court earlier, and even before the Terrorism Court currently, during the trial of thousands of political opponents and human rights activists before courts that are considered the legal tool of the Assad Regime to retaliate against the opponents. The Supreme Constitutional Court did not act and did not issue any legal opinion on the legality of these laws, courts, and procedures, which are a flagrant violation of the Syrian Constitution in particular, and human rights law, and international law in general.
The significance and role of the “independent” Supreme Constitutional Court as one of the most important steps to achieve political transition.
1- In developed countries, the constitutional judiciary is considered the guarantor of the application of the separation of state power. It also prevents one authority from overriding another during the exercise of its oversight function to the extent of the legislator’s commitment to the principle of separation of powers, maintaining a balance between them and respecting the limits of each authority.
2- The constitutional judiciary strengthens the principle of the rule of law by monitoring the application and enforcement of constitutional texts towards institutions, public administrations and officials, securing support for the ordinary judiciary and protecting its independence from any interference by the authority.
3- The constitutional judiciary guarantees the regularity of political life in the country through its significant role in supervising the election laws and the electoral process with transparency and impartiality and ratifying its results.
4- The constitutional judiciary is a crucial tool for protecting people’s rights and freedoms by monitoring the application of the principle of separation of powers and working on a balance between them, so that the legislative text considers the rights and freedoms of individuals and society alike, in accordance with the international law and human rights law.
5- Every society in which there are no guarantees of human and citizens’ right, or where there is no separation of powers is an unconstitutional society. In order to work on building the future Syria and consolidating transitional justice, lasting peace and coexistence, these institutions must guarantee the rule of law in which they do not glorify the head of executive authority, but rather their loyalty belongs only to the people.
This court ensures that the work of these institutions is a consolidation of the democratic system and a guarantee of the rights of individuals and society from any violation that may constitute a violation of human rights law.