Fri 13 Dec 2019

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Al-Assad suspends State Council bill: Legislative precedent or theatre?

Al-Assad's meeting with the Supreme Constitutional Court members - May 13, 2018 (Syrian Presidency)

Al-Assad's meeting with the Supreme Constitutional Court members - May 13, 2018 (Syrian Presidency)

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Enab Baladi – Mais Hamad

In a legal precedent described as “the first of its kind” the president of the Syrian regime, Bashar al-Assad, objected to constitutional irregularities in a number of articles in the draft law of the “State Council”, which was debated and passed by the People’s Assembly.

Syrians heard through the local media the news of the president’s “legislative precedent” of rejecting the articles, causing controversy among Syrians who wondered about of the nature of the disagreement between the People’s Assembly and al-Assad, and why the articles were not approved by the head of the regime.

What are the four articles?

The news of the objection and the articles that were suspended remained mysterious, waiting for al-Assad’s approval of the law of “the state council”, until Mohammad Jihad al-Laham, the head of the Supreme Constitutional Court, appeared on the official Syrian News Agency (SANA) on November 8.

Al-Laham explained in a video published by the agency that the Constitutional Court issued a decision that four articles of the “State” bill were unconstitutional based on the objection of the president of the Syrian regime, Bashar al-Assad, after it was approved by the People’s Assembly, describing it as a “legislative precedent.”

The four articles are centered on the first paragraph on the formation of the behavioral court in the State Council, which included a member of the trade union organization who is not a judge. Al-Laham justified al-Assad’s refusal, saying that “the judicial organization, the ranks of judges, and that level are completely different from popular organizations and professional unions.”

Al-Laham pointed out that the second objection affected the article stipulating that “acts of sovereignty are not accepted before the courts of the state council”.

The third disagreement focused on setting a 60-day deadline for filing a lawsuit for civil service officers, while no deadline was allocated to other Syrians having no civil service, which al-Assad considered “another flaw” in the law, arguing that “citizens are equal in rights and duties.”

The fourth issue that the court found “unconstitutional” is related to the prohibition of the State Council Act against the judges of the Council of State, which was considered discriminatory, based on article 164 of the Code of Penal Procedure about the possibility of indictment of judges and representatives of the Public Prosecutor’s Office may be indisputable in specific cases in specific cases.

In order to determine the right to amend the articles of the draft law of the state council, Enab Baladi spoke to a lawyer and a judge, who explained the flaw in al-Assad’s objection.

The three articles

  • State Council: an independent judiciary body headquartered in Damascus, ruled in the name of Syrian people, after it was “an independent judiciary attached to the presidency of the Council of Ministers.”
  • The Syrian state council has the privilege of adjudicating appeals related to the elections of regional and municipal bodies, deciding on disputes relating to pensions and rewards, in addition to considering requests to challenge final decisions on appointment to public office or granting allowances.
  • The State Council also decides on requests from individuals and bodies to abolish final administrative decisions, tax disputes, fees and accounting, in addition to citizenship claims. The Council equally has the power to adjudicate labor disputes, commitment contracts, public works and procurement.

Ghazwan Koronfol, head of Syrian Lawyers’ Association, said that it was the first time the president had refused a law under an objection to certain articles, alleging unconstitutionality.

According to Koronfol, in principle this is happening in countries that “respect the law,” but the situation in Syria seems different. In fact, in Syria there are dozens of unconstitutional laws, and “no one dares to talk about unconstitutionality or calls for their suspension.”

Koronful, cited the example of Law No. 10 on real estate, which raised controversy following its promulgation by a legislative decree in April 2018, noting that committees that decide on objections and consider requests for settlement of shares and property owners are not all composed of judges. “It would have been better to object to these articles,” he added.

Koronful pointed out that through this step the regime is trying to show off, promoting to the international community, in conjunction with the work of the Constitutional Committee, the fact that “Syria is a state of law that respects the Constitution.”

In relation to the articles that were rejected, the lawyer pointed out that the objection was in terms of three articles only, but the Constitutional Court invalidated one article and asked for its rectification, noting that “all that al-Assad objected to are only procedural articles.”

“Against reality”

Judge Khaled Shihab al-Din commented on the objection to Article 5, section 3, of the State Council Law on the formation of a court of law to punish a worker in disputes related to his job, considering that it is “untrue”.

According to Shihab al-Din a practical formation of a court based on two members who are not judges is “something that they had previously objected before the revolution, but the situation remained as it is”.

He explained that the objection to the first section of Article 12, which provided that no act or administrative decision can be legally declared immune to judicial control “is not possible”. He gave an example of demolition decisions from municipalities which are implemented under the pretext that they are sovereign decisions that cannot be the subject of a judicial determination.

Shihab al-Din said that the aim of talking about the draft law of the state council and showing the dispute between the People’s Assembly and Bashar al-Assad is a fabricated issue in media, and “it is intended to delude people of al-Assad’s intention to move a democratic civil state with the separation of powers and the independence of the judiciary.”

Fatal mistake

Shihab-al-Din pointed out that there was a “fatal” legal mistake in the Law of state council, describing the court as “unprofessional”, citing the second section, which provides for the cancellation of the objectionable articles, without addressing or finding an alternative. For example, “determining the period granted to appeal the case by citizens remained unspecified.”

However, in a Facebook post about the objections, Lawyer Aref al-Sha’al, talked about news that the unconstitutional articles contained in the draft State Council Law did not exist in the original draft text prepared by the State Council, but were added by the Committee on Constitutional and Legislative Affairs of the People’s Assembly.

He commented that “the inclusion of unconstitutional legal provisions in legislation is a serious human rights error which consequences and burden shall be borne by those who put it and which efficiency or inefficiency is subject to many questions.”

Al-Sha’al considered that the party that drafted the law is “trying to evade the responsibility of this serious constitutional error, throwing the responsibility on the Committee on Constitutional and Legislative Affairs in the People’s Assembly, which is in charge of scrutinizing the draft laws before the Council and checking their compatibility with the Constitution.”

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