Syria’s Supreme Constitutional Court is emerging as an indispensable cornerstone in shaping the country’s transitional period. It has been granted a balanced advisory role, allowing it to “issue an opinion” at the request of the president or the speaker of the People’s Assembly. This positions it as a “house of constitutional expertise” that lawmakers can consult to ensure the quality of legislation before it is enacted, without depriving parliament of its fundamental right to legislate and formulate decisions.
Under the former regime, the court was primarily a political instrument whose main function was to provide “formal” legitimacy to presidential dictatorship, pass legislation, and confirm election results. The current court is being established with a completely different vision. During the transitional period, it is intended to remain outside the mire of political bargaining and electoral supervision, focusing its efforts on shaping the legislative framework, protecting rights, and moving from a system in which the judiciary served those in power to one based on independent constitutional justice.
Supreme constitutional courts around the world serve as fortresses protecting one of the most valuable possessions of any people, their constitutional document, and preventing it from becoming mere ink on paper under the pressure of temporary political interests.
These courts act as guardians of the boundaries between the three branches of government. They prevent parliament from overreaching through legislation and restrain the executive branch from monopolizing decision-making. In every established democratic system, they serve as a safeguard that keeps the state and its institutions subject to the law, transforming the constitution from a collection of static texts into a living shield that protects rights and public freedoms.
Untangling Overlapping Constitutional Powers
The establishment of the Supreme Constitutional Court was stipulated under the section of the Constitutional Declaration concerning state authorities, in Article 47:
- “The existing Supreme Constitutional Court shall be dissolved, and a new Supreme Constitutional Court shall be established.”
- “The Supreme Constitutional Court shall consist of seven members appointed by the president from among individuals known for integrity, competence, and experience. Its working mechanisms and powers shall be regulated by law.”
The Syrian president subsequently issued Legislative Decree No. 149 this year, appointing the president and members of the Supreme Constitutional Court. They took the constitutional oath, which links the court to the Constitutional Declaration by requiring its president and members to respect that declaration.
The newly established Supreme Constitutional Court is the focus of this Enab Baladi report, which examines the limits of its jurisdiction and responsibilities,
its relationship with the presidency and the People’s Assembly in the legislative process, as well as with the executive branch. The report also explains overlaps in its work and the extent of its discretionary authority over draft legislation and laws issued by the Syrian president since the fall of the former regime.
Speaking to Enab Baladi, Dr. Ahmed al-Qurbi, a member of the committee that drafted the Constitutional Declaration, said the Supreme Constitutional Court would under no circumstances replace the Constitutional and Legislative Affairs Committee in Syria’s new People’s Assembly.
An Opinion, Not Tutelage: Limits of the Court’s Advisory Role
Al-Qurbi categorically denied that the new People’s Assembly intended to abolish the Constitutional and Legislative Affairs Committee, saying the Supreme Constitutional Court would not replace the committee or assume its duties and powers.
He said that, under Article 4, paragraphs two and three, of the decree defining the court’s functions, referring draft laws to the Supreme Constitutional Court is optional and subject to the president’s discretion. The same applies to proposed laws, which may be referred to the court by either the president or the speaker of the People’s Assembly.
Accordingly, this jurisdiction cannot under any circumstances replace the work of the constitutional and legislative committee within parliament. This, he said, is the first aspect of the issue.
The second aspect, according to al-Qurbi, is that the legislative committee is an integral part of the legislative branch, while the Supreme Constitutional Court is part of the judiciary, specifically the constitutional judiciary. This establishes a fundamental difference between the nature of their work.
The public law professor added that the legislative committee’s opinion is generally subject to the judgment and final decision of the People’s Assembly. This is the only similarity between the committee and the court in this context, since the court’s issuance of an opinion is legally understood to be advisory and non-binding, even when it comes from the country’s highest constitutional judicial body.
How Legislative Instruments Move Through the System
Asked whether all draft laws and decrees would be submitted to the Supreme Constitutional Court before being referred to the People’s Assembly, al-Qurbi said the referral of draft laws to the court was entirely subject to the president’s discretion.
The procedural sequence begins with the government, as the executive authority, preparing a draft law. It is then referred to the presidency, which subsequently sends it to the People’s Assembly.
At this stage, the president has two options:
- The president may refer the draft directly to parliament without submitting it to the Supreme Constitutional Court. This is entirely possible and legally permissible.
- The president may refer it to the Supreme Constitutional Court for an opinion. In this case, the opinion is advisory and non-binding. The court may conclude that the draft law is compatible with the constitution, while the president or the People’s Assembly may take a different view. This is because the court is issuing an “advisory opinion,” not a binding judicial ruling under the first paragraph, which concerns laws already in force rather than draft legislation.
The established sequence therefore begins with the government submitting a draft law to the president, who may send it directly to parliament or first refer it to the Constitutional Court for consultation before forwarding it to parliament.
Parliament is then entirely free to accept or disregard the Constitutional Court’s opinion, al-Qurbi said. This means that referring draft laws to the court is neither a mandatory stage nor a compulsory passage before they are presented to parliament.
What About Decrees and Laws Issued Since Liberation?
“There is no clear legal text requiring decrees to be presented to the Supreme Constitutional Court,” al-Qurbi said.
“If we examine the first paragraph of Article 4 closely, we find that it refers to ‘ruling on the constitutionality of laws and regulations,’ without explicitly mentioning decrees.”
Accordingly, it cannot be concluded that decrees issued since the Constitutional Declaration came into force will be submitted to the Supreme Constitutional Court, unless a specific mechanism is adopted for deciding on the constitutionality of laws and decrees and an agreement is reached to refer them.
Under the current decree, no provision presently requires these decrees to be submitted to the court.
The legal expert stressed that the matter is effectively subject to the discretion of the People’s Assembly. Since the Constitutional Declaration remained silent on the issue and included no explicit provision governing it, the matter falls among those left to parliament’s discretionary authority.
Nevertheless, to strengthen constitutional legitimacy and the rule of law, and because a substantial number of these decrees concern matters that originally fall within parliament’s fundamental legislative jurisdiction, the preferable and more appropriate course would be to refer them to the People’s Assembly for approval.
However, parliament retains the right not to request their referral, al-Qurbi said, to avoid legal complications that could arise from reconsidering those laws and the consequences of approving, amending, or even repealing them.
Court Opinions Are Non-Binding, Parliament Cannot Hold the President Accountable
Regarding the phrase “issue an opinion” in the decree defining the Supreme Constitutional Court’s responsibilities, and whether the court’s opinion is binding on the legislative and executive branches, al-Qurbi said the phrase legally and practically refers to a purely advisory opinion rather than a binding one. It does not restrict either the People’s Assembly or the presidency.
Had Syrian lawmakers intended the opinion to be binding, the decree would have used the phrase “ruling on the constitutionality of draft laws” instead of “issuing an opinion,” he said.
Al-Qurbi explained that the internal regulations of the People’s Assembly are the legal instrument responsible for governing the detailed relationship between parliament, the presidency, and the executive branch.
The relationship with the Supreme Constitutional Court is different, however, because the court is an independent judicial authority. Under the Constitutional Declaration, its principal responsibility is to review the constitutionality of laws and ensure that legislation enacted by the People’s Assembly complies with the declaration.
Consequently, al-Qurbi said, the Constitutional Court does not interfere with or infringe upon parliament’s jurisdiction or internal regulations, whose role is limited to organizing the assembly’s internal work and its relationship with the executive branch.
As for holding the president accountable or withdrawing confidence from the government, the current Constitutional Declaration does not provide for formal parliamentary interpellation or no-confidence procedures against ministers, much less against the president.
Conversely, al-Qurbi explained, the president does not have the constitutional authority to dissolve parliament, reinforcing a strict separation between the two branches.
Who Are the Court’s President and Members?
According to the presidential decree published by the Syrian Arab News Agency, SANA, on July 7, the Supreme Constitutional Court is headed by Dr. Issam Khaled al-Khalif and includes six other members.
Al-Khalif serves as deputy head of Syria’s Central Authority for Control and Inspection, which monitors and inspects government institutions to ensure compliance with applicable laws and regulations, improve services provided to citizens, and strengthen public confidence in government institutions.
The decree named the following members of the Constitutional Court:
- Judge and Counselor Khairallah Nadim Ghanoum.
- Judge and Counselor Mohammad Mustafa Sbeih.
- Judge and Counselor Iman Antoine Nouri.
- Dr. Ismail Hammadi al-Khalfan.
- Dr. Rayan Hassan Kahilan.
- Attorney Aref Ahmed al-Shaal.
What Are the Supreme Constitutional Court’s Responsibilities?
Article 4 of the decree outlines the principal responsibilities assigned to the Supreme Constitutional Court until a law regulating its working mechanisms and jurisdiction is issued:
- Reviewing the constitutionality of laws and regulations.
- Issuing opinions on the constitutionality of draft laws at the president’s request.
- Issuing opinions on the constitutionality of proposed laws at the request of the president or the speaker of the People’s Assembly.
- Interpreting the provisions of the Constitutional Declaration at the request of the president or the speaker of the People’s Assembly.
Before assuming their duties, the president and members of the Supreme Constitutional Court take the following constitutional oath before the president: “I swear by Almighty God to respect the Constitutional Declaration and to perform my duties honestly and faithfully.”
The formation of the Supreme Constitutional Court coincided with the People’s Assembly holding its first session since the fall of Bashar al-Assad on July 12.
Under the former regime, the People’s Assembly’s Constitutional and Legislative Affairs Committee was responsible for several tasks, including reviewing the constitutionality of legislation and draft laws referred to the assembly by the presidency and the executive authority. It issued opinions and submitted reports to the assembly for reading during a plenary session. If the committee decided that a draft law could not be considered because it was unconstitutional, the assembly would refrain from debating it and return it to the authority that had originally submitted it.
The last president of the Supreme Constitutional Court under the former regime was Mohammad Jihad al-Laham, who had previously served as speaker of the Syrian People’s Assembly.
The Supreme Constitutional Court is Syria’s highest judicial authority. Under the former system, it consisted of five members, one of whom served as president of the court, and all were appointed by presidential decree.
Membership in the Constitutional Court may not be combined with a government position or membership in the People’s Assembly.