Introduction

1. Law No. 49 dated 7th July 1980
2. Emergency Law issued through Legislative Decree No. 15
3. Law related to establishing the State Security Department issued through the Legislative Decree No. (14) dated 15th January 1969
4. Revolution Protection Law
5. The Arab Republic of Syria’s Constitution issued on 13th March 1973.

Introduction 

One of the most serious violations of human rights and freedoms is for the State to be transformed from a social organization, primarily intended to allocate all its financial and moral resources for protecting the rights, freedoms and interests of the people of that society and for regulating their affairs into an institution which practices terrorism against the people of that society, commits homicides, deprivation of liberty, confiscation of funds, and repression against opponents objecting its views in implementation of the repressive laws it has enacted. 

- How can the State, which has been transformed into a terrorist institution, issue repressive laws through which it practices terrorism against national opposition?

Democratic rule is different from that of the totalitarian single-party rule, in the sense that in a democratic rule the people are the source of authority. It is also the people that lay down the constitution, laws, and regulations by means of their freely and impartially elected representatives. Yet, it is up to the people to set up regulations, choose the governor to rule them and dismiss this governor when they feel he is not acting as they wish, because government is an employment contract between the people and the governor to rule according to the law established by the people.

On the other hand, totalitarian or one-man rule is one which took over power through a military coup, usurped people’s right to self-rule, and regarded people as incapable of ruling themselves, and he is, therefore, their guardian. Then that rule cancelled the nation’s Constitution and set up instead of it another Constitution which suits its purposes, and which is devoid of the people’s sovereignty. The ruler appointed himself a leader for both the state and the society against their will, bestowed on himself the right to set himself as candidate for state presidency, and nobody else has the right to be a candidate for state presidency. But it is the duty of the people to say to whoever the party has nominated as candidate: “Yes”. He set up a council which he called “People’s Council” and made legislation shared between this Council and the President of the Republic. In fact, legislation is limited to the President of the Republic, and all that this Council can do is give unanimous approval for whatever draft laws proposed by the President of the Republic. The Council’s debates pay tribute to the illustrious leader president and express approval for these laws. Thus, it has become easier to issue repressive laws whether in the form of legislative decrees or laws submitted by the President of the Republic to the Council as draft laws. The Council endorsed and passed these laws unanimously no matter what crimes against human rights or the homeland or what decrees were issued by the Council of Ministers in order to implement these laws.

Most Important Repressive Laws In Force in Syria:

• Emergency Law issued through Legislative Decree No. (15) dated 22nd Dec. 1962.
•  Law for Protecting the Revolution issued through Legislative Decree No. (6) dated 17th Jan. 1965.
•  Law for Establishing the State Security Dept. issued through Legislative Decree No. (14) dated 14th Jan. 1969, and the Internal Organizations Law for the State Security Dept. issued through Legislative Decree No. (549) dated 25th May 1969.
•  Law for Setting Up Field Martial Courts issued through Legislative Decree No. (109) dated 17th Aug. 1967.
•  Law for Setting Up a State Security Court issued through Legislative Decree No. (39) dated 28th March. 1968.
•  Syrian Constitution issued on 13th March 1973.
•  Low No. (49) dated 7th Aug. 1980.
•  Law for Practicing the Legal Profession No. (39) dated 15th Aug. 1981, and the subsequent free professions laws such as Physicians’ Law, and Engineers’ Law. 
  

As the notorious Law (49) is the worst example of these repressive laws prohibiting the freedom of expression and conscience, and which was called the “Shame Law”, it will be the first to begin with:

Repressive Laws in Syria (1): Law No. 49 dated 7th July 1980 

Text of Law No. (49) passed by the Syrian People’s Council in the Session on 7th July 1980:

Article 1

Each and everyone belonging to the Moslem Brethren Group (Jama’a) organization is considered a criminal who will receive a death punishment.

Article 2

a. Each and every member of this Jama’a will be pardoned from the penalty indicated in this law, if he declared withdrawal from the Jama’a in one month from the date this law goes into effect.
b. A declaration of such withdrawal can be made according to a written statement submitted in person to the governor or to the ambassador with regard to those who were outside the country when this law was issued.

Article 3

Punishments for crimes committed by a Moslem Brethren Jama’a member within the country prior to the implementation of this law, and in two months for such a member outside the country, will be reduced as follows:

a. If the crime committed is punishable by death or lifelong hard labour or detention, the punishment will be hard labour for a maximum of five years.
b. If the crime committed involves other offences, the punishment will be imprisonment for 1-3 years.

Article 4

Each and every member of this Jama’a, who reports in person in one month from the date this law takes effect if inside the country and in two months if outside the country, will be relieved of criminal offences punishments committed, before this law went into effect, to achieve the objectives of the Moslem Brethren Jama’a organization.

Article 5

Reduction of and release from punishment provided by this law will not apply to those in detention or undergoing trial.

Article 6

This law will be published in the official Gazette and will go into effect on the date it is issued.

People’s Council Speaker
Mahmud Hadid

Text of deliberations within the People’s Council on Law No. (49): People’s Council - 9th Regular Session: 20th Session held at 6.20 p.m. on Monday 17th Sha’aban 1400(H) corresponding to 30th June 1980.

People’s Council Agenda:

1. Session opening:

On Monday 17th Sah’aban 1400(H) corresponding to 30th June 1980 at 6.20 p.m., the People’s Council met under the chairmanship of Mr. Mahmud Hadid, in the presence of the two General Secretaries: Mr. Sa’id Suleiman, and Tawfiq Al-Naqri, along with the majority of the members.

Executive Authority:

The meeting was attended by Mr. Walid Hamdan, Deputy Prime Minister for Services Affairs, Mr. Abdul Qadir Qaddurah/ Deputy Prime Minister for Economic Affairs, together with Ahmad Iskandar/ Information Minister, General Nasiruddin Nasir/ Interior Minister, Doctor/ Engineer: Ahmad ‘Umar Yusif/ Minister of Electricity, Muhammad Najib Al Sayyid Ahmad/ Minister of Education, Abdul Karim Uday/ Minister of the Republic Presidency Affairs, Dr. As’ad Darqawi/ Minister of Higher Education, Muharram Tayyarah/ Minister of Transport, Dr. Salim Yasin/ Minister of State for Planning Affairs.

Draft Resolution:

Article 1: Each and every member of the Moslem Brethren Jama’a Organization is considered a criminal and will receive a death punishment.

Article 2:

a. Each and every member of this Jama’a will be pardoned from punishment indicated in this law or in any other law if the member declares his withdrawal in one month from the date this law goes into effect.

b. Withdrawal must be declared in line with a written statement submitted to the Governorate Police Department or to the Regional Director or to the Ambassador by those outside the country on the date of issuing this law.

Article 3: Punishment for crimes committed by a Moslem Brethren Jama’a member, before this law went into effect to achieve targets of this Jama’a, will be reduced if he hands himself over in one month from the date this law goes into effect, as follows:

a. If the crime committed is punishable by death or lifelong hard labour or detention, punishment will be hard labour for a maximum of five years.

b. If the offence committed involves other crimes, punishment will be imprisonment for a period of 1-3 years.

Article 4: Each and every Jama’a member would be pardoned from the punishment for criminal offences committed in order to achieve the objectives of the Moslem Brethren Jama’a, before this law came into effect, if that member handed himself over in one month from the date this law came into effect.

Article 5: Those who are under detention or undergoing trial will not benefit from remaining in hiding or from amnesty indicated in this law.

Article 6: This law will be published in the Official Gazette and will be effective on the date it is issued.

People’s Council’s Speaker:

This draft law should be referred to the Legislative and Constitutional Affairs Committee. I have a proposal from Mr. Ghazi Khadhrah saying: “Your immediate consideration of the draft law related to the Moslem Brethren gang is requested. It is time for Mr. Abdallah Musilli to deliver a speech: Mr. Abdallah Musilli:

The demand for an immediate consideration of this draft law is inappropriate for the following reasons: 

The Council’s Bylaw indicated that the Executive Authority or any other member may request an immediate consideration of an issue deemed as urgent. Then the issue is referred to the respective committees which have to take a decision to this effect in five days. As you know Mr. Speaker; our present session expires at midnight tonight, i.e. 5½ hours later. So can the Committee afford to wait for five days to discuss this issue. The Constitutional Committee should first look into the constitutional or non-constitutional aspect of this draft law, which is then referred to the Council for discussion. Thus, this draft law will either be constitutionally passed or rejected in light of the comments made by the Committee. The law will then be referred to the respective committees to conduct an objective study of it. As I said earlier, this committee must submit its report in five days.

Mr. Speaker: 

It has been requested by all world seminars, especially the latest Arab seminar held in Cairo in 1976 in which Syria participated, to cancel the death punishment.

Mr. Speaker:

In light of this, and as the Constitution provided for sovereignty of the law, how can we bestow sovereignty on a law passed in five hours? The issue is very serious, and I kindly request brother members to refrain from granting approval for a speedy consideration of the draft law, and to conduct deliberate and accurate discussions in order to identify the social, political, humanitarian, and psychological reasons for endorsing this punishment. In line with the basic principles which I have maintained for twenty years while I have been a member in these legislative councils, I have always sought to safeguard order and Constitution. I will declare before all that I will not attend the meeting of the Constitutional Committee in which I am a member, nor will I discuss this draft law as long as a sooner consideration of this draft law is adopted. Thank you.

Speaker: Is there any comment on a sooner and possible consideration of this draft law? (Silence prevailing). Therefore, those for a sooner consideration of the issue are requested to raise their hands (Hands of the majority are raised), and the Constitutional and Legislative Committee are called to a meeting immediately…. Now I would like to give the floor to Mr. Hisham Al-Salti:

Mr. Hisham Al-Salti:

Please say the number of those members attending the meeting and the number of those who voted for the draft law, as colleague Musilli said, in accordance with the Council’s Bylaw and to identify the majority. Thank you.

Speaker: Again, those voting for a sooner and possible consideration of the issue are requested to raise their hands (Hands raised), and member Mr. Hisham is kindly requested to count the hands with us to see if there is a majority or not.

Mr. Hisham Al-Salti:

Please announce the number of members when the session was opened, and the number required for voting now, and announce the number of voters which will be noted in this Council’s record as a historical reference.

Speaker: The number of attendants is 130 members. The observers are kindly requested to count the voters ‘for’ the proposal to speed up the consideration of the draft law. I also kindly request the brothers to raise their hands for a short period of time because a very high degree of accuracy is needed (Secretary Generals started counting the voters ‘for’ a speedy consideration of the issue).

The required number is “66”, and the number of voters is “68” members. The Constitutional and Legislative Committee is now called to meet immediately provided that we will follow up on our agenda. The floor is given to Mr. Wahid Mustafa to deliver a speech. Mr. Wahid Mustafa:

Before we move to follow-up on our agenda, and after the Council has voted for a sooner consideration of the issue, I would like to ask the following question: Is this law going to solve the problem in our country?

Speaker: You can ask this question when we start debating the draft law. Mr. Hisham Al-Salti will deliver a speech.

Mr. Hisham Al-Salti: I think that the session should be postponed pending the return of the Committee and in order for its members to participate in debating the in-coming reports.

Speaker: Alright, we have a majority. The secretary general will read the first report.

People’s Council - Fifth Emergency Session

Second session held on Sunday afternoon 23rd Sha’aban 1400H corresponding to 6th July 1980, at 6.20 p.m., the People’s Council held a public meeting under the chairmanship of its Speaker Mr. Mahmud Hadid in the presence of the two members and Secretary Generals: Mr. Tawfiq Al-Naqri, and Wafiq Arnus along with the majority of the members.

Executive Authority

The session was attended by the following ministers: Mr. Nayif Ta’ani/ Minister of state for People’s Council Affairs, and Engineer: Ra’fat Al-Kurdi/ Minister of Transportation.

Speaker: In view of the presence of the majority of members, I declare the opening of the session. The Secretary General will read the names of both absentees and those on-leave.

Absentees

Ahmad Dashu, Hassan Jum’a, Rais Farhan Al-Fayyadh, Rashid Isa, Sha’aban Shahin, Dhiya’ Al-Haj Ali, Tarif Kayyali, Abd Al-Aziz Al-Milhim, Ismat Ghubari, Ali Taljini, Faisal Al-Najras, Thabit Al-Mahyni, Muhammad Hamdi Arab, Muhammad Shaikh Ismail, Muhamad Thafir Kheirallah, Muhammad Ali Al-Halabi, Muhammad Al-Imadi, Muhammad Hisham Sifu, Mustafa Al-Ayid. 

Members on leave: Abdul Mu’in Al-Fatrawi, Muhammad Mayhub, Nasr Al-Yusif.

Speaker: I have received the report of the Constitutional and Legislative Affairs Committee concerning the draft law intended to strengthen punishment for affiliation with the Moslem Brethren Jama’a. Those who agree to include this issue within this session’s agenda are requested to raise their hands, (Hands raised) and the Secretary General is requested to read this report. 

People’s Council Speaker:

The Constitutional and Legislative Committee met at 10.00 a.m. on Sunday 6th July 1980 under its Chairman: Dr. Fuad Dib and in the presence of its rapporteur: Mr. Ali Milhim along with the following members: Ismail Al-Yusif, Ismail Abdul Ghani, Albeir Abdallah Al-Musilli, Bughus Sarraj, Jum’a Abdun, Sa’id Suleiman, Dr. Arif Hamdan, Najm Al-Din Al-Salih, Hadi Iqbeiq, Muqatta’ Tweisan, Shafiq Wahdan, and Hamdi Al-Mahmud. The remaining members were absent.

The Committee discussed the draft law aimed at tightening punishment for belonging to the Moslem Brethren Jama’a, and reducing punishment for those who hand themselves over.

After reviewing the draft law, imperative reasons for presenting the law, and the honourable Council’s resolution to speed up possible consideration of the issue and the contents of all its articles, following the ministers’ responses to all inquiries raised by the members, the committee decided through a majority vote to discuss the issue because it does not represent a violation of constitutional rules. However, the minority viewed article “5” of the draft law as violating article “30” of the Constitution stating that laws related to penal issues are not retroactive.

The Committee hereby submits its report to your excellency, and kindly requests to have it discussed by the honourable Council for approval of its viewpoint.

Respectfully,
Committee Rapporteur: Ali Milhim
Committee Chairman: Dr. Fuad Dib

Speaker: You have heard the report which is being presented for discussion. (Silence) Those voting ‘for’ the report raise their hands (Hands raised). Majority raised hands, and the report was accepted and is referred to both of Constitutional and Legislative Committee, and National Security Committee. Before concluding this session, I would like to call for a meeting now of both Constitutional and Legislative Committee, and National Security Committee. I also would like to remind brother members of the Committees’ meetings tomorrow Monday according to the schedule declared.

As our agenda has been concluded, the session is adjourned until tomorrow Monday 7th July 1980 at 6.00 p.m. Thank you.

Speaker: Is there any other member who wants to deliver a speech? (Silence). Those opting for moving to discuss the articles of the draft law one by one are required to raise their hands. (Hands of the majority raised) the Secretary General will read the first article.

Article 1: Every member of the Moslem Brethren Jama’a organization is considered a criminal and will receive the death punishment.

Speaker: You have already heard this article. Is there any comment? (Silence) Those who agree are required to raise their hands (Hands of the majority raised). Article accepted.

Article 2:

a. Every member of this Jama’a will receive a waiver of punishment indicated in this law or any other law in the event that he declared withdrawal in one month from the date this law came into effect.

b. Withdrawal must be declared according to a written statement submitted in person to the governor or ambassador by those abroad on the date of issuing this law.

Speaker: You have heard the article, is there any comment? (Silence) Those who agree are required to raise their hands. (Hands raised) Majority. Article accepted.

Article 3: Reducing punishment for criminal offences committed by a member of the Moslem Brethren Jama’a organization to achieve the objectives of this Jama’a before this law came into force, provided that he handed himself over in one month from the date this law came into force in case of those inside the country, or in two months in case of those abroad as follows:

a. If the offence is punishable by death or by lifelong hard labour, punishment will be reduced to hard labour for a maximum of five years.

Speaker: You have already heard the article, is there any comment? (Silence) Those who agree are required to raise their hands. (Hands raised) Majority. Article accepted.

Article 5: Those in detention or under trial will not benefit from reducing punishment or amnesty indicated in this law.

Speaker: You have already heard the article. It is time for Mr. Najmuddin Al-Salih to deliver a speech.

Mr. Najmuddin Al-Salih: I would like to ask the Government about these detained people, will the rulings of this law or the previous laws prior to this law apply to them? Thank you.

Speaker: It is time for the Interior Minister to make a speech.

Interior Minister General: Nasir Al-Din Nasir:

Mr. Speaker, the previous laws in force apply to them. Thank you.

Speaker: Is there any other comment? (Silence) Those voting for the fifth article are requested to raise their hands. (Hands raised) Majority. Article accepted. We move to the sixth article which will be read to you by the Secretary General.

Article 6: This law will be punished in the Official Gazette and will be effective from the date it is issued.

Speaker: Is there any comment on the publication article? (Silence) Those voting for the article are required to raise their hands. (Hands raised) Majority. Article accepted. Now those who agree to the overall articles of the draft law…

I have received a proposal from Mr. Jamil Al-Asad to add an article to the law providing for confiscating transportable and non-transportable funds of each member of the Moslem Brethren Jama’a.

We punish the criminals and do not punish their children. Now those who agree to the overall articles of the draft law are required to raise their hands (Hands raised) Majority. The draft law has been accepted and has become a law…

Speaker: The Secretary General will deliver a speech. 

Secretary General of the Committee/ Mr. Jum’a Abdun: Mr. Speaker, we at the Constitutional Committee have conducted a comprehensive study of the fifth article. Some questions were raised about this article.

I was one of the people who had some conservations about this text. Both of the Interior and Justice Ministers generally indicated that the law was aimed at conducting an open dialogue with all the deceived people and gave them an opportunity to go back on their erroneous thinking through granting them amnesty or punishment reduction. I have found that the amnesty and punishment reduction are wider than indicated within the general law according to the text of article No. 243 of the general punishment law. I have also found that the text of the general law related to the estimated reduction causes and legal excuses apply also to this special law, because the text of article 243 provides for reducing the death punishment down to 12 years. As for those in detention or under trial and the question raised by Mr. Najmuddin Al-Salih or other colleagues, the first paragraph of the ninth article of the general punishments law provides for the following: Every new law that introduces tougher punishments will not apply to crimes committed before that law came into effect. This means that the more merciful law will apply, and this text is, therefore, constitutional, and that the laws in force prior to committing the crime will be applied. This is what I wanted to clarify. Thank you for your listening.

Invalidity of Law No. 49 because it is contrary to the Syrian Constitution:

Law No. 49 is inconsistent with the Syrian Constitution and contradicts the International Pact signed by the Syrian Government relating to civil and political rights.

First: Contradiction between the provisions of Law No. 49 dated 7th July 1980 and those of the Syrian Constitution.

1. Article No. 28 of the Syrian Constitution stipulates that every citizen is innocent unless condemned according to a judicial sentence. However, the first article of law No. 49 stipulates that every member of the Moslem Brethren is considered a criminal and will be punished by death.

The stipulation involves every member but not a person who becomes a member after this date.

The Moslem Brethren organization as a legitimate political organization in Syria, has established itself on the Syrian arena since 1945, and participated in the social and political life. It used to have representatives in the parliament and cabinet ministers, and made prominent cultural contributions. It built special schools which exerted efforts in the field of literacy through night schools which were opened all over the country and which were joined by thousands of illiterate people. Many of these people received the secondary study certificate and completed their university education. Tens of thousands of citizens from all classes of society became members in this organization including lawyers, engineers, physicians, pharmacists, school and university teachers and students, workers and peasants. Members of this organization won the majority of seats in the scientific associations elections. Such activity was legitimate as this organization was licensed by the state.

Law No. 49 considered all these people as criminals who must be sentenced to death. While paragraph (a) of the second article extended a waiver of this punishment to every member of this Jama’a if he declares withdrawal in one month from the date this law goes into effect, the fifth article of this law set the rules of that paragraph out of action. The fifth article stipulated that those in detention or under trial will not benefit from punishment reduction or amnesty indicated in this law. It is well-known that this law was issued on 7th July 1980, and that the massive homicides against the Moslem Brethren organization started since 1979. This law was issued to provide a cover-up for the crimes committed by the regime including mass murders and house search. The following example is typical of the genocides before the date of issuing the law:

Fifteen detained leaders of the Moslem Brethren were murdered at the Al-Qal’a Prison on 26th June 1979 without any evidence condemning them, apart from affiliation with the Moslem Brethren Jama’a. The leaders put to death included: Dr. Hussein Khalluf, Dr. Mustafa Al-A’awaj. Moreover, tens of thousands of detainees belonging to the Moslem Brethren organization were in the prisons of the regime.

2. Article (3) of the Syrian Constitution stipulated the following: The laws apply only to those cases on the date these laws were in effect, and do not have a retroactive effect. With regard to punitive issues, laws may stipulate otherwise. Yet, Law (49) was given a retroactive effect and is applied to offences before this law came into effect.

Second: Contradiction between Law (49) and the items of the International Treaty related to civil and political rights which was signed by the Syrian Government:

Article (2) of the International Treaty stipulates that each state which is a party to this treaty must amend every law that is not in line with the texts of the treaty. Furthermore, article (19) of the international treaty says that each individual has the right to hold any views and to the freedom of expression without being subjected to any inconvenience.

Article (15) of the International Treaty stipulates the following: No individual may be condemned for a crime because of committing or refraining from committing an action which did not then constitute a crime.

Which judicial department is responsible for trials of the Moslem Brethren organization according to Law (49) dated 7th Aug. 1981?

Upon reviewing the civil and military prosecutor General’s registration records in Syria, we have not found anyone case documented and tackled by the Prosecutor General in implementation of the aforementioned law. Likewise, the Syrian Government did not announce the names of persons tried and sentenced to death in implementation of this law.

Some scholars in Syria paid a visit to President Hafiz Al-Asad accompanied by fathers of detainees for reassurance regarding their sons, following the Tadmur Prison massacre of some 1000 prisoners. The names of these victims were not disclosed. President Hafiz Al-Asad said to them: “Field courts were established in Tadmur to carry out their tasks”. No further clarification was given.

So what are field courts? Who are their judges? Are their trials held secretly or in public? What are the procedures followed by these courts? Does the accused person have the right to use assistance extended by a lawyer to defend himself? Are the judgements of these courts subject to appeal or distinction?

We have to refer to the Field Courts Law to know the answers.

The following is a text of the Legislative Decree which provided for the establishment of these courts.

Establishing Martial Field Courts: Legislative Decree No. 109 dated 17th Aug. 1967 

State President

According to the resolution of the Tentative Country Leadership of the Socialist Ba’ath Arab Party No. 2 dated 25th Feb. 1966, and to the Council of Ministers’ resolution No. 109 dated 14th Aug. 1967, the following articles have been drafted:

Article 1: A court or more will be established under the name of Field Martial Court: This court will be responsible for dealing with crimes included in the Martial Courts specialization and which are committed during wartime or military operations and which are referred to these courts according to the Defence Minister’s decision.

This court’s specialization will go into effect as of 5th June 1967.

Article 2: Terms used in this legislative decree are intended to mean the following:

a. Wartime: The period in which armed clashes take place between the Arab Republic of Syria and the enemy and whose beginning and end are determined by a decree.

b. Military operations: Actions and movements conducted by the army or some of its units in the war or armed clash with the enemy.

Article 3: The court is formed according to a decision taken by the defence minister, and consists of a chairman and two members. The chairman’s rank should not be less than that of a “major”, and the rank of each one of the two members should not be less than that of a “captain”. No armed forces officer may be tried before a court whose chairman’s rank is lower than that of the respective officer.

Article 4:

a. Inspector General’s tasks at the Court will be conducted by one or more judges from the Military Inspector General Department who will be named in line with the defence minister’s decision.

b. The Prosecutor General at the Court enjoys all authorities and powers given to the Military Inspector General and the Investigative Judge.

c. The Inspector General’s resolutions are final and cannot be disputed in any way whatsoever.

Article 5: The Court may not follow the arrangements and procedures indicated in the legislations in force.

Article 6: The Court will implement legally established penalties, and no rules issued through any way of questioning will be accepted.

Article 7: Field Court’s judgements will not be implemented unless they are approved by the respective authority. Judgements will be implemented in light of the current legislations.

Article 8:

a. Death sentences will be subject to the State President’s approval, and other judgements will be approved by the Defence Minister.

b. It is up to both of the State President and the Defence Minister, each according to his own specialization, to reduce the punishment or replace it by another, or cancel punishment entirely and keep the complaint on file. Keeping the case on file will carry the effect of general amnesty. He may also order a repetition of the trial before another Field Martial Court. In such a case, the resolution must be issued accompanied by a justification. In the event that an acquittal judgement is issued in the second trail, approval must be attained in all cases, and the judgement must be implemented immediately. 

c. It is up to the Defence Minister, in accordance with his specialization, to halt implementing the punishment concerned; in this case, it is necessary to implement the principles of halting the application of judgements indicated within the General Punishments Law.

d. The State President or the Defence Minister, according to each one’s specialization, may after approval of condemnation sentences, exercize the authorities included in the previous two paragraphs.

Article 9: This legislative decree must be published in the Official Gazette.

Damascus on 23.5.1388(H) corresponding to 7th Aug. 1968.

State president
Dr. Nur Al-Din Al-Atasi

Upon reading the Field Martial Courts Law, it is clear that these are emergency courts, which function only during wartime, and at the time of the outbreak of clashes with the enemy. It is clear also that their judges are military and not lawyers, that there is no text within these courts’ law to force them to hold trials in public. These courts are not required to follow the methods and procedures indicated in the effective legislations. The accused individual has no right to use the assistance of a lawyer for self-defence. Judgements issued by these courts are final and are not subject to questioning.

However, it is well-known that Law No. (49) was issued on 7th July 1980, and that before this decree was issued and until the end of the 20th century, no outbreak of fighting with the Zionist enemy or armed clashes with any enemy of the homeland has ever taken place. Therefore, a trial of the Moslem Brethren before this court will be null and void, this court’s resolutions are defunct, and its judges who issued death sentences are considered as criminals who committed premeditated-murder crimes, and they should be tried by the people.

Repressive Laws in Syria (2):

Emergency Law issued through Legislative Decree No. (15) dated 22nd December 1962 by the Council of Ministers.

We have indicated in the first session of the study on the repressive laws in Syria that one of the most serious violations of human rights, and one that has largest impact on man’s exercising of his freedom, is when the state along with all its material and moral resources is transformed from a social organization primarily intended to protect the rights and freedoms of the members of society and regulate their affairs, into an institution practicing terrorism against the same members of the society. Thus, the state commits terrorism, murder, restrict freedom, confiscate funds, and repress those who oppose it and differ with it in terms of opinion, in implementation of the oppressive laws the state has enacted.

If we described Law No. (49) of 1980, which was known to the legal community as the ‘Shame Law’, as being the worst sample of these laws, the emergency law would be the most repressive law which affects the rights and freedoms of all Syrian citizens without any exceptions. This law is a means of depriving citizens of their freedom and a way of seizing their funds and violating all their rights guaranteed by both human rights charters and all heavenly religions along with worldly laws. This law allowed the governement to do anything against any citizen without explaining the causes and without any justification, and without giving the rights to any judicial authority to oppose these actions which constitute the ugliest crimes. In brief, this law authorizes the government to do everything against the homeland and the citizens except creating right-minded people.

Emergency Law - Legislative Decree No. 51 dated 22nd Decemebr 1962

The Council of Ministers issued, and the President of the Republic published the following Legislative Decree:

Chapter 1: A Declaration of the State of Emergency:

Article 1: 

a. State of Emergency may be declared in wartime or in the event of a war-threatening condition or in the event that security or public order in the territories of the Republic or in part thereof is subjected to danger because of internal riots or public disasters.

b. The State of Emergency may cover the overall Syrian territories totally or partially

Article 2:

a. A State of Emergency will be announced through a decree issued by the Council of Ministers held under the chairmanship of the President of the Republic and with 2/3 majority of the members, provided that the decree will be submitted to the Council of Deputies at its first meeting.

b. The decree will specify the arrangements and measures that may be taken by the Military Governor as indicated in the fourth article of the legislative decree without violating the clauses of the fifth article.

Article 3:

a. When a State of Emergency is declared, the prime minister should name a Military Governor and all internal and external security forces must be put at his disposal.

b. The Military Governor may appoint one or more deputies reporting to him through a decree.

c. The Military Governor deputies will exercise the respective powers given to them (by the Military Governor) within the designated areas.

Article 4: 

The Military Governor or his deputy may issue written directives to take all or some of the following actions or measures, and may refer violations to military courts:

a. Impose restrictions on the freedom of persons in terms of holding meetings, residence, transport, movements, and detaining suspects or people threatening public security and order on a temporary basis, authorizing the conducting of investigations related to both persons and places at any time, and requesting any person to perform any task.

b. Monitor all types of letters, phone calls, newspapers, bulletins, books, drawings, publications, broadcasts, and all forms of expression, propaganda, and advertisements prior to publication. It is required to seize, confiscate, discard, cancel their concession and close their printers’ shops.

c. Specify the times during which public places are opened and closed.

d. Withdraw licenses for keeping arms, ammunitions, explosive materials and other types of explosives, withdraw their delivery orders and seize such materials and close arms stores.

e. Evacuate or isolate some areas, organize transportation vehicles, restrict and limit transportation between different areas.

f. Seize any movable property or real estate, impose temporary guarding on companies and firms, and postpone due debts and liabilities incurred on the seized portion of the property or real estate.

g. Specify punishments imposed on violations of these orders provided that the punishments are not more than imprisonment for three years and a fine of S£3000 or either punishment. In the event that the order does not specify the punishment for violation of such rules, the perpetrator of the violation should be punished by imprisonment for a period of not more than 6 months and a fine of S£500 or by either punishment.

However, all the above mentioned punishments should not be incompatible with the stronger punishments indicated within other laws.

Article 5:

a. It is up to the Council of Ministers held under the chairmanship of the Prime Minister to expand the circle of restrictions and measures mentioned in the previous article if necessary through a decree submitted to the Council of Deputies’ first meeting. 

b. This Council may narrow the above mentioned circle of restrictions and measures in light of the condition warranting the declaration of the State of Emergency.

Article 6: 

In the regions where a State of Emergency was declared, the following crimes will be referred to martial courts no matter who the perpetrators, or instigators or meddlers were:

a. Violation of the orders issued by the Military Governor.

b. Crimes committed against the state security and public order (Article 260 – Article 293 of the Penal Code)(1).

c. Crimes committed against public authorities (Article 396 – Article 873).

d. Crimes violating public trust (Article 427 – Article 459).

e. Crimes which constitute an overall hazard (Article 573 – Article 586).

Article 7: 

The Military Governor may rule some crimes indicated in the previous article out of the military judiciary area of specialization.

Article 8: 

The Military Governor may take a conclusive decision regarding a dispute over specialization to draw a dividing line between civil and military judiciary.

Article 9: 

Death sentences which become conclusive will not be implemented unless they are endorsed by the Military Governor and after his reviewing the viewpoint of the Ministry of Justice Amnesty Committee.

Chapter 2: Conclusion of the State of Emergency:

Article 10: 

A State of Emergency may be concluded by the respective authority entitled to declare the expiry of such a state, in accordance with Article (2) of this Legislative Decree.

Article 11: 

Military Courts will continue, after the expiry of the State of Emergency, to look into the issues within the framework of their specialization whether such issues were referred to these courts or not.

Chapter 3: Provisional Rules

Article 12: 

The law on the State of Emergency No. 162 dated 27th September 1958 and amendments thereof will be cancelled.

Article 13:(3)

a. The state security courts updated according to the above mentioned Law No. 162 will always be responsible for consideration of the crimes within their area of specialization, committed before the issuance of this legislative decree whether these crimes were referred to them or not. Investigation, referral, trial, keeping the case on file and approval of the rulings issued and amendments thereof will be conducted according to the same principles and procedures followed in line with this law.

The President of the Republic or his designate may keep the claim on file while the claim is being addressed by the court.

b. The guardianship status imposed on some companies and firms according to Law No. 162 will remain in effect until it is cancelled by a decree issued by the Council of Ministers.

c. The State of Emergency declared according to Law No. 162 will remain in force until it is cancelled in line with the tenth article of this Legislative Decree.

Article 14: 

This decree must be published and implemented from the date of issuing it.

Commentary:

The State of Emergency was declared in Syria according to military order No. (2) on 8th March 1963, i.e. the first day of the military coup which brought the Ba’th Party to power. We will discuss the degree of legitimacy of the declared State of Emergency from both the formal constitutional and objective aspects.

First: Non-constitutional State of Emergency in Syria in terms of form:

The State of Emergency which has been declared in Syria since 8th March 1963, or for more than 37 years is based on the Legislative Decree No. 51 dated 22nd December 1962. Clause (a) of the second article of this decree stipulated the following:

a. (A State of Emergency should be declared according to a decree issued by the Council of Ministers held under the chairmanship of the President of the Republic with a 2/3 majority of members provided that the decree is presented in the first meeting of the Council of Deputies).

It is noteworthy to point out that there was no Council of Deputies in Syria when this decree was issued. And when the Council of Deputies is being disbanded or the Council’s session is over, the Council will regain its right to endorse the declaration of the State of Emergency at its first meeting. This expression “first meeting” covers all cases in which the Council is not holding any meetings for whatever reason, as warranted by all comparative legislations.

The Syrian Constitution in force now and which was drawn up in 1973 did not address the State of Emergency except in Article (11) whose text runs as follows: (It is up to the President of the Republic to declare or cancel the State of Emergency as demonstrated by the Law).

The Law noted in this article is Law No. (2) dated 22nd December 1962, because it is still the Law in force, and has not been cancelled or amended. However, the clauses of that law are inconsistent with the priciples of the Syrian Consitution, especially Articles 25-33 related to public freedoms.

But Article (153) of the constitution covering this law provides for the following: (Legislations in effect issued before the declaration of this Constitution will remain valid until they are amended in line with the clauses of this Constitution).

Approval by the Council of Deputies or the Council of the People is one of the fundamental conditions for bringing the State of Emergency into effect, in light of its relevance to people’s will, public order and freedoms. If we realize that the State of Emergency has never been submitted to the Council of the People or to any legislative council since its declaration up to now, we will know that the State of Emergency in Syria is non-constitutional, and that all actions based on this state will be null and void because such a state violates the constitution and the Law. For these reasons, the State of Emergency in Syria is not in effect consitutionally, thereby rendering illegal all resolutions issued on the basis of that state, especially orders to arrest individuals and confiscation of funds. The justification is that what is built on illegal grounds is illegal, and that the orders for arresting individuals according to the State of Emergency constitute a crime of restricting freedom, which is a criminal offense as stipulated by Article 556 of the Syrian Penal Code, and is punishable by hard labour. We have quoted statements made by the Syrian Government representative before the United Nations Human Rights Committee located in Geneva.

Paragraph (56) of the Minutes of Meeting Report No. 160 dated 3rd Aug. 1979 runs as follows:

(The Syrian representative has told the Committee that the State of Emergency was observed in Syria long before Syria signed the International Pact, because Syria was the target of a Zionist aggression and the State of Emergency in Syria was subject to the Decree issued on 22nd December 1962 which spells out the cases for the declaration of emergency).

The Syrian representative continues to say in paragraph (60) of the same minutes of meeting report:

“The State of Emergency is declared according to a law published in the Official Gazette. Nevertheless, and contrary to the different political regimes prior to 1963 which were always threatened with coups, the present government felt it was strong enough not to resort to declare a State of Emergency by virtue of its popular basis and modern organization.

This means that the State of Emergency is not constitutionally declared, but it is implemented on the ground and this is worse and more cruel. We refer here to the following statement made by the same Syrian Government representative in the Committee’s session No. (158), i.e. two sessions earlier, in paragraph (5) of the minutes of meeting report of the same session:

(With regard to violating the International Pact, and the Emergency Law in particular, Mr. Al-Fattal reported a statement made by the President of the Republic of Syria before the People’s Council. The statement indicated that exercising freedom is very important, that a person will not be held accountable for his views or beliefs within the framework of the Constitution and the law, and that the Emergency Law would not be implemented from now on unless the state security is in jeopardy. Al-Fattal added that according to the statements and speech delivered by the President of the Republic, the Emergency Law used to be implemented beyond the limits of its texts, and that his orders were given to deal with this case).

The comment made by the Syrian Government’s representative is sufficient to prove that the State of Emergency in Syria is not constitutional and is also abused by the authorities in charge of security which receive their orders from the President of the Republic personally.

After the speech delivered by the President of the Republic in March 1978, and after the comment made by the Syrian Government representative before the Human Rights Committee, abusing the State of Emergency has exacerbated seriously. The years 1979-1980 along with the subsequent years witnessed some forms of human rights violations affecting the human conscience, namely violations of the right to life on a massive scale.

Second: Practices by the security personnel based on the State of Emergency lack objectivity: 

While continuing to believe that the State of Emergency is not constitutional, it is interesting to point out that practices perpetrated within the framework of such a state violate the Constitution and the texts of international law.

Legal scholars and experts have unanimously agreed that the State of Emergency is an irregular legal status in which restrictions to citizens’ freedom should be explained within the narrowest minimal terms. Emergency law cannot, therefore, become a higher Constitution and Law which supersede all basic laws in the State. Thus, all legislative, executive and judicial authorities will be mixed us and concentrated in the hands of the Military Governor, i.e. Prime Minister, or the Deputy Military Governor, i.e. Interior Minister who both receive orders from the President of the Republic.

The present implementation of the Emergency Law on the ground has led not only to concentrating authorities in the hands of the prime minister or the interior minister, but also transformed the Military Governor’s management into a secret legislative institution capable of instructing people what to do or to refrain from doing anything. Such an institution runs contrary to any legislation or judicial ruling. It is essential for us to present some details so that our study will be objective and clear.

- The Department which orders the arresting of citizens in accordance with clause (4) of the Emergency Law: 

Clause (4) of the State of Emergency Law stipulates that it is up to the Military Governor or his designate to issue written orders to detain suspects as a precautionary measure. This article limits arrest orders to the Military Governor or his designate. But the actual implementation of this article is quite different from what it says. Each and everyone of the 17-Syrian security departments is authorized to issue orders to arrest any citizen without explaining the reasons.

Everyone of these security departments keeps papers on which military orders are printed leaving a vacant space for inserting the name of the person to be arrested, and showing the date of arrest. All these blank arrest orders have already been signed by the interior minister in his capacity as the Deputy Military Governor. If a citizen has been arrested, no military order will be issued to arrest him unless after investigation. In the event that such a citizen dies as a result of torture, the security department which interrogated him will bury him secretly and will deny arresting him or knowing anything about him or about his whereabouts.

But if the investigation is concluded, and the citizen remained alive, the respective security department may either set him free or send him to Tadmur Prison. If that department releases him, it would issue two military orders: the first order is intended to arrest him and carries an old date which is the truthful date of arrest; the second order is intended to set him free and carries a recent date which is the date of setting him free. And if the department decides to send him to prison, the spaces on the already signed military order available at that department will be filled in with the name of the arrested citizen and truthful date of his arrest.

In case the person wanted by the security departments is out of sight, a military order to arrest him will be issued and circulated to other security departments and to Syrian border points with the neighbouring countries. Thus, he will not be able to go out of Syria. All military orders to arrest persons are not limited to a certain period of time. This explains why some persons have been arrested and remained in prison for more than 25 years without trial.

Third: Legal impacts of military orders on arresting citizens according to the State of Emergency:

1. The Judicial Authority has not exercised any power concerning these arrests whether for issuing an order or for implementing such order, or for assuming a responsibility towards interrogating or punishing a person or setting him free. This constitutes a violation of clause (3) of the International Treaty related to the civil and political rights which was signed by Syria and considered part of the internal law as of 16th March 1976 in accordance with Article 49 of this agreement.

2. Citizens have been deprived of exercising their right to request the Judiciary to take a final decision regarding the legitimacy of detaining any person.

3. The right to defend a detained citizen, or allocate a lawyer for consultation has been withheld. Thus lawyers were prohibited from representing or defending any person detained according to a military order based on the claim that the detention is not of a judicial nature. If a lawyer is assigned to represent a detained person, he will not be allowed even to enquire about his principal, and this is a violation of clause “b” of Article (14) of the above mentioned treaty.

4. It is not permissible to dispute the Military Governor’s decisions to arrest any person or confiscate his funds or submit a petition against that to any judicial authority. This, however, contradicts the first clause of Article (14) of the above mentioned international pact.

5. Detainee’s relatives were not allowed to know where he is detained or the indictment addressed to him. It follows then that a detainee cannot be visited to check whether he is alive or dead, and that most detainees without trial in Syria are considered as missing because of their unknown destiny.

6. Social and legal relationships have been disrupted because of the long detention period without trial, and because nothing was known about a detainee’s destiny or place of detention. Relationships affected included marital status, inheritance, partnerships, ownership, etc.

Fourth: International, Arab, and Syrian Non-Governmental Organizations (NGOs) stance towards the State of Emergency:

There is no room for explaining all these organization’s positions concerning the State of Emergency in Syria. It will, therefore, be sufficient to discuss the attitudes of both the Amnesty International and Syrian Bar Association towards this State of Emergency:

1. Amnesty International:

In October 1979, Amnesty International published a report entitled (Syria: A Brief Review) which includes the following detailed report of human rights violations in Syria: 

(The greatest source of concern for the Organization is using emergency legislations to extort political rights, violate human rights to freedom and life, withhold basic legal guarantees, and conduct secret trials for political prisoners before ad-hoc security courts were established according to emergency legislations). Ever since it published its report in 1979, the Organization continued to receive information about oppressive arrests, single-cell imprisonment, torture of detainees, unfair trials often ending up in death, and reports about missing or murdering people at the hands of authorities which do not have judicial powers, as indicated in the Organization’s report in 1983. The report added:

(In light of the longstanding State of Emergency in Syria, Amnesty International would like) to recall that the measures, taken in line with Article (4) of the International Pact related to civil and political rights towards declaring the Sate of Emergency, are irregular provisional measures. It is impermissible for governments to abandon basic rights. Most important of these rights are: man’s right to live, refraining from depriving any individual of his life for oppressive reasons, avoiding subjecting any individual to torture, punishment, mistreatment, or humiliation, impermissibility of condemning anyone for a crime as a result of doing or not doing something which did not then constitute a criminal offense according to national or international law.

2. The Bar Association’s Position Towards the State of Emergency in Syria, and the Solidarity of Both Engineers and Physicians Associations With It:

In the aftermath of exacerbating violations of human rights in Syria under the pretext of the State of Emergency in the second half of the seventies’ decade, the lawyers met to study the oppressive practices committed by Security Departments within the framework of proclaiming a State of Emergency. The General Assembly of the Bar Association Branch in Damascus met and issued resolution No. (1) dated 22nd June 1978 which included the following ten clauses:

1. Demanding the immediate lifting of the State of Emergency declared according to Military Order No. (3) dated 8th March 1963.

2. Seeking to amend the Emergency Law and to limit declaring the State of Emergency to the narrowest extents and restrictions, provided that its period will be for not more than three months renewable for a similar period after a referendum addressed directly to the people.

3. Military orders which were issued in violation of the Emergency Law clauses and which have become a covert quasi-legislative institution should be regarded as being absolutely eliminated and defunct. Lawyers and judges should be requested to discard and not to implement the contents of these orders, not to use these contents in trials conducted, and to boycott such contents completely.

4. Any lawyer and particularly that of official departments, and public institutions and sector bodies who advises those departments and bodies towards seeking to have military orders issued in order to confiscate and seize citizens’ funds and restrict their freedoms, and overstep judicial rules or even the overall judiciary system – is committing a behavioral offense for which he should be interrogated before the Disciplinary Council.

5. Seeking to cancel irregular (emergency) trials under any nomenclature, and referring relevant cases to the regular judiciary courts.

6. Requesting the lawyers to refrain from appearing and practicing their legal profession before these irregular courts, and to boycott these courts completely.

7. Banning all forms of repression, coercion, and physical and psychological torture violating human and national dignity; implementing the principle of the sovereignty of the Law; utilizing the regular judiciary system and enabling it to carry out its duties in an entirely free manner, ending all cases of tactical detention; releasing the people arrested for expression of an opinion, idea, or belief; and referring them to regular judiciary courts for fair and public trials in which their right to self-defense will be secured and their basic rights will be respected.

8. Confronting all types of detention and humiliation, and imposing the penalty practiced by non-judicial departments whose actions are not subject to any legal or judicial control.

9. The principles of the International Human Rights Declaration should be considered the basic code for the citizen and should be given priority over any other local legislation whatsoever in the event that there was a contradiction between their rules.

10. An ad-hoc committee should be formed at the Damascus Bar Association Branch which will be responsible for implementing this resolution through monitoring all violations of the citizen’s right and freedom.

The Bar Association submitted a memo to the Syrian Government on 17th Aug. 1978 which included the demands indicated in the above mentioned resolution.

Then the General Conference of the Bar Association was held in Aleppo on 1st Dec. 1978. Resolution No. (1) issued by the Damascus Bar Association Branch confirmed the solidarity of both Physicians’ and Engineers’ Association with the Bar Association in their legitimate demands.

The Syrian Government has responded to these demands, but dissolved the Boards of Directors of the Bar, Physicians’ and Engineers Associations, arrested their members, and appointed instead of these members, other Boards imposed by the Government.

The Syrian Government issued new laws to organize these associations in a manner which violates Human Rights Declarations and Treaties, thereby depriving these associations of their independence and linking them to the Authority’s Party.

Fifth: The State of Emergency in Syria has become a permanent legal situation and is not an irregular state of affairs:

The State of Emergency in Syria was declared according to the Military Order No. (2) dated 8th March 1963 and has been proclaimed for 37 years.

The Syrian citizen who was born in 1950, was 13 years old then and was below the adulthood age when the State of Emergency was declared in his country, is now 50-years old, and has not experienced the taste or scent of freedom in his country. The State of Emergency has been ongoing, and that citizen has always been scared because he is always subject to arrest by a military order, and for an indefinite period of time without any right to submit an objection to any judiciary department. Many corrupt security officers receive bribes from some citizens in return for issuing a military order to detain anyone of their enemies for an indefinite period of time. The enmity could be due to a trade, professional dispute or competition over something, and somebody wanted to eliminate his competitor. Additionally, the citizen was deprived of his political rights and personal freedom, and his intellectual freedom and free right to hold any belief or conviction.

It is, therefore, the duty of every Syrian citizen, regardless of his political affiliations, to seek to cancel the State of Emergency in Syria, and the Emergency Law issued in accordance with the Legislative Decree No. (15) dated 22nd Dec. 1962, together with the resulting aggression against the human rights of the Syrian citizen for more than 37 years.

References:
1. Legislative Decree Amendment No. (1) dated 9th March 1969.
2. Military Order No. (16) dated 17th June 1996 amends this article and refers crimes within both articles 314,318 to relevant civil courts.
3. Military Order No. (31) dated 1st Aug. 1995 amends this article and refers crimes to relevant civil courts.