Law of Emergency issued upon the Legislative Act No. 15
On 22.12.1962 by the Council of Ministers in Syria
By : Moh’d Anjarini*
One of the most serious issue to human rights that affect human freedoms is that when the State mobilizes all its financial and moral potentials and transform them from a social system that had been basically found to protect rights of the community members; their freedoms, interests and organization of their affairs to an institution that target the community individuals themselves with terrorism. Then, this institution commits crimes of killing, freedoms confiscation, money sequestration and oppression against its opponents, and those who disagree with it in implementation of suppressive laws legitimized by this institution.
This series of reviews investigates four suppressive laws in Syria in addition to the permanent constitution of the Republic which was passed in 1973 in order to reach legislation with further respect to human rights and escape violence against freedoms.
The Emergency Law in Syria is the most critical suppressive law to affect rights of Syrians exclusively. It is a tool to take away from them their freedom and rob their monies as well as violating all their rights. Their rights as granted to them by divine laws and secular acts in addition to bills of human rights. This Law authorizes the governmental authorities to act upon their discretion against any citizen without even clarifying reasons or providing vindication. It gives no right to any judicial party to oppose these actions which comprise the worst criminal acts. In brief, the Law gives right to the government to do anything in the country and against citizens. Of course it stays away from creating decent people.
We shall state at first the text of the Law and then move to comments.
Emergency Law – Legislative Decree No. 51 dated 22nd December 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:
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
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.
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.
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.
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.
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).
The Military Governor may rule some crimes indicated in the previous article out of the military judiciary area of specialization.
The Military Governor may take a conclusive decision regarding a dispute over specialization to draw a dividing line between civil and military judiciary.
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:
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.
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
The law on the State of Emergency No. 162 dated 27th September 1958 and amendments thereof will be cancelled.
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.
This decree must be published and implemented from the date of its issuance.
The state of emergency in Syria was announced on 8.3.1963 upon the military command No. 2. It was the first day of the military coup d’etat which led the Ba’th Party to authority. We shall discuss the legitimacy of the announced state of emergency in respect of the formal constitutional side and the objective one.
First: State of emergency is Syria is non-constitutional with regard to formalities:
The state of emergency announced in Syria since 8.3.1963 (over thirty eight years) is based on the legislative act No. 51 of 22.12.1962 as Paragraph a of the article 2 of this act stipulates the following:
a. The state of emergency shall be announced upon an act passed by the Cabinet convening under the chairmanship of the President of the Republic and upon the majority of one third of the members on condition that it be submitted to the Parliament in their first meeting.)
There was no lower house in Syria when the act was passed. When the Parliament is dissolved or its assignment is over, it restores its right to ratify the state of emergency during the first session held after elections. Here the expression (first meeting) includes all cases when the Parliament was not convening due to any reason. All comparative legislation state this.
The Syrian constitution currently valid and which was set in 1973 did not tackle this state of emergency except in Article 11 which reads: (the President of the Republic shall announce the state of emergency and cancel it in compliance with the Law).
The Law in this Article is the Law No. 2 of 22.12.1962 because it is still the valid law and has not been canceled or amended although its provisions are in contradiction with the principles embodied in the Syrian Constitution; namely, in respect with articles 25 to 33 concerned with public freedoms.
However, article 153 of the Constitution covers this law and stipulates: “the valid legislation issued before announcing this constitution shall remain valid until amended in compliance with its provisions).
The ratification of the lower house or the people’s council is one of the substantial conditions to affect the emergency state being related to the will of people and the public order and public freedoms. Given that the state of emergency in Syria was not submitted to the people’s council or to any other legislative council since its announcement, it becomes clear that the state of emergency in Syria is not constitutional and all actions upon it are null and void being in contradiction with the constitution and the law.
For these reasons, the state of emergency in Syria must be invalid upon the Constitution and that results in illegal status for all the resolutions issued in compliance therewith especially with regard to orders of people arrest and property sequestration. What is built on vain must be in vain. The people arrest orders in compliance with the state of emergency fall under the crime of freedom detention. It is a criminal crime according to the text of Article 556 of the Syrian Penal Law and is penalized with hard work.
We quote the sayings of the Syrian government representative before the UN committee concerned with human rights seated in Geneva.
Paragraph 56 of the minutes of meeting No. 160 of 3.8.1979 reads: “the Syrian representative of the Committee said that the state of emergency has been observed in Syria long ago before signing the international convention because Syria was targeted with the Zionist attack and that the state of emergency in Syria is subject to the Act issued on 22.12.1962 which stipulates the states of emergency”.
The Syrian delegate goes on until he says in Paragraph 60 of the same minutes of meeting, “ the state of emergency is announced upon a law published in the official Paper. However, and in contradiction with the several regimes preceding 1963 which had been always threatened with topples, the current government and by virtue of its people’s base and modern organization is sure that it has too much power for a state of emergency.”
This means that the state of emergency in Syria is not announced according to the Constitution but it’s a state of a fait accompli; which is more cruel and more severe. In the same context, we point to the same delegate and his saying in the session No. 158 for the committee (before two sessions) and in Paragraph 5 of the minutes of meeting, “with regard to the violation of the international convention especially with the emergency law, Mr. Fattal read a statement by the President of the Syrian Republic before people’s council telling that the practice of freedom is very important and that nobody will be held accountable for his opinions or convictions within the framework of the constitution and the law and that the law of emergency will not be applied from now on unless the security of the state is threatened.
Mr. Fattal went on saying that according to the stataements by the President of the Republic nd his speech, the law of emergency used to be applied in a manner that contradicts its text and that the President ordered to have this status handled.
This intervention by the Syrian government delegate is enough to prove the non-constitutional status of the state of emergency in Syria and that it is misused by the Syrian authorities responsible for security and who take their instructions directly from the President of the Republic.
Abuse of the state of emergency has become more serious in the aftermath of the speech delivered by the Head of the State in March 1978 and the intervention by the Syrian government delegate before the committee concerned with the human rights. The years 1979-1980 and the following period witnessed several forms of human rights violations that touched upon the human conscious especially the violation of the right to life collectively.
Second: Practices of the security services in compliance with the state of emergency lack legitimacy and objectivity:
Given that the state of emergency is non-constitutional, the applied practices are accordingly in violation of the constitution and the international law texts.
Law scholars and judiciaries have agreed that the state of emergency is an extraordinary status and that the restrictions on the peoples’ freedom must be construed within the narrowest construction and at the minimal level. The Law of Emergency must not enjoy a higher position than the law of the state and a law which exceeds all the basic laws of the State. If so, the legislative, executive and judicial powers will be overlapping and all concentrated within the hands of martial governor; i.e. the Prime Minister or the deputy martial governor; i.e. the Minister of Interior who both receive their instructions from the Head of the State.
This status quo resulted in applying the law of emergency in Syria and not concentrate the powers at the Prime Minister or the Minister of Interior only, but transfers the administration of the martial governor to a secret legislative institution who permits and prohibits in violation to any legislation or judicial verdict. In order to have an objective clear study, there must be some details provided.
The party which orders arrest of people according to Article 4 of the Law of Emergency is the martial governor. The article gives the martial governor or his deputy the rights to issue written orders to arrest suspected people on a provisional basis. This article confines the orders of arrest to the martial governor or his deputy. However, the factual practice is different from this. For, the seventeen security services in Syria are all authorized to issue orders of arrest to arrest any citizen without even submitting the reasons for that.
Each security service has printed lists of the martial orders that provide a blank space to fill in the name of the wanted person and the date of his arrest. The lists are signed by the Minister of Interior beforehand in his capacity as a deputy martial governor. If the citizen is arrested, the martial order of arrest will not be issued against him unless upon an investigation. If he dies under torture, the security party who investigated with him buries him in secret and denies that it arrested him or that it knows anything about his whereabouts.
However, if the investigation is over and the citizen is still alive, they either release him or send him to Tadmur prison. If released, they issue two martial orders: the first of arrest with a back date which is the real arrest date and the second is to the effect of release and holds a recent date which is the date of release. If decided to go to prison, the arresting party fills in the blanks in the form it has which is signed beforehand and it states his name and the real date of arrest.
In certain cases, the wanted person is hiding from sight. Then, the martial order of arrest is issued and distributed to the other security departments at the Syrian borders with the neighboring countries so that he would not be able to leave the country. All the martial orders including arrest of people do not state a certain period of arrest. This clarifies the reason for having people who have already passed 25 years of prison with not trial yet.
Third: Legal Connotation of martial orders to arrest people in compliance with a state of emergency
1. The judicial power does not practice any power with regard to these arrests whether in relation with the arrest order or its implementation. They have no liability with regard to investigation with the arrested person; punishment or release. This is in contradiction with Paragraph 3 of the international conventions related to civil and political rights signed by Syria and incorporated in the internal law as from 16.3.1976 in compliance with Article 49 of this convention.
2. Citizens are denied their right to request the judiciary power to state legitimacy of arresting any person.
3. Denying the arrested person his right to defense and to assign an attorney for advice. Thus, lawyers are prevented from defending any person arrested upon a martial order on the alleged basis that his arrest is not a judicial one. If a lawyer is assigned for an arrested person, he will not even have the right to report to the concerned party to ask about the destiny of his client. This is in contradiction with Article 14 of the said convention.
4. The martial governor resolutions including the arrest of anybody or sequestration of his money cannot be contested or submitted as a grievance before any judicial reference. This is in contradiction with Paragraph 14 of said international convention.
5. Family of the arrested are denied the right to know his place or the accusation against him. So, they cannot visit him to validate if he is still alive or dead. Therefore, most of the arrested without a trial are considered as missing due to their unknown destiny.
6. There is an imbalance in social and legal relations due to the long period of arrest without a trial and the fate or whereabouts of the arrested person are unknown. This causes unstable relations of marriage, inheritance, partnership and proprietorship.
Fourth: Stand of international, Arab and Syrian NGOs towards the state of emergency:
As it is not possible to highlight stand of all these organizations herein, we shall be limited to the Amnesty International and that of the Syrian Barrister Association: