Sources On Arab Judiciaries
United Arab Emirates
Constitutional Provisions On The Judiciary
Structure Of Court System
Personal Status Issues
Appointing/ Assigning/ Evaluation Of Judges
Administration And Relationship With The Ministry Of Justice
Specialized Courts And Their Jurisdictions
Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown
The current Syrian court system has gone through a long historical evolution, beginning in the Ottoman period, passing through the brief Syrian Arab Kingdom (1919-1920), the French Mandate, the post-independence republican regime, the union with Egypt (the United Arab Republic, 1958-61), the post-secession republic, and the current republic. All these political systems have affected the evolution of the Syrian judicial structure.
- Constitutional provisions for the judiciary
Syria has one of the oldest constitutional traditions in the Arab world, dating back to 1920. The current Syrian constitution of 1973 shows some Egyptian influence as well.
Article 131 The judicial authority is independent. The president of the republic guarantees this independence with the assistance of the Supreme Judicial Council.
Article 132 The president of the republic presides over the Supreme Judicial Council. The law defines the method of its formulation, its powers, as well as its internal operating procedures.
Article 133 (1) Judges are independent. They are subject to no authority except that of the law.
(2) The honor, conscience, and impartiality of judges are guarantees of public rights and freedoms.
Article 134 Sentences are issued in the name of the Arab people of Syria.
Article 135 The law organizes the judicial system along with its categories, types, and grades of judges. It also defines the regulations pertaining to the jurisdiction in the different courts.
Article 136 The law defines the terms of appointment, promotion, transfer, discipline, and removal of judges.
Article 137 The public prosecution is a single juridical institution headed by the minister of justice. The law organizes its functions and powers.
Article 138 The Council of State exercises administrative jurisdiction. The law defines the terms of appointment, promotion, discipline, and removed of its judges.
The Supreme Constitutional Court:
Article 139 The Supreme Constitutional Court is composed of five members, of whom one will be the President, and all of whom are appointed by the President of the Republic by decree.
Article 140 It is not permissible to combine the membership of the Supreme Constitutional Court with a ministerial post or membership in the People's Assembly. The law defines other functions which cannot be combined with court membership.
Article 141 The term of membership of the Supreme Constitutional Court is 4 years subject to renewal.
Article 142 Members of the Supreme Constitutional Court cannot be dismissed from court membership except in accordance with the provisions of the law.
Article 143 Before assuming their duty, the president and members of the Supreme Constitutional Court take the following oath before the president of the republic and in the presence of the speaker of the People's Assembly: "I swear by the Almighty to respect the country's constitution and laws and to carry out my duty with impartiality and loyalty."
Article 144 The Supreme Constitutional Court determines the validity of the special appeals regarding the election of the members of the People's Assembly and submits to it a report on its findings.
Article 145 The Supreme Constitutional Court looks into and decides on the constitutionality of laws in accordance with the following: (1) Should the president of the republic or a quarter of the People's Assembly members challenge the constitutionality of a law before its promulgation, the promulgation of such law is suspended until the court makes a decision on it within 15 days from the date the appeal was filed with it. Should the law be of an urgent nature, the Supreme Constitutional Court must make a decision within 7 days. (2) Should a quarter of the People's Assembly members object to the constitutionality of a legislative decree within 15 days of the date of the People's Assembly session, the Supreme Constitutional Court must decide on it within 15 days from the date the objection was filed with it. (3) Should the Supreme Constitutional Court decide that a law or a decree is contrary to the Constitution, whatever is contrary to the text of the Constitution is considered null and void with retroactive effect and has no consequence.
Article 146 The Supreme Constitutional Court has no right to look into laws that the president of the Republic submits to public referendum and are approved by the people.
Article 147 The Supreme Constitutional Court, at the request of the president of the republic, gives its opinion on the constitutionality of bills and legislative decrees and the legality of draft decrees.
Article 148 The law determines the procedure of hearing and adjudicating in matters coming under the jurisdiction of the Supreme Constitutional Court. It also defines the court staff, the qualifications of its members, and prescribes their salaries, immunities, privileges, and responsibilities.
- Structure of court system
The courts of general jurisdiction in Syria are divided into three levels. The first level consists of the Magistrate Courts (mahakim al-sulh), the Courts of First Instance (mahakim al-bidaya), Juvenile Courts (mahakim al-ahdath) and Customs Court (al-mahkama al-jumrukiyya). These courts are assigned jurisdiction according to the nature of a case.
The second level of court are for appeals (mahakim al-isti'naf); they are divided into civil and criminal chambers. The top level is the Court of Cassation (mahkamat al-naqd) which has three sections: civil and commercial, criminal, and personal status.
- Personal status issues
There is a separate court system for personal status cases; the law provides for shari`a courts (for both Sunni and Shi`i Muslims), Druze courts, and other religious courts (for Christians and Jews). There is a degree of integration between the personal status judiciary and the courts of general jurisdiction, because appeals are allowed from the personal status courts to the Court of Cassation.
- Prosecution system
On the one hand, the Syrian constitution clearly mandates the niyaba system and describes the niyaba as judicial in character. On the other hand, the constitution includes an unusual provision defining the minister of justice as the head of the niyaba.
- Appointing/assigning/evaluation of judges
The constitution provides for the Supreme Judicial Council, which is headed by the president of the republic. He may deputize the minister of justice. The Attorney-General, the chief of judicial inspection, the deputy minister of justice, the president of the Court of Cassation, and his two most senior deputies also serve. The Council acts on suggestions from the minister of justice for appointments, transfers, and disciplines.
- Administration and Relationship with Ministry of Justice
Budgetary issues are almost wholly within the domain of the Ministry of Justice.
The Ministry of Justice has responsibility for virtually all administrative functions related to the judiciary and oversees support personnel for the courts. The Court of Cassation does have a general body (hay'a `amma) that can present the needs and suggestions of the judiciary in some matters and the Supreme Judicial Council can suggest laws related to judicial affairs.
- Specialized courts
In addition to the courts of regular jurisdiction and the personal status courts, Syria has several specialized court systems with jurisdiction over specific kinds of cases.
First, the military can establish field courts and try cases (including those involving civilians) referred by the minister of defense and prosecuted by the military prosecutor.
Second, Economic Security Courts are established under Syrian law to look into cases involving economic crimes. The Economic Security Courts do not stand wholly apart from the courts of general jurisdiction because they do include judges from the regular judiciary (who serve along with other judges who are not from the regular courts) and judgments can be appealed to the Court of Cassation.
Third, a Supreme State Security Court hears cases related to national security. Its judgments are not subject to appeal nor is it bound by the same procedures as the courts of regular jurisdiction. The president of the republic must approve a verdict; he may also cancel it and ask for a retrial.
Fourth, an administrative court system in Syria is stipulated in the constitution. During the period of union with Egypt, the Syrian "Council of State" was brought into harmony with the Egyptian model and it remains similar to its Egyptian counterpart until today. There are two levels of courts to hear administrative cases; the Council of State (which includes advisory as well as judicial functions) remains independent and separate from the courts of general jurisdiction. The Syrian administrative courts have demonstrated some independence in reviewing government actions.
Finally, Syria has a Supreme Constitutional Court. Under the 1973 constitution the president of the republic appoints all the members to four-year, renewable terms. The Court can serve in an advisory capacity; it can also rule on the constitutionality of laws referred to it by a small number of official actors. It cannot examine the constitutionality of a law passed by referendum. The Court also has some ancillary duties, including jurisdiction over election disputes and trial of the president of the republic.
- Judicial education
Syrian law requires judges to receive necessary training. To date, that is largely accomplished through practical training rather than formal study.