Constitutional Reform and the Rule of Law
The participants in the Constitutional Reform and the Rule of Law Working Group discussed how to attain constitutional legitimacy after the fall of the Assad regime. The working group unanimously decided that a return to the Constitution of 1950, without modification, would be the ideal solution for achieving this legitimacy. The 1950 constitution is the only constitution in Syrian history that was drafted and approved by a Constitutional Assembly. It also has received popular support, despite the presence of some controversial articles regarding minorities and freedom of expression. However, in the absence of an entity with the legal authority to amend the constitution, the Syrian Expert House recommended that the 1950 constitution be accepted wholesale initially, with the expectation that amendments to the document would be the first order of business of a future Constitutional Assembly, along with a constitutional declaration that would outline the transition government’s mandate, validity, age, and official appointments. A draft of this proposed constitutional declaration is given in Syria Transition Roadmap’s appendices and outlines how the transitional government will supervise popular elections of the members of a Constituent Assembly, which will be responsible for drafting a new Syrian constitution.
The Constitutional Reform Working Group also identified steps for ensuring the independence of the judiciary through mechanisms and precise standards to protect the judiciary from executive interference in its decisions and in its structure. The “Judicial Authority Law,” which grants excessive power to the Syrian judiciary, was also discussed, and it was unanimously agreed that this portion of the Syrian legal code is not conducive to an independent and sound legal environment in Syria.
The participants also discussed the most important laws that should be repealed or amended in the future transitional phase, and at the same time warned judges about the pitfalls of interfering in the legislative process. The participants also discussed the importance of transitional justice in Syria and studied the mechanisms put forth by the National Preparatory Committee for Transitional Justice.
For further recommendations, please see the full report Syria Transition Roadmap.
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Haitham al-Maleh, the team leader of this group, is a democracy activist and former judge. He earned a degree in law and public international law diploma and began work as a lawyer in 1957 before becoming a judge in 1958. He returned to the practice of law after being dismissed from the Syrian judiciary for his vocal criticism of the 1963 Emergency Law, which suspended constitutional rights and codified martial law.
He began his political activity in 1951, during the military rule of President Adib al-Shishakli, and was imprisoned for six years, from 1980 to 1986, due to his demands for constitutional reforms.
In July 2001, he and other human rights activists in Syria founded the Human Rights Association, of which he was elected president, a position he held until 2006. He has been active in Amnesty International since 1989. He was arrested on October 14, 2009, and sentenced to three years in prison for spreading false and misleading information that would “affect the morale of the nation.” He was released in 2011 and joined the opposition abroad. He is a former member of the Syrian National Council and is currently the head of the Legal Committee of the National Coalition of Syrian Revolution and Opposition Forces.
Mousa Mousa, the senior researcher for this group, graduated with a diploma in public law from the Beirut Arab University, a diploma in intellectual property from the World Intellectual Property Organization in Geneva, and a master’s in public international law from the Arab Open Academy in Denmark.
He has extensive experience in the field of human rights and has been involved in multiple training programs and workshops on the international mechanisms of human rights and the mechanisms of Universal Periodic Review at the Geneva Institute for Human Rights.
He is a member of the legal committee of the Syrian National Council and was a key author of its bylaws. Currently, he is the president of the Kurdish Center for Legal and Political Development. He has published many political, legal, and constitutional studies and articles.