US Foreign Policy Fault Line: in defining security we generate insecurity

Muslims brothers And Law 49 of 1980

Heithem Al Maleh

The Tyrannical, Dictatorial comprehensive regime persisted in practicing suppression, humiliation  and degradation with respect to citizens  since it is early founded.  This suppression led to promotion of citizens indignation and pushed a slice from the Islamic direction to arm themselves ;and  in spite of that holding arm is totally unacceptable, the regime didn't try to find reasons behind the violence to avoid the incidence.

Violence is not original in our societies, and our history is the best witness on this fact: different directions in Syria were living common life  without just thinking to raise arm or practice violence against each other, this appears clear in the participation of the Islamic direction  in parliament election -in the past – beside other parties.

In order to tighten control on the society, the regime directed to give legitimacy to practicing violence against citizens. In this case the parliament was obedient to the executive authority presented in the republic president, so they issued law no. 49 of 1980 which we state as follows:

 

President of the republic

According to the constitution provisions, and to what has been confirmed by the parliament in their session held in 7/7/1980:

Article 1:

Considered criminal everyone associated to the Muslims brothers party, and sentenced to death.

Article 2:

a- exempted from the punishment mentioned in this law or any other law everyone associated to this party, if he announced his withdrawal from it within one month from applying this law.

b- This announcement of withdrawal should be made by written statement delivered personally to the mayor or the ambassador – for those who are out of the state when this law is issued.

Article 3:

Punishment for the crimes that were committed by persons associated to this party for the benefits of the party  before issuing this law will be reduced if he delivered himself within  one month from the date of applying this law for those inside the state and two months for those whom are outside according to the following:

a- if the punishment was execution or long life hard labor or long life arrest, long life hard labor will be 5 years maximum.

b- if the action was part of other criminals , punishment will be imprison from 1-3 years.

Article 4:

Exempted from the punishment of  offensive criminals committed before issuing this law to the benefits of the party everyone associated to this party  if he delivered himself within  one month from the date of applying this law for those inside the state and two months for those outside.

Article 5:

Reduction and exemption are of no use to those who are already arrested or about to be trailed.

Article 6:

This law to be published in the official newspaper, and be applied since the date of its issuing.

This law had published in issue no. 29 of the official newspaper dated 22/7/1980

We will discuss how this law contradicts legislative principles in all its aspects: constitutional, legal, and international.

1- The law contradicts constitution

Article 30 of the constitution states the following:

"provisions of the laws considered effective only for incidents that happened after the date of application i.e it is not allowed to have retroactive effect, while in non criminal cases it is allowed to state other than this statement."

Out of this statement we may summarize the following:

a- criminal laws are considered effective only for incidents that happened after the date of application, it is not allowed to have retroactive effect.

b- a.m statement confirmed that it is obvious in criminal cases not to have retroactive effect ; while in non criminal cases it is allowed to state other than this statement.

The clearest evidence of contradicting this statement is the exclusion of those who were arrested before issuing the law, which it points to as "reduction or exemption from the punishment" as it is stated in article 5.

 

Due to a.m facts, it appears clearly that law 49 which confirmed the execution of the associated persons to the Muslims brothers party is unconstitutional law, otherwise why it hadn't presented to the constitutional court?

It is well known that directing any law to the constitutional court is subject to article 145 from the constitution which stated that directing any statement could not be done except: 

a- By president of the republic

b- if quarter of the parliament members objected this law or any other legislative decree.

And since the president himself was behind the law, there was no way to present or direct the law to the constitutional court.

Swift endorsement on the law

revising law 49 subject of our article, we find that it is issued by parliament in 7/7/1980 and endorsed by president of the republic in 8/7/1980, i.e it was handed to him directly, an event which never happened before; president endorsement usually takes months. This instant endorsement implied that this law is ordered by president himself, consequently this law was not directed to the constitutional court, apart from the view point of the executive authority which preferred to practice unprecedented power to suppress any possible rebellion. Furthermore, this is not available these days, so the legitimacy of this law became invalid due to the absence of the status it was found because of.

 2- The law contradicts criminal law

 Article one of the criminal law states that:

No punishment, or any precautionary measure is assigned on any crime does not stated in the law when it is committed"

As well article 6 stated the following:

" No punishment is applied unless stated in the law when committing the crime". 

Due to a.m fact, any retroactive effect  in any law deals with punishment considered as contradiction with constitution and criminal law, so it had to be rejected and nominated as non constitutional.

Fair, independent judiciary can control laws' constitutionality by neglecting the law that violates constitution by disproving it during studying the cases raised against citizens or by them. But unfortunately, after becoming fully controlled by the executive authority, judiciary became helpless, with no independent authority enables it to stand in front of the executive authority presented by president of the republic; a thing that resulted in application of the law 49 on large scale… without any reservations.

3- The law contradicts international convictions

International conviction of the civil and political rights – especially article 6- states that: "according to the laws that are valid when the crime is committed…."

This means that it is prohibited to have retroactive effect for criminal invalidation; i.e law 49 contradicts international convictions. 

Syria endorsed this conviction, which means that it is committed to it , and is not allowed to issue any legislation contradicts with it, then why law 45 was issued? And how the parliament issued  a law contradicts with constitution, laws and international convictions?

It became out of question to say that parliament elections are not an honest elections; constitutional court had announced during number of elective courses recommendations  about invalidity of some members elections, but such recommendations were totally neglected.

Once, as I remember, in 1998 I paid a visit to my colleague Mr. Nasrat Mlla Heider , president of the constitutional court at that time, during our speech he told me that the court had issued in the parliament session at that same period recommendations and questionings about the honesty of electing 125 member from the elected parliament, but these recommendations and questionings were not to have any effect on confirming election of those members. 

It is well known that such parliament, does not considered -in the constitutional Fiqh  - a presentation for the public, and laws issued by its members do not represent public will i.e they are invalid and could not be legal.

If we turn back to the law 49 of 1980 –which, as I mentioned previously, had been endorsed one day after its issue by president of the republic and published in the official newspaper dated 22/7/1980, i.e 13 days after issuing-  we will notice that there is some hands following this law to see the light, a law which has no relation with constitution or laws or even international conviction. The target of this law is simply to exterminate Islamic opposition, and in this case this law found a comprehensive cover from all of the advanced world countries, a thing that imply one thing: what happened targets Islamic direction specifically.

Is it possible to issue a law - issued in 7/7/1980, indorsed by president of the republic in 8/7/1980 without consulting constitutional court -  for executing members of certain party , result of which death of large nos. of victims without being directed to the constitutional court? How could we explain that?

After this explanation, is it possible for the related authority to launch law project in front of the parliament consists of one article to cancel that law, and which I may suggest as follows:

 

" Law no.------ cancel law 49 of 1980 and all its consequences"

 

After that, authorities have to study the compensation for every one suffered/s badly from this evil law.

 

Lawyer