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The Judicial System Haytham Al Maleh
Preface: The Judicial Authority represents the last fortress to protect the nation and guarantee the rights and security of the individuals and groups in their relationships and in facing the political authority. As much as the judicial authority is strong, stable and independent, people's freedoms, properties, souls and honors are more protected and honored.
If we pass in front of the Justice, in fact, is the basis of the rule and its supporter. Justice is the people's path to happiness and security. In the Holy Koran, justice is demanded. In Surah Al Nahl No. 90 "Allah commands justice, the doing of good", and Surah Al Ma'idah No. 8 "Be just: that is next to piety". In Surah Al Anam No. 152 "Whenever ye speak, speak justly, even if a near relative is concerned". In Sura Al Shura No. 15 "But say: I believe in the Book which Allah has sent down; and I am commanded to judge justly between you". Sura Al Hujurat No. 9 "Be fair for Allah loves those who are fair and just". In Sura Al Nisa' No. 58 "And when ye judge between man and man, that ye judge with justice". Mohammed, the profit, urged for justice and warned from tyranny by a severe suffering. He said "One hour of justice is better than worshiping for 60 years". Ibn Taimyya, known as Sheik al-Islam, said in a remarkable achievement: "People did not contradict the idea that (the consequences of tyranny are bad and the results of justice are honorable). Thus, it has been said that even if the state is atheist but just, God would support it, and even if the state has faith but tyrannical, God would not support it".
Christianity, too, called for justice. One
of Saint Pules' letters, which was directed to The Old Legislations called for justice. Hammurabi said: "The two Gods, Al and Pal, called me to do what reflects the good for humankind, make the right spread in these countries, destroy the evil and the corrupted persons and prevent the tyrant from hurting the weak". Distributing justice is the particularity of God. Glorious God said in the Koran: "The command rests with none but Allah: He declares the Truth, and He is the best of judges", Surah Al Anam No. 57. Also said, "Allah commands, there is none to put back his command, and he is swift in calling to account" AL Ra'ad No. 41. Also, justice is the particularity of profits. God said: "O David! We did indeed make thee a vicegerent on earth: so judge thou between men in truth and justice", Surah Sad No. 38, Ayah. No. 26ژ(*)گ. Judges regained this divine particularity to distribute justice among people. So, judges became the articulating tongues of justice, who utter the right, talk by the sovereignty of law. They judge to have their verdicts executed without leaving the space for anyone to argue after their judgements because they present the truth and prudence. Judges preserve the oppressed, protect the weak and help people to live without tyranny or superiority or arbitrariness. Can judges achieve all that? If the judiciary system is not an independent authority, and just an organization or one department of the state's institutions, can judges spread tranquility among people and in their souls, properties, freedoms and honor? Or if the judges were as the rest of the governmental employees without an actual immunity that prevents them to be subjugated to any external influence, which impedes them from working according to right and justice, could they be fair? In fact, there should be an immunity that helps judges do their work away from fear of arbitrariness, oppression or whims, in order to achieve justice and apply the sovereignty of law!! Actually, if the judicial system is not admitted as an independent authority, which is equal to other authorities of the state, then, it will not be able to achieve justice. Also, if there is no admission for the judge's immunity that enables him to remain solid in front of all temptations, then he may be driven through. Even if he might arouse the anger of the ruling authority, as long as his judgment accords with his conscience, the judge must take his decision, independently. The judge owns the most precious things of humankind, which are his freedom, life, property and honor, thus, his work is different from any other employee. Consequently, two issues should be admitted, first, the independence of the judiciary authority, secondly, the independence of the judges in their work. If the judiciary is not admitted to be of an independent entity, so, what is the use of the judges' independence? Then, if unspecified persons, by any motive, were pushed into the judicial system, what is the use of the system's independence? What is the usefulness of this independence as long as we attack the neutrality of judiciary and force it among the political mazes to become a part of the ruler's will?
We clarified, quickly, the rank of the
judicial system and its necessity for an intact and straight life. What
about the judicial system in 1 - The Judges' Immunity in the Syrian Legislation: We will not go back to further decades but we will talk about the judges' immunity from the year 1961. The Legislative Decree No. 98 was issued in 15.11.1961, which since that date it had many adjustments. The immunity was meant for protecting the judges from segregation and transfer. "Segregation" means the dismissal from service, "transfer" means the transfer into another country or job. (Art. 92) All judges, jurists and attorneys have the segregation immunity (Art. 1/92) except the judges, who did not, yet, pass three years of appointment (Art. 1/93). All judges have transfer immunity (Art. 92) except the following: - Judges in the office of the attorney general, who are transferred by an issued decree according to the suggestion of the Minister of Justice. - New judges who did not pass three years of appointment in the judiciary. - Judges who demanded their transfer in writing. - Judges who passed three years in their appointment but necessities require their transfer. - Judges who are transferred according to promotion from one grade to a higher one. - Judges who are convicted by the Supreme Council of Judiciary with a more intense penalty than cutting off the salary. - New assistants of judges, judges of Sharia and inquiry (Art. 2/93).
It is not allowed to transfer a judge or
delegate him into a job of a lower grade (Art. 84), or transfer him into
another cadre in the state unless he demands and the Supreme Council
agrees (Art. 1/85). Also, it is not allowed to have in the same court
jurist judges or attorneys' judges with relatives from the fourth grade
or less. If the relationship, affinity, occurred between two judges in
the same court, then one of them has to demand his transfer, or the
relative-in-law would be transferred (Art. 88). This means that even if
the relative-in-law has immunity, he will loose it in this case. This
legislation did not allow the lawsuit penalty against the judges who
commit crimes during their work or out of work unless submitted by the
attorney general of the Republic according to the permission of a
judiciary committee, composed of the Accordingly, we would like to refer to the judges of the State Council that study the administrative cases. The law No. 55 of year 1959 indicated that the members of the state council, whose grades are counselors' assistants and higher, could not be segregated. The deputies, who did not, continuously, pass three years in their jobs or in similar ones that have immunity, could be segregated. Still, if it were clarified that anyone of the mentioned judges lost trust and consideration, which are required in the judicial job, he would be remitted to retirement by a Decree of the President after the agreement of the mentioned committee in Article No. 64. The punitive and complain committee is composed of judges from the mentioned council, headed by the head of the council. The Article No. 66 of Law No. 55 indicated the methods of forming the committee. Due to this legislation, the transfer immunity is withdrawn from the judges when they are promoted from one grade to another, but not in the same city. The immunity of transfer is omitted from judges, who did not pass three years in their jobs, according to the necessity. Also, the jurist judges could be transferred into the attorney general office or the contrary by an issued decision from the Minister of Justice after the agreement of the Supreme Council (Art. 83) with no need for the judge's agreement. The segregation immunity of a judge does not mean the inability to dismiss him at all. The dismissal could be accomplished by an issued decision of the Supreme Judiciary Council. The Supreme Council is considered a punitive council for judges, in case they commit deeds that defame and disgrace their conduct. Thus, the supreme council takes the decision of segregation according to the opinion of the majority of members after proving the judge's moral defects. This means that the legislation entrusted a complete judicature institute, which is the Supreme Judiciary Council, to determine the judges' matters of appointing, promoting, transferring, segregating and chastening. Composing the council of seven judges plus the head of the Supreme Court, confirms the immunity of the judges and their independence. Many legislation were added as follow: - Decision No. 124, dated 15.06.1923. - Decision No. 238, dated 02.06.1928. - Legislative Decree No. 15 dated 19.10.1946. - Legislative Decree No. 80, dated 30.06.1947. - Legislative Decree No. 19, dated 10.07.1952. - Legislative Decree No. 133, dated 08.10.1953.
During the It is noticed that there was much submitted legislation. The multiplicity of legislations in the judicial authority created an unsettled atmosphere for judges to work. Besides, withdrawing immunity is much more reflected on the judged individuals than the judges themselves. 2 - The Judiciary Power in the Syrian Constitutions and the other legislative Clauses: During the period of independence, the judiciary authority passed through many conditions as follow: A - The Syrian Constitution of 1953: The constitution gave great importance to the judicial system and was concerned about its independence; therefore, Article No. 113 indicated the following: 1) The Supreme Court is composed of seven members, one of them is nominated the head of the court. 2) The member of this court has to be: a - Obtaining the provisions of election to the office of attorney general.
b - A graduate with the academic degree
"License of Law" from the c - Aged 40 years old and above. d - Had practiced law, judgment and university teaching, or one of these jobs for at least 10 years. Article No. 118 indicated: 1) The Supreme Judiciary Council is composed of seven members: a - The head of the Supreme Court is the head of the council. b - Two members from the Supreme Court, which are chosen by the court. c - Four higher ranked judges from the court of preference. 2) This council supervises the affairs of the jurist judges, which are related to their work. Article No. 119 indicated the following: "According to the provisions of law, the head of the supreme council and the Minister of Justice have the right to submit suggestions for appointing, promoting, transferring, disciplining and segregating the judges. The supreme judicial council takes decisions on these suggestions by the absolute majority of the members and informs its decision to the Ministry of Justice to be executed, according to law, with an issued decree or decision". B - In 1962, the legislative decree No. 120, dated 11.09.1962, indicated in the 3rd Article the following: "The text of Article No. 65 is canceled and replaced by what follows: the supreme council is composed of: - The Court of Cassation's head becomes the head of the council. - The three deputies of the head of the Cassation's Courts. - The secretary-general of the Ministry of Justice. - The oldest councilor of the Cassation's Court. In the absence of the head of Cassation's Court or one of his deputies or the head of Appeal's Court, the judge who follows in seniority at his court replaces him. If the secretary-general is absent, the more senior judge of the central directory replaces him". C - The Syrian Constitution of year 1973: The authorities of the state are detailed in the second section of the Syrian Constitution. The first chapter explains the legislative authority, the second chapter explains the executive authority and indicates that the President of the Republic is the head of the executive authority. From the Article No. 83 till the Article No. 114, the constitution explains the methods of candidature and election of the President. Studying these articles clarifies that the President of the Republic dominates and controls all the authorities, completely, in a way that nothing could be resolved without his will. Thus, the President represents a center that is more powerful than the centers of some kings and princes. This center is absolute without a successor for the president's opinion or judgment. That is why the constitution became prepared to give absolute power for the executive authority, which is headed by the President of the Republic. We are not going to approach the jurisdictions of the president, but we expose them in order to explain the positions of the judicatory authority and pass through all the sides that control the judicial system. The Syrian Constitution of 1973, the third chapter, which is titled "The Judiciary Authority" indicated the following: - Article No. 132: "The President of the Republic heads the Supreme Council and the law clarifies the method of formation, specialization and the rules of its work". - Article No. 133: 1 - The judges are independent and no power affects their judgments other than law. 2 - The judges' honor, conscience and impartiality guarantee the people's rights and freedoms.
- Article No. 134: "Judgments are issued
by the name of the Arab Nation in - Article No. 135: "The law organizes the judicial system with all its classes, types, grades and clarifies the rules of specialization in the various courts". - Article No. 136: "The law clarifies the provisions of appointing, promoting, transferring, chastening and segregating the judges". - Article No. 137: "The Attorney General is one judicial organization, headed by the Minister of Justice. The law organizes its function and specialization". - Article No. 138: "The State Council practices the administrative judiciary. The law defines the provisions of appointing, promoting, chastening and dismissing its judges". Although this chapter is titled for the judiciary authority, but it does not mention that this authority is independent. Article No. 132 clarifies that the President is the head of the executive power and the head of the Supreme Judiciary Council. While the Article No. 133 clarifies that the judges are independent without any effects other than law, this text becomes meaningless when judicature is forced among the political rules. Thus, the judge becomes an adherent to Ba'ath Party and a follower to a despotic ruling authority, or rather becomes a part of the current regime! Introductions that Led to Results:
What happened in
A - The
If the judicial authority is not
completely independent from the legislative authority, the judiciary
independence from the legislative one has no meaning. The right for
judging should not be concealed from people by any legislation or under
any circumstances. Also, the judiciary judgments should not be canceled
or banned. Besides, the immunity of segregation or transfer should not
be approached by any claim. Actually, the executive authority can spread
its power whenever it wants by using legal covers. This is what happens
in If we study the texts of the present judicial law we find that the immunity is nominal and illusionary. The immunity of transfer was omitted from the jurist judges at promoting them, as well as, the judges who passed three years or more in their assignments in case it is necessary to transfer them. Even for promotion, the former legislation did not allow the transfer without a written agreement by the judge himself. This was issued in the Article No. 79 of the legislative decree No. 80 in 1947 and the Article No. 96 of the legislated decree in 1946. The present legislation permitted the transfer of jurist judges into the office of the attorney general (Art. 83) without the agreement of the judge himself. Thus, the immunity of the judge becomes weak and exposed to be stolen.
B - The Usually, the executive authority interferes with the assignment of judges, protects their ranks and promotions and subjugates them to a special system, which is connected to civil and chastening responsibilities. Also, the executive authority suspends the accomplishment of judicial verdicts or the decisions of the Supreme Judiciary Council. Thus, the judicial authority is not completely independent. If we go back to the contexts of the law we find that the Article No. 65 of the Judicial Law, which was issued by the adjusted Decree No. 98 in 1961, indicated the following: The Supreme Judiciary Council is composed of: - The President, represented by the Minister of Justice -The Head
- The head of - The two most senior deputies of Cassation court's head -Members - The assistant of the Minister of Justice -A member - The Attorney General -A member - The Chairman of Judicial Supervision Directory -A member If the Minister's assistant or the Chairman are absent, the director of the legislative directory replaces them. If any of the other members is absent, then the most senior counselor in the Cassation court completes the quorum. Accordingly, the Minister of Justice became the head of the judicial authority and the majority of the council followed him. So, this authority was not independent any more, but became one department of the states' institutions, which was directed by the Minister of Justice. Nowadays, we find Ministers without enough judicial experience heading the Supreme Council that includes judges, who spent their whole life serving judicature. So, how can we interpret this? After all the mentioned facts, can we say that the Judicial Authority is an independent Power? Of course Not! C - The Exceptional Judicatures: How was the judicial system divested of its independent authority? And how its neutrality was invaded? The establishment of exceptional judicatures is a queer method of the totalitarian systems, which do not accept the specialization of the normal judiciary in specific crimes or conflicts. Removing authority from the normal judiciary for a certain crime or a conflict uncover the partiality of treatment. If the matters were to be resolved by law, there would not have been a need for establishing exceptional tribunals or special committees even if these established tribunals were not provided with exceptional authorities that exceed the general law and violated its guarantees. According to the research of Mr. Nasri Mulla Haidar in the magazine of lawyers, forming such tribunals and committees violates the principle of judicial neutrality.
In 1 - Military Courts, which were described by the constitutional experts as a queer method that does not accord with the normal judiciary of independent authority. Also, it does not accord with the democratic method. Many decrees, some of which were Arabic, prohibited the establishment of such exceptional tribunals. 2 - Some of the exceptional tribunals are the military courts, which do not comply with rules or sanctions. The judges in these courts should not be, necessarily, graduated lawyers or related to the field of law. Originally, these courts are specialized for judging the soldiers in certain cases. Nevertheless, a legislative decree imposed widening the jurisdictions of these courts to judge the civil people.
3 - Also, another court is the 4 - The laws established other special committees like, the committees for controlling the salaries of agricultural work and labors' dismissal, plus others.
5 - The All these courts and committees stole the specialization of judiciary and restricted its work within a limited range, besides, violated its neutrality and dignity. Conclusion:
After
The mentioned decree included one judge
named Ahmed Rashed. He was deputized for heading the military court,
which judged the participants of
In 1966, the writer of this report was
deputized for work in the Libyan Judiciary. The authority issued a
legislative decree that indicated the omission of the judicial immunity,
thus, 24 judges were dismissed from work and I was one of them. Also,
Mr. Abd Al Kader Al Aswad, the head of the Cassation court was
dismissed. He was one of the biggest judicial personalities in Judges are the commanders of right, who are necessary for the command of power, because the power without right means tyranny and theft of rights. The command of power for the sake of right rectifies the false and saves the humans from loss among the law of the jungle. The human governments have two criterion powers of control, the power of law and the power of arms. Judges who are above fear and blame or influences, should direct the power of law, otherwise, the power of arms would predominate and lead to the domination of the military systems above the civil systemsژ(2)گ. In addition, most institutions of the state reject executing the judicial verdicts. Actually, those who refuse to execute any judicial verdict would have a legal penalty. Nevertheless, a wrong perverted jurisprudence prevented querying the Minister, who refuses to execute the judicial verdicts, except by the President of the Republic. The directory of prompt that follows the Ministry of Justice issued this jurisprudence.
Accordingly, we can notice how the
judiciary authority collapsed, completely, in
It is useful to review some establishments
in the
This will clarify that the executive
authority and the following Party's organizations had penetrated into
the depth of the judicial system and its entity, plus, stole its liberty
and independence. If we enter the 1 - A room for the Party's group. 2 - A room for the pledge of allegiance. 3 - The economical court is located in the last floor. It is closed and its sessions are secretly held. The lawyers are prohibited to see its files. It is similar to an institution of security, which has no relation with law. 4 - The pictures cover the walls of the courts in a way that spoils the judiciary's dignity and transform the court into an exhibition for portraits. This view does not accord with the general sense of a Palace that heads for justice. Finally, I present all the mentioned points for the whole society. Probably, there would be a listening ear that would regain the honor and neutrality for the judicial authority and guarantee immunity for the judges to protect them from the fear of "Sultan" and the worry about their future and their families. Accordingly, we can guarantee an important fortress to protect the whole society from the tyranny of arbitrariness and oppression, thus, people become tranquil about their future. Footnotes:
(*) "The Holy Qur'an", 4th edition, Amana
Corporation, 1) The mentioned decree at the end of the research. Documents: The legislative decree No. 40 The President of the State According to the verdicts of law No. 2 issued by the temporary Regional Leadership of Ba'ath dated 25.02.1966, and the Council of Ministers' decision No. 334, on 29.05.1966, the following was decided: Article No. 1: Contrary to all valid verdicts, especially, the Article No. 92 of the judicial law No. 98, dated 15.11.1961 and its adjustments, the Council of Ministers is allowed, for 24 hours and for its estimated reasons, to decide the following: 1 - To dismiss the judges from employment. 2 - To transfer the judges from their cadres to any other cadre. This decision does not require justification or include reasons for dismissal or transfer. The judge is dismissed or transferred by a decree, which is unable to be reviewed. Moreover, it is not allowed for the state council or the general institute of the cassation court or any judicial source or any other administrative source to review, object, contest or appeal against the imposed decree. The rights of the dismissed judge are settled according to the law of retirement. Article No. 2: This legislative decree is to be declared and considered valid right after issuing. The President of the Republic Dr. Noor Al Deen Al Atasi
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