<<previous  |  index  |  next>>

IV. Syria’s Legal Framework

In principle, Syria’s constitution enshrines many basic rights, including freedom of speech and freedom of assembly. Article 38 of the constitution guarantees the right of every citizen to “freely and openly express his views in words, in writing, and through all other means of expression” and to “participate in supervision and constructive criticism in a manner that safeguards the soundness of the domestic and nationalist structure and strengthens the socialist system.” Article 39 grants citizens the right to meet and demonstrate peacefully, in accordance with the law. ²¹

In reality, however, the Syrian authorities have used the declaration of a continuing state of emergency and its accompanying restrictive legislation to suppress the activities of nongovernmental associations and human rights groups. Underlying this approach is an official view that associations are not supposed to be an alternative to state institutions but rather instruments for the government to develop society and enshrine the goals of the Ba`athist revolution. This view was encapsulated in a response by Bashar al-Asad in 2001 to a question on his views towards “civil society” in Syria:

The main issue is that these institutions are not an alternative to government institutions as some suggest, and they should not precede them in the process of construction. On the contrary, civil institutions are based on government institutions and support them and are not a replacement for them. One cannot talk about healthy institutions for civil society without talking about completing the building of the government’s institutions. As we have spoken about the necessity of reforming institutions and consolidating institutional thinking, the development of civil society institutions should come at a later stage, and therefore it does not represent one of our priorities.²²

The Emergency Law

The current state of emergency has been in place since March 8, 1963, when the Ba`ath Party seized power.²³ As presently codified, the Emergency Law designates the prime minister as the martial law governor of the country and the interior minister as his deputy, and gives them extraordinary powers. The law’s sweeping provisions authorize the martial law governor to:

place restrictions on freedoms of individuals with respect to meetings, residence, travel and passage in specific places or at particular times; to preventatively arrest anyone suspected of endangering public security and order; to authorize investigation of persons and places; and to delegate any person to perform any of these tasks. ²⁴

These powers have created an environment where the authorities abuse the most basic rights and freedoms of the Syrian people on a wide scale and where they adopt arbitrary measures to silence critics in the name of safeguarding national security. For instance, the law forbids contravention of orders from the martial law governor, offenses “against the security of the state and public order,” offenses “against public authority,” offenses “which disturb public confidence,” and offenses that “constitute a general danger.”²⁵

Under the state of emergency, Syrian authorities can refer civilian defendants to the Supreme State Security Court (SSSC, Mahkama Amn al-Dawla al-`Uliyya), an exceptional court that is exempted from the rules of procedure followed by regular Syrian courts.²⁶ Syrian authorities relied on the SSSC in the past to prosecute human rights activists: it was the SSSC that in March 1992 sentenced the 10 CDF activists to prison (see Section III, above), for example. The SSSC charged the defendants in that case with membership in an illegal organization, distribution without permission of leaflets critical of the Syrian government, and conspiracy to undermine the government.²⁷

Most human rights activists consider the continued application of the emergency law as the biggest impediment to their work. One of them expressed his frustration: “At the end of the day, the issue is not a question of [existing] laws, whether they are good or bad. Under the current [emergency] situation, I can’t even buy a fax machine without a permit. The situation is not workable.”²⁸

The continued application of the Emergency Law for over 44 years violates the International Covenant on Civil and Political Rights (ICCPR), to which Syria is a state party.²⁹ Article 4 of the ICCPR limits the application of emergency laws to a time of “public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” It further stipulates that state parties to the ICCPR may derogate from their obligations under the treaty only “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.”

In its 2000 report to the United Nations (UN) Human Rights Committee, the body charged with monitoring states’ compliance with the ICCPR, Syria justified the continued application of the Emergency Law by saying that since Israel’s establishment in 1948, Syria had faced “a real threat of war by Israel,” and that this “gave rise to an exceptional situation that necessitated the rapid and extraordinary mobilization of forces in the Syrian Arab Republic and, consequently, the promulgation of legislation to ensure the Administration’s ability to act rapidly in the face of these imminent threats.”³⁰

However, the UN Human Rights Committee did not find the justification convincing. On July 28, 2005, the committee concluded its observations regarding Syria’s submissions by:

Not[ing] with concern that the state of emergency declared some forty years ago is still in force and provides for many derogations in law or practice from the rights guaranteed under articles 9, 14, 19 and 22, among others, of the Covenant, without any convincing explanations being given as to the relevance of these derogations to the conflict with Israel and as to the necessity of these derogations to meet the exigencies of the situation claimed to have been created by the conflict.³¹

In its response in September 2006 to the criticism by the UN Human Rights Committee, Syria reiterated its position that the state of emergency was necessitated by a “real threat of war, Israel’s continued occupation of part of the territory of the Syrian Arabic Republic, and the real threat of expansion of the occupation,” and that:

[the] Emergency Act is implemented in the Syrian Arab Republic in the narrowest of circumstances and under very special conditions. This is no way implies that it takes precedence over the Constitution and Syrian law or the State’s other international obligations.³²

While Syria’s declaration that the emergency law does not take precedence over Syria’s constitution or its international obligations is a welcome development, the ongoing practices of the Syrian security services towards human rights activists (described in Part V, below) do not support such a declaration.

The Law on Associations

The 1958 Law on Associations and Private Societies (Law No. 93) governs the establishment of any type of association or organization in Syria.³³ It was adopted during the short-lived union between Egypt and Syria as the United Arab Republic (1958-61) and was heavily influenced by notions that the state should control and guide society. Many of the relevant legal details are contained in the accompanying implementing regulations that were adopted by presidential decree in 1958 (the Executive Regulations issued by decision no. 1330 on October 13, 1958). In 1969 Syrian authorities amended certain provisions of the law through legislative decree (Legislative Decree No. 224) to further increase state control over associations.³⁴

One of the key provisions added by Legislative Decree No. 224 allowed the government to “merge” associations that do similar work, and introduced the idea that there need not be more than one association to do any single type of work. As discussed below, the government has repeatedly relied on this concept to refuse to register new nongovernmental associations. Another key provision allowed for the non-judicial dissolution of associations. The preamble of Legislative Decree No. 224 justified the amendments on the basis that

the current law is empty of the rules that permit the state to coordinate social services, for example, by allowing the merging of associations that are similar and working in the same field. In addition, the current law has restricted the dissolution of associations to the judiciary and experience has shown the lack of efficiency of this style because many of the organizations have come into being in conditions that are different from the conditions in the Syrian Arab State.

The law designated the Ministry of Social Affairs and Labor (MoSAL) as the entity responsible for administering the law, including exercising the authority to dissolve groups.³⁵ In practice, however, the Syrian security authorities are heavily involved. As an activist explained to Human Rights Watch, “under the law, you apply to the Ministry [of Social Affairs and Labour]. In practice, you apply to three security agencies: State Security [Amn al-Dawla], Political Security [Amn al-Siyasi], Military Security [Amn al-`Askari].”³⁶

Registration

When a group applies for registration, it lodges the required forms at MoSAL and undergoes an official inspection. Under the law, an association only acquires distinct legal personality after MoSAL publishes its organizing documents in its official registry (Articles 7 and 9 of Law No. 93).

The Executive Regulations detail the registration requirements. MoSAL reviews the incorporating documents of the association “from a legal point of view and from the view of the importance of the goals of the association and the need for such activities,” and asks General Security (Amn `Am) to conduct an investigation of the founders of the organization (Article 6 of Executive Regulations).

MoSAL has 60 days to respond to a registration request. If more than 60 days pass without an official response, a group is deemed to be registered by default, and MoSAL has an obligation to publish the organizing document of the group in the official register (Article 10 of Law No. 93).

Before issuing its registration decision, MoSAL has to get “the opinion of the Ministry of Interior and the opinion of the public institutions that consider that they are associated with the goals of the organization” (Article 8 of Executive Regulations).

MoSAL has wide latitude to refuse a request for registration, including if it deems the purpose of the association not to be the “most pressing.” However, MoSAL must give reasons for its decision in writing (Articles 10 and 27 of Executive Regulations).

Groups that MoSAL has denied registration can appeal to MoSAL to review its decision (Article 11 of Law no. 93 and Article 11 of Executive Regulations). If this appeal process fails, they can also seek to have an administrative court review MoSAL’s decision.

Registration is compulsory, and the law forbids unregistered groups from conducting any activity (Article 8 of Law No. 93). Anyone conducting any organizational activity before registering can be subject to imprisonment for up to three months and a fine (Article 71 of Law No. 93).

In practice, MoSAL plays only a limited role in approving applications for registration. It sends applications to security agencies, where they pass through a tight process of control that involves close examination and investigation of founder members. As is discussed below in Section V, the involvement of the security agencies has prevented all the human rights groups in Syria that have sought registration from being registered.

Control of operations

Law No. 93 and its Executive Regulations provide ample means for government officials to intervene in the internal governance and day-to-day operations of organizations. Meetings are strictly controlled. Associations have to advise MoSAL of any general assembly meeting 15 days in advance and inform it of the meeting’s agenda. MoSAL is supposed to send one of its members to attend any meeting (Article 23 of Law No. 93). In addition, associations are required to send a copy of the minutes of the meeting to MoSAL within 15 days following the meeting (Article 23 of Law No. 93). In practice, a representative of one of the security agencies generally attends these general assembly meetings.

MoSAL has the right to appoint one or more of its staff to the board of any association at any time and in any number and it may determine the prerogatives of such appointee(s) (Article 26 of Law No. 93). It also has the right to set the minimum and maximum number of board members (Article 26 of Law No. 93).

MoSAL has the right to merge associations that have similar goals if it determines this to be necessary (Article 24(b) of Law No. 93).³⁷ In addition, MoSAL has the authority to dissolve associations (Article 36 of Law No. 93). Amongst the reasons that can be invoked to dissolve an organization is “practicing any activity that is sectarian, racist or political that affects the safety of the state” or simply “if the Ministry finds that there is no need for the services of the association” (Article 36(a)(3)&(7) of Law No. 93). In principle, the decision to dissolve needs to be based on an official investigation conducted by MoSAL (Article 36(b) of Law No. 93), but in practice such an investigation does not take place. The dissolution decision is definitive and does not allow any appeal or reconsideration.

Most recently, on January 24, 2007, the Minister of Social Affairs and Labor issued an order dissolving the “Association for Social Initiative” (Jam`iyyat al-mubadarat al-ijtima`iyyat), whose activities focused solely on women’s issues. The ministerial dissolution order did not specify the basis for the decision other than to state that the decision was taken “according to the requirements of public interest.”³⁸

Relations with outside world and funding

Law No. 93 strictly regulates ties of associations to the outside world. The law does not permit any association to join or participate with any entity based outside of Syria before advising MoSAL and waiting for 30 days to make sure that MoSAL does not object (Article 21 of Law No. 93).

MoSAL also has the power to block an association’s funding. No association can receive any money from any individual or association outside of Syria without authorization from MoSAL (Article 21 of Law No. 93). For fundraising inside Syria, an association also needs MoSAL’s prior approval (Article 17 of Executive Regulations).

Stalled attempts to reform the law

In 2005 Syrian authorities began the process of reviewing Law No. 93 and its related executive regulations. MoSAL organized a preliminary workshop in February 2005 in collaboration with the European Union (EU) to discuss how to develop civil society in Syria. A participant in the meeting told Human Rights Watch that the workshop ended without reaching any recommendations.³⁹

A month later, on March 22-23, 2005, the Syrian Commission for Family Affairs (SCFA), a commission established in 2003 by presidential decree, organized a workshop with some 30 participants from different Syrian nongovernmental organizations (NGOs), the EU, the British Council, and the Swedish Embassy to look into the existing association law. ⁴⁰

The participants reached a number of conclusions:

• The government needed to pass a new law, as it was not sufficient to simply amend the existing Law No. 93. As one participant noted, “it would not be enough to amend an almost 50-year old text, which was created in a complete [sic] different context and reality compared to the challenges and opportunities Syria is facing today.”⁴¹
• MoSAL should respect Article 10 of Law No. 93, which (as noted above) provides that if the ministry has not processed an organization’s application within 60 days, the law will deem the organization to be lawfully registered. The participants noted that this was not occurring in practice.
• The government had to remove the difficulties that associations face in the registration process.
• It should allow associations to establish links to other associations working in related areas on the local, national, and international levels.
• It should loosen restrictions on funding and allow associations to fundraise and receive national and international support.
• It needed to appoint a new competent administrative authority to promote the growth of civil society in Syria. ⁴²

However, the drive to reform the existing laws came to a complete stop without the Syrian authorities providing any explanation. MoSAL cancelled the last plenary meeting of the workshop, where the different groups working on the issue were supposed to report on progress. An EU official told Human Rights Watch that they had prepared a draft legal text to revise the existing law but had not circulated it. Activists interviewed by Human Rights Watch had heard rumors of a draft but none of them had seen it.

Overall, most of the activists and diplomats interviewed by Human Rights Watch expressed skepticism about the likelihood of real reforms. An informed foreign embassy official in Damascus expressed the following view to Human Rights Watch:

Even if there is a new law on associations, as long as you have emergency laws that give security services all this power, there will be a big question mark whether a new law will be effective in an environment that is so intimidating. ⁴³

Other Restrictive Laws

The government’s dominant role with respect to associations is reinforced by other legislation influenced by Ba`athist ideology. In particular, successive Ba`athist governments have promoted the formation of general unions in certain segments of the population: a women’s general union, a youth union, a workers’ union. The laws and decrees that created these unions have given them a monopoly over their respective spheres of activity. For instance, Law No. 33 (December 21, 1975), which established the Women’s General Union, prohibits the formation of any other women’s associations (Article 66). Accordingly, activists who want to form a women’s association outside the umbrella of the women’s union will violate the provisions of Law No. 33.