| 24.02,12. 02:08 AM |
International Human Rights Agreements in Syria’s Future
By Muhannad Al-Hassani and Dr. Nael Georges
The popular uprising witnessed by the Arab world at large and by Syria in particular will come to have the greatest effect on political and legal affairs in this region. The outbreak of the Syrian revolution, ongoing since March 2011, has had a pivotal role in the raising of voices calling for change and reform which has now become an imperative necessity, and without which the realisation and restoration of political stability in the country is impossible. In our capacity as an active party among the institutions of civil society, we consider it appropriate to put forward a critical and analytical study highlighting the necessity and importance of reforming Syria’s penal system and bringing it into compliance with international law on human rights, which upholds respect for the basic rights of citizens and is seen as fundamental to achieving development and growth in society.
Among the key policies required in this transitional period are those which restore confidence in the judicial apparatus, and which reinforce the independence of the judiciary, the principle of transparency, and judicial oversight of places of detention and custody; this is in addition to the adoption of a penal policy aimed at reforming prisoners and facilitating their reintegration into society, thereby reducing the likelihood of reoffending. In order to achieve society’s higher interest of reducing crime, avoiding reoffending and safeguarding security – in addition to ensuring respect for human rights and laying the foundations of democracy – there must be a radical review of the present legal and constitutional structure and penal system, in particular in view of the significant legislative and political developments witnessed during the current period. To this end, the next legitimate parliament in Syria must address the need to reform the criminal justice system. In this regard, no matter how much we seek to encircle the laws, decrees and legislation (including the repressive and restrictive constitutional provisions) with arrangements and formalities, the truth is that, when weighed in the scales of legitimacy, they are only worth the paper they are written on if they are derived from natural sources within the conscience and sentiment of the people. These laws are incapable of effecting reform, penal or otherwise, or of any type whatsoever, unless they are first reformed themselves and removed from the clasp of the governing authority and its arbitrary, totalitarian regime.
The criminal or penal policies followed in Syria since the Ba’athist regime came to power have had a significant effect in weakening both affiliation to the nation and the realisation of the principle of citizenship, while also consolidating dictatorship and despotism, to say nothing of the suffering of the thousands of victims of such policies. A failure to respect the general principles of penal policies – particularly in terms of the necessary lessening of constraints on liberty, the implementing of criminal justice and the achievement of the principle of reform of offenders – has given rise to thousands of cases of arbitrary arrest as a result of the absence of independence in the judiciary and the domination of its work by the executive power. This is in addition to the systematic and wide-spread incidences of forced disappearance, torture and extrajudicial killing, and a culture of evading punishment, to say nothing of the increasing rates of crimes and reoffending by former convicts as a result of the absence of any effective reform policy in detention centres and prisons. Furthermore, the state is forced to incur substantial material losses in the form of expenditure on these centres and through the non-utilisation of a large part of Syria’s human resources.
Syria’s penal policies have reached a point where radical reform of the laws is needed, in particular as regards the Criminal Procedure Law and the Penal Law, in addition to the repealing of many decrees which restrict liberties and are devoted to providing the security apparatus with immunity regarding crimes committed within penal institutions and elsewhere. Also required are reviews of arbitrary criminal trials and of the treatment of persons accused of crimes and the role of the criminal penalties applicable to them, in a manner conducive to achieving the basic objective of punishment, namely reform and deterrence.
The aim of the deterrence element is to combat evasion of punishment in order to deter anyone who is considering committing a crime, thereby providing preventive measures leading to a reduction of offending. However, despite the importance of this element, it is not seen as sufficient to prevent crime or reduce its incidence. Accordingly, the reform element must not be disregarded as it is directly link to society's higher interest. The punishment must contribute to the reform of the offender so that, upon release, he may in turn contribute towards building society, rather than constituting a burden or threat to it through reoffending.
Herein lies the importance of the human rights system, which came about as a result of a progressive civilizational development in the codifying of these overarching universal principles, which together form a system of guarantees for human beings in general and for accused persons in particular. A sense of security, in terms of individual psychology, society, everyday life, economics, means of livelihood and even the environment, cannot come about without allegiance to the noble principles of human rights which transcend egotism and objectionable individualism. Man has a natural propensity to selfishness and requires someone to guide and encourage him, to instil in him respect for the rights of others and the defence of pure and fundamental values, and to foster in him the spirit of loving kindness and respect. This can only occur through spreading and universalising a culture of human rights. This includes the principle of the independence of the judiciary and the legal profession, and the principle that international law must prevail in the event of a conflict with domestic legislation.punishment and othherions of punishment and oathertrinciple of rehibiliating offenders.