A Special Chapter - Part 1: The Dismissal of Ihsan al-Qawas and the History of Judicial Immunity in Syria

During my own time as Minister of Justice, certain events came my way that I did not need any specific date to record.

I decided to record them here, numbered in a plain sequence, one bearing no relation either to their own importance or to chronological order.

Even so, they give a practical sense of how the unionist system's own work actually proceeded, during the first months of the Union, before I left the Ministry of Justice for the Ministry of the Treasury.

The Dismissal of Mr. Ihsan al-Qawas

The ink on the Union agreement's own signature had scarcely dried when the Minister of Interior, Abdul Hamid al-Sarraj, surprised us with a draft decision he put before the Council of Ministers, providing for the dismissal of Mr. Ihsan al-Qawas, Secretary-General of the Ministry of Interior.

I was truly astonished at this sudden, strange proposal.

The council's session was a morning one, held at al-Muhajirin Palace, chaired and conducted by Mr. Akram al-Hourani, Vice President of the Republic, with Mr. Sabri al-Asali, the other Vice President of the Republic, beside him. A graveyard silence fell over the council, for none of us knew of any wrongdoing on al-Qawas's own part. On the contrary, he was known for his own integrity. When no one else asked to speak, I did, and asked what reason had led the minister to submit this proposal. His answer was neither convincing nor even sufficient to justify expelling a senior official from his own post. I answered him that dismissing an official, especially as we stood on the threshold of a magnificent, historic national era, meant cutting off his own livelihood, on top of tarnishing his reputation among the people. I added that I could understand and accept dismissal only in one of two cases, either the official had betrayed his own state, or he had proven corrupt, embezzling state funds or taking bribes, and short of these two cases, I would vote against any dismissal at all.

Amin al-Nafouri, Minister of Public Works, spoke up and said: "Let us follow the democratic rule, that the decisive decision belongs to the majority." A vote was taken, and no one opposed the decision except me.

What truly astonished me was the stance of Hassan Jabara, Minister of Planning and father-in-law of Mr. al-Qawas, and the most senior of us all in government experience, who did not utter a single word, nor register any objection, during the vote.

Once the session broke up, he came to me to thank me for my "bold stance," and I asked him: is Ihsan a traitor? He said: no. I asked him: is he corrupt? He answered: never. I told him: you have wronged him, and wronged your own conscience.

The Question of Judicial Immunity

After the long experience the democratic nations went through, they arrived, in the end, at establishing judicial independence and judges' own immunity against both the executive and legislative powers, the judiciary being one of the state's own three powers. Constitutions have granted it fundamental guarantees, so that it can issue its own rulings in impartiality and integrity, without fear of a minister's or a powerful man's threat, so long as a judge is neither transferred nor removed except in the precise cases the law itself specifies.

Our own Syrian constitutions have embraced the principle of judicial independence.

Article 34 of the 1930 constitution (the constitution the Syrian National Assembly approved in 1928, later amended by the French High Commissioner) provided as follows:

"Judicial authority shall be exercised according to a system established by law, providing judges and litigants alike with the necessary guarantees, and judges shall be independent and may not be removed except in the cases specified by law."

The 1950 constitution (the first constitution drawn up in the independence era) called it the Judicial Authority (Chapter Five of the constitution), and stated, in Article 104:

"The judiciary is an independent authority," and stated, in Article 105, confirming and elaborating on Article 104, the following:

Judges of the bench are independent, subject to no authority but the law in their own rulings.

The judges' own honor, conscience, and impartiality are the guarantee of the people's rights and freedoms.

This independence was further affirmed in Article 106, which stated:

"Before taking up his own post, a judge shall swear that he will judge between people with justice and respect the laws."

A judge bound to respect the laws has no right to submit to a powerful man's threat, nor to accept a minister's intervention.

It placed judges' affairs in the hands of the Supreme Judicial Council, chaired by the President of the Supreme Court (not the Minister of Justice).

The constitution drawn up under Adib al-Shishakli's own rule in 1953 preserved these very same principles, transferring them word for word into Articles 106 and 107.

Even the provisional constitution, issued at the very start of the union between Egypt and Syria, on 5 March 1958, provided, in Article 59, "that judges are independent, subject to no authority but the law in their own rulings, and no authority may interfere in cases or in matters of justice," and affirmed this independence by protecting the judiciary, stating, in Article 60, "judges may not be removed, in the manner set out in the law."

These principles were confirmed in the 1973 constitution, whose Article 133 provided for judges' own independence and immunity.

This constitution chose to make the President of the Republic chairman of the Supreme Judicial Council, with the Minister of Justice acting as his deputy, the very approach the most recent French constitution has also chosen. Jurists have explained the head of the executive authority's chairmanship of the highest judicial council as a wish to affirm the judicial authority's own independence, precisely by placing the head of state at its own head.

Judicial Authority Law No. 133, dated 8 May 1953, and its amendments, set out the details of judicial immunity, but the amendments introduced to this law during the secession era (Legislative Decree No. 66, dated 12 July 1962, especially) granted the Minister of Justice the power to propose the appointment, promotion, discipline, and removal of judges, just as the chairman of the Supreme Judicial Council held, with the final decision still resting with the Supreme Judicial Council. This was the first blow struck against the face of judicial immunity, and another followed in 1966, when the Minister of Justice himself became chairman of this council, in the President of the Republic's own place (Article 65, as amended, of the 1961 Judicial Authority Law).

As Minister of Justice, I respected this immunity, and never once tried to tamper with it, out of loyalty to my own legal convictions, and out of respect for the many long years I had spent teaching these very principles, in full detail, at the Faculty of Law, instilling in my own students the conviction that justice can only be achieved through judges of integrity, honor, independence, and purity of conscience.

We conducted our own government's work on the basis of these very principles, where the administration of justice was concerned.

But I began to hear, within the Council of Ministers, certain notes, growing ever sharper, demanding that I lift judges' own immunity and dismiss the corrupt among them, especially since "this is a progressive, revolutionary era," implying, by extension, the need to be rid of the most senior judges, considered "reactionaries and sons of privileged families."

Each time, I would stall and change the subject, for I feared that, were I to lift this immunity by legislative decree, an easy enough thing to do in those days, within twenty-four hours or so I would find myself faced with a demand to dismiss the President of the Supreme Court, the head of the Court of Cassation, and the heads of the appellate courts, or some of them, and be told: decisions are made by majority. We would then replace them with judges lacking their own experience, perhaps their own integrity and impartiality as well, and the judiciary itself would then enter, and I along with it, a labyrinth whose way in I knew well, but whose safe way out I could not be sure of at all.

The military ministers, in particular, kept pressing me to lift this immunity, "to purify the judiciary." At that point, I decided to study each judge's own case, by consulting those senior and "mid-level" judges I trusted, along with the head of the inspection body, under a pledge of absolute confidentiality. My own inquiry concluded that, among the roughly three hundred judges, about eleven were under some cloud of suspicion, and two others were vouched for by some and criticized by others.

I took my own decision: I would not lift judicial immunity, and would instead handle the matter of these suspected judges through personal contact with the chairman and members of the Supreme Judicial Council, placing them in posts far removed from contact with those with interests at stake.

I conveyed this decision of mine to the Council of Ministers. It was a final, irreversible decision, and my colleagues accepted it from me with a mixture of relief and disappointment. When Nihad al-Qasim later became Minister of Justice, in the new cabinet formed some months afterward, he decided to lift the immunity "on his own responsibility," and it was decided to dismiss those my own inquiries had found guilty, except for one who was dismissed without real cause, and another who was not dismissed, though justice called for it. When I asked him why this one had not been dismissed, he excused himself by saying his dismissal would cause him a family problem, and, in the end, transferred him instead to a post as a notary clerk.

I also found that among "those under suspicion" were a number who had "tampered" with their own ages, obtaining judicial rulings "reducing" their own age, so as to extend their own term of service. One of the senior judges I "trusted" advised me to secure a law from the President of the Republic annulling every such age correction, so that any judge who had, in truth, grown old and frail, though still young on the civil registers, would be sent home. The President approved issuing this law, and the President of the Court of Cassation (currently called the Cassation Court), a man known for his integrity but for a poor grasp of the law, was thereby removed, along with some of its counselors.

But I was later surprised to learn that the very senior judge who had given me this advice had, in fact, been working for his own benefit as well, gaining four extra years of service from it, having once corrected his own age upward by four years. He had been on the verge of retirement, and once I secured this very law, the upward correction of his age was annulled, and his own term of service was thereby extended.

I bear witness that I never once regretted this "benefit" to him, for he held a senior judicial post that genuinely needed his own integrity, honesty, and sound understanding of the law.

President Abdel Nasser later honored him, choosing him to hold the highest judicial post in the Republic, and he remained in this post throughout the secession and for several years of the 8 March era within the Syrian judiciary, retiring only once his own term ended, before age itself ever forced him out.

Below is the story of one of those under suspicion:

He was the presiding judge of one of the appellate chambers, and a woman came to me complaining of his own injustice and bias, saying he had asked her to buy him an amber prayer bead necklace, from a jeweler he named for her in the goldsmiths' market, worth 150 lira. I found this charge truly astonishing, for I knew this judge to be a man of firmness and integrity, and, besides, given his own social standing, he had no need at all to request or accept such a gift. When I asked her for proof of what she said, she told me the conversation had taken place in his office, with no one else present, but she swore on the Noble Quran that she was telling the truth. I felt my own head nearly split at so terrible a charge, one with no evidence at all behind it.

Even though I held no real authority over the bench's own judicial apparatus, I kept a watchful eye on him, and managed to have him placed in a post where he could do neither good nor harm.

As time went on, I came to hear unbelievable stories about certain judges, stories whose sheer ugliness and filth left me reciting a thousand opening prayers for the souls of those Nihad al-Qasim later dismissed.