The Constitutional Void in Syria: Challenges of Transition from a State of Exception to the Rule of Law
The constitutional void is one of the most significant challenges facing political and legal systems. The absence or suspension of a constitution without an alternative legal framework leads to the disintegration of the constitutional reference that governs the functioning of authorities and the relationship between the government and the governed. In this context, a controversial situation arose when the new Syrian government announced on January 30, 2025, the suspension of the Syrian Constitution and the dissolution of parliament.
Although this step might be understood as part of a transitional process, the absence of a temporary constitutional declaration outlining the principles of governance during this phase has sparked intense legal debate regarding the legitimacy of this suspension and its implications for the stability of the legal and political system.
Exceptional Measures and the Constitutional Void
It is widely acknowledged that governments, during times of crisis, may resort to exceptional measures to protect their citizens and maintain public order. Governments often implement special procedures to address challenges that ordinary laws cannot effectively manage. However, such measures sometimes blur the lines between legality and necessity, potentially leading to the paralysis of state institutions and jeopardizing political stability. The absence of legal oversight in such situations further increases the risk of overreach and violations.
One of the most prominent exceptional measures that governments adopt in such circumstances is the declaration of a state of emergency, a legal condition proclaimed when a country faces extraordinary threats such as wars, natural disasters, or civil unrest. Under a state of emergency, the government is permitted to temporarily restrict certain rights and freedoms to address the crisis. However, such measures must adhere to legal principles, be limited in duration, and extend only as necessary.
Syria’s History with the State of Emergency
This situation is not unfamiliar to Syrians. Since gaining independence from the French mandate, Syria has rarely experienced prolonged periods without states of emergency, which frequently accompanied military coups. The most notable example was the state of emergency declared by the Ba’ath regime following the coup of March 8, 1963, which remained in place until the outbreak of protests in Syria in 2011. After lifting the state of emergency in 2011, the Syrian regime resorted to a series of other exceptional measures under the pretext of counterterrorism. However, these measures were systematically used to justify repression and restrict freedoms, leading to widespread human rights violations.
Nevertheless, Syria’s approach to the state of emergency differs from global experiences. In other countries, such as the United States after the September 11, 2001 attacks, France following the 2015 terrorist attacks, and Italy during the COVID-19 pandemic in 2020, governments implemented exceptional measures in response to crises. However, these measures generally remained within the legal and constitutional framework, were officially declared, and were subject to judicial oversight to ensure respect for rights and freedoms.
The State of Exception in the Syrian Context
Legally and legislatively, a state of emergency is characterized by being enacted under the umbrella of the constitution, formally declared according to specific mechanisms, and subject to judicial review to prevent abuse. However, the situation in Syria does not align with this description. The new government has neither declared a state of emergency nor martial law. Instead, by suspending the constitution without issuing a new constitutional declaration, the country has effectively entered a legal state known as the “state of exception.” In this scenario, the state ceases to adhere to ordinary constitutional laws, and the executive authorities are granted unlimited powers to manage emergency crises. Furthermore, legal institutions, such as the judiciary, are marginalized, obstructing any role in judicial review, oversight, or accountability.
While there are historical precedents for implementing a state of exception, it remains an extraordinary condition with profound effects on political and legal systems. One of the earliest modern applications was in Nazi Germany following the Reichstag fire in 1933, when Adolf Hitler issued a decree suspending fundamental constitutional rights, allowing him to consolidate power and transform the system into a totalitarian dictatorship.
A similar situation occurred in Greece after the military coup in 1967, when the democratic constitution was suspended without issuing a new constitutional declaration. The military council remained in power until its collapse in 1974. Other examples include Afghanistan after the 1978 coup, Sudan following the ousting of Jaafar Nimeiry in 1985, and Iraq after the U.S. invasion in 2003.
Syria experienced a comparable state of exception following the March 8, 1963 coup, when the constitution was abolished without a replacement constitutional declaration, leaving the country without a clear constitutional framework until the adoption of the 1973 Constitution. This pattern reflects a historical departure from constitutional governance and good governance, where the country has often been governed in a legal vacuum that grants the executive authority unchecked power.
Addressing the Constitutional Void
Resolving the constitutional void requires a comprehensive approach aimed at restoring legitimacy and structuring governance to ensure stability and prevent the misuse of power. The first step is issuing a temporary constitutional declaration that serves as a clear legal document defining the authorities during the transitional period, safeguarding fundamental rights, and delineating the powers of different branches of government. It is also essential to establish a defined timeline that includes a deadline for concluding the transitional phase, with clear steps for drafting a new constitution or amending the previous one, accompanied by detailed action plans to advance toward constitutional governance.
Additionally, transparency and trust-building should be reinforced by clarifying the government’s plans and the rationale behind exceptional measures, engaging citizens in public discussions, and fostering dialogue with various political factions and civil society organizations. Furthermore, oversight mechanisms must be activated by empowering the judiciary to supervise the implementation of transitional measures and forming independent bodies to monitor government actions and ensure the protection of human rights.
Finally, leveraging international experiences by studying similar cases and seeking technical and advisory support from specialized organizations can help ensure a successful transition process.
The current developments in Syria represent a clear example of both a state of exception and a constitutional void. While the government may intend to manage the transition effectively, the absence of a clear legal framework could threaten fundamental rights and expose the country to further instability. Therefore, it is imperative for the government to take urgent steps to clarify the constitutional situation and rebuild trust between the authorities and the people, drawing lessons from other countries that have faced similar circumstances.
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Ibraheem Jabr is a seasoned legal professional with extensive expertise in international law, human rights, and commercial legal support. Based in Eindhoven, Netherlands,Ibraheem is the Founder and Legal Counsel at Legal Bridge, where they provide expert legal advice to EU-based government agencies and law firms navigating the complex legal landscape of the Middle East and North Africa (MENA) region.