The Syrian situation is experiencing a rare moment of complex constitutional vacuum, a moment governed not by a permanent, ratified constitution, but by a temporary constitutional declaration, within a political context where the foundations of the transitional process are still incomplete.
At the heart of this moment lies a two-pronged legal and political dilemma:
- On the one hand, there is an urgent need to administer and restructure the state, which is generating a flood of legislative decrees of an economic and administrative nature.
- On the other hand, there is an urgent human rights and societal demand to abolish the exceptional legal arsenal of the former regime, a demand that is not finding its way into legislation, and whose postponement is often justified by the absence of the People’s Assembly.
This duality in legislative action—where the authority to establish public companies and bodies expands, yet suddenly shrinks when laws pertaining to freedoms are repealed—is no longer merely a human rights concern; it has become a dilemma at the very core of the foundational legitimacy of the transitional state. This article does not aim to condemn anyone, but rather to offer a research-based perspective that helps decision-makers understand the roots of this dilemma and propose a theoretical and practical framework for overcoming it.
Methodology:
The article adopts a comparative analytical approach that combines three tracks:
- Textual Analysis: Comparing the articles of the Syrian Constitutional Declaration with the outcomes of legislative practice.
- Philosophical-Legal Analysis: Utilizing the tools of the philosophy of law to understand the problems of “state of exception” and “legislative necessity.”
- Comparative Approach: Drawing lessons from international experiences in managing legislation before the election of parliament (Tunisia 2011–2014, South Africa 1993–1996, Iraq 2003–2005).
Analyzing the Phenomenon: What Do the Facts Say?
Looking at the legislative record from July 2025 to May 2026, a clear pattern of selective legislation emerges.
Presidential decrees were issued amending the Investment Law, establishing major national companies (such as those in the petroleum, mining, and electricity sectors), restructuring the customs, civil aviation, and border crossings sectors, and culminating in the issuance of a new 78-page Customs Law—all without any parliamentary oversight.
Conversely, the Cybercrime Law (No. 20 of 2022) and similar laws, described by Syrian and international human rights organizations as tools used to restrict freedoms, remain in effect untouched.
It is noteworthy that the Constitutional Declaration itself (Article 48) stipulates that “the state shall pave the way for achieving transitional justice by repealing all exceptional laws that have harmed the Syrian people and contradict human rights.”
Anyone reading the situation objectively cannot help but notice the stark contrast: the executive branch enjoys almost absolute legislative power in the economic and administrative spheres, while in the legal sphere, it is relegated to the role of the “absent parliament.”
This observation does not, and will not, pass moral judgment on intentions, but it does raise a legitimate question about the legal logic governing this selective application.
The root of the dilemma lies in the legitimacy of “necessity” and its philosophical fragility:
From the perspective of legal philosophy, the transitional state is experiencing something akin to a “state of exception,” as described by the Italian philosopher Giorgio Agamben.
In the absence of the original legislative authority (parliament), the executive branch assumes the function of legislation under the pretext of necessity.
However, constitutional jurisprudence teaches us that the “necessity” that justifies a temporary departure from the principle of separation of powers must be subject to three strict conditions:
- Exceptional: It must be a temporary and exceptional measure, not a permanent rule.
- Proportionality: The measure should be limited to what cannot be postponed, as it directly impacts the fundamental functioning of the state and prevents its collapse.
- Legitimacy of purpose and value neutrality: Necessity should not be used to achieve a specific political project, but only to ensure the continued, minimum functioning of institutions.
When applying these three criteria to the case under consideration, the objective observer finds themselves facing difficult questions:
- Does the description of “urgent necessity” apply to the establishment of a national mining company, but not to the repeal of a law that leads to arbitrary arrests?
- Does the criterion of “exceptionalism” remain valid when direct presidential legislation becomes the norm, while parliament is relegated to matters of freedoms only?
- Does the notion of “neutrality” hold when the vast majority of decrees focus on restructuring the economy, security, and administration (i.e., reproducing the instruments of sovereignty), while completely neglecting the system of rights and freedoms (i.e., redefining the relationship between the individual and the state)?
Here, the question is not “Is the authority national or not?” nor “Does it intend good or not?” The question is purely philosophical and structural: Will this path, even assuming good intentions, not lead to the perpetuation of an incomplete legal structure and a distorted inheritance of the future Syrian social contract?
Lessons from International Experiences:
The Syrian predicament is not unique in the history of political transitions. Many countries have faced the problem of “legislation before parliament.” Comparison can illuminate possible options without simply replicating them:
- Tunisia (2011–2014): After the dissolution of parliament, the “High Authority for Achieving the Objectives of the Revolution, Political Reform, and Democratic Transition” was formed, followed by the National Constituent Assembly.
The important point here is that the decrees issued by the interim executive authority focused on “dismantling the system of repression” (abolishing exceptional courts, granting amnesty to political prisoners, and guaranteeing freedoms), alongside managing daily affairs.
Repealing repressive laws was a priority, not a secondary matter. Tunisia did not wait for the election of a full parliament to repeal the old anti-terrorism law; rather, it used the necessary tools in both the administrative and legal spheres. - South Africa (1993–1996): In the period preceding the final constitution, the “Transitional Executive Council” was established, comprising representatives from the government and the opposition, to oversee the executive authority and ensure that no single entity monopolized legislation.
The 1993 interim constitution established specific legislative powers to ensure “non-repetition of the past.” The repeal of apartheid laws was placed at the top of the agenda and was not postponed pending the formation of a permanent parliament. - Iraq (2003–2005): The Coalition Provisional Authority issued numerous decrees but made a grave mistake by dismantling state institutions without a ready alternative.
The Iraqi lesson is that “governance” and “rights” are not separate paths. Any delay in reforming the rights system creates a sense of exclusion and injustice, and deprives the transitional authority of its moral capital, even if it is building economies and businesses.
The common lesson is that in successful transitions, the imperative was not divided into two: a rapid “economic imperative” and a slower “rights imperative.” Rather, the legitimacy of the transitional phase was understood as a foundational legitimacy with a dual foundation: restructuring the state and redefining its relationship with the citizen.
Towards a Transitional Constitutional Pact:
If the problem is as fundamental as described, the solution does not lie simply in rushing to elect a parliament, because the next parliament will inherit this already flawed structure.
Perhaps the optimal solution is what can be called a “transitional constitutional pact.” This framework is based on a simple idea derived from John Rawls’s philosophy of “justice as fairness,” where citizens cannot be asked to agree to a new social contract while they remain at the mercy of laws originally designed to silence them.
The components of this proposed “transitional pact” are:
A supra-legislative declaration of principles: Issued by the presidency, in consultation with a broad body of independent legal experts and representatives of civil society, this concise constitutional document defines the peremptory principles of the transitional phase.
Its most important clause states: “All exceptional laws that have harmed the Syrian people shall be immediately repealed,” specifying them (including, for example, the Cybercrime Law).
This declaration derives its legitimacy from fulfilling Article 48 of the current Constitutional Declaration and expressing the spirit of change.
A Transitional Rights Advisory Council: This council is not required to be an elected parliament, nor should it replace one. Rather, it should be a temporary body of experts with geographical and societal representation. Its sole function would be to review existing laws and categorize them into three lists: (a) laws to be repealed immediately, (b) laws to be amended within three months, and (c) laws to remain in effect temporarily. The council would then submit its recommendations to the presidency for approval by decree. This council would be advisory and non-binding until the next parliament builds upon its recommendations.
This would legitimize the repeal of repressive laws using the same mechanism employed in administrative reforms, without the need to wait for a fully constituted parliament.
The “balanced necessity” criterion: The presidency should adopt the principle of “coupling procedures” in its upcoming decrees. This means that every administrative/economic decree (such as the Civil Aviation Authority decree) should be accompanied by a corresponding human rights decree (such as abolishing an exceptional court or amending an emergency law).
It is true that this is not a radical solution, but it prevents the escalation of duality and sends a reassuring message to the community and international observers that the new Syria takes the rights of its citizens as seriously as it takes the building of its economic institutions.
Conclusion:
The dilemma facing Syrian decision-makers today appears to be neither purely technical (the absence of a parliament or People’s Assembly) nor purely political (a power struggle).
It is a fundamental philosophical dilemma: how do we transition from a state where the law was used as a tool of oppression to one where the law is a voluntary contract, without creating a contradiction that undermines our moral credibility?
If a transitional Syria were to do everything to build its economy, army, and administration, while leaving its citizens at the mercy of laws designed to silence them, it would be constructing a skyscraper on a foundation of straw.
It would be producing a “modern” state based on a poisoned social contract.
Repealing repressive laws is not merely a “demand of the opposition or the revolution,” nor is it a “gain for one group over another.” Rather, it is the cornerstone of any comprehensive Syrian project. This is not a minor matter to be postponed until after the state stabilizes; rather, it is a prerequisite for the state’s stability itself. A state whose citizens do not feel secure under its laws will not command the loyalty necessary to withstand future challenges.
The transitional decision-maker must examine the legislative record of the past year to see its reflection in the mirror of reality. This mirror is impartial and unbiased, clearly stating: “Many institutions have been built; now is the time to build trust. The tools are in our hands, the mechanisms are at our disposal—let them be used.”
