General Amnesty decree between constitutional text; limits of legitimacy / Diaa Iskandar

The general amnesty decree issued by the head of the interim government, Ahmad al-Sha'ara’, has sparked a wide wave of legal and political debate. Attention has focused on the question of constitutional authority namely, determining which party is legally empowered to grant a general amnesty as this is the decisive point in defining the decree and its consequences.

According to what has been announced within the framework of the transitional phase, the powers of the transitional president are defined by the provisions of the Constitutional Declaration. These powers include the right to grant a special pardon (Article 40 thereof), meaning the remission or reduction of a penalty imposed on a specific individual after a judicial ruling has been issued against them.

A general amnesty, however, is fundamentally different from a legal standpoint. It does not merely remit the penalty; rather, it removes the criminal character of the act itself, erases its legal consequences, and applies to broad categories not limited to specifically named individuals.

Herein lies the problem:

A general amnesty falls within the jurisdiction of the legislative authority, as it affects public order, the rights of society and victims, and reshapes legal responsibility on a broad scale. By its nature, it is a legislative act with comprehensive effect, extending to the entire legal structure and entailing a modification in the legal characterization of acts and their consequences. For this reason, constitutional practice in most systems has established that a general amnesty is issued by law through parliament, or by a constituent body vested with legislative authority.

In the current Syrian context, no elected People’s Assembly or fully empowered legislative body has yet been formed. This legislative vacuum does not automatically grant the executive authority the right to substitute itself for the legislative authority in fundamental matters, particularly those affecting transitional justice and the rights of those harmed. The principle governing transitional authorities is that they must adhere strictly to the text of the Constitutional Declaration, not expand its interpretation or exceed it under the pretext of necessity.

Any general amnesty issued by the transitional president without an explicit provision granting such authority is, from a purely legal standpoint, a decision lacking constitutional basis.

If the objective is political namely, to calm the situation or open a new chapter the legal path to achieve this lies in one of only two options:

Amending the Constitutional Declaration to grant the president or a specified body the authority to issue a general amnesty.

Establishing a temporary legislative body or a consensual national authority to enact a general amnesty law through declared mechanisms.

A general amnesty is not merely a political tool; it is a decision that affects justice and victims’ rights and may result in the dismissal of public prosecutions, compensation claims, and personal rights. Therefore, it must not be granted by an individual decision of the executive authority, as this would infringe upon the principle of separation of powers—one of the pillars of any constitutional system, even during transitional periods.

The issue, then, concerns the extent of adherence to constitutional principles that define the limits and powers of authority. Legitimacy during transitional phases is inherently fragile, and any expansion of powers beyond the text opens a dangerous door to entrenching precedents that may later be used to justify further violations.

Building a state governed by the rule of law begins with respecting the limits of authority, not with the good intentions behind its use. The transitional phase whatever its necessities does not justify bypassing constitutional texts; rather, it requires even stricter adherence to them.

Ultimately, the most important question remains:

Is the amnesty intended to be a step toward justice and stability? Or will bypassing the constitutional foundation transform it into a new source of dispute, adding further confusion to an already troubled political landscape?

ANHA