Legislative Decree No. 49 issued on 10/9/2008
The historical background, its practical application and the aims of this legislation.
Firstly, we must identify the legal and comprehensive rights as embodied in the Syrian Civil Code to clarify the whole picture when trying to understand the above-mentioned Legislative Decree.
Legal rights in the Syrian Civil Code:
Rule 1 – Ownership of property
Rule 2 – Rules and Regulations
Rule 3 – Surface
Rule 4 – Utilisation of land
Rule 5 – Easements in real estate
Rule 6 – The right of precedence of the vacant land permissible
Rule 7 – Concessions
Rule 8 – Mortgage, insurance and real estate
Rule 9 – Entail
Rule 10 – The right of choice resulting from promise of sale
The historical background of this Decree:
The first decree that put restrictions on the constitutional right to own property is the Legislative Decree No. 193 of 1952. This outlined the reasons and justifications (the reasons for it) as follows: in view of the risks that arise from people suspected to have property adjacent to the border, and to ensure the safety of the State, security is set out in this decree at Rule 1. This Rule prohibits the building, transferring or amending of the land located in the border areas. This includes leasing, joint ventures or contracting for agricultural investment for longer than three years, and also prohibits all contractors and contracts that require agricultural investment to bring farmers, workers or experts from other districts or countries, without first obtaining a licence.
The enablers and penalties of the licence, and lack of access to the licence are a two-pronged approach. The decree invalidates any contracts that previously existed. It has neutralised anyone trying to enforce a contract set against what happened in a previous contract, and invalidates any contract made by an alias; also all subsidiary conditions have become invalid. This ensures the implementation of this contract which obligates the Attorney General to (1) establish a case to annul the registered contracts that are contrary to these provisions, and (ii) to enforce the penalties that will be used to punish any official, or Title Deeds, or a contractor in contravention of these provisions.
The borders areas are identified by decree as follows:
1 – the Quneitra area and the entire al-Zwayia area
2 – areas adjacent to the Turkish border to a depth of twenty-five kilometres.
There followed a special decree to redefine the border area to include the town of al-Hassaka, where he was the whole locality of al-Hassaka. This obliged everyone to have the licensing for these transactions, but the underlying reason of this is to recognise all of the land of al-Hassaka as a border area. This is 100 kilometres inside the border, and is inhabited by Kurds, and so this has the effect that they would not be able to buy property over a wider area.
Decree 193 describes the procedure of how legal authorization can be obtained by making a request to the administration of the Ministry of Agriculture, after which the proposal will be referred to the Ministry of Defence where the request will be approved or refused. It is then allocated it to the Ministry of Interior which in turn sends it to the intelligence security services for checking. Then a Minister for Agriculture makes a decree in respect of the request for the person who wants to modify or transfer his rights, and decides on any further stages that need to be completed. A negative reply is unequivocal, and is not subject to recourse to any review or appeal.
Two communications between the Ministry of Justice and the Directorate General of Estate Interests a few months after Decree 193 was issued show that the decree applied only to agricultural land, and only this land should come under this licence.
Practical applications of the decree:
Since these communications identified that this exclusively concerned agricultural land in the body of the decree, the Court of Cassation decreed that this does not apply to the premises and buildings built within the city plans. The civil courts confirmed that they took their lead from this judicial decision, regarding the contracts for selling of buildings and premises in the city plan.
For exchanges regarding agricultural land, the buyer must organise the selling contract between him and the owner, and send the application to the relevant courts. The court will then stamp the application regarding the ownership. The owner will then attend the court to sign for the contract of sale. The plaintiff (buyer) has to show the judge that legal permission arises from the decree 193 of 1952. The case is then postponed to another meeting for the signing.
People withdraw from attending the meeting for signing in order to avoid an inevitable judicial decision to dismiss the matter and a declaration that the contract is void. The process of obtaining a licence takes not less than a year. Withdrawing will at least preserve the right to sell for the future.
Who gets the licence:
To obtain a licence is a lengthy and difficult process. There are many difficulties and obstacles, the time taken to obtain a licence is excessively long – at least one year – it involves painstaking effort and wasted money, which has made it impossible for the Kurdish citizens in this province regarding agricultural land. The right is there in legislation, in international law and protocols, in tradition and religion. Arabs, Chaldeans and Syrians, Armenians, Assyrians have free to access to these licences.
Since this Decree was introduced in 1952, not one Kurdish citizen has been granted permission for a licence. They do not receive any response to their requests, and because they are in an unsupported position, they could not prove the oppression practiced by the authorities to the international community. All those living in this area know that this is how the system works.
Effects of this Decree:
Kurdish citizens are deprived of access to these licences, and so this proves that this decree has been made just for them, in common with the Stateless and Maktoum Kurds who are not recognised as citizens. During this time, Kurds have been suffering from this pressure but not retaliating in order to prevent the breakup of society, until the law called Act 41 was passed in 2004.
Act 41 2004:
Act 41 in 2004 took the place of Decree 193 of 1952, but continued with the same approach, and decreed that the punishment for offending parties will be up to two years imprisonment and a fine of 100,000 Syrian Pound. The previous decree that says those who want to buy in the city, can buy premises or buildings that are within the city plan under previous licence as before. The licence under discussion is for agricultural land only. This left the Court’s door open to listen to the parties regarding sales and legal agreements, except for the land occupied by the market and the land in the city that has not been built on. This is the reverse of the legislation in Decree 193.
Legislative Decree No. 49 issued on 10/9/2008
The citizens, and especially the Kurds hoped for the abolition of Act 41 of 2004 which carried the same grounds as the previous decree, but everyone was surprised by the unannounced introduction of Legislative Decree No. 49, without any mention in the official journal which is a prerequisite for bringing such legislation into force. This decree supports some of the articles in Law No. 41 of 2004 including the following.
The preliminary reading of the text of the decree is as follows:
A. The first article deals with the prevention of buying and selling property, mortgages or insurance, concession or other franchise or lending arrangement that exists for longer than three years or adjust any legal rights regarding premises that are in the border area whether they are within or outside the city plan, where there is a building or no building, agricultural or non-agricultural land, without permission. The process is as described above. Contacts outside these rules will be considered to be invalid.
B. Prevention of the Courts accepting registration of any application intended to regularise the contract for the sale of real estate, unless accompanied by the licence. This is open denial of the judicial system denying itself justice.
C. This decree is contrary to article 30 of the Constitution in making the decree retroactive, and in the decision to dismiss all cases pending prior to the issuance of this decree, in which the plaintiff (buyer) failed to produce the necessary licence.
D. With this decree, judicial decisions were invalid where they had not been finalised, and when invalid and without a licence the current real estate sales could be sent to auction but as it was without a licence, it could only be auctioned as no-one could ever own it.
E. – The decree regarded occupancy of property in the border area which led to a purchase or rent for more than three years as void, unless the owner received a licence within the following three months.
F. The Councils are prevented from organising municipal contracts for three years, for shops and housing and agricultural property without obtaining a licence.
The practical implications and harm of this decree and those affected by it are:
There are disastrous consequences of this Decree on the Kurds because they are barred from obtaining a licence. It must be noted that after the elimination of the agriculture sector by the system in its policies recklessness, there was lack of development of the area and industry was prohibited.
This has resorted in people putting their funds in real estate, construction has begun and against this background we can determine the direct effects as following:
1 – This Decree is contrary to the Constitutional right of citizens to freedom of ownership, housing, and mobility. It violates the Universal Declaration of Human Rights, International Covenants and charters, the Charter of the United Nations and religious teachings..
2 – This Decree suspended the practice of reconstruction because it require permits from the council, which in turn would only be granted only after a judicial decision of the court. As mentioned earlier, the court is banned from registering these cases and from issuing a decision for a sales contract. This creates a situation in which a permit is not possible. A landlord cannot obtain a construction permit without permission from the intelligence security services.
3 – This decree eliminates all existing employment in construction, and this lack of employment is devastating families.
4 – The lack of employment, particularly in the area of construction leaves Kurds with free hands, and by necessity encourages them to consider internal and external migration.
This increase in the number of displaced people is significantly decreasing the region’s indigenous population, and is changing the demography.
5 – There is causing the Kurds to be hungry and therefore absorbed by the issue of how they will eat and house themselves, and distracts them from other issues.
6 – Funds are frozen due to the suspension of buying, selling and construction.
7 – The doors are closed to any companies or institutions thinking about moving into the area.
8 – Kurds are portrayed as traitors and as challenging their loyalty to the homeland
9 – This decree works effectively to involve all the Kurdish people.
10 – This decree is leading to the destruction of the region’s economy and has a negative impact on the resources of state institutions including the judiciary and municipalities, real estate and financial services.
11 – This decree is having a profound impact on certain professions, including scientists, lawyers and engineers.
12 – The decree is widening divisions and the social chasm between people of the region, and increasing the loss of confidence amongst them.
13 – It has affected all other professions because of the effects on real estate trade and the demise of construction.
14 – The decree has increased the reluctance of students to continue their education, because there is a lack of money, and instability.
15 – This decree is increasing the rate of crime and criminality.
Aim of the decree:
Examination of the decree displays strong and dangerous strongest racism, and that this govt is the hand of a serious dictator in its treatment of our people. We live on our historical land, and we work to build this country and take it forward and to build its cities. This decree is aimed at stopping Kurdish development and progress, and to corner Kurds in all ways, forcing them to move and to become vagrants.
The aim of this decree is to progress ethnic cleansing and genocide by changing the demography for a people who are native to the area. Kurdish people are victims of this regime, which is enacting an organised policy with the objective of ending the existence of the Kurdish nation using security forces and intelligence services.
What is the meaning of this decree that is denying Kurds of their rights? It stops them from buying houses to live in, or buying or renting a shop to work in, to bring food for their family. This regime has noticeably cut the resources of Kurds as can be seen every decade, and has changed the life of Kurds to one of tragedy. It removed the national citizenship from them, it has taken 335 villages from Kurdish people since 1974, and it put its hand on their agricultural land in the al-Hassaka area. In addition, it has killed Kurds in the streets as they demonstrated, and along with others who were arrested a significant number have been killed in prison; others have been abducted, and their property stolen.
The Legal Committee of the Kurdish Yekiti Party in Syria, in bringing these facts to your attention appeals to human rights organizations and advocates of right and justice and the general public, both within and outside the country, to raise your voices for the abolition of all discriminatory policies and racist projects that burden our Kurdish people, and for the right to live our lives like others do free of injustice and oppression.
Kurdish Yekiti Party in Syria
Ethnic cleansing of Kurds by the Syrian Government
Legislative Decree No. 49 issued on 10/9/2008