Amending the Syrian constitution… achieving a quota or reaching a solution?
Enab Baladi’s Investigation Team
The idea of drafting a new Syrian constitution was seriously put forward for the first time at the Russia military base in Khmeimim, and during the “internal opposition” meeting in March 2016. Although the meeting has resulted in declarations only, Russian support of the so-called “opposition” on Syrian soil carried signs of the developments, which will take place at the level of the constitution issue later on.
During that meeting, Russia announced itself as the only sponsor for drafting a new Syrian constitution, or rather as the sponsor for any political solution, whenever Russia wishes. Two months later, Russia released its draft of the constitution through newspaper leaks. This draft served specific segments of Syrian society as well as the Russian interest.
The Russian draft of the new constitution reflected the idea of ”Association of Regions” rather than “local administration”, and proposed to omit the “Arab” status and call the country “The Syrian Republic” only. The draft also reinstated the conditions for presidential candidates, who should be 40 years old, holding the Syrian citizenship, and elected for seven years for only two terms, in addition to limiting his powers in favour of the government, abolishing the adoption of Islamic religion as a source of legislation, and “secularizing” the state. However, this version of the draft has been offered to the regime for amendments.
At the end of Astana’s first talks in January 2017, Russia publicly presented the draft of the constitution after it was prepared by Russian experts, triggering backlashes at the level of the opposition members who considered the articles of the draft as “humiliating”. The pro-regime members also considered that the constitution is “full of concessions”.
The back-and-forth situation has lasted for one year, during which Russia, which was supposed to find a way for political settlement, had a lot of plans in Syria. After the so-called “Sochi” conference, Russia pushed the regime to announce the names of the constitutional committee members who were nominated by the regime itself as a first practical step toward the constitution.
Russia is rushing toward the Syrian constitution
The Constitutional Commission has been leading the political scene in Syria for the past four months since the National Dialogue Conference in Sochi decided its formation in late January 2018. It has been promoted as a key element that will shape the future of the next stage in Syria, after finishing military operations on the ground between the Syrian regime and the opposition.
As soon as the Syrian regime and its allies submitted the list of candidates to the committee, a talk has been held about the outlines the committee will follow and whether it will only amend or change some parts in the current constitution, or radically change it by writing a new constitution instead, after agreement with the international observers of its work.
Amendments that maintained al-Assad’s power
In the wake of the Syrian Revolution, the existing constitution in Syria was that of 1973. This constitution was amended twice, the first amendment occurred in 1981, and the second in 2000. Both amendments were meant to change the age of the President of the Republic from the 40 to 34.
On October 15, 2011, Syrian President Bashar al-Assad issued a republican decree No. 33 to form a 29-member committee to rewrite the constitution until the promulgation of decree No. 94 in February 2012 that adopted the 2012 constitution.
The Constitution of 2012 stipulates that Syria is “a democratic state with full sovereignty, indivisible, and may not waive any part of its territory,” and which reigning regime is that of the republic, where the people are the ruling authority. The constitution maintained most of the articles and items of the previous constitution of 1973. Another 14 articles and 47 amendments were introduced, but it kept the broad powers of the President of the Republic.
The 2012 version of the constitution consists of 157 articles, which include six sections, 9 chapters and a preamble. The first and second chapters tackle the basic principles, rights and freedoms and the rule of law. The third, deals with the State authorities and the fourth revolves around the supreme constitutional court, while the fifth part relates to the Amendment of the Constitution, and the sixth part is about the general and transitional provisions.
The fifth section of the current constitution suggests that “the President of the Republic, and so does a third of the members of the People’s Assembly, might propose amending the Constitution. The proposal for amending the Constitution shall state the text proposed to be amended and the reasons for making the amendment. As soon as the People’s Assembly receives the proposal for amendment, it sets up a special committee to examine it. The Assembly discusses the proposal for amendment. If it approved it with a three quarters majority, the amendment shall be considered final provided that it is also approved by the President of the Republic.”
One constitution and different positions
The situation is currently different concerning the type of constitutional amendments, for political conditions are no longer as they were in the wake of 2011 and other international parties have become involved in the Syrian arena and have taken control of the political decision there.
When the regime starts to send lists of candidates to the Committee, attention will shift toward the three main parties, namely Russia, Turkey, and Iran, which control the political and military solution in Syria.
During an interview with Enab Baladi, the director of the Syrian Justice and Accountability Centre, Mohammed al-Abdullah, stated that the Russian idea of the constitution is wavering between different positions. At first, Russia proposed a new constitution and leaked parts of its draft, which included a lot of changes that corresponded with Moscow’s rather than the Syrian people’s perception, such is the case with the issue of community representation and administrative decentralization.
According to Abdullah, no Syrian team has been consulted while preparing the draft, including the Syrian regime, which is an ally to Russia.
After the failure of Astana and Sochi talks and the UN’s launching of the idea of the Constitutional Commission, Russia was keen on putting pressure on international envoy Staffan de Mistura to ensure that 50 percent of the committee’s members are for the regime, 30 percent for the opposition and the rest are international experts.
Abdullah added that this means that Russia has guaranteed that no real change will happen at the level of the constitution and that the only party to allow changes is Russia.
In the latest statement about the Syrian regime, Foreign Minister Walid Muallem said that the Syrian regime has sent 50 names to the constitutional committee. He pointed out that “the Syrian state must have the majority in the committee and the decisions of the committee must be unanimously taken.”
He added that when the committee reaches a consensus on amending the articles of the agreement, its members will submit a recommendation to the Sochi Conference so as to be approved and then submitted to the Syrian government so that it will comply with the provisions of the current constitution. This contradicts the vision of the Syrian opposition which seeks to amend 23 items in the 2012 Constitution.
Al-Abdullah believes that in case Russia imposed its old draft and re-leaked it through the pro-regime members in the constitutional committee or pushed for changes in the constitution, then we will have an amended or a new constitution in which production neither the Syrian people were consulted nor the representatives of the Syrian people took part effectively. Such constitution will not solve the problems produced during seven years of fighting such as the restoration of property, providing compensation for victims, or identifying the fate of missing people.
Al-Abdullah stressed that any constitution partly or completely drafted by Russia does not rebound to the Syrian people interest. He pointed out that opposition figures participating in the constitutional committee should pay attention to this issue in order to ensure that the largest amount of authentic amendments will be passed.
Criteria that controlled the selection of the members of the constitutional committee
Ambiguity surrounds the working mechanism of constitutional committee about which nothing has been revealed except for the names nominated by the Syrian regime to be its spokespersons and accountable of any possible amendments to the Constitution that constitutes the main aim of these meetings and preparations.
Three parties are expected to share the amendments which the Syrian regime finds pointless, considering that the 2012 Constitution is “comprehensive” and does not need any amendment. The first party consists of the candidates of the Syrian regime, the second of the candidates of the Syrian opposition and all of its components and the third party are the counsellors of the United Nations who would often be observers.
The Syrian regime sent its list of candidates to the United Nations through the Russian mediator. Although the names of the candidates were not officially published, the Saudi newspaper Asharq al-Awsat leaked the list of the Syrian regime, which consisted of 50 candidates most of whom belong to the same ruling Ba’ath Party and members of the Council. The eligibility of these people to draft a constitution on behalf of an entire people has been largely questioned.
The leaked list is headed by members of the government negotiating delegation to Geneva, except for the delegation’s head, Bashar Jaafari, as well as MP Ahmad Kuzbari, legal adviser Ahmed Arnous, Amjad Issa, and Amal al-Yaziji.
The list also included 30 names, including “Baathists” Safwan al-Qirbi, Khaled Khazal, Radwan Ibrahim, Sherine al-Yousef, Maha al-Ajili, Hassan al-Atrash, Turki Hassan and Musa Abdel Nour, as well as assistant to the former Minister of Information, Taleb Qazi Amin, the anchorwoman Raeda Waqaf and the writer Anisa Abboud
The leaks angered Syrian Foreign Minister Walid Muallem, who declared at a news conference that the Saudi newspaper’s conduct was “disrespectful” in international relations.
As for the Syrian opposition, it has not yet sent its list of candidates to the constitutional committee. Firas al-Khalidi, a member of the Cairo Platform, said that the High Negotiations Committee (HNC) and the Cairo Platform had earlier prepared the names of the candidates, pending lists of the Syrian Coalition and the opposition factions, and a consolidated list on behalf of the Syrian opposition will be sent to the United Nations, which consists of 50 to 60 names, once completed.
As for the criteria for selecting the members of the constitutional committee, al-Khalidi said in an interview with Enab Baladi that there are no approved and clearly defined criteria, noting that such committees usually include “technocrats”, that is, educated elites, specialized in various fields which represent all categories of people, as well as an effective political elite capable of achieving and approving any consensus.
He said: “The opposition list will include a group of politicians, jurists, judges, constitutionalists and representatives of all sections of the Syrian population, so that we can achieve a balance in what we look forward to.”
Al-Khalidi said that the names of people nominated by the Syrian regime to the constitutional committee are not all enough qualified to be in this position. The Syrian regime did not explicitly state that it had nominated this list, but said it “supports” the nomination of this list, which increases the likelihood that the regime dissociates itself from any decisions or consensus issued by the constitutional committee.
He added that the Syrian regime’s list sent to the United Nations is a “fake nomination”, through which the regime managed to cheat by proving its good intentions. He went on: “I do not think that this list is the official final list of the Syrian regime.”
The “Cairo Platform” member rejected the idea that the opposition list of the constitutional committee be in the hands of the Turkish guarantor. He pointed out that the constitution should be set by the Syrian people and its representatives, and no party has the right to interfere in its content, neither Russia nor Turkey nor any other country, as he put it.
The head of the Syrian opposition delegation to the Astana talks, Ahmed Tomah, told Enab Baladi that the choice of the Syrian opposition list to the constitutional committee would be in the hands of the “Turkish guarantor” because Ankara had supported the opposition in the Sochi talks that resulted in the constitutional committee.
From the legal perspective… Constitution amendment legislation requires a Constituent Assembly
The amendment of the constitution is one of the issues of the regime in Syria. In accordance with the 1973 Constitution, the 2012 Constitution stipulated that the amendment should be proposed by the President or one-third of the People’s Assembly.
Judge Ibrahim Hussein explained to Enab Baladi the mechanism of this amendment, stating that “it is the constitution itself which regulates the process of amendment, and to approve the amendment, it must have the approval of the President of the Republic and the majority of three-quarters of the members of the People’s Assembly.”
The adoption of a committee to amend a constitution from outside the People’s Assembly is not permissible, according to the articles of the current constitution, which is adopted by the Syrian regime. The formation of a special committee must be preceded by a constitutional amendment that allows it, according to Hussein.
This shows the opposition’s tendency to adhere to its demand for a new constitution to be prepared by a council similar to the Constituent Assembly and presented later to the parliament for approval, then subjected to the people’s referendum, and this must be preceded by a political solution to initiate this process, according to him.
Russia has already proposed some constitutional amendments but its proposals have not been put into effect. Judge Hussein said that it is not permissible for a foreign party to propose a constitution for a sovereign country. According to him “even if there was a political consensus on the proposed constitution from Russia, legal steps are necessary to pave the way for its adoption and legitimate approval through constitutional mechanisms agreed upon within the framework of a political solution.”
What is the working mechanism of the constitutional committee?
The working mechanism of the constitutional committee is still unclear so far, which makes any near constitutional change unlikely at the time being, as the scene is still blurred, and the clarity of the situation depends on serious steps combining the two committees of the opposition and the regime at one table.
Enab Baladi had contacted a number of opposition figures, and has monitored international reactions to know the expected mechanism of work of the constitutional committee formed by the regime, opposition, and international experts.
A source familiar with the Syrian opposition (who asked not to be named) confirmed to Enab Baladi that the committee will study the 2012 constitution as a preliminary stage, after the completion of the candidates’ lists to form a constitutional committee which represents the opposition, the Syrian regime, and the United Nations by one third for each party.
The source considered that the focus of the Committee work will be on the shortcomings of that constitution in detail. Next, a team of Syrian and international experts will be formed to draft a “new constitution” which meets the demands of the new phase.
The Head of the Negotiations Committee delegation, Nasr al-Hariri, said that the committee is working with the United Nations to define the mechanism of the Committee’s work, in accordance with Security Council resolution 2245, which called for the launching of a negotiated political process led by the United Nations between the representatives of al-Assad regime and the opposition represented by the committee.
Al-Hariri said in a statement at the beginning of June that the committee’s working mechanism and the way it takes its decisions has not yet begun to be discussed. It is likely that this will be clear after the completion of the lists, which will not be formed in less than three months.
However, the head of the opposition delegation to the Astana talks, Ahmed Tomah, told Enab Baladi that no one currently knows this information, and said that “it’s too early to talk about it now.”
The UN envoy to Syria, Staffan de Mistura, has asked the Security Council to develop ideas to draft a “constitution” and organize new elections in Syria to find a political solution.
In turn, the Syrian regime’s Foreign Minister Walid Muallem stressed that the discussions that will take place within the framework of the Committee will be in accordance with the current constitution and will not go beyond that.
Muallem said that the committee’s members, after reaching an agreement on amending the articles of the constitution, will submit a recommendation to the Sochi Conference, which will approve it and transfer it in turn to the “Syrian government” in order to take action in compliance with the provisions of the current constitution.
It was not agreed on the meeting venue, which the foreign minister considered as not as much important as the other party’s dealing objectively with the committee, noting that its decisions would be taken unanimously.
The Syrian opposition believes that the 2012 constitution was drafted according to the preferences and interests of the head of the Syrian regime Bashar al-Assad as it preserves his unique powers and privileges in a way that enables him to render any other authority of any institution or sovereign position powerless, and thus control all areas of political, economic, security and social life, whether through legislation, or administrative orders and instructions.
Mohammed Sabra: The committee aims to turn the revolution into a mere “struggle for power”
Reviewing the constitutional process involves either amending the 2012
constitution, or writing and drafting a new constitution.
The problem is not the way to draft the constitution or who is responsible for that, but simply thinking about establishing a committee or reviewing the constitutional process is a fundamental change of the philosophy of “conflict in Syria” to the philosophy of “what is happening in Syria.”
When we think to review the constitutional process, we will automatically move from the concept of a popular revolution against a whole regime to a conflict between a regime and an opposition.
Anyone who agrees to go to the constitutional committee whether to write or revise the 2012 constitution, practically admits that what happened in Syria is not a revolution but a struggle over a power program between a governing authority and an opposition that wants to share power in restoring the political system, so that they have a share in the distribution of wealth and positions.
Perhaps the other problem that we must read beyond the idea of the constitutional committee is that this proposal is not found in international documents nor in all the Security Council resolutions, which is originally the legal guardian of the Syrian situation.
The Declaration of Geneva was clear in Article 9 when it addressed the need to hold a national conference after the formation of a transitional governing committee as the first task, and this conference has to be inclusive and its results binding in the formulation of constitutional regime in Syria.
The constitutional formulation must follow the establishment of the interim governing committee, as stipulated in the essence of the revolution and the international resolutions concerning the Syrian matter.
Paragraph 4 of the United Nations Security Council’s Resolution 2254 states that the political process includes the establishment of a comprehensive and non-sectarian government within six months. The constitutional regime is then reviewed to reach parliamentary and presidential elections in 18 months. This means, according to the UN documents, that the constitution comes after the formation of the transitional governing committee.
Therefore, we cannot ignore the major problem we are currently experiencing which is the tendency of some opposition members, whether they are aware of it or not or consciously or unconsciously involved in the matter, towards the formation of the committee. This can be considered a change to the Syrian event and the narrative upon which it was constructed. This has turned the revolution into a conflict between the regime and the opposition, that is, what Bashar al-Assad has done comes within the sovereign endeavour of the ruling authority, and does not fall within the category of war crimes and crimes against humanity, and here lies the severity of the matter.
The current constitution is a mask through which the active countries, especially Russia, are trying to legitimize what Bashar al-Assad has done not at present time but in the past, to acquit him of the crimes he committed considering him as an authority that defends public order, even if it erred.
The dissidents’ joining of the constitutional committee, whether the Syrian High Negotiations Committee, the National Coalition for Syrian Revolution and Opposition Forces, or the “factions”, contradicts the essence of the Syrian revolution, the Declaration of Geneva, and the international resolutions, and thus wastes all of the Syrian people’s sacrifices.
The major problem lies in the procedural framework of the formulation of the constitution, about who would give the authority to the committee, who would approve its outputs, how to implement them and who would be the guarantor of the outputs. These questions indicate that we are heading towards the restoration of the legitimacy of Bashar al-Assad’s regime in the past and even in the present. They also form a waste of all the detainees’ struggles and a participation in the crime.
The opposition and the regime are in a real controversy with the Syrian people’s aspirations. They are now at one side, and have become an obstacle in front of the Syrians’ aspirations to achieve a democratic national regime under which there will be no dead people, criminals, politics traders and corrupt people.
Opinion poll: Changing the constitution will not affect the solution
As part of the talks about the start in the process of preparing a new Syrian constitution as a new sign of the transition towards a political solution, Enab Baladi has conducted an opinion poll to its readers on the usefulness of amending the constitution in reaching a solution to the Syrian conflict.
The question Enab Baladi has posed on its Facebook page website was as follows: “Do you think that the solution to the Syrian conflict lies in amending the constitution?”
1,800 respondents have participated in the poll. The majority of them expressed their pessimism about the usefulness of amending the constitution. 62 percent of them answered “No” to the question Enab Baladi has asked. 23 percent of the respondents considered that the amendment of the constitution could contribute to the solution, while 15 percent answered “I do not know”.
User Youssef Khatib, interacted with the poll posted on Enab Baladi’s Facebook page and wrote in the comments: “The Constitution does not suffer from deficiencies as much as Syria is suffering from the criminal regime.”
User Adam Hazza’ considered that the solution does not lie in changing the constitution, but in “changing the government”. Sa’d al-Din Khayatah pointed out that “Ending the Syrian conflict requires the ousting of all those who killed and helped in killing the Syrian people.”
From the Kingdom to the Ba’ath Republic
Eight constitutions have been implemented in Syria
Draft Constitution of 1920
It came after the announcement of the establishment of the Arab Kingdom of Syria, which followed the election of the Syrian General Conference, after the withdrawal of the Ottomans from Syria. Hashim al-Atassi, as the head of a committee, was then entrusted in formulating the constitution.
Its articles stated that Syria is “a parliamentary civil kingdom with Damascus as its capital and its king’s religion is the Islam.”
The powers of this constitution enabled the King to form the ministry from members other than the “royal family” and to make it accountable before the Conference that was entitled to interrogate and withdraw the entrusted confidence from it.
It also limited the powers of the King by the imposition of getting the signature of the Prime Minister and the concerned Minister in any decision he takes.
This draft was not implemented. Its application was limited to 15 days and was not defined as Syria’s basic constitution.
Constitution of 1930
This constitution was passed after the election of the Constituent Assembly in 1928, which Taj al-Din al-Hasani, then appointed as head of state, called for its election, and Hashim al-Atassi was elected as its president.
The Assembly was composed of members from the two states of Damascus and Aleppo, without involving the two states of Druze and Alawite.
This constitution considered Syria “a parliamentary republic with Damascus as its capital and Islam as the religion of its president.” In addition, “The Syrian country, which is separated from the Ottoman state, is an indivisible political unit, and it is no longer subject to any fragmentation that occurred in it after the World War.”
Under this constitution, the President of the Republic is elected in the House of Representatives, but he is not accountable before it. He has also the power of appointing the Head of Government, whose members are chosen by the Head of the Government in cooperation with the parliamentary blocs.
The term of the President under this constitution was limited to five years and he was not allowed to be re-elected until five years of the expiration of his first term.
This Constitution was amended in 1947 and also in 1930 by the French Commissioner Auguste Henri Ponsot, adding Article 116, which provides for the “abandonment of articles that contradict the Mandate instrument until its demise” as well as the involvement of the Druze State in the State of Syria.
The constitution was also amended in 1948 so as to allow Shukri al-Quwatli to be re-elected after his first term.
Constitution of 1950
It was officially passed in September 1950, and was known as the “Constitution of Independence”. It contained 166 articles in its final form.
One of the most controversial topics in this constitution was the issue of declaring Islam as the religion of the state or the religion of the president.
The controversy ended with the preservation of the 1930 Constitution form regarding the religion of the president, in addition to the army’s stand on neutrality without interfering in Syria’s political life.
Constitution of 1952
It came after the second coup of Adib Shishakli in 1952, as he suspended the adoption of the previous constitution, to issue a new constitution that was characterized by its similarity to the adopted regime in the United States.
This constitution provided for the abolition of the position of Prime Minister, in addition to considering the ministers accountable before the President of the Republic.
Under this constitution, the President is elected by the people. He is also considered the Prime Minister who appoints ministers instead of the Parliament. Adding to that, the Parliament’s powers to elect the President and to grant confidence to the Government had been cancelled.
The Four Provisional Ba’ath Constitutions
Several constitutions were issued by the Syrian Revolutionary Command Council between the 1960s and 1970s.
The Council issued a provisional constitution for the country in 1964, and issued another constitution on 1 May 1969.
The last interim constitution issued by the Council was after Hafez al-Assad came to power in 1971 and its adoption continued until 1973.
The constitution of 1973 which was issued by Hafez al-Assad asserted that the goals of Syrian society are “unity, freedom, and socialism”. It also asserted that country is part of the Federation of Arab Republics and that “the people in the Syrian country are part of the Arab nation.”
The constitution also stipulated that the president should be “Syrian and Arab” excluding the rest of the composition of the society.
As for Ba’ath Party, it is considered a “monopolist” of political life, by being the leader of the state and society, according to this constitution.
The Constitution explained that the nomination of the President of the Republic for the leadership of Ba’ath Party is achieved through the People’s Assembly, for the referendum without the presence of any other candidate.
The powers of the President of the Republic are broad and almost absolute. He is the head of the Executive Authority and has the power to issue legislation alone. He is also the head of the Supreme Council of the Judiciary, the appointed to the Supreme Constitutional Court, and the supreme commander of the army and the armed forces.
This constitution was amended twice. The first amendment occurred in 1981 to change the form of the country’s flag. The second amendment was in 2000 to reduce the age of the presidential candidate from 40 years to 34 years, to enable Bashar al-Assad to run for office in succession to his father.
The currently adopted constitution of 2012
This constitution was announced by the head of the Syrian regime, Bashar al-Assad, a year after the outbreak of the revolution, considering it “a series of reforms” demanded by the people.
The constitution stipulates that Syria is a “democratic, sovereign state whose territory cannot be relinquished,” and that the regime is republican in which the rule is for the people.
The constitution also stated that Islam shall be the religion of the President of the Republic and Islamic jurisprudence as the main source of legislation.
Under the current Constitution, the President of the Republic is the President of the Executive Authority and is elected for a period of seven years, which could be renewed once.
The Constitution stipulated that the President should be Syrian in birth and descent, has no other nationality, not married to a non-Syrian wife, and he should not have been sentenced with a “heinous” adjudication.
The constitution also stipulated that the candidate must obtain the signatures of 35 deputies from the People’s Assembly to be able to participate in the elections.