Constitutional Committee: Gateway To Resolution Or New Form Of Procrastination
Enab Baladi’s Investigation Team
Dia Odeh | Mourad Abdul Jalil | Yamen Maghribi
UN Secretary-General António Guterres has chosen the opening of the 74th session of the General Assembly as a platform from which he addressed the world, stressing that “the key to the Syrian solution” is now in his hands, after “an agreement was reached with all concerned parties in order to form a credible, balanced, comprehensive, Syria-owned and Syria-led constitutional committee.”
Guterres’s announcement came a day after the official formation of the constitutional committee, with the consent of the opposition and the Syrian regime, in light of UN Security Council Resolution 2254, which provides for drafting a new constitution for Syria and achieving a political transition of power.
Although the finalization of the formation of the Committee came after active movements and meetings between the leaders of the guarantor countries of the Sochi Conference, its announcement provoked a storm of reactions, both on international and national levels.
The European Union has blessed efforts of the Committee’s formation and welcomed the reaching of an agreement on it. However, the Syrians, who are concerned with its outcome, have had different standpoints about it.
Between the talk about the committee’s role in the political process and its importance, as it is a gateway to the political solution according to the opposition’s point of view, and the calls for boycotting it and accusing it of re-legitimizing the existing regime, the Committee’s mechanism of work and rules of procedure are still unknown to many Syrians, pending the first opening session that is scheduled to be held on October 30 in the capital Geneva, according to statements by opposition and regime officials.
In this file, Enab Baladi sheds light on the Constitutional Committee’s work mechanisms, discusses the extent of its “constitutionality,” attempts to determine its role within the framework of the Syrian political solution, and monitors the different points of view has generated.
Consensus between rivals
Bumpy road before the Constitutional Committee
The Constitutional Committee was first presented at the Russian-sponsored “Syrian Dialogue” conference in Sochi in November 2018. The conclusion statement indicated that “it was agreed that a Constitutional Committee be formed, consisting of a delegation of the Government of the Syrian Arab Republic and a broadly-represented opposition delegation, to formulate a constitutional reform, which would contribute to a UN-sponsored political settlement in accordance with Security Council Resolution 2254.”
This had been followed by negotiations, objections and obstacles that the two parties started. The first party is the Syrian opposition, represented by the Syrian High Negotiations Committee (HNC), which refused that the Sochi Conference be the reference of the Constitutional Committee, and that the regime presides over it, and asked instead that this Committee’s reference be the UN Resolution 2254 under the umbrella of the United Nations in Geneva.
In contrast, the Syrian regime and its allies had put obstacles in the way of the formation of the Committee, sometimes by rejecting the rules of procedure and the percentage of voting, and sometimes by objecting to the names on the civil society list formed by the United Nations.
After more than a year and a half of negotiations, and after international pressure to form the Committee or search for an alternative solution, the Syrian regime surrendered to the pressures of its Russian ally and agreed with the opposition to form the Committee, so Syrians started raising the question: “what would the next step be after the formation of the Committee?”
The Committee is composed of a large body of 150 members, with 50 members from each the regime and the opposition (represented by the HNC) as well as the list of civil society chosen by the United Nations, from which emerges a small body of 45 members, as previously stated by the International Envoy for Syria, Geir O. Pedersen.
Syrian HNC Spokesperson Yahya al-Aridi talked to Enab Baladi about the next stage, saying that the first step is the convening of the Committee, the discussion of the agreed-upon rules of procedure and the setting up of rules governing its work and the rules of procedure, while there will be periodic meetings for a small group of 45 members, who are specialized in drafting the constitution, in addition to appointing a joint presidency between the HNC and the regime, for the Committee to begin its work in writing the constitution according to a schedule.
The voting process within the Committee may form an obstacle before its move forward, especially if there is a problem with a decision it needs 75 percent (about 113 votes) out of the votes of the 150 committee members, which could hinder any matter.
For his part, HNC member Firas al-Khalidi stressed to Enab Baladi that obtaining 75% of the votes will not be easy, considering that the dispute will not be on the Constitution’s articles related to Syria’s unity and geography or the rights of children and women, but will rather be a dispute over the articles related to the powers of the President. He also explained that this dispute can be resolved by two points; the first is that there should be sincere intentions and trust between the two parties, and the second is that there should be an international will. In order to achieve this, there must be a favorable and neutral environment.
Al-Khalidi also talked about the role of the third party (civil society list), and considered that it is “technocrat” and will vote on any controversial article according to logic, which is also on the list of opposition. This means the existence of two parties against the regime and not vice versa as it is usually evoked. He pointed out that the regime was fighting for increasing its vote within the one third of the votes in order to disrupt it, but was rejected.
Al-Khalidi also talked about the possibility of the Syrian regime pressuring the civil society list by arresting the families of the members to force them to vote in accordance with its vision or push them to withdraw from the Committee’s work, as happened with two members (whose names Enab Baladi prefers not to mention) when the regime threatened to kill their families in case they do not withdraw from the Committee. Here lies the role of the international community in ensuring a safe and neutral environment for the work of the committee’s members, according to al-Khalidi.
The United Nations can solve the dispute
In the event of a deadlock between the members of the Committee on the approval or rejection of any article, the role of the United Nations becomes crucial, according to the member of the Syrian Constitutional Committee Marah al-Biqai, who told Enab Baladi that the initial agreement to pass and vote on any article by the General Assembly (150 members) requires 75%, but there is a standard of consensus between the parties in accordance with Syria’s general interest.
Al-Biqai stressed that the UN’s task would be the conduction of the negotiation process and the two parties’ reaching of a consensus on any subject. In case of objection, the members should refer back to the United Nations and resolution 2254. She considered that the International Envoy for Syria, Geir O. Pedersen, has enough experience to achieve consensuses that satisfy all parties.
HNC member Firas al-Khalidi considered that the role of the United Nations is divided into two parts, a political role concerning the will and the reaching of a solution, and the second concerning the reference of the Committee and the influence on the list of one third by voting on what is just.
The formation of the Committee took more than a year and a half. Syrians then started posing questions about how much time the committee would take to draft the constitution and whether it would be as open as the formation process or whether there is a specific time limit. This is indeed what Al-Biqai talked about, stressing that there is no international action or an open political process, and there must be a fixed time limit.
On the other hand, al-Khalidi stressed that this issue was one of the means of procrastination used by the regime by leaving the Constitution’s formation process without a specific time limit. The Committee responded on this issue by stipulating that there should be a specific time for the completion of its work.
Constitutional Committee in the course of the Syrian issue:
End or beginning of the political solution?
The slogan “the solution in Syria should be political” had not been raised in the early years of the Syrian conflict. The circumstances Syria witnessed at that time were on the path of “military solution,” especially since the factions of the Free Syrian Army (as they called themselves at the beginning of their formation) were controlling large areas of the Syrian map.
The slogan of “military solution” did not last long, and the slogan of “political solution” has instead started taking the lead, in conjunction with withdrawals that hit the Syrian opposition on the ground, and the intervention of major regional powers in the Syrian file, including the US, Russia, Iran and Turkey.
Although there has been a full consensus on a political solution in recent years, several parties have hindered it and sought to thwart it, as a step to impose their own unilateral political solution, which was linked in some way to military operations on the ground.
For instance, the goals Russia has worked to meet ever since its intervention in late September 2015 and the current declaration of the formation of the Constitutional Committee, which is fully dominating the concept of a political solution in Syria, although its working mechanism and the factors of its failure and success in achieving its tasks are not clear yet.
The international context of the political process in Syria started in the Geneva Conference in June 2012, which announced the so-called “Annan Plan”. The plan included six items that emphasized stopping violence and armed actions, sticking to a political solution, releasing detainees, and imposing a truce to deliver aid to the besieged territories.
It has also affirmed the establishment of a transitional governing committee enjoying full executive powers and having members belonging to both the regime and opposition. The committee will be formed according to both parties’ mutual acceptance, in addition to reviewing the constitutional order and holding “fair” elections.
As was the case with every meeting addressing the Syrian issue, all parties welcomed the resolutions issued at the time, but they were not implemented as a result of the state of disparity between the Russian and US government over the fate of the President of the Syrian regime, Bashar al-Assad.
The political process in Geneva stalled, and despite international resolutions, including UN Security Council Resolution 2254, the Syrian regime did not abide by them and adopted the political track set by Russia through Astana and Sochi.
Two tracks for political solution
After the fall of Aleppo, the political solution in Syria was divided between two tracks. The first, led by Russia, focused on ceasefire from time to time, and paved the way for a political process, the first of which was the talks held between Turkey, Russia and Iran in Astana. The de-escalation agreement was its first manifestations covering four areas, namely Daraa, Eastern Ghouta, Idlib and Homs countryside.
The talks had a military aspect, although they were identified as political understandings and negotiations tackling the Syrian file. The agreed-upon items shaped the military map on the ground, and added some political issues as reminders to the need to integrate them with the so-called political talks for Syria. Some of these issues were linked to the file of detainees, which is still pending until today.
The second track led by the UN, was fully supported by the US, its Western allies and the Gulf States, including Saudi Arabia. It was also based on international references, including Security Council resolution 2254, which Russia tried to avoid, but recently accepted it as a reference for the Constitutional Committee, which was raised at the Sochi Conference, in January 2018.
The reflection of eight-year reality
The formation of the constitutional committee came as the Syrian conflict entered its 9th year with no glimmer of hope for a political solution or an impact that would achieve what the Syrians were demonstrating for.
According to political and academic researcher Samira Moubayed, the constitutional committee is not introduced as the only political solution in Syria, but as part of the political solution and as a step to launch the political transition path adopted in accordance with the international resolutions on the Syrian issue, namely the UN Security Council Resolution n°2254 issued in 2015, which provides for drafting the Syrian constitution as part of a political transition.
Moubayed told Enab Baladi that the current structure of the Constitutional Committee reflects the course of the past eight years of military conflict and regional and external interference in Syria, as well as subjective factors inside the Syrian opposition and deviations that have marred the course of fulfilling the rightful demands of the Syrian people.
The role of the Constitutional Committee, which consists of reformulating the constitution in accordance with international resolutions, does not lead to the rehabilitation of al-Assad if done properly, according to Moubayed, a member of the civil society list (standing for a third of the committee).
She adds that the Syrian regime is trying to divert this path toward 2012 amendment to the constitution, “which was tailored to suit its aspirations to power and bypass the People’s Assembly by taking decisions that seek to enable its rule without serving the interests of the Syrians.”
In light of the above, Moubayed pointed out that the most important step is maintaining the course of the Constitutional Commission to make sure it will not divert toward al-Assad’s demand by sticking to its goal seeking to end the era of tyranny. This goal is inclusive of all Syrians, serves the interest of all spectrums, and requires a radical change that must be started today so as to improve Syria, as she put it.
Moving toward 2021 elections
The fourth paragraph of Resolution 2254 stated that the political process includes establishing a comprehensive and non-sectarian government within six months. Then, the constitutional system shall be considered in order to reach parliamentary and presidential elections in 18 months.
Therefore, according to the documents a constitution occurs after the transitional government, which is contrary to what is currently being planned. Talk is presently limited to writing the constitution, without mentioning the transitional government.
Firas al-Khalidi, a member of the Syrian negotiating body, said it is impossible for the Constitutional Commission to be a prelude to Syria’s presidential election of 2021, referring to a talk addressing the election and previously rejected by the Higher Negotiating Committee.
Al-Khalidi explained that moving toward the elections gives the current regime a sense of legitimacy; whereas elections need a neutral and safe environment, in addition to guarantees.
Political and academic researcher Samira Moubayed said moving toward 2021 elections is linked to the success of the constitutional process and the adoption of a new constitution “discriminating between the era of tyranny and oppression associated with the existence of a totalitarian regime, which lasted for five decades and an era of political pluralism guaranteeing the freedom to run and vote away from the security grip and intelligence apparatus.”
Therefore, the constitution is an important reference point shaping the 2021 elections, according to the political researcher who believed this shall “add to the responsibility of the Constitutional Committee, for any perversion of its functions will cause the Syrian people to suffer because of the ongoing conflict.”
Poll: Syrians pessimistic about Constitutional Committee
Some Syrian politicians rely on how much the Syrian commission is effective as part of the political solution in Syria or as a prelude to it. However, this is not made evident in the Syrian community, which is generally pessimistic about the results of the constitutional committee.
Enab Baladi newspaper conducted an opinion poll through its Facebook page, asking the following question: “Do you think announcing the formation of the Constitutional Committee would contribute into shifting towards a political solution in Syria? Why? Why not? ”
About 78% of the respondents, outnumbering 1500, voted “no”, while only 22% were optimistic about the future of the solution represented by the Constitutional Committee in Syria.
User Mohamed Said Taha, justified his pessimistic view of the commission, and commented on the poll post: “There is no guarantor in Syria. There are invisible hands, and chess pieces moving or standing according to the real-time interests.”
Some users shared the same point of view; others criticized some of the Syrian opposition participants, while others denied the existence of any solution while being under the pressure of the regime and its Russian ally.
Expressing his support for the political solution through the constitutional committee, user Urwah al-Mundhir wrote: “The regime won’t stop any rotation of the political wheel, especially if it is accompanied by lifting some sanctions that will reflect positively on the living situation.”
Ahmed Khaled al-Rasheed, confirmed that the solution can possibly work. He justified this through the lack of options for the Syrians, “either they should opt for military decision or accept a political solution.”
Constitutional or not
The Committee from a legal perspective
Syrian legal opponents have questioned the independence and usefulness of the Constitutional Committee, considering it a maneuver to circumvent the “sacrifices of the Syrians,” which is linked to the regime’s inability to approve it due to legal considerations on the one hand, and non-compliance with the UN resolutions according to which it is operating, namely Resolution 2254, on the other. In addition, the adoption of a new Syrian constitution needs to amend a set of laws, which in their current form will prevent a sound political transition.
Firas al-Haj Yahya, a lawyer, legal researcher, and director of the human rights department of the former Syrian opposition coalition, questioned whether the Constitutional Committee could make the Syrian regime conform to the Syrian constitution.
While the decisions of the Constitutional Commission are linked to the regime’s approval of course, there is debate among Syrian opponents and jurists about the possibility of making the Syrian regime commit to those decisions.
Firas al-Haj Yahya said during an interview with Enab Baladi that the Constitutional Committee is a violation of the Syrian constitution, which was “definitely” issued in 2012, especially article 150 on the amendment of the constitution, which includes four paragraphs, defining the grounds following which the constitution can be amended.
The first paragraph provides for the right of the President of the Republic and two-thirds of the members of the People’s Assembly to propose the amendment of the Constitution. The second paragraph contains the proposal for the amendment of the texts to be modified and the reasons behind such a modification.
According to paragraph 3 of Article 150, “the People’s Assembly shall, upon receipt of the amendment proposal, form a special committee for its consideration.” Then, “the Assembly shall discuss the proposal for amendment, and if approved by a three-fourths majority of its members, the amendment shall be considered final, provided that it is approved by the President of the Republic,” as mentioned in paragraph 4 of the same article.
Al-Haj Yahya stressed that the amendments must be ready before they are put forward by the President or two-thirds of the members, then submitted to a vote in the People’s Assembly and approved, considering that all that is done now is a preparatory work to set a draft, and that this committee is only advisory.
Accordingly, al-Haj Yahya pointed out that “the Syrian regime is not legally bound to the committee and its decisions in its current form , especially since the committee was not formed based on a legislative decree issued by the President of the Republic, nor from the members of the People’s Assembly or even the United Nations in accordance with UN Resolution 2254, especially since this decision recommends the formation of a transitional body that issues the resolution to form a constitutional committee.”
In the same context, president of the executive office of the national commission for Syrian lawyers, Judge Hussein Hamada, believed that the 2012 Constitution is flexible as its amendment is subject to the text of Article 150, noting that “the Committee will be hindered by this article, as saying otherwise exposes the president of the republic to a constitutional violation.”
Judge Hamada pointed out that the commission, which the international community seeks to form, lacks constitutional, legal, political and factual authority.
He explained that any discussion about a constitutional committee means talking about a constituent committee that is established according to constitutional frameworks and an unbiased climate, in order to present a draft about the aspired state system with its three pillars (the territory, people and the authority).
Speaking to Enab Baladi, Hamada stressed that the mechanisms for writing the constitution are more important than the constitution itself, and therefore the failure to observe those mechanisms makes the outcome of such a committee unconstitutional.
These mechanisms, he says, constitute the ways that will enable the establishment of the constitutional committee, which must be “either by electing among the Syrian citizens all the committee’s members directly, or by electing part of them and appointing the other part in accordance with the legitimate authorities (Presidency, People’s Assembly, Government), to take into account the representation of political, legal and economic experts.”
The judge added that the references of the constitutional committee in the preparation of the draft constitution is “according to the concept of the national state and the concept of the nation-state and the concept of the religious state,” noting that these concepts, if applied, would probably prevent the committee from abiding, for the most part, to the distribution of quotas between supporters, the opposition and international parties, on the one hand, and to the distribution of seats among the ethnic and religious components of the Syrian people, on the other.”
In addition, the constitution-drafting mechanisms require, in parallel with the constitution, the establishment of an oversight body (a constitutional court) whose task is to monitor and abolish violations committed against the constitution, or else “we will be dealing with incomplete constitutional procedures.”
Judge Hamada indicated that drafting a new constitution and initiating a referendum to ratify it would require a legal reconsideration of a set of special laws that “hinder political transition and perpetuate tyranny.”
He considered that introducing a new constitution or constitutional amendments before reforming the Syrian law structure is “like putting the cart in front of the horse.”
Supporters and oppositionists
Hazy road awaits the constitutional committee
The constitutional committee’s mechanism of work remains unclear so far, which makes the talk about a near constitutional change unlikely at the moment as the scene is still blurred, and the clarity of the picture is subject to serious steps that bring the opposition and regime committees at the same table.
With the current political scene in Syria fading, many voices are reluctant to form the committee, considering it a step that could lead to the rehabilitation of al-Assad, and moving away from what the Syrians have demanded over the past eight years.
No solution with the committee
Former member of the Syrian National Coalition for Opposition, Rim Turkmani, criticized on her Facebook page on September 24 what she described as the “greatest exclusion” of the areas of Eastern Euphrates and Syrian Kurds by the constitutional commission.
Turkmani warned of what she called a “bloodbath looming differently than the one hovering over Idlib,” saying that “no real representation mechanisms leading to a balanced representation can be reached in the present period.”
While the former head of the Syrian National Coalition for Opposition, Ahmed Moaz al-Khatib, posted on Facebook that the constitutional committee came as a result of the decision of “the occupiers of Syria” accompanied by international silence, as he put it.
The former head of the Syrian National Coalition for Opposition, Khaled Khoja, agreed with al-Khatib, as he republished what the latter wrote on Facebook.
As for the military leaders, the commander of Suqour al-Sham Brigades, Ahmed al-Sheikh (Abu Issa), who is a member of the National Front for Liberation, “there is no constitution under the rule of the criminal gang. Abu Issa tweeted: “Tyrants do not respect constitutions,” pointing out that “overthrowing tyrants is a precursor to the enactment of laws and the development of the foundations of a government.”
The spokesman for the Noureddine Zangi Movement, Abdul Salam Abdul Razzaq, tweeted that “the constitutional committee at its best will be able to change the constitution, and legitimize the regime’s entry in future elections under occupation”. He called for a boycott of all the outcomes of the Astana talks including the constitutional committee.
While a large part of the independent Syrian oppositionists and those who belong to parties stand against the formation of the constitutional committee, political and academic researcher Samira Moubayed believed that agreeing on the main principles that will shape Syria’s future is a necessary step to cross into the political transition; hence, the importance of the constitutional committee and its link to achieving what the Syrians went out on the streets for nine years ago.
She adds that the committee “will translate the extent of the Syrians’ consensus on a common vision to re-establish the state, end the suffering of the Syrian people, address all forms of repressive and terrorist authorities and determine the foundations of the next social contract.”
Moubayed believed that the constitutional committee has several strengths that cannot be denied. It is the beginning of the end of the political stalemate and the disruption of the negotiating process due to the continued obstructions created by the regime.
Second, the constitutional committee will be the result of a consensus between the Syrian and international parties to create a certain balance, but not without going through many difficulties and obstacles on al-Assad’s part, who finds in the process of drafting a new constitution a direct threat to his continuity in lifelong power as he seeks and claims.
Finally, if created, the committee will allow the transition to a modern constitution that fulfils the conditions of equal citizenship, justice and respect for human rights, and Syria’s return to the path of modernity and humanity. These are “important” gains that must be reached, according to Moubayed.
Is there an alternative solution?
For his part, the member of the Syrian Negotiating Committee, Firas al-Khalidi, stated that he understands the fears of the Syrians and the state of frustration in the Syrian street, as a result of the ado about the previous media operation about the origin of the constitutional committee. He indicated: “We started firing on each other from the first day; so let’s aim at our opponents, and start advising each other.”
Al-Khalidi said that the axis of Astana (Russia and Iran), demanded that the Sochi Conference becomes a reference for the constitutional committee, which will be chaired by the Syrian regime, and voted by the People’s Assembly, in addition to the reformulation of the 2012 constitution. Such conditions were rejected by the Syrian Negotiating Committee, which entered into conflict with the regime and its supporters on the committee’s reference, chairmanship and voting.
Al-Khaldi added that the committee’s reference is the United Nations and Resolution 2254, i.e. the reference of members of the committee will be the UN, which will hold no custody upon them. That is to say that the individuals will be independent from institutions and the vote by the regime’s list on the articles of the constitution will be confined to the framework of the agreed political vision without returning to the decision-making centre in Damascus.
The member of the Syrian constitutional committee, Marah al-Bukai, requested waiting until holding the first meeting, saying that the committee will be the first step in the constitutional process and the political transition, especially since the US has put its weight in the political process.
According to al-Bukai, Washington wants a just political solution that considers the great sacrifices paid by the Syrian people, sending a message to those who reject the work of the committee by saying: “Anyone who got a better, more concise and more prominent political project than the constitutional committee project, shall submit it for discussion.”
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