Enab Baladi – Diana Rahima

Geneva’s talk rounds of the Constitutional Committee on Syria addressed four principles upon which the future constitution of post-war Syria should be based, through negotiations conducted by the committee representatives of the opposition, Bashar al-Assad’s regime, and civil society organizations, all under the patronage of the United Nations.

However, these rounds take place without coverage or detailed statements of the content of the principles and what the discussions and objections revolve around.

And in order to reach a unified formulation for each principle, the delegations of the Constitutional Committee discuss the drafts submitted by each party, to be modified according to the observations made by the rest of the delegations.

Principles shrouded in mystery

The delegations discussed draft constitutional texts for four principles in the seventh round, which was held between March 21-25.

Two principles submitted by the Syrian Negotiation Commission (SNC) were about the basics of governance and the public authorities’ organization and tasks.

The third was the State identity, submitted by some civil society candidates, and the fourth was the state symbols, submitted by the Syrian regime.

But despite the daily statements of the opposition’s Negotiating Committee on its website every evening of the recent round, the titles of the principles and a general explanation of the outcomes of the sessions are still without clear details about the content of the principles and the course of the discussions.

The Syrian people who have the right to stand on the basic papers presented on each principle cannot reach any details except what is leaked to the media outlets.

During the days of the sessions, Enab Baladi tried to communicate with members of all the participating parties without reaching any response, clarification, or explanation for the content of these principles.

Danny al-Baaj, former Syrian diplomat and non-resident researcher at the Omran Center for Strategic Studies, told Enab Baladi that there is no single position for the opposition on the issue of the constitution as the opposition is formed of several political movements and civil society represents several streams as well.

Al-Baaj holds the opposition delegations and civil society responsible for the lack of transparency, as their members can at least be transparent with the pro-opposition media outlets.

Some members, who keep silent during sessions, try to play secret or non-secret cards, according to their strategy, but they can declare that they will not display all their cards now in the hope of raising the stakes at the negotiation table.

“However, this notion makes no sense in the case of the Constitutional Committee because, in this kind of negotiations, it is better to have a clear project from the opposition, putting the regime in a position to answer it,” al-Baaj said.

Lack of compatibility

The position of the members regarding the separation of powers or the form of the governing system, whether it is presidential, parliamentary, or semi-presidential, is not clear because they basically did not agree on a unified formulation yet, according to al-Baaj.

Therefore, not sharing what is really happening with the public opinion is due to the fact that part of the constitutional provisions do not exist in the first place and have not yet been agreed upon, and several terms or formulations are presented for the same article, due to the absence of any serious round of negotiations in which any final formulations are proposed, the former diplomat adds.

The Syrian journalist, Nidal Maalouf, points out that the official protocols for the committee’s work may stipulate that the principles shall not be made public, adding that what is currently taking place is not a blackout over the proposed principles, as there is nothing to be said about them in the first place.

The principles are all loose words, and sociologists to date have not adopted a definition of them, and there is no academic definition of the principles presented, wondering what the identity of the state or the symbols of the country mean.

Maalouf cites the foundations of the French State, as there is no definition of these issues in the French Constitution, at a time when there are nearly 100 theories in the principle of identity alone, and making identity is a function of the state that forms it, not the constitution.

Maalouf was surprised that the identity principle was presented by the delegation of civil society and not the delegation of the Syrian regime (which focuses on controversial and ambiguous principles of procrastination).

“And if the discussion extends to the country’s symbolic figures, how will a name like that of Hafez al-Assad be proposed, and how much time will the delegations spend discussing this personality alone, and is it possible to reach an agreement regarding it?” Maalouf asks.

Maalouf does not expect that the outcomes of the seventh round will be different from its predecessors, given the main headlines of the committee’s work, adding that the committee was formed with the aim of not reaching a conclusion, without any substance in what it basically presented.

In an interview with Enab Baladi, Samira Moubayed, a member of the committee in the civil society delegation, believes that the entire round is absurd, a waste of time, and does not deserve a comment.

The academic and member of the Constitutional Committee asserts that she did not participate in any paper submitted by members of civil society on the principle of identity and does not bear its responsibility.

What does the opposition say?

Enab Baladi has formally requested to obtain the texts of the principles from the delegations’ members. So far, no response was received.

The press office of the Negotiation Committee responded to not publishing the principles by saying that everything about the seventh session is published on the website of the Constitutional Committee and its pages on social media.

However, according to the Committee’s rules of procedure and code of conduct, members are not allowed to post anything on the internet while the Committee is in session.

The office confirmed that the contents of the seventh session were published in a press release last Saturday and that the sessions were discussed in the news published on the Constitutional Committee website.

What is the legal mechanism?

Judge Anwar al-Majni, a member of the Constitutional Committee, claims that the mechanism by which the Constitutional Committee operates does not allow the sharing of session minutes, but if any delegation submits a paper and shares it with the public, it is available.

But the papers are submitted before the start of each day’s session, so they are not available for long.

According to the procedures’ rules, what is prevented from being circulated are the minutes of the sessions, while there is no objection or justification for sharing the principle with the Syrian street and receiving observations.

Al-Majni believes that the success of any constitution is not only in the text but in the amount of consultations that take place during the production of this constitution.

Constitution production mechanisms

There are two mechanisms for the production of the constitution. The first is through the establishment of an elected Constituent Assembly, by electing members by the people, whereby it has a popular mandate, and what the Constituent Assembly produces is considered a constitution.

The second is the formation of a constitutional committee without elections, as what happened in the 2012 constitution, and what is produced is a draft constitution, which is the traditional mechanism.

It is worth saying that the two mechanisms are democratic.

In the unconventional situation, as is happening in Syria, the constitutional committee is considered unelected, and therefore the product of it is considered a draft constitution.

In the list of procedures, the product is presented for public approval that bears several interpretations, such as submitting it to the Syrian people to vote on or it may mean submitting it from the small committee (45 members out of 150) to the expanded committee to obtain general approval that is difficult to achieve in the presence of half Syrians outside Syria.