Constitution or political transition; what do Syrians need?

Dialogue session with the joint chairman of the Syrian Constitutional Committee, Hadi al-Bahra, Istanbul, May 2022 (Enab Baladi / Diana Rahima)

Dialogue session with the joint chairman of the Syrian Constitutional Committee, Hadi al-Bahra, Istanbul, May 2022 (Enab Baladi / Diana Rahima)

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Enab Baladi – Diana Rahima

Continued criticism of the work of the Syrian Constitutional Committee in Geneva stems from Syrians’ need for real and tangible political change on the ground that first overthrows the Syrian regime and its president, Bashar al-Assad, who is responsible for the torture, killing, and displacement of nearly half of the Syrian people, then moving to a constitutional change that fulfills its demands.

The Constitutional Committee was first introduced at the Syrian Dialogue summit sponsored by Russia in Sochi in November 2018. The summit’s final communiqué stated that “it has been agreed upon that a Constitutional Committee consisting of the delegation of the government of the Syrian Arab Republic and a widely represented opposition delegation will be formed with a view to formulating constitutional reform that will contribute to the UN-sponsored political settlement in accordance with Security Council Resolution N. 2254”.

Subsequently, negotiations, objections, and obstacles were initiated by the two parties, the first being the Syrian opposition represented by the High Negotiations Committee (HNC), which refused to have the committee’s reference be the Sochi summit and for the regime to head the committee. It also requested that the committee’s reference be International Resolution N. 2254 under the supervision of the United Nations in Geneva.

Meanwhile, the Syrian regime and its allies have placed obstacles in the way of the committee’s formation, either by rejecting procedural rules and voting percentages or by objecting to names on the United Nations civil society list.

After more than a year and a half of negotiations and following international pressure to form the committee or to seek another alternative, the Syrian regime bowed to pressure from its Russian ally and agreed, along with the opposition, to form the committee, which to date had held seven sessions without any progress on a political solution.

In this report, Enab Baladi discusses the criticisms and arguments of the conduct of the constitutional process in Geneva. Lawyer and Constitutional Committee member Tariq al-Kurdi, on the other hand, explicates the importance of the constitution and the continuation of the constitutional process and their close association with Syrian-aspired political change and transition.

Stalling to gain time

Thinker and professor of contemporary political sociology at the French Sorbonne University, Burhan Ghalioun, said in an interview with Enab Baladi that, as far as the regime is concerned, the objective of forming the Constitutional Committee is not drafting the constitution because this is the last of its concerns, and it is meaningless without any political agreement on the way out of the current catastrophic situation.

Ghalioun believes that the aim of the Constitutional Committee is to circumvent the negotiations decided by the Security Council for the implementation of its resolutions, the latest of which is Resolution N. 2254, regarding political transition as the only solution to the war in which the Assad regime and its allies have embroiled the country, thus shattering all hopes for stability, peace, and decent living.

Therefore, the regime has not made any suggestions to help advance even a single step in any negotiations, whether in Geneva or within the framework of the Astana Process or the Constitutional Committee, according to Ghalioun. Rather, the regime is concerned with wasting time pending a change in the facts on the ground and rendering the political settlement itself meaningless or unrealistic.

This means preserving, enshrining, and legitimizing the status quo, including the disregard of crimes against humanity and genocide, victims of political detention, and millions of displaced persons and refugees. The demographic change would then be achieved, and Syria’s geopolitical status would be changed as the country becomes completely isolated from its Arab surroundings to be part of the Iranian hegemony project over the Levant, from the Mediterranean to Iraq.

What Syrians should consider is breaking this scheme that Iran and its local and regional militias are working on, in which Moscow also participates for strategic and sectarian interests, as well as Israel, which wants to end the “myth” of the Arab idea that has sheltered the Palestinian cause so far, and eliminate it forever.

Syrian thinker Burhan Ghalioun

The dissident Colonel Abdul-Jabbar al-Akeidi also stated in an article in the al-Modon online newspaper that the damage inflicted by the Constitutional Committee by taking the Syrian issue away from what was contained in UN resolutions, especially Resolution N. 2254, was extremely serious and hazardous. However, the opposition insists on moving forward under various justifications.

According to al-Akeidi, if the need for a new constitution for Syrians is realistic and crucial, the context of what is being done makes the term “the necessity of drafting a constitution” a great good employed in the service of evil. Drafting the constitution as contained in UN Resolution N. 2254 comes at a later stage in the process of establishing a transitional governing body (the essence of the political process). This is underscored in the Geneva-1 final communiqué and resolution N. 2118, which stipulates that the political process begins with the establishment of a transitional governing body.

For his part, the director of the Syria Justice and Accountability Center (SJAC), Mohammad al-Abdallah, made it clear in a previous talk to Enab Baladi that amending the constitution or the reforms the Constitutional Committee was talking about would not change anything on the ground in Syria. He indicated that the main problem was the application of the constitution, not the text of the constitution.

Al-Abdallah added that “it is regrettable that the entire political process in Syria, and the peace process sponsored by the United Nations and the international community, has been reduced to talks about amending the constitution.” The Syrian Constitution is “not bad” given that its basis is largely translated from the French Constitution, but it includes some articles that need to be amended.

According to al-Abdullah, the opposition’s weakness lies in its failure to take the decision to withdraw in time and much earlier than today.

Al-Kurdi: A text crisis, not just an application crisis

Member of the Mini Committee of the Constitutional Committee, lawyer Tariq al-Kurdi, said in an interview with Enab Baladi that the Syrians’ lack of sense of the importance of the constitution stems from the fact that they only ever had a decent constitution in the fifties, in the time of unity and subsequent coups d’état of the Baath Party, leading to the assumption of power by the former Syrian president Hafez al-Assad with the 1997 and 2012 constitutions.

Al-Kurdi emphasized that he understands the Syrians who paid great prices during the revolution and their failure to be convinced that their sacrifices were in exchange for five or ten papers under the name of a constitution. Legally, however, Syrians’ problems cannot be shortened to a constitutional problem, according to al-Kurdi. However, the problem of the constitution is a fundamental part of it because Hafez al-Assad tied Syria to the 1973 constitution and gained quasi-divine powers, while the same constitution was reproduced in the one of 2012.

According to al-Kurdi, the establishment of a state requires that its basic law (the constitution) be drawn up, and it must be established in its form, its relationship to society, and the guarantee and separation of powers.

When a political solution and transition are launched and a transitional governing body is established, the 2012 constitution cannot be used because it will not do anything. Syrians’ problem and main crisis stem from the constitution and the powers granted to the president and his regime.

At this point, there would be a greater need for transitional provisions within the new draft constitution, which could be applied during the transitional period to regulate this phase, according to al-Kurdi, who made it clear that the Syrian constitution’s crisis is from the text itself and from its application. Before putting in place guarantees to ensure the implementation of the next constitution, the text must be corrected.

Many consider that the Constitutional Committee skipped Resolution N. 2254 and its hierarchy, which speaks of a political transition, then a secure, calm, and impartial environment, and a constitution and elections at a later point.

In al-Kurdi’s view, today’s constitutional process is at the stage of negotiations, and it is possible to start with any of these baskets. However, when the time for implementation comes, it must be as stated in the resolution; that would not just be for the sake of upholding the resolution, but because that hierarchy actually makes sense.

Sections of the constitution

When an agreement was reached on the committee’s agenda, the structure of the constitution was the first reference for committee members, starting with the Introduction (the Preamble), then the chapter on Basic Principles, then comes the chapter on Rights and Freedoms, followed by the chapter on the Rule of Law, and then the objective of establishing a section for Independent Public Bodies, down to the three Legislative, Executive, and Judicial powers, and then the Constitutional Court, all the way to the Final Provisions.

Al-Kurdi pointed out that an article in the rules of procedure stated that not agreeing on something does not mean stopping. There is also a methodology for the principles to be discussed, and, when completed, a transition to the second chapter on rights and freedoms is made.

According to al-Kurdi, the goal of independent public bodies is to make the new constitution in Syria take into account the 12 years that Syrians have lived.

Al-Kurdi considered that an independent public body for transitional justice should be based on a constitutional text and not a government decision and that it should be a constitutional institution and a public and independent body to be able to uncover the truth, redress, provide reparations, and commemorate remembrance, which is one of the means of ensuring that what happened previously will not be repeated in the future.

The Constitutional Committee will also work towards an independent public human rights body with a two-pronged mandate; the first is to know the fate of those who have been missing and detained during the past periods in Syria, i.e., during the revolution and before, and to hand over the bodies to their parents and provide compensation. The second part concerns the protection of human rights in the future in order to protect Syrians’ rights.

Al-Kurdi emphasized that accountability, as a strategic objective, is among the committee’s priorities since there could be no peace without justice.

War is not the opposite of peace, but of justice. Several countries have gone through spurious peace situations, and after a while, the parties were swooping in on each other to collect new gains. Therefore, justice is the antithesis of war and not the signing of a peace agreement; so that every Syrian would sense justice and obtain their rights.

Syrian lawyer Tariq al-Kurdi

Transitional justice shall have a special chapter in the constitution and shall be presented in due course, according to al-Kurdi.

As to the likelihood of the same path contributing to the desired political transition, or the new constitution requiring a political transition before it becomes applicable, the joint chairman of the Constitutional Committee, Hadi al-Bahra, said in a previous interview with Enab Baladi that “the path of the Constitutional Committee is one of the four main baskets in Resolution N. 2254”.

He explained that the majority of people “confuse the transition that begins at the time of the signing of the political agreement for the implementation of Resolution N. 2254 with its four baskets (the first step to be implemented is the establishment of the transitional governing body with the sole task of providing a safe and impartial environment during which the political transition process can take place) with the drafting of the new constitution and its referendum after the provision of a safe and impartial environment. These are the first steps to implement the political transition governing the remainder of its steps, according to which presidential and parliamentary elections are held under the auspices of the United Nations. Upon completing those elections and forming a government that exercises its powers, the process of political transition will have taken place”.

The Syrian Constitutional Committee concluded the seventh session in Geneva without a final conference on 25 March.

In a statement, the UN Special Envoy for Syria Geir O. Pedersen said that “all delegations offered at least some revisions to some of the texts presented. Some of these embodied amendments indicate an attempt to reflect the content of the discussions and narrow differences. Others contained no changes”.

“Two-and-a-half years after the launching of the Constitutional Committee – an event that took nearly two years to bring about – there is a clear need for this commitment to be embodied in the Committee’s work so that substantive issues begin to be bridged and that the Committee begins to move substantively forward on its mandate to prepare and draft for popular approval a constitutional reform. The Committee members’ discussions today underscored why this is so important”, he added.

The committee’s eighth and ninth sessions will be held this May and next June, as stated by the press office of the United Nations envoy in an earlier talk to Enab Baladi.

 

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