Seven Constitutional Problems At The "Bazaar" Constitutional Committee Table

Hussam Miro

This intensive research paper was written on the basis of a fundamental revision of the 2012 Constitution, and on the documents of the Conference for the Unification of the Syrian Opposition, which was held on 2nd and 3rd July in 2012, and was attended by representatives of the United Nations. Being held immediately after the Geneva Statement I, I was elected by the members of the Conference to the Final Drafting Committee, whose work witnessed sharp divisions among the opposition parties themselves, also benefited from the workshop held by the Asbar Center for Studies and Research in the city of KLEVE in North Rhine (Germany), which was attended by constitutional experts, politicians, managers of civil society institutions and party representatives, including representatives of the Kurdish and Assyrian parties.

Introduction: More than a year and a half after the outcome of the Sochi National Dialogue Conference, which approved the establishment of a committee to write a new constitution for Syria, the United Nations announced the formation of this committee, which consisted of an equal number of members between the regime, the opposition and civil society, each party has 50 members, but without specifying a specific time limit for the work of the Commission, by the United Nations, with the declaration of Foreign Minister of the regime Walid al- Moallem, that the Commission is "the ownership of Syria, and no guardianship of its work from abroad," and there is no time limit for the completion of its work. During the time between the Sochi Conference, the adoption of the Constitutional Committee at the end of its work, and the UN announcement of the formation of the Constitutional Committee, there have been major shifts in the field of the Syrian conflict, where Moscow has changed the balance of power significantly, and impose new data on the various players involved in the Syrian conflict, the most important of which was the siege of Eastern Ghouta, which ultimately led to the withdrawal of "Army of Islam" fighters towards Idlib province, thus securing the periphery of the capital Damascus permanently, in addition to ending the file of the factions in Horan, and concluding reconciliations, that ended by the imposition of Russia's and the regime's control on the South. The various actors in the Syrian conflict recognize that the ultimate exit of the Syrian situation requires some form of political solution, no matter how close it is to the main issues of the Syrian issue, and to meet the aspirations of the Syrians, but at the same time these actors realize that it is inevitable to confront these issues when conceptualizing a final solution, especially by showing that the results of the military victory will need a political-legal framework, as well it is not necessary that the military victory alone will be sufficient to secure that framework, especially since the task of that framework will be to reap the gains by the victors, who in turn desperately need other countries and can't be ignored in many files, including the financing of reconstruction. In the approach of many cases that intersect with the Syrian situation in any extent , such as Lebanon, Iraq and Afghanistan, all parties involved in the political process had to write a new constitution for their country, reflecting the balance of local and external forces at the same time, and providing some form of stability at the moment of writing, and paving the way for reconstruction, even if those political processes are not sustainable in the long run. Writing a constitution for Syria would take into account the establishment of domestic and external balances, and therefore would not be able to leap over the major constitutional problems, which have been an integral part of the state of conflict in Syria over the past years, ensuring relative stability requiring concessions, which may not be essential, but they suggest that they have secured the interests of the largest number of the Syrian factions on the one hand and the external forces on the other. In this paper, we try to identify the main issues, or what we call the constitutional problems, which will face the Constitutional Drafting Committee, not as a decision-making body, but as an executive body, which has to formulate the interests of its representatives, powers and states. Identifying these issues would highlight the extent of disparities between the parties and the need to make concessions to rotate the corners, and to overcome the emerging differences. Before that, we will try to answer here the question: When to write the Constitution? The answer to this question would clarify the size of the margin of maneuvering of the Commission, and show where it will be subject to the power equations, not to the logic of consensus. Post-war Constitution: There are many levels to raise the issue of the Constitution, especially since the history of modern countries in many places shows the contradictions between the Constitution as a legal document and between the executive mechanisms for the implementation of the Constitution, and the inflation of elitism to control the constitutions and laws, so that the Constitution becomes a document does not really weight in reality objective, but it is necessary that at the moment of writing a constitution to return to the basic principle of writing the constitution, which is to achieve satisfaction, according to John Locke, which means, among other things, accepting the political power that the constitution will entrust with the task of achieving justice. In the moments of societal explosion, rebellion, uprising, or revolution, the old social contract has lost its legitimacy, and the old state of satisfaction has exhausted itself, leaving social groups rebelling and revolting against the political power, demanding to change it. In the Syrian case, which did not know the speedy resolution of the conflict between the political regime and the groups that rose up against it, the country entered into an armed conflict situation, which was quickly brought in after the internationalization of the conflict (Geneva Statement 1on 30th of June, 2012, the beginning of the internationalization of the Syrian conflict), regional and international powers, as a result, the political power did not surrender to its opponents, but made concessions to its allies, hoping to remain in power, or as a major part of the authority, after the war ended. The constitution is usually written in four cases: when the state was first established, when it was independent from the occupier, or after a decisive revolution, in which the party or the victor would write a constitution that corresponded to its ideology and interests, or after a civil war. The first three cases do not apply to the Syrian case, which means that we actually stand at the fourth case, namely writing the constitution after a civil war, even if this term does not correspond in all its aspects to the Syrian case, but in practice the state no longer has a monopoly on arms. There are more than one de facto authority, and the political power is no longer the sovereign decision-maker, so a final exit of the political solution will need to produce a consensus formula at many social and political levels. However, the Syrian conflict did not produce Lebanese-style sectarian leadership, so the next constitution would not come through sectarian quotas, but that does not mean that it would not take into account the sectarian divisions that have occurred in Syrian society, which will somehow appear in the constitutional articles ,in indirect way. Constitutional problems: First: State Identity: The identification of the state is problematic after the civil wars. Part of the societal divide that occurs during the civil wars involves a struggle for identity. This division also naturally reflects the absence of social dissatisfaction with the reality of the identity itself in its various appointments. Thus, the agreement of the identity of the future state will be highly controversial, not only with regard to the state's belonging to its geopolitical or cultural space, but also in the constitutional articles of the rights of nationalities and sects, as in the case of the Kurds in Syria, or with regard to the state's reference and the related articles related to the civil rights, especially Personal Status Code (individual freedoms). There are many variations in the concept of state identity, and these differences are due to the reference on which the state is determined, but this reference is, of course, subject to the level of economic, social and political development, the level of consensus about common issues, the level of trust between the components, their definition of themselves and how they see their identity. During the last decades of "Ba'ath" rule, the identity of the state was derived from the Arab national belonging, represented by the ideology of the "Ba'ath Party", which was preserved in the introduction of the 2012 constitution, where the first article (in its two items) defines the identity of the state "The Syrian Arab Republic is a sovereign democratic state, and no part of its territory may be ceded, and it is part of the Arab world", and "the people of Syria are part of the Arab nation" . During the past years, the identity debate has been an integral part of the debate among the opposition political forces, especially with regard to non-Arab Syrians (Kurds, Assyrians, Turkmen), and many documents issued by opposition conferences have taken into account the ethnic diversity in Syria, especially the Unification of the Opposition Conference which was held on 2nd and 3rd of July in 2012, the National Covenant document recognized the non-Arab nationalities in Syria: "The Syrian state recognizes the existence of a Kurdish nationality within its people, its identity and its legitimate national rights in accordance with international covenants and conventions within the framework of the unity of the Syrian homeland. The Kurdish nationalism in Syria is an integral part of the Syrian people. The State also recognizes the existence, identity and national rights similar to the Assyrian Syriac and Turkmen nationalities and are considered an integral part of Syrian society". The 2012 constitution and the previous constitutions do not recognize any special recognition of non-Arab nationalities in Syria, despite their decades-long struggle for rights such as language education, cultural rights, association and parties, as well as the non-registered problem of Kurds. How will the Constitutional Commission face the identity complex, and how will it find an exit? Many Syrian opposition forces, including allies of Kurdish political forces, have attempted to circumvent the recognition of constitutional rights for Kurds by proposing citizenship, which most Kurdish forces have seen as an escape from recognition of Kurds rights, non-Arab nationalities in Syria, and questioning the Kurdish intentions. On the other hand, the experience of self-administration in the Upper Mesopotamia, despite the ongoing military transformations, will not be possible to jump over it, and to ignore it completely, because it would simply mean the trap to reach agreement about the constitutional approach to define the Syrian state, and the rights of different nationalities as a result. Of course, the constitutions, that Syria witnessed, ignored the presence of non-Arab nationalities in Syria, as "the people in Syria are part of the Arab nation", although it is understandable to consider Syria as part of the "Arab world", but it is not understood ignoring authentic ethnic components in Syria, even not to refer to them completely, and even considering them as "part of the Arab nation", despite a fundamental theoretical and practical paradox: the absence of a specific framework for what the Arab nation is. Representatives of the regime and representatives of the opposition will try to reduce the level of recognition of the national rights of non-Arabs, not only in response to their ideological orientations, but also from their ties with two regional states (Turkey and Iran), which have deep problems with the Kurds. They consider that granting the Kurds recognition of their existence and rights could later affect their internal crises with the Kurds. The State Between Centralization and Decentralization Given that what the Constitutional Commission will ultimately produce is the outcome of the consensus of the forces involved in the Syrian conflict, the issue of state centralization will be one of the biggest problems that the Commission will confront. The interests of the forces involved in the conflict and the consolidation of their influence depend largely on this issue. In recent years, the Syrian government has lost control of the country's most important land crossings, and has lost control over large areas. Although many of them have been re- controlled after the "de-escalation agreements" and subsequent military operations, the local conditions in these areas remain chaotic in all aspects economically and security, and a large part of the population of these areas have become refugees in neighboring countries and others, and Horan region can be considered a clear example of that chaos, despite the reconciliation between factions and the regime. Syria has been centrally administered for decades, allowing the political authority to hold the country's joints, adversely affecting the equal development of cities. Many Syrian cities, such as the cities of the Upper Mesopotamia, Idlib, Horan, and Sweida, have been marginalized and pushed their people into economic and social options that serve primarily the political and rentier class, linking the Syrians to the capital Damascus, allowing the executive authority to tighten its control the Syrians. In the Syrian Upper Mesopotamia region, which covers more than 30% of the country's area, and contains the most important part of Syria's oil, water, agricultural and animal wealth, has been deprived from basic components, such as universities, specialized hospitals and industry, and left them linked to the cities of Aleppo and Damascus, with what this link carried of political, social, class and human rights. In the past years, many of the "liberated areas" have experienced the experience of local councils, which were entrusted with the administration of cities and towns. The results of this experience ranged from the fact that they are subject to the armed factions that dominate them. The experience of "self-management" in the Syrian island was also known as a more sophisticated form of administration, due to several factors, including the relative level of stability in that region, and other political and social factors. The demand of the various Kurdish political forces for a decentralized constitution was the main demand in their agenda, with variations in the level of decentralization claimed between one party and another, such as "political decentralization", "administrative decentralization" and "democratic decentralization", whatever the formulas, they reflect an urgent need for decentralization as an entry point for correcting the wrong paths between the center and distant cities. Theoretically the decentralization would allow local councils to obtain an important and balanced part of the financial revenues for their economies to invest them in local development processes, without the need for the center to approve projects to be implemented, increasing the space for participation in policy- making, reducing the authority of the Center, and reducing the bureaucracy of its departments and officials. Theoretically, decentralization would produce political competition between parties for service program issues, rather than at the policy level, which would effectively reduce corruption, increase accountability and reduce the distance between the citizens and the officials of the executive bodies of the local councils, where the local civil society organizations can exert significant and effective pressure to produce policies and programs that are relevant to and derived from the needs of citizens. In practice, the key question remains to approach of models of countries emerging from civil wars, where decentralization in development issues has failed, and a unified national identity of the population has failed to mature, where the citizens becoming hostage by the powerful local forces, which compete with each other under subordinate sectarian, sectarian, tribal and ethnic formulas. There was also a great failure to secure a sustainable state of security, as the decentralized authorities failed to seize the weapon and could no longer control it. Many forces retained their weapons during the civil war and these weapons became part of the weak balance process. The representatives of the Syrian regime in the Constitutional Committee will uphold the centralized regime, stating that the 2012 constitution gave a significant amount of decentralization, in Articles 130 and 130, where the two articles recognize that "the Syrian Arab Republic is made up of administrative units" and that "the local administration units shall have Councils elected in a general, secret, direct and equal manner." This is what the representatives of the regime in the Constitutional Committee will consider it sufficient to meet the demands of decentralization advocated by some opposition. But for the opposition representatives, it will not be the central issue on which they will focus, which will remain an urgent demand of non-Arab parties and forces, especially the Kurds. Civil society representatives will be a force to achieve a balance between centralization and decentralization, bearing in mind that the civil society representatives are not sufficiently aware of the issues of centralization and decentralization. Third: the regime: One of the tasks of the Constitutional Commission, through the drafting of a new constitution, is to prepare for elections, which will be the gateway to the transitional phase, which is generally in line with UN Resolution 2254, although this resolution did not specify what the elections will be , parliamentary or presidential, left the door open to external forces involved in the conflict to determine the nature of those elections, and the consensus that preceded them. In practice, the Syrian regime has remained legitimate from the UN's point of view, its representative remains the representative of the "Syrian Arab Republic", and the military opposition in all its forms has not been able to win a decisive victory against the forces of the Syrian regime. Russia, the main player in the Syrian arena, has maintained that the president remains in power and even considered it the title of its victory in the Syrian file. In spite of these facts, the transition to the transitional phase will include concessions related to the presidency, which should result from the Constitutional Committee, as a committee to approve the consensus, and one of the scenarios is a transition to a parliamentary regime, which limits the powers of the president, and gives the Executive Authority a balanced role in the formulation of policies similar to the parliamentary regimes, taking into account what might be called the "Syrian privacy", similar to Lebanese privacy. In the 2012 Constitution, the President has almost absolute powers, as reflected in Chapter II, in the articles relating to Articles 88 and 117. The powers of the President extend to the three executive, legislative and judicial authorities, as well as the command of the army and the armed forces, and the inability of anyone to hold him accountable in the course of his work, except in the case of high treason, which is virtually impossible, since the president himself is the head of the Supreme Judicial Council in accordance with Article 133 of Chapter III, which is devoted to the articles governing the work of the judiciary. The main orientation of the opposition, and some regional states, will be with the transition from the presidential to the parliamentary regime, in order to ensure the participation of many parties in the formulation of future policies, and to preserve the interests of some groups, in addition to maintain the influence of the countries involved in the Syrian conflict, and to ensure the existence of what is called a "stalled force" in the parliament, which has the power to block the passage of laws and the functioning of the government, similar to the Lebanese situation. Fourth: The Doctrine and Restructuring of the Army The issue of the army, its structure, and the definition of its functions, or the so-called "combat doctrine of the army," is one of the most important issues after wars in general, and civil wars in particular, but this issue is not a constitutional issue in the first place, for example, the 2012 Constitution defined the military doctrine of combat in Article 11, where the military and the armed forces' mission is "to defend the territorial integrity and sovereignty of the homeland, in the service of the interests of the People and the protection of its objectives and national security," then the army has effectively slipped outside its constitutionally defined tasks and has become part of the conflict since the beginning of the Syrian intifada in the face of protesters, and before the armed conflict has begun. The problem today goes beyond the constitutional definition of the fighting doctrine of the army. There is a more important issue, which is how to actually restructure the army, with the factional situation on both fronts of the conflict, there are factions fighting alongside the regime, there are armed factions, and recently there is the so-called "Syrian National Army" and the "SDF", and it cannot really be said to start a transitional phase before some form of restructuring is reached. Of course, the issue of restructuring the army is not separated from the role of security institutions, and therefore about the possibility of writing a viable constitution, which ensures the neutralizing the role of the security bodies, restructuring, and taking them away from the issues of public affairs and freedoms and the daily lives of citizens, and this issue will be very complicated, because the structure of the army and the security body will mean reducing the powers of the military and security structure of the regime, and those who represent it in the political and rentier system. Fifth: Separating the powers The history of the second Syrian republic, which was established after the secession, is the date of the executive's control over the legislative and judicial authorities. It can be said that the main problem is that the authorities are not effectively separated, so that the legislative and judicial authorities are built in accordance with the executive authority headed by the President of the Republic. Legislative and judicial institutions guarantee the immunity of the executive institution and its president, and passing on the interests of the political authority. The Ba'ath Party was dominated by the composition of the Legislative Council, which is effectively under a Baathist majority, with members of the so-called "National Progressive Front" (NPF), as well as candidates for the workers and peasants categories, who, theoretically, make up half of the members of the People's Assembly. This Assembly is merely a décor and a servant of the executive authority, and is not an effective representative of the popular groups, in light of the dominance of the "leading party of the state and society", and the absence of political pluralism. If the task of the Constitutional Commission is to establish a political solution to the Syrian conflict, it requires it to find constitutional solutions to the issue of separation of powers clearly, and to clarify the way in which each of the three authorities, the executive mechanisms for their work, and the means of holding them accountable, especially that the transitional phase will actually see a balanced role for the judiciary , or at least what is supposed in the transitional stages, to ensure the closure of a number of files relating to war and violence and related issues, which need to prosecute criminals, and moral and material compensation, and the rehabilitation of many. Clarifying the role of the judiciary and its institutions, including the Public Prosecution, the appeal to the civil judiciary, the abolition of all exceptional courts, and the confinement of criminal cases in the Ministry of Interior, are indispensable for restoring confidence in the state in the first place, restoring confidence in the judiciary, and raising the level of the Law state and finishing the security state. Sixth: Public Freedoms: Chapter 2 of the 2012 Constitution is devoted to the "Rights, Freedoms and the Rule of Law", and 17 articles in Chapter I are devoted to "Rights and Freedoms". Item 3 of Article 33 ( the first article of this chapter) affirms that "the citizens are equal in rights and duties, without distinction as to race, origin, language, religion or creed". In practice, however, this article, which recognizes equal citizenship rights, is in fact in contradiction with other articles, in particular with Article 3 of the Constitution, contained in Part I, entitled "Fundamental Principles", which defines the religion of the President of State "the religion of the President of the Republic is Islam. The Islamic Fiqh is the main source of legislation. The State shall respect all religions and shall guarantee the freedom to carry out all their rituals, without prejudice to public order. The personal status of religious sects shall be safeguarded and respected". Defining the religion of the President of the state in Islam means that Syrian citizens from other religions are not entitled to serve as the president of the state. This is in fact contrary to the equal right of citizenship guaranteed by the Constitution "without any discrimination"! The preservation and observance of religious sects in personal status means that in many matters citizens are subject to the laws established in religious laws, not to equal citizenship. In cases of marriage, a non-Muslim is not allowed to marry a Muslim woman, which is one of many examples, which shows contradiction and fabrication in the 2012 Constitution, which is the same in the previous constitutions. The contradiction exists not only in the level of constitutional articles, but also in laws, whose executive provisions contravene equal citizenship rights, such as the law of granting nationality, where a distinction is made between men and women, where a man married to non-Syrian woman has the right to grant nationality to his children, while women are deprive from this right. The regime, and much of the Islamist opposition, will not seek to resolve the contradiction between constitutional principles and the articles related to equal citizenship, while the position of civil society representatives on the Constitutional Commission will be more progressive with regard to the articles of equal citizenship. Seventh: The Economy and the Role of the State Chapter II of Part One is devoted to "Economic Principles" and contains six articles (Articles 13 to 19), without explicit reference to the nature of the economic orientation of the state, contrary to Article 13 of the 1973 Constitution, which clearly states that " The economy of the state is a planned socialist economy aimed at the elimination of all forms of exploitation". the articles of the Economic Principles of the 2012 Constitution are in general formulas, which remain a margin for maneuvering and blurring between the tasks of the state and the private sector. Also it gives the State considerable privileges in relation to the confiscation of private property for war necessities and public disasters in return for fair compensation" . On the other hand, the exceptional laws allowed the state to seize the property of citizens under the pretext of "supporting terrorism" and other pretexts. In the recent years, lists of political opponents of the regime have been issued and the state has confiscated their movable and immovable property. Determining the shape of the post-war economy is indispensable in order to ensure the return of the production cycle, which will require large private investments, and perhaps the privileges of investors, and guarantees, which is double-edged, on the one hand this is an economic, financial and social necessity, on the other hand it will result in widening the gap between rich and poor, which requires constitutional provisions regarding the nature of the rights that the state has to give to its citizens, especially the poorest and war-affected groups. summary: The battle for a new constitution for Syria will not be an easy one. It is a tragedy with many mines, for two main reasons. The first reason is the number of international and regional actors involved in the Syrian conflict, who will focus on constitutional issues related to political, military, and economic affairs. The second one is the contradictions between the loyalties of committee members, the ideology that governs their views, directly or indirectly, and by trying to take into account certain categories of people, will make the work of the Constitutional Commission more like a bazaar, a barter, according to the principle: "give me these and I'll give you those".