The new Syrian Constitution: An Assessment

27 February 2012

In response to months of persistent demonstrations, uprisings and violence, the Syrian state has engaged in a number of reforms. In February 2012, a committee of experts that was appointed specifically for the purpose of drawing up a new constitution for the country submitted its final draft to the president. The draft was published shortly thereafter and is set to be put to a referendum within weeks. Sources that are close to Syria’s ruling party have hailed the draft as a major advance towards achieving genuine democracy and satisfying protesters’ demands. Others have retorted that the draft amounts to little more than window dressing and will make little or no difference to the manner in which Syria and Syrians are governed. This short commentary offers some initial thoughts on the draft and where it is likely to lead the country.

It is worth noting from the outset that the draft is silent on the events that have been taking place in the country and in the region since 2011. Apart from determining a country’s system of government, and its relationship between the state and the people, constitutions that are drafted pursuant to a violent conflict can play an important role in promoting national reconciliation. Specific provisions relating to transitional justice can create an opportunity to turn a new page while at the same time offering redress to victims of violence and repression. Constitutions can also seek to reconcile competing political visions, even through the use of purely symbolic language with no practical legal effect, with a view to reducing tensions within a specific country.

In that context, it is surprising to say the least that the relatively long narrative that is set out in the preamble is completely silent on this issue and that there are no provisions on transitional justice or any indication whatsoever that efforts will be made to redress the crimes that have been committed over the previous period. The preamble’s main focus is on resistance to colonialism, Zionism and the defence of national sovereignty. This omission is consistent with the position that the Syrian government has officially adopted in relation to reform: that it has called for the constitution to be modernized not in response to growing calls for reform by demonstrators, but because it had decided to do so through its own initiative. By pretending to ignore the people’s demands, and by failing to address the crimes that have been committed since 2011 (and before), the Syrian state is doing itself a disservice: it has cast doubt on the sincerity of its reform efforts, which may end making the entire endeavor pointless.

Differences and similarities

Syria’s previous constitution had officially put in place a much reviled system of one party rule. Article 8 of the 1973 constitution provided that: “The leading party in the society and the state is the Socialist Arab Baath Party”, which clearly left no room for political competition and contributed to a decades-long crackdown on a number of basic freedoms that were supposedly protected under the constitution. In a significant shift, the new draft constitution makes no mention of the Baath party. The new draft’s Article 8 provides that the state’s political system is based on “the principle of political pluralism”.

At the same time, the draft constitution suffers from many of the same deficiencies that have brought so much misery to the people that inhabit the Arab region over the past few decades. The draft pays lip service to a number of important principles, but does not provide for any specific mechanisms that would guarantee that these principles are respected in practice. By way of example, although the judiciary is nominally independent (article 132), the parliament is solely responsible for deciding how judges are appointed, promoted, and dismissed (article 136). Parliament is also solely responsible for deciding how the Supreme Judicial Council is composed, for determining its mandate and its rules of procedures (article 133(1)). The only guidance that the constitution provides in this regard is, surprisingly, that the president of the republic presides over the supreme judicial council (article 133(1)). Thus, the judiciary is effectively under the control of the executive and of the parliament.

A second example relates to the rights and freedoms, which are set out in Chapter Two of the new draft. The wording that is adopted is just as vague as what existed under the previous constitution, under which a number of abuses took place. Article 43 (which is almost identical to Article 38 of the 1973 constitution) illustrates this point. It provides that the state “shall guarantee the freedom and the independence of the press, printing and publishing and the media, in accordance with the law”. The problem with this wording is that Article 43 provides no indication whatsoever as to the type of limitation that can be passed by law, which means that the said freedoms are in fact subject to any type of limitation that the executive and the legislature desire.

A perpetual presidency?

What will be even more familiar to most Syrian will be the provision for a powerful presidency, far more powerful than what is acceptable in comparative constitutional practice. Once elected, the president is almost impossible to remove, and has significant control over all branches of government.

To begin with, the president is elected for a seven year term, renewable once (article 88). Syria could therefore be served by the same president for 14 years, which is largely in excess of what is considered to be acceptable in common practice. In so far as Syria’s current president is concerned, Article 155 provides that his current term should end seven years from the date on which he was previously elected. Given that the current president was last elected in a referendum (in which no other candidates were on offer) in 2007, his current term is set to end on 2014. In addition, Article 155 provides that Article 88 will only apply to the current president starting from the next presidential elections, which are therefore set to take place in 2014. This raises the possibility that Bashar al-Assad could theoretically remain in power until 2028.

Even more surprisingly, the draft constitution appears to anticipate that presidents may exercise their functions even after their constitutional mandate is completed. Article 87(2) provides that an incumbent president should continue to perform his duties in the event a new president is not elected. No explanation is given as to why a new president would not be elected, what circumstances would have to exist in order for a presidential election not to take place, what should happen in order to remedy that situation, or how much time should elapse before a new president is elected. Article 87(2) normalizes what should be an extra-constitutional situation, which is highly undesirable.

In addition, although the government can be impeached by the People’s Assembly, and although the Assembly itself can be dissolved by the president, there is no provision anywhere in the draft constitution for the People’s Assembly to impeach the president. Thus, once elected, barring illness or other unforeseen events, a president is impossible to remove for at least 7 years.

A dominant presidency

The president’s powers are equally extraordinary, far greater than what is normally accepted in comparative constitutional practice. For example, the president exercises a remarkable amount of control over the government: The president is solely responsible for appointing the prime minister, all ministers and even their deputies (article 97). Although the People’s Assembly has the power to withdraw confidence from the cabinet as a while or from individual ministers (article 75), the constitution’s wording strongly suggests that the President is solely responsible for granting confidence to the cabinet in the first place. The president is also solely responsible for determining the state’s policy and is also responsible for overseeing its implementation (article 98).

The president also exercises significant control over the People’s Assembly. Under Article 110, the president is solely responsible for dissolving the People’s Assembly (article 110). The only requirement is that the president must provide a reason for doing so. No indication is provided as to whether there are specific types of reasons that are acceptable and others that are not, which opens up the possibility that the president may decide to dissolve the Assembly on the basis that he or she is not pleased with the Assembly’s political makeup. In addition, although the judiciary is theoretically independent, the Supreme Judicial Council is headed by the president (article 133(1)), which is both highly unusual and undesirable.

The president is also granted a number of powers that go far beyond what is normally acceptable. For example:

  1. The president can call for a state of emergency (article 103). There are no limitations on the reasons for which a state of emergency can be called, on its duration, or its geographical application (article 103). The condition that the council of ministers must first approve the decision to call a state of emergency by a two thirds majority is not an effective safeguard given that the president is responsible for appointing the government.
  2. Even more seriously, the President is authorized by Article 114 to take whatever “quick measures” (a term that is left undefined) in the event a “grave danger” (also undefined) threatens “national unity” (undefined) or prevents state institutions from carrying out their “constitutional responsibilities”, a circumstance that is so common that it probably includes a number of unexceptional situations. As such, the president is essentially authorized to exercised exceptional and undefined powers in circumstances that may not be exceptional.
  3. The president has the authority to decree laws when the People’s Assembly is in session, and even when it is not in session if there is an “absolute necessity” (a term that is left undefined) to do so (article 113). Although the People’s Assembly has the right to revoke any legislation that is passed by the president, it can only do so if it obtains an absolute majority of all its members, a requirement that does not exist for the passing of ordinary legislation by the Assembly. In addition, even if a revocation is obtained by the Assembly, it is not retroactive, which means that the President has essentially been granted the unrestricted power to pass temporary legislation.

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