Understanding the Origins of Russia’s Constitutional Solution to the Syrian Conflict


By William Partlett, 24 February
International Meeting on Syrian Settlement
International Meeting on Syrian Settlement, Astana, January 23-24, 2017

At Syrian peace talks in Astana, Kazakhstan last month, the Russian government released a draft constitution for Syria.  This draft constitution has long been rumoured since President Vladimir Putin stated that a new constitution would be critical in finding a political solution to the crisis in Syria. Drafted by Russian constitutional law and Middle East experts, this document has been the subject of much speculation and controversy. Key members of the Syrian opposition have already rejected the draft. In response, the Russians have argued that it is only meant to serve as a “guide” for the peace process.      

It is impossible to know what role the constitution will play in the Syrian peace process. Yet, this document stands as an important example of a non-liberal constitutional model put forward as a solution to one of the world’s most intractable conflicts. This brief essay will analyse the original Russian language version of this draft constitution to trace how it draws on uniquely Eurasian conceptions of public power. In so doing, this essay will correct some of the key misunderstandings about the draft while also seeking to get a deeper understanding of how this constitutional order understands—and seeks to solve—the Syrian conflict. This analysis will show that Russia sees the solutions to Syria’s problems not as a reflection of too much concentrated authority in President Assad, but instead as the opposite: A consequence of a system that does not protect state unity and integrity by concentrating enough power in a strong, centralized government.   

Contextualising Syria’s Draft Constitution

Russia’s proposed constitution for Syria cannot be properly understood without an understanding of Russia’s own constitutional tradition. Russia shares a common constitutional culture with many of the other countries that once comprised the Soviet Union and the Russian Tsarist Empire before that. This region—spanning twelve countries from western Ukraine to the Russian Far East and speaking Russian as its lingua franca—includes Kazakhstan, the current host of the Syrian peace negotiations. 

In these Eurasian countries, “hybrid” constitutions—adopted in the 1990s—have placed western constitutional ideas alongside constitutional concepts and institutions drawn from their own distinctive constitutional tradition. This Eurasian exceptionalism—which in many cases contradicts western liberal constitutional values—is underpinned by a deeply-rooted school of thought that views Russian history as a natural progression from anarchy toward a centralized state which will organically unite both the people and the state. This “statist school” of Russian constitutional discourse therefore argues that constitutions should create a strong sovereign leader that can maintain this integrated state in the face of disintegration, dysfunction, and invasion.

These statist values find their way into Eurasian constitutions via frequent textual references to statehood (gosudarstvennost’) and state integrity (tselostnost’).  For instance, every Eurasian preamble contains recitations of the importance of continuing and developing the statehood (gosudarstvennost’) of the nation. They also recur frequently in discussions of the presidency and provisions limiting rights. The repetition of these concepts demonstrates a persistent and powerful Eurasian obsession with the unity and cohesiveness of state power which was “often in peril due to Russia’s size and state of backwardness.” This fear has carried forward to the present day.    

These concepts can be found throughout Syria’s draft constitution. First, the preamble to the Syrian Constitution—which has been completely rewritten from the 2012 Syrian Constitution—now stresses the importance of “continuing” Syria’s progression toward “statehood (gosudarstvennost’).” Second, the draft includes far more references to the constitutional necessity of preserving state unity than the 2012 Syrian Constitution. Article 1 explicitly states that the protection of national unity and territorial integrity (tselostnost’) are the obligation of both the government and the people. Article 5 states that all political parties must “respect” the “territorial integrity (tselostnost’) of the state.” The use of these concepts—the word territorial integrity (tselostnost’) alone can be found in seven different places—suggest that the Russian drafters see the solution to Syria’s civil war as one that concentrates state power in one strong central government, rather than dispersing it. These values play a key role in understanding the draft constitution’s institutional design choices.  

Presidency

Because of President Assad’s controversial status, one of the institutions in the draft constitution that has generated significant media attention is the president. There has been media speculation that the draft weakens the power of the Presidency in order to make Assad’s resignation unnecessary.   

The text, however, suggest otherwise. The draft constitution creates a Syrian President that draws heavily on the model of the Eurasian president (prezident). The Eurasian president stands outside of the executive branch and is formally the head of state. In this position, the President serves as the leader of the nation, symbol of its unity, and the sovereign will that directs the machinery of the state. One of the drafters of the Russian Constitution stated that it was a “myth” that the president was based on western democratic models. Instead, he described this configuration as modelled on the British monarchy, where the President would have the autocratic authority to act in the face of threats to the state. To ensure this role, Eurasian constitutions specify the president to be the guarantor of the constitutional unity of the state as well as a coordinating force in resolving disputes between the executive, legislative, and judicial branches of government. 

The Syrian President generally follows this model with a few small variations. First, with regard to presidential term limits, the draft constitution follows the Eurasian tradition by keeping in place long seven-year presidential terms from the 2012 Constitution.  Importantly, however, the draft constitution creates a definite upper limit, stating that one individual can only serve two terms as president. This is more restrictive than many Eurasian constitutions. For instance, the Russian Constitution limits the president to two terms “in a row.” This has allowed Vladimir Putin to serve two terms from 2000-2008, step down for one term (when he was Prime Minister), and then return to the Presidency in 2012 for possible two additional terms.  In the central Asian republic of Tajikistan, the constitution was changed to ensure that the current president could run for an unlimited number of terms. The transitional provision for the “existing” Syrian President, Bashar al-Assad, more closely approximates the Eurasian model: It generously allows him two additional seven year terms when his current term ends on 16 July, 2021. 

Second, with regard to the powers of the president, the draft constitution departs from the Eurasian tradition by placing the Syrian president in the executive branch. But other provisions in the draft constitution ensure a Eurasian-style Syrian presidency that can go beyond executive power and wield power to supervise and unify all branches of power in the state.  First, the President plays a “guarantor” role, ensuring national independence, unity, and the territorial integrity (tselostnost’) of the country (Art 55, Section 1).  Second, the president also is given a “coordination” role, ensuring the permanence of the functioning of state power (Art 55, Section 2). Finally, the president serves as “mediator” between institutions of government as well as between the government and society (in order to ensure its unity). (Art 55, Section 3). In this coordinating role, the president has power to establish “conciliation procedures.” (Art 55, Section 3).

Thus, early media reports that the draft Constitution had weakened presidential power are incorrect. On the contrary, with the limited exception of term limits, this constitution would create a more powerful president than that which exists in the previous 2012 Constitution. In fact, a Syrian president would not just have the possibility of wielding executive power but also the power to intervene energetically in other branches of government. 

Bicameral Legislature

Another area of significant interest has been the draft constitution’s creation of a bicameral legislature. Reports have expressed particular confusion about the newly created upper house of the legislature. In particular, these reports have questioned how this body is formed as well as its powers.  

To clear up this confusion, we must turn to Eurasian bicameralism. In Eurasian constitutions, the upper house is not a fully elected and partisan body that engages in lawmaking (like the lower house).  Instead, the upper house is frequently only partially elected and includes representation from the regions and serves, in part, as a consultative body for the President to ensure control over regional areas. The upper house then involves these regional representatives in important decisions—including impeaching the president, declaring war, and confirming judicial appointments—but ensures that these representatives are friendly to presidential power.  To this end, many Eurasian constitutions allow the president to appoint some of its members.  In Belarus, the President can appoint eight members of the upper house; in Kazakhstan, the president can appoint 15; and, in Russia, since 2014, the president has formal power to appoint up to 10% of the representatives in this upper chamber. 

The draft Syrian Constitution includes a similar Eurasian-style upper house. Article 40 creates the Territorial Assembly (a far better translation than “Constituent Assembly” which is found in the most widely disseminated English translations) as the upper house of the Syrian parliament.  Crucially, much as in the Eurasian model, this upper house is drawn from Syria’s regions and is not elected.  It instead leaves to future law the process for the “delegation” of new members. The draft also explicitly describes the role of the Territorial Assembly as one allowing representatives of regional units the ability to “participate in the adoption of legislation and the administration of the state.” Thus, much as in the Eurasian tradition, the upper house emerges as a method for strengthening sovereign presidential power over the regions.  

The Kurdish question

A final area of interest is how the constitution deals with questions of minority nationality and religion. With regards to nationality, some media reports have expressed alarm at the decentralizing tendencies in the draft constitution and the possibility of Kurdish separatism. Once again, however, the draft constitution draws on the Eurasian approach to national and religious diversity. This approach guarantees wide cultural, religious, and educational autonomy but always does so in the context of an integrated and centralized state system that is united by a single, animating sovereign will. A good example of this in this Russian Constitution is the position of the Jewish Autonomous Oblast, which is afforded significant linguistic and religious autonomy but little political autonomy.   

This is clear from Article 4 of the draft constitution. This provision states that Syrian citizens have the right to “educate their children in their native language” and that government agencies and institutions of Kurdish cultural autonomy shall employ both Kurdish and Arabic. Furthermore, Article 15 states that the organization of regional authorities is based on “the principles of decentralization and the separation of powers.” Neither, however, suggest a significant delegation of autonomy to the Kurds.  In particular, Article 15 leaves the details of “the appointment or election” of these regional representatives to law, leaving the distinct possibility that regional authorities can be appointed by the centre. In this way, it follows the Eurasian tradition of making concessions to cultural identity and decentralization while ensuring that the real levers of power are concentrated in the centre.    

The Eurasian approach is also reflected in its approach to religion. Most importantly, the draft constitution removes references to Islam as the state religion.  First, it changes Syria’s official name from the Syrian Islamic Republic to the Syrian Republic. Second, it makes significant changes to Article 3 of Constitution.  In the 2012 Syrian Constitution, Article 3 states that the President must be Muslim and that Islamic jurisprudence is a major source of legislation. In its place, a new Article 3 declares the state to “respect all religions and religious organizations” and that “religious organizations shall be equal before the law.” This provision should be interpreted as a reflection of the wide religious autonomy that Eurasian constitutions have long recognized. 

Rights provisions

A final set of provisions that has received little interest involves the rights provisions in the draft constitution. The Eurasian tradition—reflecting its western influence—generally contains a long list of rights, including both negative rights (i.e., freedom of speech) and positive rights (social security and right to health care). These rights provisions, however, are considered in light of the broader goals of protecting the integrity and unity of the state (gosudarstvennost’). For instance, Article 44 of the Armenian Constitution states that these rights can be limited “if it is necessary for the protection of state or societal security, societal order, the health or morals of the people, or the protection of the rights and freedoms, honour or good name of others.” 

In keeping with this tradition, the Syrian draft constitution contains a long list of rights that reflects both negative and positive rights.  However, one of the most curious aspects of these rights provisions is the complete lack of a qualifying clause allowing the limitation of these rights when the interests or integrity of the state is in jeopardy. A couple of possible reasons present themselves. First, this decision could be a reflection that the 2012 Syrian Constitution itself contains no such limiting clause.  Second, and more likely, the lack of a limiting clause could demonstrate that the drafters themselves saw the rights provisions themselves as largely irrelevant to guiding the Syrian peace process. This interpretation would be in accord with statements by Russian officials that this draft is only offering “a basis for discussion.”. Thus, the key provisions that the drafters wanted to introduce into the discussions were not rights provisions but instead institutional arrangements that they thought could help rebuild the integrity and unity of the Syrian state.   

Conclusion

Drawing on Eurasian constitutional exceptionalism, this draft constitution clearly views Syria’s main problem to be the complete breakdown of the unity of the state. To solve this problem, the constitution buttresses centralized authority through provisions and institutions that will strengthen Syrian gosudarstvennost’ (statehood) and tselostnost’ (state integrity). To this end, the draft constitution inserts some distinctive Eurasian institutions: A unifying President, a pliable upper house of Parliament, and a state that recognizes cultural autonomy but always within a unitary structure. This vision for a peaceful Syria is therefore one not characterized by limited presidential power, political competition, or judicial independence but instead one that seeks to unite Syria’s different groups—Arab and Kurd alike—under a powerful and sovereign president. 

Dr Partlett is a senior lecturer in Melbourne Law School. Before coming to Melbourne, Dr Partlett was an Assistant Professor at the Faculty of Law of Chinese University Hong Kong, a Postdoctoral Research Fellow and Lecturer at Columbia University Law School, and a Fellow at The Brookings Institution. Dr Partlett holds a JD from Stanford Law School as well as a DPhil in Soviet History and MPhil in Russian and East European Studies from the University of Oxford (where he was a Clarendon Scholar). He also holds an honors bachelors degree in International Affairs and Public Policy from Princeton University and speaks Russian.

Disclaimer: The views expressed in Voices from the Field contributions are the author's own and do not necessarily reflect International IDEA’s positions.

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