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Discussion about the Syrian Constitutional Committee with Lawyer Kamal Salman

  • Zaki Mehchy

    Associate Fellow, Middle East and North Africa Programme, Chatham House

    Associate Fellow, Middle East and North Africa Programme, Chatham House

Interviewed by Zaki Mehchy

1. What are the proposed work mechanisms for the committee and the dynamics of its decision-making?

2. What is the effectiveness of Kurdish representation in the committee? What are the repercussions of what is happening in the north for the work and objectives of the committee?

The establishment of the Constitutional Committee, as described by UN Special Envoy [Geir] Pedersen, is the first real breakthrough in the Syrian political process. The announcement of the Constitutional Committee’s formation by Secretary-General António Guterres, on 23 September 2019, represents a historic transformation and turning point in the Syria issue.

The UN is expected to facilitate the committee’s activities through Special Envoy Pedersen, based on relevant Security Council resolutions, specifically Resolution No. 2254, with the goal of creating a constitutional pathway for drafting a new constitution.

Reportedly, it is anticipated that two bodies, a smaller one and an expanded one, are to be formed. The expanded body will have 150 members – 50 members each from the government, the opposition and civil society – while the smaller one will have 45 members – 15 members each nominated by the government, the High Negotiations Committee [which represents the Syrian opposition] and civil society. The smaller body will take charge of preparing, drafting and presenting proposals to the expanded body for approval.

Likewise, the committee is expected to be given the option of either revising the 2012 constitution and previous Syrian constitutions or drafting a new constitution. It will have two co-chairmen, one from the government and the other from the High Negotiations Committee, operating on the basis of consensus. Each of them has the power to propose an agenda and plans and to accept ideas, put them forth, and facilitate.

Regarding the decision-making mechanism, the work of the committee is expected to be governed by consensus, or else voting will take place on the basis of at least 75% of the members of the relevant body, i.e. 113 members of the expanded body and 34 members of the smaller body.

It is not expected that a specific time frame will be stipulated for the committee’s work. On the other hand, it will include assurances that committee members and their families will be protected and their freedom of movement and work guaranteed, as well as various additional provisions.

With the escalation of popular protests in 2011, a Kurdish national conference was held in Qamishli on 26 October 2011, which called for constitutional recognition of the Kurds, the second-largest ethnicity in the country, as a major component of the Syrian people and stressed the need to respect their religious beliefs and rituals and protect the rights of other minorities.

Unfortunately, the Kurdish Autonomous Administration was ignored in the Geneva and Astana talks, and the opposition and the Syrian government denied them representation. Turkey, a supporter of the opposition, considers Kurdish fighters ‘terrorists’ who must be excluded, while the Syrian government blames the Kurds for their partnership with the US at the expense of the Syrian government, claiming that their decision is unpatriotic.

Under pressure from Turkey, the Kurds were excluded from participating in the National Dialogue Congress held in Sochi, and later from the Constitutional Committee – despite their actual control over north and east Euphrates – when it was established by the UN.

The Kurdish administration considered its exclusion from participation an ‘unfair process’ jeopardizing the success of the constitutional process. The rapid changes in the Syrian map and the American withdrawal from north and east Euphrates – leaving the Kurdish administration alone and weak in a possible confrontation with the Turkish army, which hurried to mass its forces and launch Operation Spring of Peace – compelled the administration to reach an agreement with the Syrian government, mediated by Russia, allowing the Syrian army to enter the regions governed by the Kurdish administration.

Apart from the series of events preceding the convening of the Constitutional Committee, many Syrian Kurdish jurists believe that the exclusion of the Kurdish administration will affect the success of this desired social contract from a structural standpoint and produce an undemocratic social contract.

Although the Autonomous Administration used the war against ISIS to gain world sympathy, especially from the US and its allies, political sympathy remained timid and scarce. The US did not support the Kurds politically, only militarily.

Pending the outcome of the forthcoming committee, the rights of Kurdish citizens and other minorities remain the responsibility of the Constitutional Committee, the international community, and the UN.

Hence, a Syrian-Syrian dialogue is necessary in order to draft a constitution that represents a human product and accepts the other through equal citizenship.

3. In your opinion, what are the constitutional articles and topics that will be subject to debate among the members of the committee (regime, opposition, civil society)?

Advocates of the current 2012 constitution believe that it represents an important step towards democracy and the establishment of a democratic and pluralistic framework that achieves important political, economic and social reforms in various aspects of life.

However, the 2012 constitution was criticized by the opposition and academics for many reasons, including the timing for amending the constitution, the extraordinary circumstances for amendment, the lack of discussion of the constitution by the people, the powers of the President of the Republic, the principle of separation of powers, the independence of the judiciary and human rights issues.

Some of the articles that will be the subject of intense debate by the Constitutional Committee are:

  • The religion and gender of the President of the Republic, given that these criteria discriminate against minorities and other citizens.
  • Islamic jurisprudence as a major source of legislation.
  • Representation and rights of minorities.
  • Form and system of governance.
  • Syrian flag and motto.
  • The principle of separation of powers.
  • Ordinary and extraordinary powers of the President of the Republic and his dominance over the three branches.
  • The powers of the People’s Council and conditions for election to the Council (Article 60 of the current constitution), the conditions for the election of the head of state, and the ‘quota’ principle (Article 85 of the current constitution).
  • Independence of the judiciary.
  • Role of the Supreme Constitutional Court, the conditions for its appointments and its powers.
  • Freedoms and human rights and their consistency with the Universal Declaration of Human Rights and the general rights provided in international agreements.
  • Centralization and decentralization.
  • Gendering the constitution as a constitutional requirement, based on the principle of equality between men and women.

Some of the problematic topics to be noted in the work of the committee:

  • Lack of clarity regarding the time periods for completing the committee’s work.
  • Lack of a provision in the current Syrian constitution that approves any committee other than the Syrian People’s Council.
  • If the committee produces a constitution, will it be voted on or not? If it is rejected, is there an alternative solution? Or will the UN impose it by force, and will we be faced with a constitution born of an international custodianship?
  • Will the output be a permanent or a temporary constitution for the country?
  • Considering the date of legislative elections scheduled for early next year, will the elections be held or will that depend on the results of the Constitutional Committee?
  • Considering the date of presidential elections scheduled for 2021.
  • The violation of the current constitution was not addressed: the committee’s approval also did not address the text of the 2012 constitution, which requires procedural rules for amending the constitution, as stipulated in Article 150 of the current 2012 constitution:
    • The President of the Republic and one-third of the members of the People’s Council shall have the right to propose amendments to the constitution.
    • The proposal for amending the constitution shall include the text proposed for amendment and the reasons for the amendment.
    • As soon as the People’s Council receives the proposed amendment, it shall form a special committee to study it.
    • The People’s Council shall discuss the proposed amendment; if approved with a three-fourths majority, the amendment shall be considered final, pending approval by the President of the Republic.

4. Syria has always suffered from a gap between the constitution and actual practice. How can the enforcement of approved constitutional articles be guaranteed (if this occurs)?

Everyone acknowledges major differences among members of the committee; however, if they maintain a deep awareness and national responsibility, they can resolve these differences and overcome the difficulties, as long as they call for sovereignty, national unity, citizenship and equal rights, freedoms and respect for minorities.

The UN and the international community must provide guarantees to support the committee’s work, ensure its independence and respect its outcomes. In order for the future constitution to meet the aspirations of Syrians, the majority of the Syrian people must be involved in this process, and the constitution must satisfy and be accepted across the spectrum of Syrian society. This will create a climate for a serious Syrian dialogue, thus paving the way for a solution. Syrian civil society will be important in publicizing the significance of the constitution and its approval by all, preferably by national consensus.

Accordingly, some believe that the solution is to agree on supra-constitutional principles. There is an urgent need to agree upon these principles in advance, before beginning to write the constitution, in order to oblige later, successive authorities to not hold power alone regardless of their parliamentary majority or the size of their representation. Consequently, it is imperative that the constitution not be amended according to their wishes or that laws not be issued that affect and threaten freedoms and rights, as these principles derive from the general freedoms and human rights stipulated in the Universal Declaration of Human Rights (1948) and the International Covenant on Civil, Political, Social, Economic, and Cultural Rights – as applied in the supra-constitutional principles stipulated in the Turkish Constitution, enshrining the idea of a secular state.

This is necessary for societies that want to rebuild their weak and fragile legal and political system – as is the case with Syria – after a wave of conflicts, civil wars and migration, where community relations and the foundations of coexistence have been disrupted and the community is divided along sectarian, doctrinal, regional and tribal lines.

There are many states whose constitutions were drafted after an armed conflict, such as Afghanistan in 2001 – where a constitutional commission was established to prepare and present a draft constitution – and East Timor’s constitution in 2002.

Kamal Selman is a Syrian lawyer currently living in Damascus-Syria. He has been a regular participant in the Syrian Civil Society Room meetings organized by the UN. Kamal's work in Syria focuses on civil society, gender and human rights.