Sunday,23 September, 2018
Current issue | Issue 1290, (7 - 13 April 2016)
Sunday,23 September, 2018
Issue 1290, (7 - 13 April 2016)

Ahram Weekly

Battle of the constitution

The Syrian government has agreed to a national-unity government and early elections in a deal that has been rejected by the country’s opposition, writes Bassel Oudat in Damascus

Al-Ahram Weekly

Syrian President Bashar Al-Assad told the Russian news agency TASS on 30 March that he had agreed to the formation of a new national-unity government between the opposition and the regime. Some amendments to the constitution would be made, he said, and these would be ready within weeks.

Al-Assad also agreed to early elections and absentee voting by refugees outside the country, provided that ballot boxes were prepared under “state authority”.  However, the Syrian opposition has dismissed the proposals out of hand, considering them to be an “evasion” and stressing that the current constitution “cannot be reformed”.

This is the first time that Al-Assad has broached the idea of early elections. Over the five years of the crisis, he has refused to consider it, insisting instead on the date set for the next presidential elections in 2021.

Some observers have chalked up the shift in Al-Assad’s position to Russian advice, but the opposition has unequivocally rejected the idea of anything being placed under his supervision. Its first condition is that Al-Assad play no role in the transitional phase or after a political resolution is reached. It opposes elections under the current constitution because this gives the president absolute powers.

UN Security Council Resolution 2254, issued on 18 December, provides for three steps for a political transition in Syria: the formation of an inclusive, non-sectarian system of governance, a new constitution, and new elections held under UN auspices.

The resolution was supported by both Russia and the US, and this has pushed Al-Assad to moderate his claims on power and his rejection of the opposition. However, he still insists that the transition be conducted under government oversight and under the present constitution.

The Syrian constitution, introduced in 2012 when Al-Assad’s military forces were besieging cities and killing civilians, was drafted by a committee formed and supervised by Al-Assad himself and was approved in a referendum supervised by the security apparatus.

It is Syria’s fifth constitution since the birth of the modern state in 1920. Former president Hafez Al-Assad issued a constitution in 1973 drafted by an ad hoc committee and applied after a purely formal referendum.

In contrast, the 1928 Constitution, amended in 1950, was drafted by a democratically elected constituent assembly. Some elements in the opposition are demanding a temporary return to this constitution until a new one can be drafted.

The constitution currently in force gives the president powers not granted to any other head of state, concentrating executive, legislative, and judicial authority in his hands. Under the constitution, the president is empowered to appoint and fire the prime minister and cabinet, the heads of diplomatic missions, and even regular civil servants.

The president sets the outlines of state policy, commands the army, declares war and peace, and can declare emergency law. He also has the right to dissolve the parliament and set up a new legislature in its place. The only constitution in the world to be tailored specifically to the needs of an incumbent president, it names Al-Assad as the absolute leader of the state and the sole determiner of its future.

Prominent rights advocate Anwar Bunni, chair of the Syrian Centre for Legal Studies and Research, cautioned against accepting any new constitution during the transitional phase.

“We can’t talk about a constitution for the transitional phase because it’s wrong in principle to do so,” he told Al-Ahram Weekly. “If we want to draft a new constitution, we must hold a referendum, and there is no way to poll the people in Syria under present circumstances.”

“More than half of all Syrians are internally displaced or in exile, and the other half are facing war and death every day. Drafting a constitution in the transitional phase will only legitimise the ruling authority and the transitional government. Any transitional governing authority will come as a result of the war, not as a result of the wishes of the people.”

Bunni, who wrote a draft constitution in 2005, suggests writing a constitutional declaration for the transitional phase in Syria. This document would set out the authority of the transitional government for a period of two years, during which the Syrian people would restore security and reclaim psychological equilibrium.

After this, a permanent constitution for the country could be drafted and a referendum held in peaceful conditions.

As the Syrian regime pushes for political change under Al-Assad’s constitution, Russia is promoting a compromise constitution that would not overly damage the regime. According to information received by US secretary of state John Kerry from the Russian side during his visit to Moscow on 23 March, this would set out the future of the political system and the rules for the transitional period in Syria based on a document drafted by experts close to the Syrian regime.

At the end of his visit, Kerry said he agreed with Russian president Vladimir Putin on the need to prepare a new constitution for Syria by August. This short timeframe spurred the Russians to submit their own draft and the Al-Assad regime to announce it was preparing a new constitution.

However, the opposition does not want a constitution for the transitional period, believing it will not work as long as Al-Assad is overseeing its provisions and his security apparatus and war machine is supervising the referendum.

Independent legal experts also said that the Syrian people had a duty to reject any constitution in the transitional period as a potential danger to the country’s future.

Western officials believe that a transitional ruling authority in Syria should be formed in tandem with the drafting of a new constitution because these two issues are interrelated and a constitutional framework must be established for the transitional governing body, leaving the actual constitution to a later stage.

This is consistent with the proposals made by Bunni, seen as a credible legal authority by all factions of the opposition regardless of their differences. Western officials also think the Syrian regime will try to turn the coming round of the Geneva III Conference, scheduled to start on 11 April, into a battle over the new constitution.

Bunni’s proposed constitutional declaration, supported by the opposition, would strip Al-Assad of his prerogatives and would offer no immunity to any person in the transitional phase.

The declaration would suspend certain laws and make all subject to a transitional justice authority attached to the temporary ruling body. The transitional authority’s mandate would expire in two years, after which the Syrian people would determine the type of constitution they wanted.

The suspension of the laws “is of the utmost importance,” said Syrian dissident Said Muqbil. “It’s very important for the constitutional declaration to be able to suspend laws put in place by Al-Assad over the past five years, including the terrorism law and the terrorism courts that try people outside the law, as well as laws that give security personnel prerogatives and make them immune from prosecution,” he said.

“Other laws allow the detention of journalists and opposition figures on baseless charges, such as undermining national morale. Al-Assad’s laws of the past five years have swept away the rule of law, and they must be removed,” Muqbil said.

The opposition says that over the past five years the regime’s security and military apparatus and militias “have become the law and the constitution combined”. Nearly half of the provisions in the current constitution enumerate the president’s authority, which is why the opposition says it cannot be reformed.

The Al-Assad regime wants to form a transitional government under this constitution’s provisions to allow it to dominate the new government. However, neither the Syrian opposition nor the Syrian people can accept this after nearly half a million Syrians have died trying to bring down the regime, its constitution, and its exceptional laws.

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