Saturday,23 February, 2019
Current issue | Issue 1130, 10 - 16 January 2013
Saturday,23 February, 2019
Issue 1130, 10 - 16 January 2013

Ahram Weekly

Constitutional conundrums

Whereas Arab Spring revolutionaries had hoped for constitutions that would allow for more democracy, Syria’s 2012 constitution has actually increased presidential powers, writes Bassel Oudat in Damascus

Al-Ahram Weekly

Ever since former Syrian president Hafez Al-Assad, father of the current president Bashar Al-Assad, came to power in the 1970s, the political system in Syria has been based around the ruling Syrian Baath Party, a principle embedded in the 1973 constitution.

Article 2 of this states that the Baath Party “is the leader of society and the state,” and the country’s president, prime minister, speaker of parliament, army officers, members of security and police agencies, governors, union leaders, directors of civil groups, college deans and most school principals are accordingly all members of the party. Most members of the judiciary, MPs, top civil servants and senior managers at state-owned companies and city mayors also carry party cards.

Such has been the situation over the past 40 years or so, despite demands to allow political pluralism. The 1973 constitution further stipulates that the goals of society are “unity, freedom, and socialism”, that Syria is part of a “federation of Arab republics”, and that the Syrian people are “part of the Arab nation”. It adds that the president must be a “Syrian Arab”, which excludes other Syrian ethnicities, and that the Baath Party has a monopoly on political life since it is the leader of state and society.

The constitution says that the country’s president should be nominated by the regional leadership of the Baath Party and a referendum then be held without other contenders. It says that socialism is the principle behind state economic policies.

Though the constitution contains articles pertaining to general freedoms, most of these have been ignored in practice, and the Syrian government has been convicted of torture and other human rights violations banned by the constitution and international law. The constitution has also been circumscribed by other laws, such as the 1963 Syrian emergency law, which bans public demonstrations and sanctions arbitrary detention and wiretapping among other provisions.

The military tribunals law permits civilian trials in front of military and state security courts and does not allow recourse to civilian courts. Law 49/1980 prescribes the execution of anyone found to be a member of the banned Syrian Muslim Brotherhood.

Meanwhile, the president’s powers under the 1973 constitution are very broad, allowing him to serve unlimited terms in office. According to political analyst Jean Habish of the Damascus Centre for Theoretical Studies and Civil Rights, the constitution “divides Syrian citizens into four categories: Baathists, who are the only ones allowed to run for president; members of parties in coalition with the ruling Baath Party, who are sometimes chosen as ministers, MPs, or appointed to second-tier offices; independents, who have no influence or power; and the opposition, members of which are either in jail or in the grave.”

Yet, as the Arab Spring revolutions began in Tunisia, Egypt, Yemen and Libya in 2011, calls for political reform in Syria also began to emerge, eventually giving rise to the present conflict. As the protests spread, the regime began making promises about political reform, eliminating the state of emergency (while at the same time issuing a draconian anti-terrorism law), and issuing new laws on political parties, elections and the media. It also declared that it would amend the 1973 constitution, notably by eliminating Article 8. However, none of this has come about, and the protests escalated into calls for the overthrow of the regime and all its pillars.

The regime created a presidential committee to draft a new constitution, and the Syrian people hoped for a democratic constitution that would eliminate the Baath Party’s monopoly on power and embed the notion of political pluralism. They were disappointed in that the 2012 constitution gave the president even greater powers.


FALSE START: In February, 2012, President Al-Assad issued a decree on a referendum on the new constitution, ignoring the dire security and humanitarian situation in Syria. He then imposed the new constitution, drafted by a group of loyalists, and gave himself an extraordinary mandate never before given to any other Syrian president.

This constitution, the fifth since Syria’s creation as a modern state in 1920, echoed the previous one, which was also issued in the same manner, being drafted by a special committee and then approved by referendum. In contrast, the 1928 and 1950 constitutions were written by democratically elected constituent assemblies.

Moreover, the 2012 constitution was drafted at a time when regime security forces were deployed on the streets in Syria, and the killings and arrests were continuing. This was a clear message that the constitution would be passed at gunpoint if necessary, even after the killing, by this point in the Syrian uprising, of an estimated 15,000 civilians at the hands of regime forces, with tens of thousands of others injured, arrested or displaced.

The official media described the constitution as “the start of a new phase and a turning point in Syrian politics and the country’s modern history. It is a step towards democracy and laying the foundations of a democratic, plural and representative political system in Syria.”

The opposition boycotted the referendum after having refused to participate in drafting the constitution, describing it as a “joke” and an illegitimate “show” that the Syrian people would refuse to accept. Most Syrians agreed, and only a small percentage of eligible voters cast their ballots in the referendum, according to neutral observers, either because they had listened to the calls to boycott the referendum or because they did not care about a document issued by a regime that had marginalised them for decades.

The opposition demanded that the president first stop the violence against the protesters and that the new constitution be part of a comprehensive framework for reform drawn up in collaboration with society as a whole. The new constitution, it said, should aim to build a plural, democratic society in Syria based on the rotation of power and majority rule and without violating the political, religious and ethnic rights of minorities.

Any new constitutional document, it said, would have to be based on free and fair elections and the formation of political groups representative of the whole of Syrian society. There would need to be a principle of equality, such that politics in Syria was no longer a matter of leaders and followers. The regime wanted to “give repression a facelift in order to imply that reforms were underway,” the opposition said.

The 2012 constitution was written by a committee appointed by the president and composed exclusively of regime loyalists. The constitution was not presented for public debate, but instead received only praise and commendation in the official state media.

“It was a farce,” Farhan Mattar, an opposition figure who resigned from Syrian television a month ago, told Al-Ahram Weekly. “The referendum was unprecedented: for the first time in history, a referendum was being held under gunfire across the country. The obvious question was if the people are rising up against the regime across the country, how could they be expected to accept such a farce? It could only mean that the head of the regime was isolated and living in a bubble.”

However, the regime announced that 8.4 million Syrians had taken part in the referendum, or 57.4 per cent of 14.6 million eligible voters, with 89.4 per cent of them approving the new constitution. “This is a distinguished and civilised accomplishment for the Syrian leadership and people,” proclaimed the regime, though the country’s opposition and impartial observers said that only some 20 per cent of voters had actually taken part, or fewer than 1.5 million people.

On the international stage, with the exception of Syrian regime allies Russia and Iran that welcomed the new constitution, the international community as a whole rejected the new constitution, demanding an end to the military crackdown in Syria instead. The US said the whole procedure showed that the Syrian president was making a mockery of the Syrian people in the eyes of the world.


AN EXTRAORDINARY MANDATE: The 2012 Syrian constitution gives the country’s president very broad powers. Article 88, for example, states that the president has the power to appoint the prime minister and his deputies and members of the cabinet. He can accept their resignations and dismiss them.

Article 98 states that the president is responsible for outlining the general policies of the state and overseeing their implementation. It also gives him the power to declare war and to make peace. Article 103 gives him the power to declare an end to the state of emergency. Article 104 gives him the right to appoint the heads of diplomatic missions overseas. Article 105 appoints him the commander-in-chief of the army and the armed forces. Article 106 gives him the right to hire and fire civilian and military civil servants.

Article 111 gives him the right to dissolve parliament and to take over legislative powers should he wish to do so. Article 150 confirms his right to propose constitutional amendments with the approval of a percentage of the parliament. At the same time, the constitution does not hold the president responsible for any of his actions while exercising his mandate.

According to Anwar Al-Bonni, director of the Syrian Centre for Legal Research and Studies, any constitution issued by a regime not trusted by the people would be unacceptable, because that regime would simply produce a document that suited it the best. “The constitution that was passed in the referendum is a farce and is invalid. It was written by the regime without the participation of any opposition forces,” he said. “Despite the regime’s illegitimacy, it still brazenly dominates everything in the country.”

Al-Bonni also warned against the powers given to the president in the new constitution. These, he said, concentrate all powers in presidential hands, when they should be separated in any meaningful constitutional document. “The president’s powers are immense and unrestricted in the new Constitution, and the parliamentary majority has no role in forming the cabinet or drawing up policy,” Al-Bonni said.

“The president has the right to dissolve parliament and to control all legislative powers. He also appoints the executive, including the prime minister, cabinet members and their deputies. He controls the judiciary as chair of the Supreme Judicial Council and appoints its members. He is commander-in-chief of the army and the armed forces and other bodies. He is made into a kind of demi-god.”

Al-Bonni, who had himself previously drafted an alternative constitution for the country, stressed that the way the constitution had been written was flawed. “A constituent assembly should first have been elected, and this should have been responsible for outlining Syria’s future. There should have been Arab and international monitors in the country, followed by a transitional phase in which power would have been handed over to elected rulers. Anything else is a waste of time.”

Al-Bonni noted that there were also hundreds of laws that violated the new constitution. It was nothing more than a vehicle for transitioning the country from a party in command of the state and society to a president in command of the state and society, he said.


THE PROBLEM OF MINORITIES: The 2012 constitution repeats Article 3 of the older one, which stipulates that the religion of the president of the republic is Islam and that Islamic jurisprudence is the main source of legislation, disappointing members of minority groups in Syria, as well as the country’s liberals, secularists, Christians and advocates of a civil state.

“While the inclusion of Article 3 in the new constitution was no surprise, keeping these sectarian and racist clauses in the new constitution triggered growing resentment in Christian circles, as well as in those calling for a civil state separate from religion,” Suleiman Youssef, an Assyrian political activist and expert on Syrian minority issues, told the Weekly.

“It increased Christian rejection of Al-Assad’s sectarian and racist regime, causing many Syrian Christians to break their silence about the crisis and to join protests demanding the overthrow of the regime.”

“Keeping this article in the new constitution affects Christian citizenship rights and violates their national status. It dashes hopes of transforming Syria into a civil state with genuine citizenship rights. Choosing Islamic jurisprudence as the basic source of legislation is tantamount to legalising constitutional discrimination between citizens.”

The new constitution is composed of 157 articles and states that Syria is a “democratic state and a republic in which power rests with the people”. It states that political and economic pluralism is guaranteed, along with the cultural rights of all segments of society. It adds that it is the state’s duty to protect the family unit, promote marriage and protect individuals in case of disability. It also gives men and women equal status and says that all citizens are equal in the eyes of the law. It allows expropriation and specifies forms of agricultural ownership.

The constitution prohibits wiretapping, arbitrary arrest, searches, the removal of citizenship, torture, violation of private life and personal freedoms, and it safeguards freedom of belief and work in return for appropriate remuneration. It says that Syrians have the right to protest and form political parties and societies. However, all these provisions are empty, since in fact Syrian law disallows rights specifically given in the 2012 constitution.

Like its predecessor, the constitution stipulates equality and recognises cultural diversity, considering cultural freedom to be an inalienable right. It allows for political and economic pluralism and stipulates the separation of powers, although at the same time it concentrates all powers in the hands of the president. It does not give parliament the power to call for a vote of confidence in the government or to ratify cabinet appointments or the appointment of senior civil servants. Instead, it says that there should be a “balance of power” among the branches of government in order to counter the executive branch.

All these general freedoms were also present in the 1973 Constitution, but none of them were ever applied.

Over the past four decades, the Syrian regime has violated its own constitution by making arrests without court order, for example, and some detainees have spent decades in prison without trial. Thousands of members of the country’s opposition have been executed, especially members of the banned Syrian Muslim Brotherhood.

Thousands have been released from prison with severe disabilities as a result of torture. Opposition figures have been banned from leaving the country, and their property has been confiscated without cause or compensation. The security agencies have taken control of the judicial system and the state institutions. Combating corruption has been put on hold, and members of minority ethnicities such as the Kurds, Armenians and others, have been banned from engaging in cultural and political activism.


FROM BAD TO WORSE: The 1973 constitution was amended in 2000 after the death of president Hafez Al-Assad in an emergency parliamentary session that lasted for only a few minutes. The point of this was to reduce the age of presidential candidates from 40 to 34 years of age, such that Bashar Al-Assad, 34 at the time, could succeed his father.

“Forty years ago, we called for a new constitution for Syria, but it never materialised,” Hassan Abdel-Azim, head of the domestic opposition National Coordination Committee (NCC), told the Weekly. “The regime chose the worst time to introduce a new constitution, when the violence was escalating out of control along with the numbers of those killed, injured or arrested. No one in power obeys the law or the constitution these days anyway.”

The new constitution has not had any effect on the violence or the repression practiced by the regime against its opponents. In fact, it has made matters worse. It has done nothing to alter the monopoly on power or to give the parliamentary majority a role to play in deciding state policy. Instead, it has been kept on the periphery, while even more powers have been heaped on the president.

Neither the old nor the new constitution allows the people the right to participate in building the future of their country, viewing them instead as the mere recipients of state aid who should be grateful for the crumbs given them by the regime. Both include vague and ambiguous articles, stating that Syria is a democratic republic, without saying if it is a representative democracy or a popular democracy. The new constitution does not specify who has the right to Syrian citizenship.

The 2012 constitution was criticised not only because of the process of writing it and the timing of the referendum, but also because of the criteria explaining who may run for president. According to the constitution, any presidential candidate must have lived in Syria for 10 consecutive years, eliminating opposition figures who have been jailed or have been forced to flee overseas. It says that the president can delay any legislation he disagrees with indefinitely.

The constitution says that all presidential candidates must be endorsed by 35 MPs, opening the door to blackmail and corruption. Parties winning fewer than 35 seats in elections cannot nominate a party candidate. As a result, in effect the regime has simply amended the existing constitution on its own terms and ignored domestic and international pressure. Instead of ushering Syria into a new and democratic phase, the 2012 Constitution has simply inaugurated an emperor-president.


ANOMALIES: The 2012 constitution, drafted one year into a revolutionary movement demanding Al-Assad’s ouster, also shows signs of being rushed, and as a result it contains numerous anomalies. According to experts, the text of the constitution contradicts hundreds of other legal provisions, and even months after the constitution’s introduction such contradictions have not been resolved.

The articles on the freedom to form political parties and civil society groups, on the country’s cultural life and media, and on freedoms and rights, for example, are all restricted by earlier laws that twist these into other forms, voiding the constitutional articles of their substance.

Unlike any other constitution in the world, the 2012 Syrian constitution is tailored to the incumbent president who is even referred to by name in the text. His right to contest the forthcoming two presidential elections is explicitly guaranteed. The constitution gives oversight, auditing and monitoring powers to the entities supposedly being audited, contradicting fundamental rules and encouraging corruption. It appoints the president head of the Supreme Constitutional Court, even though this theoretically has the right to hold him accountable for his actions. As a result, Al-Assad is made both judge and jury.

The constitution allows for the hiring and dismissal of civil servants at the discretion of the president alone, and combines the executive branch and the legislature. It gives the president the power to amend the constitution whenever he pleases. The broad powers the president is given in emergency situations undermine the principle of the separation of powers mentioned in the constitution. The president also appoints the cabinet, dissolves parliament, and issues legislation through legislative decrees when the parliament is not in session.

A political system cannot be democratic when the president is given such extensive and absolute powers, the opposition says. How can Al-Assad stipulate that at least half of the parliament should be workers and farmers at a time when the social base on which the regime has zoned urban and rural areas has itself collapsed, it asks, as a result of alliances between regime figures and the petite bourgeoisie against the interests of the people.


THE NEED FOR CHANGE: Over recent decades, the Syrian opposition has repeatedly called for amendments to the country’s constitution to make it more democratic and especially to remove the ruling Syrian Baath Party’s protected status as leading the state and society. It has also demanded curtailing the powers of the president and limiting the number of presidential terms, while criticising the process of choosing the president that allows the Baath Party to monopolise the choice of candidate, who is then put to referendum without competition or election.

After the uprising in Syria began two years ago, the opposition declared its desire to build a plural and democratic state in Syria, where there would be peaceful rotation of power and the people would have the right to map out their own future and decide on the challenges confronting them. This should be achieved through steps, it said, beginning with the president’s stepping down and handing over power to an independent transitional government. This would then be in charge of holding elections for a constituent assembly that would draft a new constitution to be put to a referendum followed by parliamentary and presidential elections.

Instead, the 2012 constitution has merely laid the ground rules for a transition from the totalitarian rule of the Baath Party to the dictatorship of the president and from one-party rule to one-man rule. The new constitution does not meet the minimum demands of the people and is a ruse by the regime to circumvent the crisis.

Today, as the Syrian regime continues to escalate the violence that has killed an estimated 45,000 civilians, Syrians have pushed aside the thought of a new constitution and have focussed on changing the regime at the core, prosecuting its leaders and beginning a transitional phase that would see the formation of a government with full constitutional and legislative powers.

This government should have the sole right to oversee all civil, security and military institutions, and it should be tasked with drafting a genuinely new constitution paving the way to presidential elections.

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