What's in Syria's New Constitution?

Since Syrian President Ahmad Al-Sharaa signed the draft of constitutional declaration on March 13, 2025, thereby granting it final status, opinions on it have diverged between celebrations, harsh criticism, and a faction of "yes, but." Without delving into the details of the arguments, the tone and content of these opinions stem from a political-qualitative perspective that primarily focuses on Al-Sharaa's role. While critics see him de jure as a new dictator, supporters hail him as a liberator, and the third faction acknowledges his prominent position but fundamentally criticizes the lack of another state body directly legitimized by the people that would play a significant role in the decision-making process alongside Al-Sharaa.

From a constitutional perspective, all three opinions are fundamentally justified. Additional criticisms, such as the lack of recognition of diversity due to the emphasis on the Arab character of the state, also have merit. However, the examination of the constitutional declaration is not about individual aspects of a transitional constitutional document but rather about engaging with the constitutional design of an era in the life of the Syrian state, even if this era is of a provisional nature. In other words, it concerns the question of which theoretical foundations the Syrian constitutional system will primarily exhibit over the next five years.

Constitutional Design Through Written Regulations

The adoption of written regulations for the transitional period clearly demonstrates the recognition of the binding force of written constitutional law. In other words, the state authorities operating under this constitutional declaration are not permitted to act in a legal vacuum. They are bound by written constitutional norms. Furthermore, this binding force applies to the entire document, consisting of the preamble and four chapters: General Provisions; Rights and Freedoms; the Government System During the Transitional Period; and Final Provisions.

Additionally, the following two provisions are significant not only for the formal but also for the substantive binding nature of the constitutional provisions:

The decision (preamble) to make the preamble an inseparable part of the constitutional declaration means that all arguments regarding the new state era since December 8, 2024, exert a binding effect on the legal structuring of the state system during the transition period.

The unconditional recognition of Syrian state laws (Article 51), regardless of whether they contradict the provisions of the constitutional declaration. The norms of the Syrian state remain in force as long as they are not amended or repealed. Thus, the Syrian legal system continues formally and substantively and remains an integral part of the legal system during the transition period.

Justification and Legitimization of the New Constitutional Design: History, Revolution, Will, and Diversity of the Syrian People

A look at the preamble makes it clear that December 8, 2024, is designated as an epochal beginning in the life of the Syrian state. This beginning is portrayed as the result of a 14-year-long people's revolution. In this context, a balancing act can be observed between the military operation that directly led to the regime's fall and the people's struggle in all its facets throughout the years of the revolution. Overall, it is evident that revolutionary legitimacy serves as the starting point for the constitutional declaration.

This balancing act continues in the preamble, which acknowledges the following three foundations of the constitutional declaration:

The National Dialogue Conference, including discussions held in dialogue forums organized across the provinces, and the points mentioned in the final declaration, particularly the preservation of Syria’s unity and integrity, the implementation of transitional justice, the establishment of a Rule of Law state based on the concept of citizenship, and the regulation of national affairs based on governance principles.

The spirit of past constitutions, with particular emphasis on the 1950 Constitution as the Independence Constitution, which can be interpreted as a message that Syria’s entire constitutional development is perceived as a historical continuum.

The decisions of the military operations management from January 29, 2025, when it declared itself a Revolutionary Council and, among other things, terminated the old state, constitutional, and political system of Syria and appointed Ahmad Al-Sharaa as President.

Moreover, the preamble declares the values of Syria’s diverse society and its cultural heritage, as well as national and universal principles, as the foundations of the transitional constitutional system. This establishes a balance between the three aforementioned foundations and the diversity of the Syrian people. Additionally, it refers to supra-constitutional principles of international standards by explicitly recognizing all of humanity as the basis of the transitional constitutional system.

Fundamental Principles of the State During the Transition Period

Syria is an Arab but explicitly not an Islamic republic (Article 1), a principle derived from the Syrian constitutional tradition. In other words, Syria remains anchored in the republican tradition, at least during the transition period. The emphasis on national unity also has its roots in previous Syrian constitutions. However, the criminalization of calls for secession, division, or foreign intervention has no foundation in the Syrian constitutional tradition (Article 7, Paragraph 1), even though such actions have historically been more or less punishable in Syria.

Due to current political issues of an ethnic and sectarian nature involving Alawites, Druze, and Kurds, the constitution maker saw the need to regulate this matter constitutionally. At the same time, the constitution emphasizes peace and stability in society as well as the strengthening of coexistence (Article 7, Paragraph 2). Additionally, the constitution prohibits all acts of violence and calls that disturb social coexistence or fuel sectarianism, while obliging the state to take all necessary measures to combat extremism (Article 8, Paragraph 3).

The emphasis on the Arab identity in the republic's name and the designation of Arabic as the official language of the country stems from Syrian constitutional tradition, though there is no explicit reference to the Arab nation. Criticism of the designation "Arab Republic" and the lack of recognition of additional languages in the constitution is particularly understandable concerning the Kurdish segment of the Syrian population.

At the same time, a certain departure from the idea of a "Greater Arab Nation" is evident. In this context, it is worth noting that, in addition to recognizing cultural diversity, cultural and linguistic rights are guaranteed for all Syrians without legal reservation (Article 7, Paragraph 3). This is a reflection of the principle of equality and the prohibition of discrimination found in Article 10. However, religious affiliation is explicitly excluded from the prohibition of discrimination, although it could be inferred from the general emphasis on the equality of all citizens before the law.

Religious and/or sectarian affiliation plays a significant role in Syria, especially since personal status matters (family, inheritance, and civil status law) have traditionally been governed by religious or sectarian affiliation, as is also stipulated in the constitutional declaration (Article 3, Paragraph 3). While the president must be Muslim (Article 3, Paragraph 1), there is no sectarian restriction. Moreover, original adherence to Islam is not a requirement; a Christian who has converted to Islam can also become president.

The requirement for the president’s Islamic faith can be justified by constitutional tradition, as several Syrian constitutions, including those of 1950, 1973, and 2012, contain such a clause. Although this clause is frequently criticized, its constitutional-political and symbolic significance should always be considered, as it conveys a message to the Muslim majority of the Syrian population. The establishment of Islamic Fiqh (jurisprudence) as a source of legislation in the same paragraph has faced even greater criticism. Although this principle also comes from Syrian constitutional tradition, prevailing judicial and constitutional interpretations in the Arab world do not necessarily require all laws to be based on Islamic justifications. Rather, it implies that qualitatively significant Islamic legal principles should be considered in the legislative process. However, the term Fiqh remains vague and broadly interpretable, leaving room for various interpretations.

Despite the inclusion of certain Islamic elements, the constitutional system explicitly recognizes freedom of religion in Article 3, Paragraph 2, rather than merely in the chapter on rights and freedoms. The state is also obligated to respect all Abrahamic religions and protect the freedom of religious rites. In this regard, the constitutional declaration follows Syrian constitutional tradition. Nevertheless, this article has been widely criticized, particularly for failing to recognize external religious freedom, such as the right to convert, and for excluding non-Abrahamic religions. Additionally, the right to practice religious rites is subject to public order considerations.

Although the full impact of a catalogue of fundamental rights and freedoms can only be assessed with the final constitution and its practical application, two provisions can already be identified that may be interpreted in opposing directions:

·         A comprehensive recognition of all fundamental rights and freedoms enshrined in international agreements signed by Syria as an inseparable part of the constitutional declaration (Article 12, Paragraph 2).

·         An expansion of the justifications for legal restrictions on fundamental rights and freedoms, including national security, public safety, territorial integrity, maintenance of public order, health, general moral principles, and crime prevention (Article 23).

The extent to which the exercise of fundamental rights and freedoms may be expanded or restricted based on a systematic interpretation of these two provisions remains a question to be answered by constitutional practice.

Form and Functioning of State Powers

The constitution maker highlights the principle of the separation of powers as the foundation of the future political system in Article 2. It appears that the constitution maker aims to speak about the future system of the Syrian state without explicitly addressing the transition phase. This perspective seems understandable when considering the structure of Syrian state powers during the transition period, as this structure is directly or indirectly derived from the president. In other words, he serves as the source of legitimacy for all other branches of government, which consist of the legislative, executive, and judicial powers.

By defining the executive power in Article 31, the constitution maker has confirmed the incumbent President Al-Sharaa for the transition period; there is no provision for electing, dismissing, or selecting a different president. This confirmation of his dual role as revolutionary leader and president underscores the revolutionary legitimacy of the entire constitutional structure during the transition period. This explains the decision for a presidential system, where the president and ministers (or state secretaries) are appointed and dismissed by him and are solely accountable to him (Article 35). The traditional position of a prime minister, as previously existing in Syria, will no longer be present.

According to Syrian constitutional tradition, the president is the commander-in-chief of the armed forces and is responsible for maintaining national unity and protecting the interests of the people (Articles 32-33). Additionally, he represents the state externally and serves as the final signatory of international agreements (Article 37). He is authorized to declare a state of war and general mobilization through his decision, following approval from the National Security Council, which he appoints (Article 41, Paragraph 1). Notably, Article 36 refers to executive orders, commands, and presidential decisions but does not grant the president the power to issue decrees with the force of law, which marks a deviation from Syrian constitutional tradition in recent decades.

The enactment, amendment, or repeal of laws remains the exclusive responsibility of the People's Council, which functions as a transitional parliament (Article 30, Paragraph 1/a-b). However, the president retains the right to propose laws and can use a justified veto to require a qualified two-thirds majority of the People's Council for the passage of legislation (Article 39). It is notable that the term "People's Council" - a socialist-oriented expression - has been retained instead of using terms like "Parliament" or "House of Representatives." This may indicate a reluctance to diverge significantly from past constitutional traditions.

Nevertheless, the constitution maker opposes direct elections for determining the members of the People's Council, instead opting for a mixed system of direct and indirect appointments by the president (Article 24). The president directly appoints one-third of the members, while the remaining two-thirds are elected by newly established local committees, whose formation is overseen by a Supreme Commission appointed by the president. This ensures that the president remains the central authority from which all branches of government derive legitimacy.

The judiciary's structure also reflects the president's influence, despite the emphasis on judicial independence (Article 43, Paragraph 1). Oversight and control of the judiciary, for instance, fall under the jurisdiction of the Judicial Council, which is dependent on the executive branch in general and the president in particular (Article 45, Paragraph 2). Additionally, the president will appoint the members of the newly established Constitutional Court after the dissolution of the existing Constitutional Court, as explicitly stated in the constitutional declaration (Article 47). This dissolution logically follows from the complete repeal of the previous constitution.

Transitional Justice and Dealing with the Past

A noteworthy aspect of the preamble is the use of international criminal law terminology to describe the crimes of the Assad regime, such as "war crimes" and "crimes against humanity." The constitution maker explicitly refers to international law, which was violated by the Assad regime. In this context, such crimes are exempt from the principle of non-retroactivity (Article 49, Paragraph 2). This means that laws can be enacted to criminalize such acts retroactively, effectively bypassing statutes of limitations.

Moreover, the constitution maker explicitly provides for the introduction of transitional justice (Article 48) through the establishment of a committee tasked with outlining mechanisms for truth-seeking, holding perpetrators accountable, and ensuring justice for victims (Article 49, Paragraph 1). As part of the process of justice and reconciliation, Article 49, Paragraph 3 prohibits the glorification of the Assad regime and its symbols, as well as the denial or justification of its crimes. Additionally, Article 48 annuls all exceptional laws, including the anti-terrorism law, rulings of the counter-terrorism court, and decisions regarding property confiscations.

Conclusion

That Al-Sharaa, in his dual role as president and revolutionary leader, stands at the centre of the transitional constitutional system is a logical consequence of the circumstances surrounding the liberation from the Assad regime. However, the constitutional declaration lacks a clear determination of how the political and constitutional system will be structured under a permanent constitution. This grants the president additional power in this regard. The constitutional declaration also remains vague about the constitutional drafting process: it does not specify whether a constituent assembly will be elected or appointed, or whether a simple constitutional commission will be established. Likewise, there is no mention of whether the constitutional draft will be ratified by a popular referendum or another mechanism.

The signals from the constitutional declaration suggest that immediate elections or referendums are unlikely to be the basis for the formation of a constituent assembly or the ratification of the permanent constitutional document. This is particularly evident given that terms like democracy, participation, or popular sovereignty are entirely absent from the constitutional declaration. Instead, a mixed system of appointments, indirect elections, and mediated voting appears more probable. Ultimately, further developments remain to be seen.