Technical solutions cannot be a substitute for what Syria needs. Why a new approach is necessary.
Firstly, it is imperative to say that against the background of the current developments related to the war in Ukraine, the work of the Syrian Constitutional Committee and everything that revolves around it has become a secondary matter for the international community. Nevertheless, it is necessary to put some facts into perspective before the next committee meeting, which is scheduled for the end of May 2022.
The Constitutional Committee, as per its establishment agreement, is a constitutional reform committee that has the authority to work on technical legal issues, either by suggesting amendments to the 2012 constitution currently in force in Syria, or by drafting a new constitution for the country. This task of drafting a new constitution or suggesting amendments to the 2012 constitution is subject to legal issues related to the 2012 constitution, both in the way it was drafted and the mechanisms of its potential amendment or abolition.
The way the 2012 constitution was drafted presents several challenges stemming from the fact that the committee that was tasked with its drafting was formed by presidential decree. From a constitutional jurisprudence point of view, the president of the republic is indeed a constituted power (Pouvoir constitué) that operates based on the constitution – in this case, the 1973 constitution. However, deciding the drafting of a new constitution and forming a committee for this purpose means that the president is acting as a constituent power (Pouvoir constituant). This positions him above the constitution and grants him the capacity as well as the right to order the drafting of a new constitution.
The 1973 constitution contains no provision that authorizes the president of the republic to carry out this task, nor is there a provision that deals with the abolishment of the constitution or its replacement with another constitution, as is the case with Article 146 of the German constitution (German Basic Law), for example. The only stipulations in this respect deal with the amendment of its provisions (Article 149 of the 1973 constitution).
It is also worth noting that there had been no actual vote to abolish the 1973 constitution, but rather a constitutional referendum to either approve or reject the 2012 constitution. Furthermore, the 2012 constitution does not contain any article that repeals the 1973 constitution nor any provision that deals with its replacement or the abolishment of its provisions; in Article 150, it only stipulates the rules for the amendment of its provisions.
However, this is not the only problem facing the work of the Constitutional Committee in Geneva; if the committee wants to amend the 2012 constitution, it can - logically speaking - only do so in the manner provided by the constitution itself. Should the committee decide to draft a new constitution, will it decide to abolish the 2012 constitution? This is an especially pertinent question given that the 2012 constitution contains no articles that address this issue.
Therefore, the work and decisions of the Constitutional Committee, whether it is an amendment to the 2012 constitution or a new constitutional document, cannot be separated from the current constitutional situation in Syria in any way. In political terms, the execution of the decisions of the Constitutional Committee cannot be separated from the will of the ruling political authority in Syria.
In this sense, these problematic points at the core of the Constitutional Committee’s mission remind us of the fundamental reason for the establishment of the Constitutional Committee itself; that is the difficulty of consensus or even negotiation of a political solution between the Syrian government (the Syrian regime) and the Syrian opposition forces. At this point, we must recognize that the international political approach to resolving domestic crises in many countries, such as Iraq and Lebanon, generally tends to catalyze constitutional and legal technical work, which might contribute to the convergence of views on controversial political issues.
Even the science of constitutional law in Europe has obviously adopted this approach in recent years. However, the practical results of this approach have shown and still show that technical solutions cannot be a substitute for what Syria really needs, namely a comprehensive political solution, which no constitutional document can provide. The hope is that the Constitutional Committee will change its approach of arguing about the meaning and formulation of constitutional rules, and instead will seek principles grounded in consensus which can then lead to a general consensual constitutional policy.
Dr. Naseef Naeem is a scholar in constitutional law. He is the research director of ZENITH COUNCIL and fellow at the Candid Foundation. The article was originally published in Arabic on May 5th 2022 in the Okaz-newspaper. The author would like to thank the Editor in Chief of Okaz Mr. Jameel Altheyabi for his friendly approval for publishing the English text of the article, and the Head of the Istanbul office Mr. Abdullah Alghadawi for his help with publishing the Arabic article in Okaz.