New Syrian Constitution Leaves Much to be Desired

Article Summary
Recently introduced amendments to the Syrian Constitution have been presented by the regime and its supporters as a significant step towards reform. On closer inspection, Haitham Hakki finds that the new document retains power in the hands of the executive branch, and would have the effect of allowing Bashar al-Assad to remain in power until 2028.

I read the draft of the proposed [Syrian] constitution on the internet. Like the previous one, it is the constitution of an authoritarian presidential regime, with the president holding all powers. He is the head of the executive branch and appoints the government, with no mention of a parliamentary majority, as is the norm in democratic states. The new constitution vaguely mentions the role of such a majority in article 8: “the political system of the state is based on political plurality, and power is democratically exercised through elections.”

Article 97 defines who has the authority to appoint the government: “the President of the Republic nominates the prime minister, his deputies, the ministers, and their deputies. The president also accepts their resignation and [can order] their dismissal.” Of course, there is no mention of following the results of elections in these nominations. The president is the High Commander of the Armed Forces; the head of the judiciary; and he nominates the High Constitutional Court. He is the only one that guarantees the independence of the judiciary, aided by a high council. Practically, he is also the head of the legislative branch, enjoying the power to dissolve the parliament for any reason he sees fit. The president issues laws during the period when the parliament is not in session, which is close to half a year. The parliament can only refuse a presidential law with a two-thirds majority of the MPs in session, as long as two-thirds of MPs are present. These conditions are similar to those needed for a constitutional amendment.

Additionally, there are several articles written with a specific purpose [in mind]. For example, all presidential candidates must have been living in Syria for the last 10 consecutive years. If this was applied in Tunis, Moncef Marzouki would not have won, and Mohamed El Baradei could not have taken part in the Egyptian presidential election. According to this law, not even Charles de Gaulle could have run for president after World War 2; neither would have Vladimir Lenin after the Bolshevik Revolution, nor Khomeini after the Iran Revolution. Additionally, the president’s deputies, the Members of Parliament, and the Prime Minister cannot have a double nationality. Therefore, [all dissidents who were forced to acquire] another nationality because their Syrian passports were confiscated would not be able to take part in any future political activity.

The new constitution removed the monopoly of the Baath Party on the State and society, but it acknowledged the domination of the party’s nationalistic beliefs.  The constitution’s introduction praised the Syrian Regime’s Arab, resistance and reform-oriented character. These qualifications are temporary and elections could result in the victory of political parties that do not agree with them, arguing for example that these principles did help in the liberation of Syria’s [territory], its modernization, and ensuring equality between all citizens. In my opinion, such qualifications should not be included in a constitution.

Even though the Baath Party Principles of “Unity, freedom, and socialism” have been removed from the new constitution, the 50% quota reserved for workers and farmers in the parliament is still enforced.  It has also maintained the public ownership of natural resources, institutions, and public enterprises as “the remains of socialism.”

The Baath Party and Ethnic Discrimination

Constitutional experts should respond to a very puzzling question: Doesn’t the Arab Socialist Baath Party, with its Arab nationalist tendencies, its glorification of all that is Arab, and its chauvinistic attitude toward all other ethnicities, contradict Article 8 [of the new constitution]? This article states, “no party, political activity or meeting can be formed on the basis of religious, sect, tribe, region, class or profession, nor discriminate on the basis of race, origin, ethnicity or gender.”

Does not the emphasis on Arabism, Arab belonging and the use of the [famous Baathist] slogan: “The Baath, may its enemies die - Arab, Arab, Arab!” contradict the equal citizenship clause [of the new constitution], especially when it comes to the Syrian Kurds, Assyrians, Armenians, Circassians, and Turkmen communities? Moreover, I read the name of committee members [tasked with drafting the new constitution], and found that several were of non-Arab ethnicity. This is one of the characteristics of Syrian diversity, considering that the revolution started in order to achieve justice for all Syrian people. However, I believe that the non-Arab members of the committee opted for safety in accepting this half-justice.

Even though the constitution emphasizes equal citizenship before a just law, there are many exceptions, for example, the religion of the President [which is stipulated as Islam according to the proposed constitution. [This] contradicts the equal citizenship clause in form and substance.

Under article 155 of the new constitution, the President would be allowed to finish his current mandate until 2014. He would then have the right to run for an additional two terms of seven years each, according to article 88. Therefore, [President Bashar al-Assad could stay in power] until the end of 2028. This is uncommon, because constitutions are permanent texts, which should not deal with specific cases. It would have been better to leave [the issue of the current president’s mandate] open, to be discussed as a judicial and constitutional problem. The new constitution should represent a change of the system or its “overthrow”, if we use the demonstrators’ slogans, forming the basis of the new regime. Therefore, all the old institutions should be changed because they have pledged loyalty to an old constitution and in their place new institutions should rise, that pledge their allegiance to the new constitution.

This issue is not only limited to the presidency. For example, article 154 states that “all laws and legislation issued before the promulgation of the new constitution remain in effect until they are amended. They should be amended within a period of no longer than three years.”  This means that all the laws that permitted arbitrary detention, prohibited peaceful demonstrations and limited freedom of speech under the pretext of “weakening the strength of the Umma,” would remain in force for three more years, in addition [to a number of other laws] that discriminate between citizens, in contradiction with Article 32, which ensures the equality of citizens, the right to demonstrate and the rights of women. Incidentally, Article 32 states, “freedom is a sacred right, and the state shall guarantee the personal freedom of citizens and preserve their dignity and security.”

Proposing a new constitution should only occur after putting an end to violence and freeing all detainees, and allowing the formation of new [political] parties. This should be followed by the free and fair election, with international monitoring, of a constituent council that would draft a new constitution. [This constitution should be based] on the principles of the equality of all citizens under a just law, [and their right] to form a plural democratic state with regular alternations of power. Additionally, I believe that [Syria] should become a parliamentary republic, ruled by the ballot box, with [a strong] separation of powers, and a truly independent judiciary.

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