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Why Syrian Constitutional Debates Are Unlikely to Bring Political Reform

Russia’s power broker role in Syria negotiations means that any future debates around a new constitution will be an attempt to solidify Moscow’s proposal for the de facto partitioning Syria, while maintaining Assad’s position, writes journalist Lorenzo Trombetta.

Written by Lorenzo Trombetta Published on Read time Approx. 7 minutes
Syrian government workers count ballots at the end of the voting day on the referendum for a new constitution in Damascus on February 26, 2012. AFP/ANWAR AMRO

BEIRUT – As the battle against the so-called Islamic State (ISIS) progresses in Syria, and details of Russia’s de-escalation zone plan slowly solidify, the push for a political solution and constitutional negotiations could likely retake the spotlight in the next round of talks set for late August in Astana and September in Geneva.

The military situation on the ground has changed rapidly in Syria since the start of the year, and Russia – whose actions in Syria demonstrate a clear push for a military victory for Syrian president Bashar al-Assad – has positioned itself as a power broker for any future constitutional talks. As a result, any new debate about a constitution is likely to be an empty exercise, promoted by the Russians and their allies to “sell” their project of de facto partitioning Syria, while keeping Assad formally at his place.

A new constitution is essential for any political reform in Syria, a country where the same system of power has dominated for almost half a century, and would serve to legitimize and codify the scope of responsibilities held by either the current regime or any transitional body. But a look at Russia’s proposal of a new Syrian constitution is a window into Moscow’s strategy of packaging a military victory, in a format deemed acceptable to those pushing for a political solution. This is according to two Syrian lawyers based in Beirut who participated in a workshop related to the Russian draft led by the Carter Center.

Though the U.S. and Saudi Arabia recently reiterated their position that Assad should not have a role in Syria’s political future, Washington is willing to work with Russia to “achieve the end state, which is a unified Syria … that has the opportunity for the Syrian people to put in place a new constitution, have free and fair elections and select a new leadership,” U.S. secretary of state Rex Tillerson said in a press briefing earlier this month.

Moscow’s Rise

In 2015, the United Nations Security Council passed Resolution 2254 that calls for the establishment of a “process” to draft a new constitution within six months. But as fighting continued in Syria, the U.N.-led political negotiations in Geneva made little progress on cease-fires and safe zones.

In December 2016, as airstrikes and a tight siege were devastating Eastern Aleppo, Moscow brokered a deal with Turkey that put an end to the fighting, but also saw the Syrian government regain control of the opposition bastion, evacuating residents and rebels who had controlled the city since 2012.

Shortly after, Moscow set up its own Syria talks in the Kazakh capital of Astana with Iran and Turkey. In order not to alienate those firmly set on the Geneva framework of political negotiations, Moscow presented the Astana talks as a peace-building process aimed at stabilizing Syria and the region, and offered a political edition of its military strategy.

In January, Russia officially presented its draft proposal of a new Syrian constitution, which Konstantin Kosachev, the head of the Russian Senate’s Foreign Relations Committee, referred to as Moscow’s “contribution to catalyze the peace process.”

At the May Astana talks, Russia proposed the creation of de-escalation zones. It is a military and security plan that addresses the interests of various stakeholders in the conflict by partitioning Syria into areas of influence. It provides a platform for Moscow to secure a profitable agreement with the U.S. and its allies, all under the cover of putting an end to the fighting.

The Russian Draft

Russia’s proposal was drafted to serve as a “guide” for the final version of a Syrian constitution, according to Stanislav Gadzhimagomedov, the deputy head of the Russian Armed Forces.

Though Russia claims the draft was written “in accordance with the positions of Damascus, the opposition and the interests of the regional states,” it is far from being a complete or consistent text, according to the two Syrian lawyers.

“It’s very vague in many crucial aspects,” said one of the lawyers, who asked not to be named for security reasons. “The devil is in the details. This text leaves too many details unanswered, too many blank spaces open to interpretation. When there is an ambiguous article, the authority could interpret it for its own interest, saying that it has respected the constitution.”

Syria approved a new constitution in February 2012, replacing the 1973 text, less than a year after the first anti-government demonstrations erupted in March 2011. It was the regime’s attempt to appear willing to meet the people’s demands for reform, but in reality, the text was new only in appearance, not substance, and did not introduce any radical changes to the social-political contract between the ruling power and citizens.

While the draft does introduce some key principles missing from the current constitution, it does not specify the tools to implement or respect them. For instance, the text acknowledges the legitimacy of international law, but does not provide parameters for its application.

There is no mention of how the Supreme Constitutional Court would operate, nor any indication about the role of judicial power. According to the 2012 constitution, while the Supreme Constitutional Court and the judicial power are independent institutions, both operate under the full authority and supervision of the president.

The Russian draft introduces a bicameral system of division of power, composed of a parliament (the people’s assembly) and chamber of the regions (a senate). Currently, the people’s assembly represents the legislative power. The text gives the parliament more authority than the government, as the latter would no longer be able to dissolve parliament and call for new elections, a prerogative currently held by the president.

Though an article calling for the respect of citizenship and equal rights (but without mentioning gender rights) is included, the proposal also introduces, for the first time, the highly controversial concept of “sectarian quotas” (muhasasa ta’ifiyya) in the formation of the cabinet that will embody the executive power. Political sectarianism goes against the principle of equality for all citizens by considering them only within the context of their sect. It also contradicts the “secular” and “socialist” rhetoric of the Syrian Baathist political system.

The formalization of sectarian quotas would accelerate a process of fragmentation – not unlike what took place in Lebanon after the civil war – that has already begun in Syria. While several facets of Syrian society followed a de-facto structure along sectarian or ethnic lines before the conflict began, sectarianism has grown more widespread in recent years. This is particularly apparent in local communities that have been exposed to long-term violence and lack of services, without any real protection from impartial actors.

Federalism is often evoked in the Russian proposal (article 15 and others), with particular focus on the Kurdish community’s autonomist aspirations. The draft calls for the rights of all communities to be respected, but emphasizes the rights of the Kurdish community’s autonomist aspirations. However, there is no mention of how profits from natural resources would be divided between the central government and these eventual autonomous regions.

‘The Winner’s Constitution’

Russian foreign minister Sergei Lavrov refuted accusations of Moscow trying to impose its own rules of the game in Syria, including criticism that likened the draft to the “Bremer Constitution,” in reference to Paul Bremer, administrator of the Coalition Provisional Authority in Iraq from 2003 to 2004, who spearheaded the implementation of a U.S.-drafted constitution in Iraq.

Syrian officials also insisted that Russia will not have a say in the issue. Syrian Ambassador to the U.N. Bashar al-Jaafari stated last May that “only Syrians will write the constitution.”

The Syrian opposition also rejected the proposal. In negotiations both in Astana (where the constitution draft has presented) and in Geneva (where this issue has been recently evoked), the government and the opposition showed very little interest in serious discussion about a new constitution. Sources present at both negotiations told Syria Deeply that, in some closed-doors meetings not disclosed to the media, some opposition delegations refused any civil (madani) or secular (‘almani) constitution. For the government delegation, the main red line is maintaining the president’s status and power. The other issues are not a priority for a regime that is used to bypassing formal obstacles.

What most parties involved in negotiations do agree on – at least in rhetoric – is that the constitution should be decided only by Syrians. But, according to the two independent constitutional lawyers, talks of a new constitution for Syria are now an empty exercise, as total inclusion is nearly impossible. The many Syrians now living abroad cannot have their say, groups who control key portion of Syrian territory are excluded from talks, and some extremist groups do not recognize the modern, Western concept of a constitution.

There is, however, an urgent need to prepare those on the ground in Syria for a transitional phase built on the basic principles of respecting human rights and an inclusive, honest dialogue, the lawyers said. Several civil society groups, based inside and outside the country, evoked these principles last February, in a joint communiqué titled, “Only the Syrians Write the Syrian Constitution.” Rejecting the Russian draft, the groups called for a new constitution that included provisions for a genuine division of power, clear distinction between civil and military institutions and the respect of individual and collective rights.

Civil society groups could play a key role in ensuring these provisions are at the center of constitutional discussions. In fact, some are already trying to bridge the gap between the regime and the various opposition forces, on both the local and national levels, to start a genuinely inclusive process for negotiating the future layout of the country, the lawyers added.

While this may be a start, both lawyers agree that a new constitution should not be decided on while the country remains at war. To them, the debate seems to serve only those who want to buy time, while fighting and the military agreements aimed at partitioning the country are solidifying dividing lines between winners and losers.

“That’s why this proposal would appear as the winner’s constitution,” one lawyer said.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Syria Deeply.

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