The constitutional committee must be part of a holistic Syrian peace process

This week marks the second round of constitutional committee negotiations in Geneva, Switzerland convened by UN Special Envoy to Syria Geir Pedersen. The committee is composed of three 50-member groups: the Syrian government led by Ahmad al-Kizbari, the Syrian Negotiations Commission (SNC) or political opposition group led by Hadi al-Bahra, and a third group consisting of 50 individuals, some of whom are representatives of civil society, with a range of backgrounds, including legal and governance experts, judges, feminist leaders, and economists. The committee is convened under the auspices of UN Security Council Resolution (UNSCR) 2254, which requires the drafting of a new constitution among many other important obligations, including a permanent ceasefire and ending all attacks on civilians; unfettered access to humanitarian aid; free and fair elections; safe and voluntary return of refugees; and genuine political transition. The fact that only one of those requirements is being pursued seriously by the international community is — understandably — beyond frustrating for Syrians who took initially to the streets to protest a dictatorship and security apparatus that was marked as one of the most deadly and dangerous in all of the Middle East. And while the Syrian constitution is riddled with problematic articles, it would be wholly inaccurate to say that the constitution itself was the reason peaceful protestors took to the streets in March 2011. Attempting to solve the Syrian conflict by addressing only one of so many outstanding issues is not only a mistake, but will also do little to bring any lasting peace to this war-torn country.

The UN envoy brought together members of civil society partly due to the fact that all negotiations between the Assad government and the opposition over the last eight years have borne little fruit. By including 50 members from civil society, the UN is attempting to soften the political polarization and narrow the deep divide between the government and opposition. The civil society group, it is thought, may propose solutions with lesser political risk to help build confidence in a very broken political negotiations process. During the entirety of the uprising, the Syrian government rejected almost every demand put forth by the international community as well as the opposition, by refusing to engage in any efforts or initiatives aiming to reach a political solution; form a transitional governing body per the 2012 Geneva Communique; allow UN aid convoys to enter besieged areas; or release any number of political detainees, among other things. Meanwhile, the political opposition was also riddled with deficiencies: it was a mosaic of groups supported by various foreign backers with different, sometimes contradictory, goals and agendas and lacked a clear and united post-Assad vision to rally Syrians behind.  

This brings us to the actual task of drafting a new constitution (or amending the 2012 version — a matter yet to be decided by the co-conveners of the committee). As someone who has been asked to lend my legal expertise to my ancestral homeland, I am concerned about the state of the rule of law in Syria. I do not agree with some of the voices that say the Syrian constitution is acceptable and that it just needs to be implemented or that the problem is just the regime and not the constitution. The current Syrian constitution is flawed, and its application has contributed to the chaos we see today: it is deeply deferential to a presidential system that marginalizes any other branch of government, giving the president a great number of authorities and powers, even over the legislative and judicial branches; it consolidates power in the hands of a strong central government, only briefly mentioning the notion of administrative decentralization and local councils, which are undeveloped in both concept and practice; and it lays the foundation for a strict security state. That is to say nothing of the strict Arab identity of the Syrian state and the necessity of having a male Muslim president. Even the constitutional amendments of 2012 yielded little in the way of practical changes: although Article 8 was technically amended from the Ba’ath Party having exclusive dominance over political life to the state permitting the creation of other parties, in practice political life remains in the hands of the Ba’ath Party.

The regime continues to stall every avenue to participate in even cosmetic changes, which is likely what a new constitution would constitute under an Assad government. But even assuming a new constitution is drafted at the end of this committee’s convening, the UN, the international community, and most importantly Syrians, will look to the next and most critical phase. Will this constitution actually be implemented, and who, if anyone, will actually guarantee its implementation? How will it be ratified? How will Syrians safely vote on a referendum to accept or reject it given the fact that most of Syria has returned to the control of the Assad regime’s paranoid security state? Syrians rightfully look to Libya today and note the fact that a constitution was indeed drafted in 2017, but has yet to be implemented because conducting a safe, public referendum on it has proved impossible. 

The last couple of months have reshaped power dynamics in Syria in a way that has further emboldened the Syrian government, which has desperately tried to convince the world that it has “won” the war. The regime has already vowed it will not concede in peace what it was not willing to concede in war, which by all accounts was negligible. But despite the fact that the regime has resumed military control over most of Syria, it has neither the intention nor the ability to actually serve the Syrian people, to provide for the millions of displaced economically, or create economic opportunities. Further, the government’s fantasy of reverting Syria to life pre-2011 is an impossibility given the severe brain-drain the country is struggling with as its youth and professionals flee abroad and the security apparatus reasserts dominance over the country. In my humble opinion, my primary reason for hope is that such cannibalistic systems cannot be sustained indefinitely; even the most oppressive of regimes cannot last forever given all the massive changes happening across the region, and indeed the world, today.

Like all other Geneva processes that came before it, this process may very well be yet another failed negotiation attempt. But at this point in time, well-intentioned Syrians must do what they can to first and foremost stop the deadly targeting of civilians — as seen last week in Qah IDP camp in Idlib — as well as push the UN to bring life to the other obligations stipulated by UNSCR 2254, including, but not limited to, unfettered humanitarian access, a transitioning governing body, and safe and voluntary return of refugees. Further, it is incumbent upon the guarantors of the UN peace process, including the United States, Russia, Turkey, and the European Union, to push forth now in parallel with the other baskets prioritized by the UN, including: accountable governance, UN-supervised elections, and combatting terrorism. Most analysts rightly believe that there seems to be no way to address the root causes of this conflict so long as Assad and his oligarchy remain in power. It is difficult for me to disagree. But if the international community is going to continue to exert its efforts to end this nightmare, as I believe we should, then it also requires frank acknowledgement that a constitutional process operating in a silo of its own, without activating the other outstanding issues at hand, will not resolve the Syrian conflict. And it is in theory that goal — of ending the Syrian conflict once and for all — that the international community, as well as the constitutional committee, is there to achieve.

Jomana Qaddour is a member of the UN Syrian Constitutional Committee as part of the civil society group. She is also a doctoral student of comparative constitutional law at Georgetown University Law Center. The views expressed in this article are her own. 

Photo by Dursun Aydemir/Anadolu Agency via Getty Images