Inside Syria MC exclusive: experts on Syrian constitution draft’s pros&cons

Inside Syria Media Center

February 24, 2017

The intra-Syrian talks in Geneva are about to start. The meeting, organized by the UN, is aimed at finding a consensus between all the parties of the Syrian conflict. One of the cornerstones of a possible peace agreement is a new constitution which would both benefit the Syrian people and be agreed upon by the parties.

At the talks in Astana, Russia presented a draft constitution which envisages quite a number of significant changes compared to the constitution adopted in 2012. Inside Syria Media Center has contacted experts who shared their opinion on the draft and expressed their views on what kind of laws the today’s Syria requires.

The previous week, we published the comments of writer and political commentator John Wight. Today, we would like to share with our readers the opinions of Professor Tom Ginsburg and writer and columnist Brandon Turbeville who kindly agreed to answer our questions.

What are the benefits and implications of the new constitution proposed by Russia? Will it get the support of the Syrians?

Prof. Tom Ginsburg: I am unable to comment on whether Syrians will support the draft; sometimes the key question for constitutions is not the content, but who is proposing them and what the process is. I suspect that the process by which this constitution is put forward, debated and adopted will be more important for its legitimacy than its actual content.

Brandon Turbeville: To be honest, I would be hard pressed to present you with anything positive about the draft Constitution. Kurdish autonomy is only one negative aspect of the draft. I’m not sure who thought much of the document would be a good idea. The concept of some type of “confessional” system for Syria, which is what the draft describes, is absolutely ludicrous. There is also, despite statements supporting free speech and expression, a very disturbing element of political correctness and European-style censorship of actual free speech.

There are some very troubling aspects as to how this Constitution is actually going to allow the proposed “democracy” to work in reality. Perhaps the only positive aspect to the draft is the fact that it calls for the military to essentially stay out of domestic affairs.

As for support, I haven’t talked to any Syrians who supported the draft so far. I think the only hope it has for support by average Syrians is the possibility that they are so tired of war that they will accept it but I don’t think such capitulation is in the nature of the Syrian people. At this point, the only support I see for the new Constitution is in the quarters of the negotiators, not the people on the ground.

One of the most important points of the draft is the expansion of parliament’s authorities and limitation of presidential power. Who benefits from it? Will it lead to empowering political parties?

Prof. Tom Ginsburg: On the one hand, there is expanded power for parliament as a whole. On the other hand, there are now two houses that have overlapping powers. Both must cooperate to pass legislation, and to vote no confidence in the government in joint session. Depending on the party system that emerges, this could make it difficult to pass new laws, if the parliament is excessively fragmented. So it is not absolutely clear how much power will shift in practice to the parliament.

Brandon Turbeville: There is some question as to what this new Parliament would even look like in terms of higher and lower houses. I don’t think Parliamentary responsibility is necessarily a bad thing so long as it does not turn into a “rule by council” type of situation. More information needs to be presented in order to see just how powerful or weak the “new” Syrian Parliament would be. But I would argue that a separation of powers is what is needed with delineated authorities for the Executive, Judicial, and Legislative branches.

The text of the draft includes a possibility of giving Kurdish cultural autonomy within Syria. What Kurdish reaction in this regard could possibly be? What do you personally think of autonomy of the Kurds?

Prof. Tom Ginsburg: Article 4 allows Kurds the use of their language as part of their cultural autonomy, which is also provided by Article 16. In general, it is good to give minority groups power over cultural policies that are most important to them, as it can reduce tensions and lead to greater attachment to the state as a whole. However, this draft is very vague on the key issues of territorial organization. Article 16 says that Syria will consist of constituent parts and that there will be decentralization, but there is not much detail on the powers these governments will have. This, along with the functioning of the Constituent Assembly in representing different communities, will be the most important issue in the future if Syria is to be reconstructed effectively.

Brandon Turbeville: I’m sure they will support it. At least, Kurdish fighters and separatists and other Kurds who are consumed with identity politics or ethnic fanaticism will support it. This is not to say all Kurdish people, of course, but there will be a portion that supports the Constitution. There will also be a portion that does not support it and who want to stay in a secular Syria governed by laws instead of religion or Communist ideology.

What do you think of a new system of the legislative branch?

Prof. Tom Ginsburg: Representing the different regions will be necessary after the civil war. So I like that. However, there are other ways of approaching the problem. One might, for example, allow the Constituent Assembly to deal only with issues involving local or regional government, rather than all issues. Still, in the context of post-war Syria, I like the idea that the regions will be powerful and will have a strong role in appointments. The country has been too centralized for too long.

Some Syrian analysts (e.g. Dr. Radwan Ziadeh) believe that the Syrian Constitution of 1950 could serve as a basis for a new constitution because it was very progressive in the issues of human rights and freedom of speech. Others point to the Tunisian Constitution adopted in 2014 after the crisis. Are these ideas realistic?

Brandon Turbeville: I don’t think Syria necessarily needs to look at copying anyone else’s Constitution or even the documents of Syria’s past. It simply needs to look at what is best for the Syrian people from a standpoint of human rights and the ability of Syria to survive and thrive in the world and go from there. While other countries may have some good advice and should be heard where their ideas have merit, the decision should be a Syrian one, not an American or Turkish or Russian one. I would also say that the United Nations is not an impartial actor here and should not be trusted with input since the U.N. has actually done more to hamper human rights than promote them. To adapt an adage being used in the United States, Syria needs to adopt an agenda that is “Syria first.” By that I mean the rights of the Syrian people.

Does the draft constitution provide more freedoms to the Syrian people?

Prof. Tom Ginsburg: On paper it does provide for more rights. Naturally, the crucial thing will be the mechanisms of enforcement of these rights. But if the paper becomes reality, Syrians will be freer than they have ever been. That will depend on how the political system works in practice.

How can the draft be improved?

Prof. Tom Ginsburg: In my opinion, the draft is very hard to change. Requiring ¾ approval in two houses of the legislature, especially in a divided country, will mean that it is difficult to update the Constitution. All constitutions must change with the times and this one will surely need revision as Syria rebuilds. My general view is that constitutions should be relatively easy to change, not as easy as a statute, but still somewhat flexible. In a book I co-authored, The Endurance of National Constitutions (2009) we show that constitutions that are more flexible tend to last for a longer time.

Brandon Turbeville: Where do we start? There is certainly no shortage of areas to improve. In fact, I might even suggest scrapping the draft and starting over. As a rule, I do think there needs to be some changes to the Syrian Constitution though. First, I would suggest removing the name “Arab” from the identity of the Syrian state. The identity should be Syrian, not Arab. It should ensure full secular government by a number of measures such as eliminating any religious-based limitations; the prevention of anyone other than a Muslim to hold specific government offices, for instance.
I do think there should be a separation of powers; the Presidential (Executive), Legislative (Parliament), and Judicial (Supreme Court) with an attempt to produce a system of checks and balances.

Equal rights must be guaranteed to everyone, regardless of religion, gender, etc. Syria may be a secular society but Syrian culture, in this sense, needs to be codified. Secularism is a must. Equal rights are a must. The Constitution should explicitly codify equal rights between men and women, Muslim, Christian, Jew, Kurd, Druze, etc. Basic protections against unjust search and seizure and imprisonment should be included as should the right to self-defense and the possession of means by which to defend oneself.

All ideas regarding “autonomy” should be abandoned since Syria is multi-ethnic and multi-religious. Lastly, I would suggest that the new Constitution specify that the Syrian National Bank (Bank of Syria) must remain a National Bank, completely controlled by the Syrian government and completely dependent on the government. It should not be independent and it should never be allowed independence. It must never become privatized or what is known as a “Central” bank. This is imperative since, as soon as private bankers gain control over Syria’s finances, they will immediately begin losing whatever rights have been recognized in the new Constitution.

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To sum up, we may say that the draft seems quite controversial for many experts and requires quite a number of amendments to be implemented as a comprehensive constitution to provide a truly bright future for the people of Syria. We would like to thank once again Professor Tom Ginsburg and Brandon Turbeville for their comments.

Tom Ginsburg is the Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago and a member of the American Academy of Arts and Sciences. He is primarily known as a scholar of international and comparative law, with a focus on constitutions and a regional specialty of East Asia. Mr. Ginsburg runs run the Comparative Constitutions Project (www.comparativeconstitutionsproject.org). Twitter: https://twitter.com/tomginsburg

Brandon Turbeville is a writer out of Florence, South Carolina. He is the author of seven books and is a staff writer for Activist Post, Natural Blaze, The Anti Media, and Progressive Gazette, Era Of Wisdom, and Off Rail Alliance. He has published over 700 hundred articles dealing with a wide variety of subjects including health, economics, war, government corruption, and civil liberties. Mr. Turbeville’s website: http://www.brandonturbeville.com; Twitter: https://twitter.com/BrandonTurb