On March 13, Syrian President Ahmad al-Sharaa promulgated an interim constitution—or, more technically a “constitutional declaration”—to govern Syria for a transitional period of five years.
Is a country that has been afflicted by an internationalized civil war, and which continues to be subject to foreign occupation, international sanctions, and internal fighting about to make the transition to constitutional governance? Not necessarily. But the document sends very real signals about the intentions of its new leadership for governance over the short term and plants unusual seeds that could eventually sprout in some unusual ways if circumstances improve.
Drafted over a period of ten days by a small committee of specialists in the wake of February’s National Dialogue, the document also offers guarantees on rights, in language that is so specific that it is likely to be more than merely aspirational—except that the state in its current form hardly seems structured to support them. There are three matters on which the aspirations embodied in the constitutional declaration are crystal clear: Syria is a unitary state; it is to be led for now from the presidency; and the country needs to confront its past.
First, the “unity,” “territorial integrity,” and “indivisible” nature of the Syrian state are mentioned in the preamble and in six articles. In defense of this unity, the constitutional declaration bans armed groups, uses language that seems to extend the ban to individuals, and asserts that the state alone is allowed to hold weapons.
Second, the presidency (whose current occupant will presumably continue to serve in office) either exercises all executive authority directly or appoints officials who are answerable solely to him (though the parliament may hold hearings with ministers). The president also serves as head of the armed forces and proposes and approves laws. There is a parliament, two-thirds of whose members will be chosen in a vaguely specified process involving “branch electoral bodies,” with one-third appointed by the president. It will be able to approve the budget and laws that are sent to the president for approval. Should the president object to a law passed by parliament, the body can override his veto. Given the large number of presidential appointees and Syria’s fragmented political scene, the prospect of a parliament able to form a cohesive agenda distinct from that of the president seems unlikely. And indeed, with the Baath Party banned and the constitution requiring a new law for political parties, it is not even clear who will be represented and on what basis.
Finally, the document’s preamble speaks of the darkness, oppression, tyranny, and torture of the past. In the victorious new era, there will be a commission charged with implementing transitional justice. Most laws and structures will remain in place until replaced, but there are important exceptions: the justices of the Constitutional Court are to be dismissed; exceptional laws and verdicts of the Terrorism Court will be tossed aside; and crimes of the previous regime are not to be protected by the principle of non-retroactivity.
So, the constitutional declaration invokes a united Syria turning away from a brutal past to a bright future through a transition by a president who might be coaxed, but is unlikely to be led, by parliament. And indeed, the stress on territorial unity and a strong presidency are well-worn themes in Syrian constitutional history.
But it is in the fine print of other provisions that there is some indication of possible political and legal directions. The most notable, perhaps, deal with religion. The constitutional declaration makes feints that are very familiar in the region toward enshrining Islam while protecting religious freedom—but the choice of words suggests these could be more than fulsome prose.
First, the constitutional declaration has a very strong provision on using Islamic “jurisprudence” (fiqh) as the major source of legislation—a return to Syria’s 1950 constitution, the first in the region to introduce such a Sharia clause. By referring specifically to “jurisprudence” rather than, vaguely, to the “Islamic Sharia” or its “principles,” as other countries in the region do, and by including the definite article, the article potentially packs more of punch. But much more important, with the clause operating under an Islamist president and interpreted by a Constitutional Court staffed by his appointees, what has generally been symbolic language in other settings might take on real meaning in Syria.
There are some elements in the fine print on provisions for religious freedom that also could give them a bit more robust potential. The constitutional declaration promises freedom of “belief” (i‘tiqad) rather than “creed” (‘aqida). The latter term tends to restrict rights to established and recognized faiths and the former suggests something closer to individual freedom of conscience. Nevertheless, it is only those recognized “heavenly” religions that have their rites protected and family laws enforced. It should also be noted that the conflicts in Syria today—even those with a strong sectarian dimension—focus not on religious ritual and family law, but are better seen as ethnic and political in nature.
On rights more generally, the rushed and closed drafting process, along with the provisional nature of the constitutional declaration, seems to have prevented a common process in which constitutions are treated as Christmas trees (if the metaphor can be forgiven), on which various groups hang their favored clauses or rights. However, this may happen once or if a more permanent document is written.
However, there is a surprisingly robust provision that makes all the “rights stipulated in international treaties, charters, and agreements for human rights” ratified by Syria “integral parts of this constitutional declaration.” And there are many, many such rights. Most notably, perhaps, Syria ratified both the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic, and Cultural Rights half a century ago. Those documents are extensive and fill in many of the silences in the constitutional declaration itself (religious freedom provisions, for instance are quite detailed). By elevating those documents to constitutional status, there would seem to be no need for implementing legislation. In fact, just the opposite is theoretically the case: legal texts that contradict these international instruments are unconstitutional, as long as such texts are challenged and overturned by the new Constitutional Court, that is.
Despite the document’s brevity there are some occasional confusing signals. The constitution bans gender discrimination and guarantees women’s right to education and work without qualification. However, it also promises to protect women’s “dignity” and their “role inside the family and the society.” While there is no legal contradiction between the two, there seems to be an attempt to voice both egalitarian and more conservative ideas, without guidance on how to resolve any tension that might result.
Most notable is what the constitutional declaration omits completely. It says nothing about how it will be replaced. The process of writing a more permanent constitution will be colored by the political struggles of the next few years, but the document makes no provision at all about how to translate the outcome of those struggles into a constitutional text. Since most of the interesting fine print of the provisional document suggest directions that might develop gradually over time—especially with regard to human rights—this is a significant silence.
But provisional constitutions, even those with clear sunset dates and more robust requirements for their replacement, often establish a starting point for constitutional negotiations. If drafters ever get to work on a permanent constitution, they will have this interim set of provisions before them, setting expectations, framing sensitive questions, and offering specific wording. It seems unlikely that Syrians today will enjoy the freedoms they are being promised. But if a political process does emerge over the provisional period that delivers a more legitimate and effective state apparatus, citizens might find themselves coming back to some of this language. Or perhaps they will attempt to square the promises they have been given with the powerful presidency that has managed to reestablish itself in ideological clothing that, for many, appears to be very different from these promises.
