In March 2025, interim Syrian President Ahmad al-Sharaa issued a constitutional declaration to govern the country’s transitional phase. The goals inferred were clear: to assure Syrians that order and justice would be restored, that their rights would be recognized, and that the Syrian president would guide the country away from its dark experience with oppressive dictatorship.
While some people supportive of those goals welcomed the proclamation, others—both within the country and among international observers—expressed unease with the strong presidential powers granted by the document. It was not just the content of the constitutional declaration, but also the way it was written, that sparked concern: It was drafted by a small committee of specialists working quickly and quietly, there was little discussion and debate, and there were even fewer signs of a consensual process.
Since then, the interim document has begun to shape politics in the country. But it has not closed off an alternative path that has been tried and tested and is familiar to global experts in the realm of constitution writing: a path toward broad agreement on constitutional principles and the review of drafts by a constitutional court. Such a path helped facilitate the South African exit from apartheid and could help manage tensions in Syria. On the other hand, in Egypt, it excited tremendous suspicion among Islamists in particular and helped derail the Egyptian constitutional process after the 2011 uprising. That experience is very familiar in the region. So, this transitional path definitely does not guarantee success, nor is it as easy as it sounds. But because the interim declaration’s text allows for it, it is worth exploring the alternative path, the historical cases likely to be on the minds of Syria’s constitution drafters, and what might induce them to follow the path.
One Step Forward or One Step Back?
The drafters of the March constitutional declaration have defended their work by explaining that it was merely an interim document and that they were simply relying on much earlier Syrian constitutions that had addressed contentious issues (like religion) and contained democratic procedures, such as an elected house of deputies. They stated that some adjustments would inevitably have to be made in any final document and that some issues would have to be postponed during the transitional period to give the country’s leadership the tools it needs to guide Syria toward a longer-range document. Thus, in the end, the constitutional declaration did not bring anything new; the highlighted democratic symbols in the document are commonly used by several nondemocratic constitutional regimes in the Middle East.
Syrian society is still deeply divided, mistrustful, and traumatized; there is a strong fear of political disintegration, making the desire stronger for an immediate restoration of order in some circles. And yet that same reality makes a consensual process very difficult.
So, the dangers of the declaration and the process that produced it are startlingly clear. First, if the goal was to give the president the tools he needs, the document did that perhaps a bit too enthusiastically. The tools might work too well, with the empowered president so deeply entrenched and so much in control of the political process that the ousted presidential dictatorship would just be replaced with another. Or second, the tools might fail badly, alienating key groups and effectively telling them they have no real role in any transition—perhaps resulting in conflict and disintegration instead of reconstitution of the political order.
The declaration itself may be a fait accompli, but it does provide some hidden tools to correct the flaws the critics point to. One of the most commented-on features of the document is its dismissal of the existing Supreme Constitutional Court (SCC) judges and its designation of the president as the sole appointing authority for their replacements. In other words, the president not only got the constitution he wanted—which allowed him to appoint one-third of the legislative authority and appoint a committee to select the remaining two-thirds—but also the power to choose those who would interpret the constitution. In its postdeclaration incarnation, any newly-appointed SCC may simply be stillborn, as the court is unlikely to be active in the transitional period. Indeed, it may remain frozen until the Syrian legislature drafts and endorses a law to regulate its jurisdiction and competences. Not surprisingly, the constitutional declaration did not set any specific time frame for such a legislative framework, leaving the SCC with the tools of its largely toothless predecessor.
The interim president could instead use the appointment authority in a very different way, as a device to start an alternative transition process—one that is consensual and might attract those alienated by, or suspicious of, the president-centered nature of the constitutional declaration. The president could, if he wished, encourage a process in which diverse groups of Syrians first agree on a short set of general constitutional principles. He could then empower the SCC during the transition to guide the constitution’s drafting based on those principles—a process similar to that taken by South Africa’s factions at the outset of transitioning to the current Republic of South Africa. Specifically, Syria’s interim president could appoint justices to the SCC that are widely seen as representing various perspectives in Syrian society and could agree to a constitutional process that requires the SCC to review any proposed constitutional text for conformity to the set of agreed-upon principles.
Turning a Constitutional Court from a Problem to a Solution
If the Syrian interim president can be persuaded to transform the SCC from a weak body reflecting his own interpretation of a presidential document into a tool for political reconstruction, there is a clear path to take:
- The leading political and social forces in Syria would first hammer out a set of principles. While general, the principles would not be merely hortatory or aspirational but rather carefully worded not only to indicate their meaning but also to indicate the structures, processes, and timelines needed to aid in their enforcement. These principles would be issued in a document (perhaps a supplementary constitutional declaration, or explanatory memorandum) that would give them legal force to guide the transition.
- Those same leading political and social forces would also agree on a court of competent jurists who represent the broad range of Syrian society. The president would have to use his unrestrained appointment authority in a manner that left major factions confident that their perspectives would be heard—though the justices would be independent and professionally qualified for constitutional analysis rather than delegates or representatives of specific ethnic or political orientations.
- The SCC would then be authorized to review any draft constitutional text (and even be consulted by a specified number of members of any drafting assembly) in order to ensure compliance with the constitutional principles; its decisions regarding violations of those principles would be binding and require reconsideration of the matter by the drafting body.
The new SCC does not appear to be designed to take on such a role, but the current declaration at least leaves space for the president to form such a body. And despite the recent history of an executive-dominated judiciary and constitutional jurisprudence centered around enforcing executive will, there are real antecedents to draw from in terms of Syrians’ stated democratic aspirations, when allowed, in constitutional form.
For the past half century, the judiciary and the SCC have been bent to serve authoritarian ends, but there is a prior history—that the drafters of the March declaration claimed to draw from—that provided for a more robust judiciary role. Syria’s constitutional tradition dates to 1920, so there is a history of texts and debates that can inform today’s process. Syria’s 1950 constitution—which the drafters of the current declaration showed special respect for—was the most consensual in drafting and was written before the period of presidential dictatorships and one-party rule. That tradition would just have to be revived, not invented.
The idea of judicial review of constitutional questions is also not alien to Syria’s constitutional tradition; as early as the 1920 draft constitution, there was a plan for a “Supreme Court” that—if not a full constitutional court—would have the authority to hold senior political officials accountable. That draft document was never fully adopted and provisions for a constitutional court in subsequent texts have generally placed few constraints on Syrian authoritarianism, but an SCC has been a formal part of the state for decades. The body exists, has clear procedures, and experts in Syrian constitutionalism have detailed ideas on how it could be turned into a viable court.
Precedents
A Positive One . . .
South Africa’s transition from apartheid to democracy remains one of the most studied and admired constitutional journeys in modern history. It is often cited as a model not simply because of the constitution it produced but also because of the process by which it was written. At the heart of South Africa’s transformation was the Constitutional Court, which played a pivotal role in shepherding the country’s new democratic order. The court’s effectiveness stemmed from its deliberate institutional design, its progressive jurisprudence, and its ability to balance judicial activism with restraint. This combination of features helped foster public trust and credibility.
The court’s legitimacy was rooted in the Interim Constitution of 1993, which outlined thirty-four constitutional principles to guide the drafting of the final constitution. These principles ensured that the new legal order would be established on democratic governance, fundamental human rights, and equality. The court’s composition broke firmly from that of the apartheid-era judiciary. South Africa’s parties selected judges with a reputation for being committed to human rights.
One of the court’s most significant contributions was its willingness to engage with complex socio-legal issues, using constitutional interpretation as a tool for societal change. In landmark rulings, the court abolished the death penalty and demonstrated its commitment to fundamental rights while affecting a new legal and judicial role. By establishing its decisions in the constitution’s transformative provisions, the court not only upheld individual liberties, but also helped reshape South Africa’s collective identity.
The drivers of South Africa’s transitional process aspired to have a constitution with a clear commitment to justice, equality, and democratic governance. They entrusted the Constitutional Court with substantial powers to ensure that the new constitutional documents reflected those aspirations. Unlike regular courts, the Constitutional Court was not merely an adjudicator, but also a custodian for constitutional legitimacy. Most importantly, it was tasked with certifying that the final text of the constitution complied with the foundational principles agreed upon by South Africa’s parties in the Interim Constitution.
The court acted on both a technical and profoundly symbolic front. On the technical, legal front, it scrutinized the draft constitution to ensure its conformity to the thirty-four constitutional principles hammered out during the political transition. In performing its technical function, the court issued a landmark judgment; it demonstrated judicial independence by rejecting the first constitutional draft, citing deficiencies in the entrenchment of rights. This bold decision underscored its role as a political actor in the constitutional drafting process rather than just an endorser of constitutional compromises.
Beyond this procedural role, the court served as a mediator between civil society, legal experts, and political stakeholders; it ensured that the constitution did not merely reflect elite bargaining but also the general principles that had been designed as a reflection of collective national values.
Ultimately, the Constitutional Court’s guardianship was instrumental in shaping a constitution celebrated for its progressive vision. By balancing legal rigor with a deep awareness of South Africa’s historical injustices, the court helped forge a document that was both legally sound and ethically resonant—a cornerstone of democratic and political consolidation.
The South African model is often cited for its potential lessons for other nations undergoing constitutional transitions, in which a constitutional court could oversee the drafting process to guarantee alignment with consensual principles. The South African Constitutional Court succeeded due to a variety of reasons, including its structure as a judicial institution, its progressive adjudication, its ability to anchor itself in a hard-won political agreement, and its willingness to shoulder its task with measured deference to democratic processes.
. . . and a Negative One
But Syrian actors, especially Islamists, will likely think of an example much closer to home—Egypt’s transition. Egypt is not only geographically closer to Syria and similar in some constitutional traditions, but the two countries also share a short-lived constitutional history when they were governed as a single United Arab Republic from 1958 to 1961. During this period, some Egyptian constitutional provisions were imported, and various unimplemented unity discussions over the following decade maintained some constitutional dialogue between the two countries.
However, it is not the period of unity that will draw attention to the example, but rather the tumultuous three years after Egypt’s 2011 uprisings. Supraconstitutional principles were frequently proposed during those years, and the country’s SCC emerged as a prominent political actor. But the principles were never adopted, and the court was often viewed as playing a disruptive role. Islamists in particular viewed—with considerable justification—supraconstitutional principles as devices to contain their electoral advantages. And they saw the SCC as the body that dissolved the parliament and first constituent assembly that the Islamists dominated, as well as the body that ultimately supplied a temporary president in July 2013 when the Muslim Brotherhood’s Mohamed Morsi was forcibly removed from the post he had been elected to a year earlier.
In that sense, ideas imported from South Africa were introduced into a contentious setting in which they were understood by key political actors not as neutral and consensual devices but as highly partisan ones, used by non-Islamist and old-regime actors who did not have the votes to win an election. Whether or not such cynicism would be justified in Syria’s case, it is likely to occur to Syria’s Islamist president that the alternative path suggested in this article has an unpleasantly familiar ring to it.
When assessed rationally, however, the Syrian context is different from the Egyptian one in some important respects. First, Islamists do not have the same confidence in their domination of any electoral process. Second, political and civil society are far more divided, atomized, and even traumatized than they were in Egypt, where the ultimate confrontation in the summer of 2013 emerged between two clearly defined (if diverse) coalitions facing each other on a fairly well-defined set of spaces (state institutions and public squares in major cities). Few Egyptians were seeking to knit society back together, nor was society, despite its polarization, dealing with the effects of a brutal fourteen-year civil war.
In Syria’s context, an autonomous and efficacious SCC could actually be a safeguard for the Islamist regime itself, regardless of future election outcomes. If they win the elections, they would find a coherent state to run. If they lose—as some Islamists fear—the current opposition might employ the president-centered constitutional declaration against them, and in such a case, the SCC would be their only constitutional lifeline to challenge the opposition’s procedures.
So, could Syria’s interim leadership be persuaded to take a long-term view that political reconstruction needs a more inclusive approach than the current constitutional declaration seems to suggest? There is definitely a chance.
Can What Is Good for the Whole Be Seen as Good for the Parts?
The challenges ahead are not to be underestimated. The two steps required—negotiating a set of constitutional principles and forming an SCC able to inspire confidence—are easy to call for, but may be difficult to accomplish. The March interim declaration makes a helpful initial foray in the realm of rights and freedoms by proclaiming that those “rights stipulated in international treaties, charters, and agreements for human rights” that have been ratified by Syria are to be treated as “integral parts of this constitutional declaration.” And the document’s insistence on operating within the Syrian constitutional tradition—which has democratic elements in its more distant past—at least gives actors a set of provisions to focus on and a vocabulary for casting their differences in constitutional language. But those helpful steps will likely be impeded by ongoing, deep bitterness about the horrific violence of the past years, sectarian and ideological divisions, and deep clashes about the degree of centralism and local autonomy.
Domestically, the actors (political parties, armed movements, communal leaders) will have to be convinced that a constitutional process based on compromise is in their best interest. The new regime, for its part, will have to calculate that the rewards of a successful process are likely to be higher—in terms of viable institutions they may help lead—than a system forcefully imposed. Syria’s new leaders will have to be coaxed into a willingness to trust a process that involves some genuine concessions and to disavow any intention to reconstruct a dictatorial regime under a new ideological guise.
Internationally, many key countries have a history of choosing Syrian favorites they support. But there have already been some real if limited regional attempts to promote a stable and just Syria, one which does not depend on any favored actor dominating. Moving forward, a regional and global consensus needs to be reached that a peaceful transition is in everybody’s interest and that such a transition should be rewarded with the full reintegration of Syria into the international order and the full ending of isolation, sanctions, or challenges to the unity and borders of the country. These rewards would raise the incentive for Syrian actors to complete the task.
This scenario may be hopeful, but it is not naïve. Law and politics are often seen as opposing ways of operating: Are decisions made according to clearly specified procedures or through the rough-and-tumble contestation among different interests and actors? In actuality, it is not an either-or question. The history of successful constitution writing—and of successful constitutional experiments—suggests that law and politics are best when the latter operates through the former. When contesting parties cast their programs, strategies, and tactics in legal and political language and when they come together with those ideas and produce a set of procedures that they all can live with, then a constitution drafting process is likely to be successful. Knitting law and politics together—or having constitutions that serve as repositories of hard-won agreements—is more a matter of trust and bargaining than of foresight. But Syria’s best hope might be in finding untapped reservoirs of both.
