As head of the de facto authority in Syria, President Ahmed al-Sharaa issued a Constitutional Declaration drafted by a committee that he appointed after the Syrian Dialogue Conference issued its concluding statement on February 25. The declaration raised a series of questions about its content and whether it respects the democratic process that was supposed to govern Syria until a final constitution that restores order to the state institutions and allows the Syrian people to fully regain their sovereignty is issued.

 

To understand the various aspects of this declaration, I must first provide a definition of a constitution that sets the criteria for analyzing its content and determining its nature. From a formal perspective, a constitution is the highest norm in a state, sitting atop the hierarchy of legal texts. From a substantive perspective, a constitution enshrines citizens’ rights and fundamental freedoms, in addition to defining the public authorities and regulating the relationships between them.

 

The Constitutional Declaration does meet the substantive definition of a constitution as it stipulates a large and significant set of political, social, and economic rights for citizens and defines the public authorities. However, it is unclear whether this declaration meets the formal definition of a constitution, as we will explain below.

 

In light of the above, this study will focus on the formal aspect of this declaration in order to understand its legal nature. It will then address the system of relationships between the public authorities that the declaration defines, without addressing the many articles stipulating a very diverse set of rights and freedoms. While enshrining citizens’ various rights in a constitutional text is extremely important, these provisions are in reality tantamount to promises that the ruling authority pledges to keep. All modern constitutions include provisions on rights and freedoms, but the crux of the matter of course lies in their application and the existence of institutions capable of protecting them. This became tragically clear just days before the Constitutional Declaration was issued, when personnel subordinate or close to the de facto authority committed sectarian massacres on the Syrian coast.

 

However, before exploring all these points, we must briefly address the issue of the provisions that indicate the identity of the Syrian state, given the large controversy that always accompanies such provisions.

 

Pluralism and Religion in the Constitutional Declaration

 

Paragraph 3 of Article 7 stipulates that the state “guarantees the cultural diversity of Syrian society in all its components and the cultural and linguistic rights of all Syrians”. This provision undoubtedly constitutes a significant development in Syria’s political history. After decades of dominance of the Baathist nationalist ideology, which considered cultural diversity a means of sowing division or achieving colonialist projects, the Constitutional Declaration explicitly reconciles with the ethnic and religious pluralism of Syrian society, albeit while also emphasizing that, “The State is committed to preserving the unity of Syrian territory and criminalizes calls for division and secession” (Paragraph 1 of Article 7).

 

However, this societal diversity is only evident in the stipulation that, “The personal status of the religious sects shall be protected and respected in accordance with the law” (Paragraph 3 of Article 3). This provision [which effectively allows the sects to regulate their adherent’s family-law matters] has been enshrined in Syria since the 1930 Constitution issued during the French Mandate. Societal diversity in Syria includes not only sectarian pluralism but also, when it comes to the Kurds, significant linguistic pluralism. Article 4 makes Arabic the country’s only official language, even though Article 7 mentions linguistic diversity, as we noted above. Hence, regulating the use of other languages will require intervention by the legislative authority. The declaration does not explain this point or clarify how this linguistic diversity will be protected.

 

Exacerbating the ambiguity surrounding this issue, Article 1 deems Syria “an indivisible geopolitical unit”. This provision could be understood as precluding any thought of autonomous regions or federalism in the future.

 

The most important sensitive point may be the stipulation in Paragraph 1 of Article 3 that, “The religion of the President of the Republic is Islam, and Islamic jurisprudence is the principal source of legislation”. This provision does not enshrine new principles in Syria’s constitutional history as the president’s religion was specified in Article 3 of the Syrian Constitution issued by the French high commissioner on 14 May 1930. The same goes for the Constitution of the Arab Government in Damascus under King Faisal, Article 1 of which stipulated that, “The government of the Syrian Arab Kingdom is a parliamentary civil monarchical government. Its capital is Damascus, and the religion of its King is Islam”.

 

Paragraph 1 of Article 3 of the 5 September 1950 Constitution once again enshrined Islam as the president’s religion. The second paragraph added that “Islamic jurisprudence is the principal source of legislation” – the provision that the Constitutional Declaration includes, as we saw above. This was the first time that the constitution of an Arab state enshrined religious law as a source of legislation. The Syrian Constituent Assembly adopted this provision in 1950 as a compromise between the proponents of an explicit declaration that Islam is the state religion and the opponents, given the ambiguous nature of this text and the obligation it imposes on state and society.

 

In reality, Islamic jurisprudence [fiqh] constitutes a jurist’s attempt to develop knowledge about the precepts of religion. In other words, Islamic jurisprudence is a human effort to understand God’s legislative will and not God’s will itself because humans, however well-developed their mental capacities may be, cannot comprehend God’s will. Hence, a jurist’s opinion on religious law precepts could differ from those of other jurists.

 

Stipulating that Islamic jurisprudence is the principal source of legislation does not preclude the existence of other sources of legislation. In this regard, we must note the subtle but telling difference between the 2012 and 1973 constitutions, which stated that “Islamic jurisprudence is a principal source of legislation”, and the Constitutional Declaration, which stipulates that it is “the principal source of legislation”. In other words, while the 2012 Constitution allowed for other principal sources, the Constitutional Declaration gives Islamic jurisprudence precedence over all other sources, which – although not ruled out – cannot occupy the same position.

 

Paragraph 2 of Article 3 of the Constitutional Declaration also reproduces, verbatim, Paragraph 2 of Article 3 of the 1950 Constitution, which stipulated that, “Freedom of belief is guaranteed, and the state shall respect all divine religions”. Stipulating freedom of belief is undoubtedly a positive. However, limiting the state’s respect for religions to “the divine religions” [al-adyan al-samawiyya] creates ambiguity as this concept could be interpreted as meaning only the scripture-based religions that Islam recognizes to be based on divine revelation, such as Judaism and the various sects of Christianity. In that case, no other religions will enjoy state protection.

 

The Constitutional Declaration’s Formal Definition and the Sovereignty Issue

 

President al-Sharaa issued the Constitutional Declaration singlehandedly. In other words, this declaration is a product of the unilateral will of the president of the Republic. As such, the Constitutional Declaration is in reality a grant from al-Sharaa to the Syrian people, similar to the Constitutional Charter that Louis XVIII granted to the French in 1814 or the Constitution that Ottoman Sultan Abdulhamid II granted in 1876. However, those granted constitutions did not define how they could be amended, which perhaps implies that the party that issued them and that embodied constituent power remained competent to amend them whenever it so wished.

 

Article 50 of the Constitutional Declaration, on the other hand, stipulates that, “The Constitutional Declaration is amended via an agreement of two thirds of the People’s Assembly based on a proposal by the President of the Republic”. Despite its brevity, this provision constitutes the most important point for defining this declaration’s formal nature. President al-Sharaa issued the declaration unilaterally and as a grant, yet he has actually pledged to limit his own power by prohibiting any amendment to it without the approval of a supermajority of the People’s Assembly. Thus, the declaration theoretically meets the formal definition of a constitution as it separates al-Sharaa as the holder of constituent power from al-Sharaa as the president of the Republic, who is now – like the People’s Assembly and the judiciary – an authority established by the declaration.

 

However, Article 50 – despite its theoretical significance – also prohibits any amendment to the Constitutional Declaration without the president’s approval. In other words, the president has not actually lost his constituent power, but he can no longer exercise it unilaterally. Moreover, this supremacy of the Constitutional Declaration will undoubtedly remain a matter of abstract legal logic until the emergence of a political situation that transforms it into a reality that actually limits the president’s power. The manner in which the declaration was issued does not guarantee that al-Sharaa does not contravene it, in which case he would have reclaimed all his constituent power. This makes him the sole sovereign authority in the Syrian state – one that can suspend the declaration on an exceptional basis whenever it so decides.

 

The Constitutional Declaration also contains no provision defining the sovereign party. Paragraph 1 of Article 2 of the 1950 Constitution stipulated clearly that, “Sovereignty belongs to the people. No individual or group may claim it”. Recognizing the sovereignty of the people means not only equality between all its members but also that the whole legal system in the state is, in theory, a product of the positive will of the people. Neglecting to recognize the sovereignty of the people or the Syrian nation raises questions about the political motives as such an important matter could not have been omitted inadvertently.

 

One of the main ambiguous and problematic points in the Constitutional Declaration is its failure to specify the mechanism for creating a permanent constitution. Article 26 grants legislative power to the People’s Assembly “until the adoption of a permanent constitution”, while Article 52 merely defines the duration of the transitional period as five years “ending after the adoption of a permanent constitution for the country and holding of elections in accordance with it”. The ambiguity surrounding this point is exacerbated by the explanatory memorandum directed at the president, which merely states that, “The Constitutional Declaration Drafting Committee recommends that a committee be formed to draft a permanent constitution”.

 

Hence, the means of creating the permanent constitution is not tied to the Constitutional Declaration. It is not clear that the People’s Assembly will debate the permanent constitution’s draft, and the declaration does not explain which authority is entitled to adopt it.

 

The Constitutional Declaration’s failure to address the issue of how the permanent constitution is created constitutes a significant and dangerous flaw that undermines its credibility and limits the democratic nature of the transitional phase. This gap could, for example, allow the permanent constitution’s draft to follow the same course as the 2012 Constitution. That Constitution was drafted by a committee unilaterally appointed by then president Bashar al-Assad and then adopted by direct referendum in a climate that lacked any guarantee of citizen freedom or ballot credibility.

 

Regulating the Separation of Powers

 

The explanatory memorandum stresses the importance of the separation of powers, arguing that the Syrian people have suffered from “encroachment by the President of the Republic on the other authorities, encroachment that relied on the constitutional text and resulted in malformed political systems”. This, the memorandum says, constituted “a blatant attack on the principle of the separation of powers”. Thus, the memorandum reaches a definitive conclusion: “Because the principle of the separation of powers has been absent from Syrian political systems, we have deliberately resorted to an absolute separation of powers”.

 

In reality, the encroachment of the president in Syria required more than just constitutional provisions granting vast powers to this figure. Rather, the regime’s dictatorial nature placed actual power outside the constitutional institutions and in the hands of a network of security agencies that controlled all aspects of Syrians’ lives.

 

The absolute separation that the explanatory memorandum extols does not exist in any constitutional system around the world as it makes little sense. Parliamentary systems feature a flexible separation between powers embodied by the presence of a collective executive authority – the government – that is politically accountable to the parliament. The parliament can withdraw confidence from the executive authority, while the executive authority can in turn dissolve the parliament under certain conditions. The implications of the government’s political accountability include its right to appear before the parliament to defend its policy and its ability to propose laws. As for in presidential systems, wherein there is rigid separation between powers, executive power is granted to a president who is not politically accountable to the parliament and cannot propose laws or dissolve the parliament. However, this rigid separation certainly does not preclude cooperation between the two authorities. The president is entitled to return laws to the parliament, while the senate – in the United States for example – can veto appointments that the president makes to many senior political positions.

 

Evidently, the Constitutional Declaration seeks to emulate the presidential model as it grants the president great powers, such as the power to unilaterally appoint or dismiss ministers (Article 35), appoint or dismiss the heads of diplomatic missions (Article 38), issue regulatory decrees (Article 36), and sign international treaties (Article 37). The president is also the supreme commander of the armed forces (Article 32) and is entitled to declare a general mobilization or state of emergency (Article 41).

 

As in the presidential system, the president is entitled to object to a law that the People’s Assembly passes within one month. If the People’s Assembly passes the law again via a two-thirds majority, the president is obligated to issue it. In other words, the president does not have an absolute veto.

 

On the other hand, the Constitutional Declaration runs counter to the presidential system by granting the president the right to propose laws (Paragraph 1 of Article 39). Oddly, it also grants executive power to the president and ministers, whereas the presidential system limits this power to the president. However, the declaration gravitates toward the presidential system by not mentioning any collective government or, by extension, prime minister. Consequently, the ministers do not form a body independent of the president. Rather, they are fully subject to the president as they do not require the confidence of the People’s Assembly.

 

In reality, the separation of powers can only be understood in reference to the democratic life that exists in each system. In parliamentary systems, the government emanates from the parliamentary majority that won the legislative elections. Hence, the political party that obtained the most seats in the parliament also controls the government, which in practice leads to a fusion of powers. In the presidential system, on the other hand, both the legislative authority and the executive authority emanate directly from the people. Consequently, the executive authority has independent legitimacy that entitles it to influence the legislative authority. The presidential system, as understood in the United States, is also based on cooperation between the powers, allowing each authority to halt or limit (i.e. check) the other authority and thereby providing balance between them. Undoubtedly, this system of balances can only be understood through the democratic legitimacy granted separately to the legislative and executive authorities.

 

The Constitutional Declaration accepts the authority of President al-Sharaa, who does not have democratic legitimacy, while also granting legislative power to a People’s Assembly composed of deputies one third of whom are appointed by him. The president also appoints a supreme committee for delimiting the electorates that will elect the other two thirds of the deputies (Article 24). The presidential system can only work when the legislative authority is fully elected democratically by the people and therefore has sufficient independence to counterbalance and check the president’s powers – not when the president appoints a third of the deputies, oversees the “election” of the others, and even defines the electorates permitted to vote.

 

“Absolute” separation of powers will not be achieved while the People’s Assembly does not enjoy the necessary independence. Moreover, the Constitutional Declaration neither sets a timeframe for forming this assembly nor explains how legislative power is exercised in the meantime (e.g. adopting and amending laws, adopting a budget, ratifying international treaties, granting general amnesty, and holding sessions to hear ministers).

 

One feature of the presidential system is the parliament’s ability to accuse the president of treason, corruption, or other major crimes and then convict and remove this figure (impeachment). The absence of all these mechanisms from the Constitutional Declaration places President al-Sharaa above all accountability. Moreover, the declaration does not even consider the scenario that the presidency becomes vacant due to resignation or even death. Consequently, it contains no mechanism for selecting a successor to al-Sharaa if the presidency becomes vacant for any reason, and the de facto authorities will impose their choice. Thus, the Constitutional Declaration not only enshrines the de facto authority but cannot exist or continue beyond it.

 

From another angle, Article 43 stipulates that the judicial authority is independent, and Article 44 prohibits the establishment of exceptional courts. This is a positive development, especially in a state in which exceptional courts constituted a distinctly repressive tool in the hands of the security agencies. Strangely, though, Article 47 establishes a seven-member Supreme Constitutional Court without including any definition whatsoever of its jurisdiction. Moreover, the independence of this court is doubtful given that all its members are appointed by the president and the People’s Assembly does not even confirm them, as should occur in a presidential system.

 

Conclusion

 

The Constitutional Declaration was issued to regulate the transitional phase, yet it renders the political transition contingent on the presence of President al-Sharaa and skirts the issue of the creation of the permanent constitution. Al-Sharaa is the authority that issued the declaration, and he is the authority that will designate and oversee the mechanism for creating the permanent constitution. In other words, he is the sole party that controls the transitional phase and the permanent phase that will follow it. By not defining how the new constitution is to be adopted, the declaration leaves this matter up to al-Sharaa, who now occupies – from a constitutional perspective – a dual position. On one hand, he is the president of the Republic who exercises his powers on the basis of the Constitutional Declaration. On the other hand, he is the permanent head of the de facto authority who unilaterally issued the declaration and has the final say on the permanent constitution’s draft. Hence, he is simultaneously inside and outside the Constitutional Declaration. This contradiction brings us back to the issue of sovereignty and its absence from the declaration.

 

The sovereignty of the Syrian people can only be achieved by enshrining the democratic nature of the transitional phase, namely by granting the ability to draft and debate the permanent constitution to an elected constituent assembly. President al-Sharaa’s constituent powers should transfer to this assembly, at which point he would become just a president of the Republic who can be removed or replaced if necessary. This granted Constitutional Declaration leaves the issue of popular sovereignty in limbo pending political developments that either return constituent power to the people, to be exercised democratically through their representatives, or keep it in the hands of al-Sharaa or whoever succeeds him atop the de facto authority.

 

This article is an edited translation from Arabic.