call us now

(+964) 751-4413372

Participatory in Political Decision and Constitution Drafting

2020-02-02
The mentality of international actors in the Syrian file, have opened up on a mechanism through which they can evaluate the crisis and place it within the stakes of records and political speculation to serve the interests of each country, along the acceleration of events on the Syrian scene at various levels, the field-based ones in particular. Thus, by keeping the field situation ardent and as a desperate attempt to drape what is going on through entitlements called political. Therefore, the idea of holding a conference to draft a new constitution for Syria in Geneva was initiated. It is necessary to consider crucial and decisive points in the Syrian crisis, in light of this entitlement:
Firstly, and before delving into the constitutional entitlement topic, we have to read the constitutional situation from a purely legal perspective in order to be able to approach the status quo with the academic and practical facts of drafting the constitution. We also have to hold up for a moment to discuss whether the constitutional entitlement is of importance in a manner that places it at the forefront of other tracks and other entitlements.
1-In regard to what is going on in Syria, it is a purely constitutional process in which there is a fallacy of reality and truth. If the situation was related to drafting a new constitution or replacing the available constitution in a manner to meet the aspirations of the people in the first place, there would not be a need for what happened and what is happening on the Syrian scene of fighting, destruction and displacement. Therefore, we conclude that the active states try to avoid the situation by ill-defined ways in the Syrian file, as they are trying to reduce the entire political process with committees to draft the constitution, which we will come to discuss its formation and formations later. The aim of these committees is to pass time and jump over the entitlements prescribed by the UN resolutions, especially Resolution 2254, through which reference was made to the entitlements that form the basic building block to reach a comprehensive and just political solution to the Syrian case, the most important of which is the transitional phase and the issue of detainees and kidnapped people. As well as, the return of displaced, followed by the next stage of forming a transitional government, whose primary task will be later to form committees to draft a new constitution, compatible with the requirements of the current stage and the future of Syria.
However, in case the situation pursues a different course, we cannot consider what is happening nothing but a waste of time. Also, giving the opportunity for the belligerents to achieve accomplishments and gains in the field, allows the triumphant to impose their vision and the vision of their international supporters aspiring to achieve international gains through what is being achieved in the Syrian situation and the attempt of some to take advantage of the suffering of the Syrians and using them as a leverage of the international community to extort it and achieve international gains that might be in other regions.
In brief, we believe that discussing the drafting of a constitution is nothing but a discussion of advanced issues that had to be prepared in advance, which solve several pending issues and form a cornerstone in achieving a comprehensive national reconciliation that restores confidence between the conflicting parties. This confidence is what will be the solid foundation for constitutional and subsequent political entitlements. In other words, that discussing constitution drafting at the current stage is nothing but a process of putting matters in their correct course.
-However, if the international opinion has settled and perceived it as an entry from which a broader and more comprehensive political process can be accessed, or that these committees are a flexible tool or a stone for moving stagnant water. Therefore, we can say that it is an imposed reality adopted by the international community and regional countries intervening in Syrian affairs and each of which has instructed those whom they support of the Syrian parties to be involved in this process. The parties of which have no option but submission and acquiescence for the vision of their supporters. Hence, the constitutional process or the so-called constitution-drafting committees were generated.
-Therefore, before we delve into the discussion of the work of these committees, their formation mechanisms and configuration, we must have an academic legal reading of the forming constitutions mechanisms and their expiration, as well as, comparing them with the Syrian situation and whether they actually apply to it?
First: Constitutions Formation: constitutions differ according to the circumstances and conditions surrounding this formation, as these objective conditions are the responsibility of the system of governance under which the constitution is established and the extent of civilizational and political developments reached by the people of this state.
Therefore, the jurisprudence of constitutional law divides and classifies methods of constitutions demonstration into two main types:
1- Non-democratic methods: for example, grants and contracts
Since this type of method does not exist at the present anymore, therefore, our reading will be limited to the democratic methods, which are prevalent in most countries today.
This method is represented in two ways:
• A constituent assembly that fully implements the concept of representative democracy, whereby people elect a representative assembly that undertakes the founding authority and the task of drafting the constitution. It is higher than the legislative authority for its commission to accomplish this task of which it is elected for.
• Constitutional Referendum: It is the most important manifestation of semi-direct democracy and varies in terms of representation to several types; constitutional or constitutive, legislative, political. What is essential to us in our reading, is the constitutional referendum that legalize the constitutional document or its provisions after the approval of people.
Second: expiration of Constitutions: means the comprehensive amendment or total expiration of the constitutional document. Its necessity appears when the principles and provisions fail to keep pace with political, economic and social developments. In a manner that partial amendments are not sufficient to confront them, therefore a new constitution must be drawn up that is compatible with these developments. Thus, constitutions are expired in two methods:
• The ordinary methods: cancelling the constitutional document, pending work by refining it quietly and without violence and replacing it with a new constitution that meets the requirements of the country's political, social and economic developments. The difficulty of this amendment appears in the rigid written constitutions, as its document is devoid of reference to its comprehensive amendment. Consequently, most legal jurisprudence considers that as not permissible.
The most prominent examples of the expiration of constitutions are:
1- A two-state union, in which the constitutions of both countries fall and a new constitution for the united states is drawn up.
2- Disintegration of the state into several countries, where the constitution of the previous state is toppled and each state establishes its own constitution.
• The revolutionary method: the removal of constitutions, their expiration and the suspension of operating accordingly after the outbreak of revolutions and coups. A distinction must be made between a revolution and a coup; as a coup is the act of a certain group or a governing body, of a military movement with the aim of taking over the government without constitutional methods, whereas, in a revolution people are the source of the movement.
This is regarding the source, as for the goals, it is possible to differentiate between them as follows; if the goal is to assume a new staff in order to hold on the court instead of the previous staff, then this is considered a coup. However, if the movement aimed at demonstrating a fundamental change in the political, social and economic system, then it is a revolution.
After this simple legal review, the attempt to apply it on what is called a constitutional entitlement and its approach with the current Syrian situation and its consequences, we conclude the following results:
1- That the discussions in Geneva on the development of a new constitution do not meet any of the previous legal descriptions: it is not popularly elected committees charged with the task of drafting a constitution for the country. On the contrary, the conflicting parties in Syria, especially the international ones, instructed each of them to pawns in the Syrian arena to point out its representatives and impose the agendas of these countries on the conference participants. For the attempt of embellishing these committees with what are called civil society representatives, is nothing but a window-dressing operation. As we are all aware that Syria has never tolerated the presence of such organizations rather went further by placing them on the lists of treason under the pretext of dealing with foreign countries. Therefore, where did such civil organizations of such a characterization come from?
Likewise, what happened in Syria cannot be characterized as a revolutionary change. As the forces of the revolution could not control the reins of government in order to establish a new constitution for the country, also due to the extreme decline of its presence in the geographical areas.
Regarding all of this, it cannot be said that the constitutional entitlement, which is being prepared in the international corridors, does not reflect the reality and aspirations of the Syrians. To clarify this, it is necessary to elaborate the activities involved in this entitlement:
1- The regime group: which is the most coherent and clear in vision and presentation group
2- The opposition group: It is a heterogeneous mixture of national, secular and Islamic parties, overshadowed by the general perception of the Muslim Brotherhood, which is the perception of the regional states supporting this group. Therefore, we believe that its vision is not consistent rather it is conflicting in many points and perhaps the only point agreed upon is the overthrow of the regime.
3- The civil society group inside: We have previously indicated that such groups did not have a basis in the Syrian society and that they have recently appeared in some areas that are neither subject to the regime control, nor to the control of Islamic opposition factions. Also, since their emergence in NES regions was a weak presence that was evident in relief cases along some activities that do not notable on issues of civil society and participatory. The following observations, even if they were regarding the formed groups for the discussion of the constitutional entitlement, however, they should be noted clearly without any attempt of covering:
A- Non-involvement of the Self-Administration, or the so-called Syrian Democratic Council, in this entitlement requires a prolonged observation: as the Self-administration and the Syrian Democratic Council along its security and military forces control a large geographical area of Syria that is comparable to the area controlled by the regime. Likewise, it is twice the number of areas controlled by the Opposition armed groups in terms of geographical expansion.
• This group, also, controls vital economic positions that constitute more than 50% of the Syrian economy. Moreover, it has experience in managing NES region, concerning the previous stage. Regardless of our evaluation of this experience or our agreement with it, it is an experience that deserves to be observed, enhance its advantages and reveal its disadvantages. As well as, work to develop its performance, in a manner that it forms an experiment that can be improved.
• Therefore, we believe that the absence of this administration from participating in this entitlement, constitutes a defect with which the entitlement may not succeed if it continues to operate; which we do not expect.
B- Absence of active civil society organizations in NES. These organizations are the most expressive of the spirit of civil work due to a freedom space through which it can operate. Whereas, the participating civil society organizations are nothing but titles of personalities divided between support of the opposition and the regime, therefore, we can consider these organizations as non-existent in the planned constitutional entitlement in Geneva.
In view of the abovementioned, we believe that in order to reach permanent peace and establish a system of governance that is compatible with the requirements of the next stage, it is necessary to:
- Announce the establishment of the transitional stage.
- Release of the detainees and return of the displaced.
- Form a transitional government with broad powers.
- Work on forming popularly elected bodies to draft a constitution for the country.
Given that it represents all segments of the Syrian society and its varieties without exclusion, in addition to being supportive of figures with broad legal accessibility, the basis of this constitution will be full equality for all varieties of the Syrian people without any preferential article being presented to a segment than another in terms of religion, nationality and sex. Moreover, its basic prop has to be international charters and covenants related to human rights.
We hope to achieve our goal, knowing that it cannot be reliable with the presence of foreign multinational armies on the Syrian land and with the presence of non-Syrian fighters belonging to all parties; in which each of which has a justification, however, we note that we do not agree with any justification for non-Syrian interference in the Syrian issue.
Lawyer
Musa Hanna Issa

The "Local Voices Conference"

The "Local Voices Conference" discussed the general context in northern and eastern #Syria, including humanitarian challenges and the state of human rights. It focused on...

Read more
Celebrating the graduation of the first training course in computer skills and women’s skills

On March 10th, the ASO (Analysis and Strategic Studies Organization) Center celebrated International Women's Day by completing the first training course for eleven women over...

Read more
ASO and 157 Syrian Organizations Condemn the Turkish Targeting of Civilian Infrastructure in North and East Syria

ASO and 157 Syrian Organizations Condemn the Turkish Targeting of Civilian Infrastructure in North and East Syria The signatories of this statement call on the...

Read more