Introduction
The United Nations Security Council Resolution (UNSCR) 2254 of 2015 commended ‘a Syrian-led and Syrian-owned political transition’ (UNSCR 2254, point 1), to bring about a ‘process for drafting a new constitution’ (UNSCR 2254, point 4), something that has been persistently taken up throughout the different peace conferences as the best way to put a definitive end to the civil war. Since 2017, under the aegis of the Astana peace process, the constitutional reform idea gained traction, giving the necessary impetus for the creation of a UN-sponsored constitutional committee that started to meet in Geneva in October 2019 (The Washington Post, 2019). This committee commended respect, with the Syrian President vowing to accept any decision reached as long as it went in line with the ‘national interest’ (Tass, 2019). By November 2021, six rounds of talks have been conducted, and, while negotiations are certainly stalled (Middle East Monitor, 2021), there is some way forward: with the President re-elected in May 2021, the Syrian government has a firmer basis to proceed with a possible constitutional reform. In this context, the reflections about the Syrian Constitution become more necessary than ever.
However, despite the evident empirical importance that Syrian constitutional politics has, no scholarly contribution has so far delved into the subject. With the aim of filling this research deficit, the reflections henceforth offered are situated in a much needed line of inquire, trying to elucidate, first, from a descriptive-analytical perspective, what are the main evolutionary trends underlying contemporary Syrian constitutional law? And, how do these evolutionary trends compare with the most recent regional constitutional tendencies? For answering this, the 2012 Syrian Constitution is set in diachronic and synchronic comparative frameworks. Second, from an explanatory perspective, what specific constitutional provisions impede the proper separation of powers and hinder the protection of human rights, hence preventing the rule of law and diminishing the value of the constitution? And, what legal-institutional mechanisms account for this phenomenon? For answering this, an empirical study has been conducted on the Syrian ‘constitutional block’, comprising the constitution and its main organic laws. The final goal is to highlight at the same time constitutional potentialities (pointing out evolutionary lines) and deficits (pointing out formal provisions that subtract from the constitutional transformative value). This might help to delineate a bargaining range for the ongoing peace negotiations in Geneva. The methodology is based on a textual analysis of primary sources: the 1973 and 2012 Syrian constitutions and their implementing organic legislation, comprising the Military Penal Code (Legislative Decree 61/1950), the Judicial Authority Law (Decree 98/1961), the Law on Political Parties (Decree 100/2011), Law 22 of 2012 on the Counter-Terrorism Court, Law 7 of 2014 on the Constitutional Court, and Law 32 of 2019 on the Council of State. The hypotheses raised are:
(1) From an empirical perspective.
(a) That the 2012 and 1973 constitutions are almost identical, except for a limited set of novelties grouped under four evolutionary lines: softening of the hyperpresidential features; decentralization; strengthening of the Constitutional Court; and recognition of new constitutional rights.
(b) That the 2012 charter is out of touch with the regional constitutional trends, since it was written with an eye focused on the extremely risky and volatile context of the civil war.
(2) From an explanatory perspective.
(a) That certain provisions in the 2012 charter impede the proper separation of powers and hinder the effective human rights' protection, hence preventing the rule of law and taking away the legal value of the constitution.
(3) From a design perspective.
(a) That the formal constitutional evolutionary lines reveal the policy priorities of the Syrian government, while the democratic deficits help to ascertain policy priorities of the opposition. Together, they might contribute to delineate a potential bargaining range for the ongoing constituent negotiations.
This article offers an original approach to understand the constitutional framework existing in Syria by the end of the civil war. Its empirical findings and research arguments hold the potential to provide useful knowledge for constitutional and political scientists interested in Syria, as well as in authoritarian and post-conflict constitutional dynamics.
Theoretical framework
A constitutional charter is a document that enshrines the basic functioning and legitimation processes of the supreme institutions of the state. As a document written by the stroke of a pen, it is not sufficient by itself to shape the vast and impetuous reality that it aims to regulate. In its normative dimension, the constitution can be referred as a formal constitution: this is the black-letter, de jure and legally enshrined constitution. While in its positive dimension, the constitution can be referred as a material constitution: this is the empirical, de facto and effectively implemented constitution. The aspirations expressed in the formal constitutional charter will not necessarily match the material reality effectively projected by the supreme institutions of the state. The potential of a formal constitution to transform a material constitution, matching normative and positive planes, will depend upon its legal, political and social value.
A constitutional charter has legal value when its legal rules, substantiated through legally defined processes, are effectively binding. The potential of a constitutional charter to legally bind the ruler can be conceptualized by the rule of law (Peters and Armingeon, Reference Peters and Armingeon2009: 389). An elusive concept, rule of law refers to the effective subordination to legally and constitutionally-established limits (Belton, Reference Belton2005: 27). There are basic conditions of legal certainty that provide the foundation for the rule of law (Zolo, Reference Zolo2007: 24). Besides, three mechanisms operationalize it. First of all, the system of checks and balances and the territorial distribution of power, which allows for the horizontal control of the governmental actions (O'Donnell, Reference O'Donnell, Schedler, Diamond and Plattner1999: 38). An effective horizontal control is enabled by the judicial independence (Hartzell and Hoddie, Reference Hartzell and Hoddie2019: 643); a balanced form of government, comprising the relation between Executive and Legislative, and between President and Prime Minister (Helmke and Rosenbluth, Reference Helmke and Rosenbluth2009); and the territorial decentralization of political power (Hipsher, Reference Hipsher, Meyer and Tarrow1998: 158; Prempeh, Reference Prempeh2007: 788). Second, the system of democratic representation and participation, which allows for a vertical control of the rulers' actions and the orientation of policies. An additional third mechanism, societal control, refers to the direct checks performed by non-state actors through forms of social monitoring and mobilization (Smulovitz and Peruzzotti, Reference Smulovitz and Peruzzotti2000). These control mechanisms make possible the substantiation of legally-envisaged accountability processes, which might impose costs on the rulers when they ignore the law. From an institutionalist perspective, the horizontal, vertical and societal forms of control are enabled by formal constitutional provisions (Samuels, Reference Samuels2006: 23; Melton and Ginsburg, Reference Melton and Ginsburg2014; Hartzell and Hoddie, Reference Hartzell and Hoddie2019: 641). Horizontal accountability builds upon the system of checks and balances and the territorial decentralization; while vertical and societal accountability are enabled by the constitutional rights: basically civil and political rights, with the economic, social and cultural rights facilitating the material conditions for their expression.
The legal value of a constitution presupposes a certain amount of loyalty of the constituted power towards the policy intent designed by the constituent power and expressed in the formal constitution. However, this loyalty cannot be taken for granted in war or in authoritarian scenarios. In a war scenario, the fundamental change in circumstances has the potential to drive a large wedge between the constituent and the constituted power's policy intent. Whereas in an authoritarian scenario, there will tend to be a dichotomy between apparent and actual semantics: while the constitutional language might seem to democratically empower certain institutions and actors, in reality there can be a ‘subterranean’ meaning that aims to preserve the ruler's authority. In these two scenarios, formal constitutions will tend to be legally ‘ineffective’ (Kokott and Kaspar, Reference Kokott, Kaspar, Rosenfeld and Sajó2012: 796–797).
Formal constitutional provisions do also have an intrinsic political value that goes beyond the legal system (Ginsburg and Simpser, Reference Ginsburg, Simpser, Ginsburg and Simpser2014: 7–8). The political value is substantiated through non-legally defined political processes. First of all, the constitution can have a political value as an ‘operating manual’, explicitly and implicitly institutionalizing the interactions between ruling elites and defining limited ranges of permissible mobilization and dissent (Chilton and Versteeg, Reference Chilton and Versteeg2016). Formal constitutions also have political value as symbolic ‘billboards’, that is, authoritative policy statements showcasing, both to domestic and international actors, an axiological proclamation that projects a suprapositive and dogmatic significance (Farber, Reference Farber2002: 85). Another political value of the formal constitution comes from its significance as ‘blueprints’ setting out principles that reveal constitutional priorities of the regime, sketching lines of future policy evolution (Ginsburg and Simpser, Reference Ginsburg, Simpser, Ginsburg and Simpser2014: 6–9). Lacking legal force and certainty, the principles and processes set out by the constitution as an operating manual could be flouted in those cases when a ruler decided to invest part of his legitimacy to face up the political forces aiming to enforce them (Prempeh, Reference Prempeh2007: 768).
Besides, sometimes formal constitutional provisions do display a social value that goes beyond the legal and political systems. The social value of a constitution triggers non-legally defined processes substantiated by social actors for the enforcement of basic understandings that might have percolated to the society. In this vein, the constitutional text can introduce a push towards a social debate revolving around a constitutionalist language, creating over time certain demands and expectations. This has the potential of rendering serious the ‘joke’ of an otherwise sham constitution (El-Ghobashy, Reference El-Ghobashy2008: 1598), stirring extra-constitutional forms of social challenge that might turn the constitution against the regime (Law and Versteeg, Reference Law, Versteeg, Ginsburg and Simpser2014: 170).
Formal constitutions matter because they can have a transformative value. Furthermore, they can become particularly important when military conflicts end or are close to end. Post-conflict scenarios are characterized by opening windows of opportunity that allow redefining the rules of the political game (Samuels, Reference Samuels2005: 664–665; Johnson, Reference Johnson2017: 300), and formal constitutions become useful to calibrate both the need and possibilities for constitutional change, especially when this change is to take place on the basis of an evolutionary logic (i.e., building on the basis of the pre-existing constitutional legality, defined by the previous constitutional text). In this vein, the study of the Syrian Constitution, despite all the load of cynicism that it might have carried in the immediate past, results crucial. The fact that one-third of the UN-sponsored constitutional committee is made up of representatives of the Syrian government (which has claimed the 2012 Constitution as a necessary ‘passage point’ to any new constitutional arrangement), and that the UN Security Council Resolution 2254 of 2015 commended ‘a Syrian-led and Syrian-owned political transition’, gives credence to a reform respectful of the current constitutional legality. The respect for the constitutional legality implies an evolutionary rather than a revolutionary change. As a result, a special attention should be given to the 2012 charter, in its material dimension, in order to learn from the past experience, draw lessons and detect deficits; and above all, in its formal dimension, in order to identify evolutionary trends, and to specifically ascertain which words could (and should) be added to the new constitution and which ones not.
In Syria, besides the inherent flaws of a loose constitutional and legal system with little legal certainty, traditionally characterized by leaving a wide margin for the discretionary exercise of political power (Syrian Law Journal, 2020), the horizontal, vertical and societal controls are faulty. The vertical mechanisms were just inexistent until 2012; the horizontal mechanisms are deeply inconsistent as a result of the strong hiperpresidentialism; and the societal mechanisms have been historically atrophied, with a pervasive interference of the secret services, which leave no space for public dissension (Syrian Center for Political and Strategic Studies, 2013: 70). Furthermore, the authoritarian track record and the war scenario favour the dissociation between any desiderata that might have been legally expressed by the constituent power in 2012 and the political reality in 2021. This subtracts legal power, favours the continuance of the monocratic trends, and negatively conditions the prospects of peace and post-conflict stability (Hegre and Nygård, Reference Hegre and Nygård2015).
However, the 2012 charter still has political value as an ‘operating manual’, institutionalizing the interaction between (formal and visible) ruling elites, and leaving spaces for other kinds of informal or less visible actors to exercise power (Trombetta, Reference Trombetta2014: 37). It also has an important political value as a symbolic ‘billboard’ and a programmatic ‘blueprint’, conveying a rhetoric that reveals priorities of the regime. A rhetoric expressed in a constitutionalist language that can always spill over to the social system and be turned against the regime. Understanding this canvas results crucial to identify opportunities for a successful constitutional reform and peace settlement.
The formal 2012 Syrian Constitution in its historical and regional context
Syria has had a turbulent constitutional history, with six constitutions between 1930 and 1973. The constitutional politics were increasingly unstable until the 1963 coup d’état, since which the Baath Party has held the reins of the country. Immediately after its accession to power, the new regime imposed the state of emergency with Military Order No. 2 of 1963 (in place until April 2011). The state of emergency allowed to restrict rights of assembly, residence, circulation, as well as to preventatively arrest anyone suspected of endangering public security and order (art. 4 of Legislative Decree 51/1962). In 1970, General Hafez al Assad seized power through a coup d’état, and in 1973, a new constitution institutionalised a hyperpresidential system built around his figure (Hinnebusch, Reference Hinnebusch2004: 63–65). From 1973 on, in a contentious and troublesome regional context, the formal constitution has remained stable, while the material constitution has been marred by a poor human rights record (Human Rights Watch, 2010). The Baath party, under the direction of Hafez al Assad between 1970 and 2000 and Bashar al Assad from 2000 to this day, has been the ‘leader of the state and the society’ (art. 8 of the 1973 Constitution), configuring a monocratic political system with elements of military and civil authoritarianism, with the military dimension more in the limelight under the presidency of Hafez al Assad (himself a former army officer – Hinnebusch Reference Hinnebusch1990: 145–146) and now with the ongoing civil war (Heydemann and Leenders, Reference Heydemann and Leenders2013: 187). Consistent with its military authoritarian nature, the Syrian constitutional framework has been characterized by a dual weakness at the formal and material levels, where little was recognized, while little was implemented (Law and Versteeg, Reference Law, Versteeg, Ginsburg and Simpser2014: 171).
The Syrian civil unrest began in March 2011 as part of the Arab uprisings, and escalated to an armed conflict after the initial protests were violently suppressed. As in the other Arab countries, laid at the roots the desire to enlarge the scope of democratic constitutionalism (Hinnebusch, Reference Hinnebusch2015: 346). As a result of the initial protests, the Syrian President offered a political reform package (Slim and Trombetta, Reference Slim and Trombetta2014: 23), and in November 2011, a committee was appointed for drafting a constitution. A referendum was held on 26 February 2012, resulting in the constitution being adopted. Observers noted that it came as ‘too little, too late’ (Reilly, Reference Reilly2018: 250), pointing out the lack of direct democratic legitimacy of a text that had been drafted, without much deliberation, by a committee which had been directly appointed by the President.
The 2012 Syrian Constitution is clearly detached from the regional constitutional trends (Porras-Gómez, Reference Porras-Gómez2020a: 50), contradicting the expectation that neighbouring jurisdictions would adopt isomorphic policies (Elkins and Simmons, Reference Elkins and Simmons2005: 34). This is so, first, from a synchronic perspective: the other new Arab constitutions have design features that depart from the Syrian charter. Second, from a diachronic perspective: the other new Arab constitutions are very different from their respective precedent charters, formally bringing about a paradigm shift; while the 2012 Syrian Constitution is almost identical to the 1973 charter.
From a synchronic comparative perspective, excluding preambles, the number of words in the constitution for Iraq is 7249, Morocco 9290, Tunisia 7156 and Egypt 12,075; while in Syria is 5351; with an average number of words per article 50.34, 51.61, 48.02 and 48.88, respectively; while in Syria is 34. In the case of the bills of rights, the number of words for Iraq is 2184, Morocco 3439, Tunisia 1356 and Egypt 6323; while in Syria is 993; with average words per article 42.4, 51.45, 22.91 and 44.47, respectively; while in Syria is 28.47. If we count all the mentions made to the expression ‘human rights’,Footnote 1 Iraq makes 4, Morocco 9, Tunisia 10, and Egypt 9, while Syria makes 1. Regarding gender equality, if we measure the number of references, Iraq makes 9, Morocco 7, Tunisia 6 and Egypt 14 (all of them implying remarkable growths with respect to their previous versions – Porras-Gómez Reference Porras-Gómez2021c: 9); whereas Syria makes 3 (repeating the same clauses contained in the 1973 Constitution). Furthermore, the Syrian Constitution lacks a general provision protecting the constitutional rights' essential core (unlike art. 46 of the Iraqi, art. 49 of the Tunisian or art. 92 of the Egyptian Constitution).
From the above numbers, we find a patent disparity in terms of scope and detail, showing a much more restricted constitutional specificity (Ginsburg, Reference Ginsburg2010: 70). This lesser specificity in the Syrian case expresses a lesser concern in the constitutional guarantees, most notably on human rights, but also, significantly, on judicial independence (Porras-Gómez, Reference Porras-Gómez2018: 158). Something that contradicts the liberalizing push formally introduced in the region since the 2004 Arab Charter on Human Rights (Porras-Gómez, Reference Porras-Gómez2020b: 131). The restricted constitutional specificity also connects with the authoritative and non-negotiated character of the constituent power (Elkins et al., Reference Elkins, Ginsburg, Melton, Ginsburg and Simpser2014: 150), which was expressing a policy intent of political immobilism (or ‘continuity in the midst of change’ – Atassi Reference Atassi2018: 386) rather than democratic transition (Porras-Gómez, Reference Porras-Gómez2020a: 78). The design logic of the 2012 Constitution was shaped by the sui generis nature of the Syrian constitutional politics, with a more reactive than proactive stance, and limited to catering a narrow (and exclusively domestic) audience. Something that could be expected in the very troubled context of contestation and beginning of the civil war, but which suggests that the democratic expectations of the Syrian people, as part of the Arab community of peoples, were not fully met by the 2012 charter.
From a diachronic perspective, the 2012 Syrian Constitution displayed a slightly larger scope than its 1973 precedent (5686 words, against 5268 in 1973),Footnote 2 with a small increase in detail (30 words per article, against 24 in the 1973 charter). In contrast with the other new Arab constitutions, which introduced important linguistic novelties with respect to their previous versions, bringing about a constitutionalist paradigm shift (Porras-Gómez, Reference Porras-Gómez2020a: 50), the 2012 Syrian Constitution is almost identical to the 1973 charter (Slim and Trombetta, Reference Slim and Trombetta2014: 23), with more than 90% of its content coming almost verbatim from it. In fact, the 2012 charter expressed a genuine political response to the beginning of the civil war, and as a result, it can be conceived more as the by-product of an intent to placate the popular uprising, clinging to power and kicking the can down the road with a shallow linguistic makeup.
Nevertheless, the minor novelties introduced in 2012 deserve analytical attention in order to understand deeper underlying trends of the Syrian constitutional politics. Below a comprehensive list of all the changes is laid out, grouped under four headings representing corresponding lines of constitutional evolution:
(1) Softening of hyperpresidential features. As a result of art. 86, the President has to be directly elected among several candidates (under the 1973 constitution, he was indirectly elected in a popular plebiscite, on the proposal of the Baath party – art. 84). According to art. 88, the presidential term is limited to two mandates (according to which, Bashar al Assad will not be able to remain in office beyond 2028). Besides, the President has to consult the Council of Ministers and the Parliament for declaring the state of emergency (art. 103), and his legislative prerogative requires ex-post approval by the Parliament (art. 113.2). On another hand, the references to the Baath in the preamble and in former art. 8 were removed, as well as the references to socialism and revolution made in the preamble and in former arts. 1, 13, 21, 23 and 38. The impact of eliminating references to the Baath from the constitutional text was important, not only because this enabled the new recognition of the freedom to form political parties (art. 8), but also because these references were used to effectively suppress the right of association (under Legislative Decree 224/1969), when private associations overlapped with state or Baathist organizations' (potentially all-encompassing) goals.
(2) Recognition of Syrian diversity and municipal decentralization. Article 4 of the new constitution recognizes Arabic as the official language of the state, hence opening the way to the legislative recognition of other languages spoken in Syria (Atassi, Reference Atassi2018: 388). The principle of cultural diversity is also mentioned (preamble and art. 9), while art. 25 enshrines the duty of the state to ‘work on achieving balanced development among all regions’.Footnote 3 Likewise, the references to municipal decentralization are reinforced (arts. 130 and 131).
(3) Strengthening of the Constitutional Court (regulated in a Title on its own, Title IV), enlarging the scope of its jurisdiction. Article 146 adds as new tasks the ex-ante control of legislation (upon the request of the President of the Republic), as well as the control of presidential elections. Article 147.1 lowers the bar for filing constitutional appeals to 20% of the members of the Parliament (before it was 25% – art. 145), while art. 147.2 sets out a procedure for incidental constitutional appeals.
(4) Recognition of new fundamental rights (now contained in a separate Title II).
• Civil rights: arts. 3 (right of religious communities to regulate personal status affairs, although this was already enshrined at legislative level – Berger Reference Berger1997: 115–127), 15.2 (compensation in case of expropriation equivalent to the real value of the property), 33 (spelling out in greater detail the prohibition of discrimination) and 53.3 (the administrative authority cannot imprison without an order of the judicial authority).
• Public freedoms: art. 26 (right to assume functions of public service).
• Political rights: arts. 8, 49 and 61 (referred, respectively, to form political parties, to vote and to have clean electoral campaigns).
• Economic rights: arts. 40.2 and 44 (referred, respectively, to a minimum wage and to strike).
• Social rights: arts. 21, 24 and 51.3 (referred, respectively, to welfare rights of war veterans, to assistance in cases of natural disasters and to legal aid).
• Solidarity rights: arts. 27 and 32 (rights to the environment and to archaeological heritage, respectively).
• As general guarantees, art. 50 proclaims that the rule of law shall be the basis for the governance of the state, and art. 54 provides that any breach on the constitutional rights shall be considered a crime.
On the other hand, contradicting the constitutionalist trend, two elements introduced patterns of regression, connected with the specific circumstances of the civil war:
• Going against the trend of removal of the hyperpresidential features, art. 84 set more stringent requirements for presidential candidates, in practice barring the candidacy of exiled opposition members.
• Contradicting the expansive trend of the bill of rights, the clause recognizing special facilities for the Syrian emigrates (former art. 43) was removed.
The legal value of the formal 2012 Syrian Constitution
The 2012 Syrian Constitution did not bring substantial novelties with respect to the 1973 charter, and at first sight, does not seem to herald a process of constitutionalist change. In fact, the Freedom House scores of Syria have remained the same since 2011, being consistently ranked among the ‘worst of the worst’. The institutional design of the 2012 Constitution and its ‘constitutional block’ prevents the proper functioning of the horizontal, vertical and social control mechanisms, casting the dark shadow of a monocratic political system.
Design features that prevent the horizontal control mechanisms
Hyperpresidentialism
The 2012 Constitution is still a very hyperpresidential charter, in practice allowing the full concentration of political power at the presidential level. Although the form of government resembles at first sight the president-parliamentary model (Shugart and Carey, Reference Shugart and Carey1992: 55), with a Prime Minister dually responsible to the Parliament and the President (art. 121 of the Constitution), in practice the prerogatives of the latter go well beyond those retained by the head of state in semipresidential democratic systems. It should be considered to this respect that the dominance of the president is a common feature in post-conflict and authoritarian material constitutions, which tend to keep the presidential pre-eminence inertia (Bourgi, Reference Bourgi2002: 729; Prempeh, Reference Prempeh2007: 820). A pre-eminence reinforced in Syria with the very president-parliamentary design, which brings together the president's supremacy of the presidential and the blurred separation between Executive and Legislative characteristic of the parliamentary form of government (Prempeh, Reference Prempeh2007: 814; Ecevit and Karakoç, Reference Ecevit and Karakoç2017: 4).
Under the 2012 Syrian Constitution, the President keeps the authority over the Executive, as he is solely responsible for the appointment of the Prime Minister and the other Ministers (art. 97), and might at any moment call and chair the Council of Ministers (art. 99). Regarding the legislative branch, the President can dissolve the Parliament at any time, with the only limit that it cannot be dissolved more than once for the same reason (art. 111). Besides, art. 100 vests on the President the prerogative of vetoing the laws coming from the Parliament (a veto that can be overcome by a 2/3 legislative majority). With respect to the regulatory prerogative, it is the President (and not the Prime Minister, nor the Council of Ministers) who issues Decrees (art. 101). Decrees should in principle be subordinated to Legislative Acts (which are enabling statutes), but in practice their scope is quite large, with the Legislative Acts enabling, and the jurisdictional practice allowing, a great expansion of the first. On top of this, the President can ‘extraordinarily’ issue legislation in three instances: (1) between sessions (and, according to art. 64 of the Constitution, the Parliament is called for three sessions a year, whose total length can be as little as 6 months); (2) when the Parliament is dissolved; and (3) in cases of ‘absolute necessity’ (art. 113).Footnote 4 This presidential legislation can be revoked ex-post by the Parliament with a 2/3 majority, but this has happened only once, in the year 2018 regarding Legislative Decree 16/2018 (on the Ministry of Religious Endowments), which was amended by the Parliament under an unusually heated debate (since the secular character of the Syrian state was considered to be at stake) to become Law 31/2018. The presidential ‘extraordinary’ legislation has proliferated to become ‘non-extraordinary’ (Syrian Center for Political and Strategic Studies, 2013: 77), coming to constitute more than half of the Syrian legislative output (Atassi, Reference Atassi2018: 318, 403). Furthermore, the President has ordinary legislative initiative (art. 112), and it is the common practice that presidential legislative proposals get rubberstamped by the Parliament.
Be that as it may, the hyperpresidential design of the Syrian Constitution has been slightly nuanced with the new charter. Now the President has to be directly chosen by the people in competitive elections (art. 86), with a two-term mandate limit (art. 88); he has to consult the Council of Ministers and the Parliament for declaring the state of emergency (art. 103); and his legislative prerogative requires ex-post approval by the Parliament (art. 113.2).
The lack of independence of the judiciary and the constitutional court
Beyond broad and unspecific proclamations about judicial independence, the Syrian Constitution offers very little in terms of organic guarantees, and, under the ultimate authority of the President, judges are vulnerable to dismissals, demotions and transfers (Heydemann and Leenders, Reference Heydemann and Leenders2013: 189). Article 132 of the Constitution, envisaging the President as the guarantor of the judicial independence, becomes the cornerstone of a strong governmental interference in the judiciary. In the same vein, art. 133 provides that the President heads the Supreme Judicial Council. In fact, the Judicial Authority Law (Decree 98/1961) allows the Executive to directly influence the decisions of the Supreme Judicial Council, which is composed of seven members: Minister of Justice (presiding over the Council in representation of the President, by virtue of art. 133 of the Constitution), Deputy Minister of Justice, Public Prosecutor, Head of the Judicial Inspection Department and President of the Court of Cassation together with two of its senior members. It should be noted that the Public Prosecutor reports to the Minister of Justice (art. 56 of Decree 98/1961), while the head of the Judicial Inspection Department has a dual allegiance to the Ministry of Justice and to the Judiciary (art. 12 of Decree 98/1961). Crucially, the Judicial Inspection Department is organically situated within the Ministry of Justice. According to art. 66.1 of Decree 98/1961, the Supreme Judicial Council takes its decisions by a majority. Therefore, since four out of seven of its members serve at the behest of the Executive, it can be concluded that it remains under the (hyper)presidential sway. On another hand, decisions relating to the appointment, promotion, transfer, discipline, dismissal and referral of judges to retirement shall be implemented by a Decree signed by the Minister of Justice (art. 66.2 of Decree 98/1961). That is, even if the decision is taken by the Judiciary, it is the Ministry of Justice that has to give it legal effect, hence potentially preventing any Council decision to materialize. The same happens with the judges' appointments (art. 71).
There is a long history of governmental interferences in the judiciary via decrees that have arbitrarily retired and transferred judges for undisclosed reasons (arguably, ‘corruption’ – Cardinal Reference Cardinal, Schultz and Shaw2013: 203), notably in 1966, 1968 and 2005. In these cases, the constitutional status of the judiciary was straightforwardly flouted, since art. 74 of Decree 98/1961 grants tenure to judges. Furthermore, it should be noted that the selection process for judges requires in practice obtaining clearance from the security services (Ekman, Reference Ekman2017: 38).
The issue of the judicial independence becomes more worrying considering that administrative legal disputes go through a separate jurisdictional track, to a Council of State (following the French model). While this Council of State has its independence proclaimed in art. 139 of the Constitution (within the Chapter III of Title III, dedicated to the Judiciary), its legal guarantees are contained outside Decree 98/1961, hence separate from the rest of the judiciary. In fact, until 2019, the Council of State was an organic part of the Executive power (according to Legislative Decree 55/1959), directly reporting to the Council of Ministers (art. 1), with its members appointed by the President of the Republic (art. 58), totally lacking independence. This situation changed with Law 32 of 2019, which gave to the Council of State a certain degree of organic autonomy. But still, it is not under the purview of the Supreme Judicial Council, and as a result, lacks the necessary legal guarantees.
On another hand, art. 135 of the Syrian Constitution provides that the law shall set out the rules of the different courts' jurisdictions.Footnote 5 This wording, by implicitly referring to the existence of diverse jurisdictions for different courts, can be considered to justify the breach of the jurisdictional unity (much unlike other provisions of the new Arab constitutions, such as art. 110 of the 2014 Tunisian Constitution, which explicitly prohibits special courts). Hence, it keeps open the way to the establishment of exceptional courts, which have been common in Syria since the 1960s, when military justice and counter-terrorist courts extended their jurisdiction over civilian affairs under loose grounds relating to ‘security’. While the Supreme State Security Court was abolished in 2011 as part of the reform package with which the Syrian government wanted to appease protests, just one year later Law 22 of 2012 created a new Counter-Terrorism Court, which has virtually the same functions and procedures of its predecessor. The Counter-Terrorism Court has exclusive jurisdiction over cases concerning ‘terrorism’ (art. 8), but in practice its material scope is left open ended, since it is stated that it shall address terrorism and ‘the crimes referred from its prosecution department’ (art. 3).Footnote 6 In practice, those indicted have been found guilty of practices such as participating in the distribution of humanitarian aid, reporting on human rights abuses, or taking part in demonstrations (Stubblefield and Joireman, Reference Stubblefield and Joireman2019: 178). The Counter-Terrorism Court is explicitly exempt from the principles of due process (art. 7).
Regarding the Constitutional Court, the fact that its number of magistrates is not fixed nor limited, but shall be of at least seven members (art. 144) creates the risk of packing it with loyalists for the purpose of guaranteeing a particular majority, should the need arise. Since Law 7 of 2014, on the Constitutional Court, provides that the latter shall be made up of 11 members (art. 3), then the Constitutional Court could be packed via a legislative amendment. Besides, it is the President who directly appoints the Constitutional Court's magistrates (arts. 3 and 54 of Law 7 of 2014), something which increases the chances of abuses (Solomon, Reference Solomon2007: 125). On another hand, the term of membership of the Constitutional Court's magistrates is 4 years, subject to a renewal that can be periodically extended until the magistrates turn 72 years old. This means that a magistrate's term of office is dependent upon the confidence of the President, something detrimental to his independence. A more immediate risk to the latter is the possibility for a magistrate to be transferred, commissioned to non-judicial roles or put on mandatory retirement. The absence of an explicit guarantee in this sense does away with the principle of irremovability.
On another hand, while the 2012 Constitution brought as a novelty the possibility of filing incidental constitutional appeals (art. 147.2), this can only be done as part of an ordinary appeal to a second judicial instance, and only if the second instance decides to refer the question of unconstitutionality to the Constitutional Court (art. 11 of Law 7 of 2014). Besides this possibility, the Speaker of the Parliament, the Prime Minister and a fifth of the Members of Parliament have the right of recourse to the Constitutional Court. However, a review of the constitutional jurisprudence since 2012 shows that, in practice, recourse to the court was almost non-existent (Ali, Reference Ali2018; Draji, Reference Draji2020: 22), and only on one occasion did the Court rule the unconstitutionality of certain provisions, concerning Law 32/2019 on the Council of State. Finally, it is important to note the lack of Constitutional Court jurisdiction over laws submitted by the President to referendum (art. 148), which opens the possibility for presidentially-initiated ‘constitutional mutations’.
While the Constitutional Court seems to be mired in an institutional lethargy, it is worthwhile to note that the 2012 charter introduced provisions which could help to give it a higher profile: art. 146 adds as new tasks the ex-ante control of legislation (upon the request of the President) as well as the control of presidential elections; art. 147.1 lowers the bar for filing constitutional appeals to 20% of the members of the parliament; while art. 147.2 sets out a procedure for incidental constitutional appeals.
The immunities of law enforcement agencies, military and secret services
Since the introduction of Legislative Decree 61/1950 (Military Penal Code), members of the military have been potentially immune: its art. 53 requires prosecution orders to be ratified by the military administration in order to indict a member of the military. This immunity was further expanded by Decree 69/2008, which amended art. 47 of the Military Penal Code, enlarging its scope to cover political security, police and customs officials for crimes committed on duty. In these cases, a warrant order would have to be issued by the general command of the army (even if these personnel are administratively subordinate to the Ministry of the Interior). In the same way, when Decree 14/1969 created the General Intelligence Directorate, it gave its staff similar immunity to prosecution, conditional upon the referral by its Director (art. 16). This principle was reiterated in art. 4 of Legislative Decree 549/1969, which extended the immunity to contractors of the General Intelligence Directorate.
The secret services' immunity is a common political technology to effect the divorce between formal and material constitutions (Frankenberg, Reference Frankenberg, García and Frankenberg2019: 10), and it certainly creates a ‘black hole’ in the Syrian constitutional architecture. In this vein, Syria has been labelled as a ‘mukhabarat state’ (Rathmell, Reference Rathmell1996: 6), where the secret services, operating in the legal vacuum left by Decree 14/1969, control and enable the prosecution of political and social opponents, constituting one of the ultimate tools of the presidential power's monocratic extension (Trombetta, Reference Trombetta2014: 28).
Be that as it may, the 2012 Constitution brought as two novelties arts. 50, on the rule of law, and 54, criminalizing any assault on constitutional rights. If applied by the constitutional interpreter, these two provisions could become a guarantee for addressing breaches by governmental agencies, taking away the current immunity of secret service and security personnel. However, so far that scenario has not been forthcoming.
Territorial (de)centralization
While contemporary Syria has been characterized by being a highly centralized state (Khaddour, Reference Khaddour2017), a limited decentralization process was planned in 2011, as part of the political reforms package offered to appease the initial protests (Araabi, Reference Araabi2017). In August 2011, Legislative Decree 107/2011 laid out a scheme enabling some degree of decentralization, aiming at increasing municipal revenues and having elections for local representatives. The 2012 Constitution introduced new arts. 130 and 131 as a way of taking up this commitment for municipal decentralization. While it seemed a departure from the historical situation of centralization, the way in which it has been constitutionally configured and legally enshrined seems to prevent the creation of effective spheres of autonomy away from the highly concentrated national governmental power. As a result, the municipal and regional administrations run the risk of continuing the historical trend that has shaped them into mechanisms for the regime to extend its power to the periphery, rather than channelling upwards the citizens' interests (Mysliwiec, Reference Mysliwiec2019: 33–34).
To start with, only the municipal level is granted with some limited degree of democratic accountability (art. 12 of Legislative Decree 107/2011). Hence, only the municipalities are subject to genuine political decentralization, since the regional level (governorates) is directly accountable to the national government. The governors are appointed by the President (art. 39), and are deemed to represent the central government (art. 41) and to follow the instructions of the ministries (art. 50). However, municipalities have no specific competences constitutionally or legally recognized: everything is left to the approval of a ‘decentralization plan’ by the Supreme Council for Local Administration, which is presided over by the Prime Minister (art. 3). It is this Supreme Council that decides over the extent and speed of decentralization. While the ‘decentralization plan’ was supposed to be issued by early 2012 (art. 6), as of 2021 it has not been presented yet (Kahf, Reference Kahf2021: 223–224). Crucially, any decentralization of competences could be withdrawn at any moment, at the discretion of the national government through the Supreme Council (art. 6).
The legal framework configures a very intrusive central state power. The local municipal autonomy is compromised in art. 42 of Legislative Decree 107/2011, by virtue of which the governor, as a representative of the central state, controls the work of local authorities and agencies. Furthermore, according to art. 74, the strategic planning of the municipalities is elaborated at ministerial level. In particular, the leverage of the Minister of Local Administration over the municipalities is significant. He approves the formation of their city councils, as well as the distribution of work amongst their members. He also has the power to dismiss the latter at the request of the respective mayor (art. 29). Finally, the President of the Republic has the right to dissolve at any time local governments for the celebration of new municipal elections (art. 122).Footnote 7
On the side of the financial autonomy, the resources granted to the local governments are low (in principle, 3% of the state's taxes, 25% of the governorate's budget, plus some other minor ancillary sources – art. 134 of Legislative Decree 107/2011), with the specifics of this financial system always decided by the Supreme Council for Local Administration (art. 4). Moreover, the municipal budgets have to be approved by the Ministry of Finance (art. 146).
To sum up, the territorial decentralization configured under the 2012 Constitution remains a limited move. The law does not affect the core of the centralized structure of power that has been historically prevalent in Syria, leaving intact the prerogatives of the governorates and ministries (in particular, the Ministry of Local Administration). All of them reporting more or less directly to the President of the Republic. As a result, Damascus continues to closely control municipal policies (Favier and Kostrz, Reference Favier and Kostrz2019: 20).
Design features that prevent the vertical and social control mechanisms
Political parties and elections
While the 2012 Syrian Constitution recognized for the first time the right to form political parties and to vote (arts. 8 and 49), the ensuing material constitutional evolution has seemed to rather disregard the effective implementation of both rights. To start with, the right to form political parties is affected by a series of limitation clauses that allow banning parties, a practice that might be abused for purposes of controlling political pluralism (Bogaards et al., Reference Bogaards, Basedau and Hartmann2010: 608). In this vein, art. 8.2 provides that political parties shall respect the indeterminate principle of ‘national sovereignty’,Footnote 8 while art. 8.4 sets out that any political activity based on religious, sectarian, tribal, regional, class-based or professional categories; or on discrimination based on gender, origin, race or colour, may not be undertaken. Besides, Legislative Decree 100/2011 (the ‘political parties law’) limits the mission of political parties to ‘contributing to political life’ (art. 1),Footnote 9 without explaining precisely what does this vague expression mean, and ignoring that political parties have as their ontological goal to achieve power.
Besides these substantive limitations, there are important procedural limitations for the exercise of the right to participate in political affairs. First of all, there is a ‘Party Affairs Committee’, entitled to perform a complete oversight over the formation and functioning of political parties. This Committee is chaired by the Minister of the Interior, and is made up of ‘a judge appointed by the President of the Court of Cassation, and three personalities appointed by the President of the Republic’ (art. 7 of Legislative Decree 100/2011). Hence, the Party Affairs Committee is indirectly controlled by the President. Besides, art. 12 of Legislative Decree 100/2011 stipulates strict requirements for creating a political party: the minimum number of members has to be 1000, who have to be registered in at least half of the Syrian governorates, with more than 5% of them from each governorate. Members have to enjoy all political and civil rights, and cannot have a criminal record.
In the same vein, art. 84 of the Syrian Constitution introduces a set of reinforced requirements for presidential candidates, in practice barring the candidacy of exiled opposition members (its paragraph 4 stipulates that candidates must not be married to a non-Syrian wife, while paragraph 5 sets the requirement of Syrian residence for no less than 10 years continuously), as well as political prisoners (since its paragraph 3 requires a clean criminal record). Besides, art. 22 of Law 7 of 2014 (on the Constitutional Court) sets out that presidential candidates need to be sponsored by at least 35 Members of the Parliament. Furthermore, art. 152 of the Constitution adds that any Syrian with dual nationality is ineligible for the highest offices.
On another hand, Legislative Decree 100/2011 made the First Civil Court of Appeal in Damascus the exclusive and final judicial authority to rule on possible appeals against decisions of the Party Affairs Committee (Draji, Reference Draji2020: 26). Its decisions cannot be appealed and, as a result, the Constitutional Court would be excluded of any possible protection of this right, implying that a potential constitutional interpretation defensive of political pluralism will not be able to take place.
The electoral law displays certain design features that run the risk of keeping the monocratic inertia. The majoritarian electoral system envisaged in art. 77 of Law 5 of 2014 (the Electoral Law) imposes an important hurdle to new and minority parties trying to enter the scene. Likewise, art. 60.2 of the Constitution provides that at least half of the members of the Parliament shall be ‘workers and farmers’, a clause that has been resorted to effect electoral manipulation (Syrian Center for Political and Strategic Studies, 2013: 91; Slim and Trombetta, Reference Slim and Trombetta2014: 25). Finally, the electoral registration rules envisaged in art. 59 of Law 5 of 2014, requiring proof of 2 years' residency, introduce a procedural barrier that may de facto disenfranchise a big part of the population, especially in the context of internal displacements and prevalence of informal domiciles (with more than 30% of the population internally displaced,Footnote 10 and more than 50% of informal housingFootnote 11).
While the end of the Baath political monopoly and the removal of the references to socialism could at first sight be conceived as a democratizing move, they can also be regarded from the perspective of a centripetal pull, in which the traditional Baathist structures of control come to be replaced by subtler (but, perhaps, more effective) means of informal power (Slim and Trombetta, Reference Slim and Trombetta2014: 12). The traditional bureaucratic control of the party was substituted by new means of control leaving a greater place to the market, and it can be hypothesized that this has been done in order to impose the capitalist heft of the cronies' clique surrounding the President. In this setting, the socialist ideology justifying the socioeconomic control of the regime was replaced by a neoliberal one (Matar and Kadri, Reference Matar and Kadri2016; Porras-Gómez, Reference Porras-Gómez2021a: 9), which justified the new system of crony capitalist control. This allowed to continue with the ‘elite reshuffle’ started with the accession of Bashar al Assad to power (Becker, Reference Becker2005: 60; Trombetta, Reference Trombetta2014: 36).
The bill of rights and its limitations
Regarding the bill of rights, its narrow specificity does not allow to be sure that, once the war is completely over, its effective implementation will be equivalent to the international standards. Regarding its scope, the catalogue of rights is still short of meeting the main international instruments. In this vein, with respect to the 1966 International Covenant on Civil and Political Rights, it is missing the right to life, rights of prisoners and part of the freedom of religion (which is limited to the right of worship). Besides, the right to marry is not clearly conceived as a civil right (but rather as a sort of social right – art. 20.2).
The constitutional rights are affected by multiple limitation clauses, in the form of caveats conditioning them to their effective implementation by legislative acts or balancing them against other conflicting rights and policy objectives (Tushnet, Reference Tushnet2014: 452). Limitation clauses are crucial in keeping dynamics of political immobilism, and favouring instances of authoritarian regression (Porras-Gómez, Reference Porras-Gómez2021b). In this vein, art. 33.2 of the 2012 Constitution declares that ‘Citizenship shall be a fundamental principle which involves rights and duties enjoyed by every citizen and exercised according to law’,Footnote 12 a proclamation that can be considered as a cross-cutting legislative limitation clause (already foreseen, with a different wording, in art. 27 of the 1973 Constitution). Furthermore, all the limitation clauses in the 1973 charter are still present, plus new ones affecting the rights of secrecy of correspondence (art. 37), freedom of belief (art. 42), and the prohibition of sectarian political parties (which are also subject to license according to art. 8) and unions (art. 45). These limitation clauses can be particularly eviscerating on the constitutional rights' content, especially given the lack of a general provision protecting their essential core. Finally, it should be added that the 2012 charter brought two elements of substantive constitutionalist regression, with the obstacles to run for presidential candidacy (art. 84) and the withdrawal of the provision protecting emigrates' rights (former art. 43), both of them motivated by the intent to suppress the Syrian insurgency.
While the limited recognition of new constitutional rights runs the risk of becoming dead letter without a proper system of checks and balances, it is worthwhile to note that some of the new rights introduced in the 2012 Constitution were group rights, whose exercise requires individuals to organize collectively: art. 3 (personal status of religious communities); art. 8 (right to form political parties); art. 44 (right to strike); and art. 49 (right to vote). Group rights have a certain self-executive force, since the right-holders are collectively incentivized to mobilize against a scenario of rights encroachment, hence operating in favour of the material constitutional transformation, even in authoritarian scenarios (Chilton and Versteeg, Reference Chilton and Versteeg2016: 580). This is so because group rights lower the cost of decentralized social actions demanding the respect of the constitution (Smulovitz, Reference Smulovitz, Maravall and Prezowski2003: 172).
Conclusion
This article has offered, first, the descriptive hypotheses that the 1973 and 2012 Syrian constitutions are almost identical (except for a little set of novelties grouped under four main evolutionary lines), and that the latter is out of touch with the regional constitutional trends, since it was written with an eye focused on the specific context of the civil war. Second, in its explanatory dimension, the legal-institutional mechanisms that take away the democratic value of the 2012 formal constitution have been identified and analytically classified.
From a design perspective that looks into the immediate future of the UN-sponsored constituent negotiations, while the 2012 Syrian Constitution lacks effective legal value (due to the rule of law deficiencies identified in the epigraph above), the novelties that it brought can be seen as having a relevant political value. In this vein, they can be conceived as part of a ‘blueprint’ for potential constitutional transformation, revealing governmental constitutional policy preferences. These preferences might serve to mark resistance points of the Syrian government in a constitutional negotiation. Together with the rule of law deficiencies (which might be used to identify the resistance points of the Syrian opposition), a bargaining range can be delineated, pointing the way forward for the ongoing Geneva negotiations. This bargaining range is defined by four policy areas: softening of hyperpresidential features; decentralization; strengthening of the Constitutional Court; and recognition of new constitutional rights. The specific way to operate in these areas in order to meet some of the democratizing demands advocated by the opposition can be elucidated from the deficits identified in this article.
Situated at the intersection of the realms of raw political power and rationalized juridical power, constitutional charters provide an important analytical frame of reference when it comes to the study of authoritarian and post-war dynamics. This article has defended the need to take into consideration the constitutional provisions in force in order to understand the present and foreseeing the immediate political future of Syria. After a terrible and exhausting war, the ongoing constitutional negotiations provide a crucial opportunity to reach consensual solutions for building peace. Any way out of conflict should take on board the lessons of the 2012 Constitution and its actual and potential effectiveness in delivering on its promises of human development for the Syrian people.
Funding
The research received no grants from public, commercial or non-profit funding agency.
