In the wake of the Arab Spring in 2011 and the following “revolutions,” Syria found itself in a rapidly changing environment. The fragility of the state and its constitutional contract led to its quick fall into civil violence. Constitutional legitimacy came again under scrutiny, and although national and international efforts were made to bring about viable constitutional amendment for survival of the state, a document reflecting international agreement and national social and political consent has yet to be achieved.
Constitutionalism per se poses many challenges in a context that lacks historical connections and struggles with many aspects of development and rule of law.Footnote 1 The Arab region has been a site of a prolonged political discontent and recurrent attempts at constitutional reform to deliver functional states.Footnote 2 The multitude of approaches to transformative and transitional constitutionalism in Syria reflect this stark challenge and call for better understanding of this crucial time in the history of this nation and further consideration of its consequential constitutional aspirations.
At the international level, interventions led by international organizations to facilitate peace and reform or the direct intervention of other states have rarely provided a reliable plan or strategy to bring together conflicted political interests or offer clarity regarding potential solutions. The Syrian Constitutional Committee since its establishment in 2015 has reported little to no progress. Each political segment, pushing in its own direction, has yet to make progress, change, or mitigate the consequences of the bloody conflict. Both national and international efforts for change have been fixated in their own ways, lacked potential, and suffered from predictable stagnation.
Constitution and emergency laws
Although the state constitution of Syria dates back to 1920, the state’s commitment to constitutionalism has always been undermined by an ongoing emergency, and the rule of law has never been realized. Syria has long familiarity with crises and emergency laws, going back to the country’s colonial history and before.Footnote 3 The contemporary postcolonial state of Syria was born in an emergency, and this remains in legal and political terms a constant characteristic of the state. In fact, the ongoing suspension of the rule of law eventually became normalized and the state of emergency was institutionalized within the legal and political structures of the state until the start of the conflict in 2011.Footnote 4
The deployment of emergency powers is multifaceted and deeply embedded within a rich contextual history and theoretical milieu. Since 1963, the ongoing state of emergency in Syria has been a typical example of rule by decree. The Syrian government has been criticized continuously for advancing security concerns over domestic issues of liberty. Although the government’s commitment to the rule of law and most principles of democratic liberalism are provided for by Syria’s constitution, this has never been implemented in practice.
The use of emergency laws in the country can be traced back to the French colonial period. The legal history of the country shows profound familiarity with emergency laws, including martial courts and restrictions on personal freedoms, since long before the Baʿthist coup of 1963. In theory, exceptional measures enable the state to counter a myriad of domestic challenges and threats; in practice, these provisions have granted the state a legal framework for restructuring the political landscape, creating a totalitarian state.Footnote 5
The constitutional disposition of the modern Syrian state strongly reflects the era of nationalism dating to before 1973. During this historical period, the nation became infused with a rigid socialist-nationalist ideology. Despite being the incumbent ruling party, the Baʿth Party historically has not been Syria’s only political power. In fact, it only became the dominant political force after 1963, and especially following the coup d’état of Hafiz al-Asad, which permanently ingrained the ideological platform of the party within the state. The 1973 constitution became both a symbol and manifestation of this overwhelming ideological dominance.
The history of Syrian constitutional development shows that the constitution was drafted based on the European constitutional model and tradition, enabling it to bypass the complicated process of debating and conceptualizing the core ideological principles of sovereignty and liberal democracy, including human rights. In reality, most Arab constitutions purported themselves to embody the expression of “sovereign will,” which emanated from the people (or the government). In theory, a constitutional democracy is fundamentally predicated on the notion that sovereignty resides among the people, which can be given through consent to representatives in a parliament or senate.
The former Syrian Constitution of 1973 provided for a wide range of classical civil liberties (Articles 24–49) that included equality and freedom of expression and assembly (Articles 25.2 and 25.3). It also provided for freedom from arbitrary detention, prohibited any form of torture, and penalized inhumane treatment of detainees under the law. Article 28 clearly stated that all accused individuals were deemed innocent until and unless convicted and sentenced by a ratified court; no interrogation or detention was allowed except under the law; no physical or mental torture or humiliating actions were allowed, and the law would determine the penalties of anyone guilty of such actions (Article 28.3). Rights to legal due process were addressed explicitly as the right of adjudication and the procedure of appeal and defense before the court (Article 28.4). Furthermore, according to Article 28.4, the judicial enforcement of rights to personal liberty, such as freedom from detention and torture was itself made a fundamental right.
Checks and balances to protect these liberties and the function of government authorities were provided for in Article 49 and Articles 131 to 145. The constitution provided for the state structure with a clear acknowledgment of three branches of government, but it lacked an explicit provision for the separation of powers. Although the independence of the judiciary was emphasized, the presidential powers remained far-reaching, spreading over the three branches of power, strengthened by the vague terminology used to express the range of the president’s power. Article 100, for example, gave the president the right to declare war and make peace with the approval of the People’s Assembly. Under Article 101, the president could declare a state of emergency in accordance with the relevant law.Footnote 6
The constitution, however, clearly attempted, be it unsuccessfully, to strike a balance between Baʿth socialist ideology and the wider public interest. The state remained noncompliant with international standards of human rights at both procedural and substantive levels.Footnote 7
Augmentation of emergency powers has been firmly imbedded within the political and legal infrastructure of Syria and state sovereignty.Footnote 8 These powers became a central mechanism for the birth and survival of the Syrian state, enabling the government to gain political stability and control after years of political discord. The ideology of power consolidation has a symbiotic relationship with emergency powers; the casualty of this process appears to have been the rule of law.Footnote 9 Nonetheless, this ideology of power consolidation, which became a survival technique for the government rather than the country, appeared to become a challenge for the government itself. The government and the country remained perpetually trapped within emergency rule and the legacy of power consolidation, awaiting eruption of conflict.
Sweeping presidential powers granted by the Syrian Constitution facilitated a shift in the legal state of affairs, and the exception of emergency rule became the norm. In this reality, presidential powers provided the ideal terrain for development of a model of the sovereign dictator, as described by Schmitt.Footnote 10 This model could not maintain any connection to the legal order except by granting the “dictator” the power to establish what was legal and what was not.
Constitutional dilemma and political deadlock
After the protests in 2011, the limited popular legitimacy of the government was lost. The state desperately clung to feeble legal legitimacy as a poor alternative. Lifting the emergency that had controlled the country for over forty-four years and issuing the new constitution in 2012 that addressed some of the standing claims regarding the involvement and supremacy of the Baʿth Party were too few measures to contain the eruption and too late to prevent the bloody internal unrest. Neither the newly issued constitution nor the demands of different parties provided a clear vision of how the system of governance would change or address the local and global economy, which was directly relevant to the accumulated injustices and generational immigration. The country and the region by 2011 had entered what was perceived at the time as a new era, characterized by social unrest and demands for not just redress but total reform. To what extent these calls brought the promised, longed-for reforms and whether expectations were realistic, there are less definitive answers.
Lack of social awareness and participation in the constitutional process have been obvious attributes of years of political passivity. It was only natural for this to be reflected in the efforts of the Constitutional Committee established by the United Nations in 2015.Footnote 11 Dynamics of the selection of members of the committee contributed to a polarized process that was destined to fail.Footnote 12 Members nominated by both the Syrian government and the Syrian Negotiation Commission approached the dialogue on a win or lose basis, stances inevitably incapable of producing a clear joint draft of constitutional reform priorities. As a member nominated by the Syrian government stated, “We are open to discussion and negotiation … whether this leads to agreement, we do not think this is our responsibility.” This while members of the Syrian Negotiation Commission demanded a total change of the current regime and sought a change in political dynamics without offering practical alternatives or a solid transition plan, let alone agreeable constitutional terms. Furthermore, members of the “middle third” offered very little to the process and were most concerned with the distance they kept from the other two groups.
Collapse without resolution: an ongoing constitutional crisis and global stalemate
After years of constitutional intangibility and no limits on the rule of law, on 8 December 2024 Syria found itself at a pivotal juncture, with the sudden and unforeseen collapse of the central government plunging the nation into a state of profound uncertainty. In the aftermath, control shifted into the hands of Hayat Tahrir al-Sham, whose de facto authority ushered in the suspension not only of the constitution but of all legal and judicial institutions, including the army and the police forces. This suspension marks a decisive rupture from any semblance of the rule of law, replacing it with another unsettling state of emergency governance.
As the initial euphoria of change the Syrians longed for dissipates, a sobering and urgent question emerges: what lies ahead, particularly for the rights and security of minorities within this nascent constitutional void and the change in political dynamics that brought a Salafist group into control? The interim government has proclaimed a transitional period of four months, and its ambitious promise of drafting an “agreeable constitution” is projected to span three to four years—an extensive timeline that offers little hope for immediate political or legal stability.
In the absence of a functioning legal framework, minorities are left navigating a precarious landscape, seeking ad hoc political arrangements to safeguard their rights and futures. This dynamic underscores the fragility of the situation, in which the lack of institutional guarantees leaves vulnerable groups exposed to both marginalization and exploitation. It is reflected in several dismissals from government positions and a recent call for a new Syrian army, with suggested religious training and open only to specific governorates.
The enduring crisis reflects a broader pattern of chronic instability, in which the de facto state of emergency threatens to evolve into a defining but indefinite feature of governance. In this context, Syria’s predicament reverberates on the international stage, as regional and global actors grapple with the implications of a power vacuum in a geopolitically critical region. The question remains whether and when the international community will intervene to stabilize the country’s trajectory or whether Syria will remain mired in a protracted period of legal and constitutional uncertainty.
Conclusion
The constitution of 2012 offered no more than a transitional document that sought to resolve pressing demands for an immediate change. Once more, akin to the constitution of 1973, the text of the constitution overpromised rights and guarantees without solid ground for materialization. Efforts by the Constitutional Committee established by the UN in 2015 did not yield results. Although formal constitutional change remains an essential stepping stone toward solid reform during any transition, including post-conflict realities, whether this penetrates public consciousness without running the risk of repeated disconnection is the principal challenge. Syria today grapples with much more than just a constitutional legacy. The cohesion of the state has been critically undermined by a number of factors in the last decade, including the ongoing economic collapse. With power structures in flux, the state lacks the steadiness and certainty provided by a robust constitution. Furthermore, power dynamics at the regional level also are changing and unstable. The outlook is likely escalating instability, with individual rights remaining unsecured. The possibility for normative change and successful reform, despite high expectations from all concerned political parties in the country, remains uncertain.
In the absence of functioning institutions, minorities are left to navigate a precarious and fragmented political landscape, seeking informal arrangements and guarantees to safeguard their rights. This reflects not only internal disarray but also the broader systemic erosion of governance, in which ad hoc measures supplant institutional accountability. Compounding this domestic uncertainty is the larger international dimension. Syria’s future and constitutional aspirations remain tethered to the strategic calculations of global and regional powers, whose competing interests and agendas have to date precluded consensus. Until these external actors reconcile their divergent priorities and chart a unified course of action, Syria is likely to remain ensnared in a protracted period of instability, with its constitutional and legal recovery indefinitely deferred. This interplay of internal fragmentation and external discord underscores the extent to which the nation’s trajectory is both a local and global concern, and the absence of resolution risks entrenching an ever-existing permanent state of crisis.
