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Ch 5. Constitutional Design


Chapter 5. Constitutional Design.

5.1. Summary of Recommendations.

5.2. Context

5.3. Challenges and Risks.

5.4. Detailed Recommendations.

5.5. Selected Resources

Syria’s constitutional moment offers a unique opportunity for the Syrian people to break with a dark past and usher in a new era of peace, democracy, and freedom. The legitimacy of the revolution, the transition, and the new constitution depend on the constitution-making process being inclusive, transparent, participatory, and deliberative.

5.1.  Summary of Recommendations

  • Syria’s constitution-making process should seek to achieve more than just a new constitution. It should help the Syrian people develop, strengthen and promote a national identity and foster unity; build trust between different components of Syrian society; contribute to national reconciliation; and create a new culture of democracy in Syria over time.
  • To achieve these and other goals, the Syrian constitution-making process should incorporate the core principles of inclusiveness, transparency, participation, consensus, deliberation, and national ownership.
  • The 2012 Constitution should be abolished and replaced with either an amended version of the 1950 Constitution or a new legal instrument to provide a legal framework during the transitional period.
  • The transitional legal framework should include fundamental rights and freedoms, transitional governance provisions, a roadmap for the negotiation and drafting of the permanent constitution, and agreed-upon constitutional guarantees that must be incorporated into the permanent constitution.
  • The constitution should be negotiated, drafted, and approved by a Constitutional Assembly, with additional consideration to utilizing a national referendum for final ratification.
  • The Constitutional Assembly should be as inclusive and representative as possible, reflecting the diversity of Syria. (Chapter 4 elaborates options for achieving these goals.)
  • A public outreach and communication strategy will be needed at all stages of the constitution-making process in order to keep the public informed, maintain trust, and manage expectations.
  • The process for making the permanent constitution should include robust civic education and consultation with the people so that the document accurately reflects their needs and aspirations.
  • Constitution-making officials and Syrian civil society should cooperate to ensure the process is sufficiently transparent.
  • Decisions by constitution-making officials should be transparent and achieved, as much as possible, by consensus.
  • Sufficient time should be allocated to the constitution-making process to allow for civic education, public consultation, and the necessary debate, deliberation, research, and drafting. A time frame of eighteen months to two years is likely necessary.
  • To help ensure the implementation of and respect for Syria’s new constitution, civic education should continue well after the constitution is formally adopted.

Goals and Principles

The process of making a new constitution can achieve much more than just the drafting of the constitution itself. By transforming the negotiation and drafting of the constitution from a legal exercise conducted by lawyers and political elites into a national dialogue, the process of making a new constitution can help Syria achieve many goals:

  • Develop, strengthen and promote a new national identity
  • Foster unity;
  • Build consensus on the core values and fundamental principles of the nation as well as the new framework for governance;
  • Broaden the reform agenda by including the wider aspirations of the people beyond just a few key elites or groups;
  • Build trust between all social communities and groups;
  • Contribute to national reconciliation;
  • Open political space and revive previous social structures;
  • Make a definitive break with the past by demonstrating the commitment of political leadership and government to democratic principles and processes;
  • Educate and empower citizens on the principles and practice of democracy; and
  • Increase the potential for a legitimate and effective governance and legal framework.

These goals, which are at the heart of Syria’s revolution, cannot be achieved by Syrian leaders on behalf of the people. They must be realized by the Syrian people themselves. Reaching them will involve a process of civic education, national dialogue and public consultation that allows the people to express their fears, needs, and aspirations directly to their leaders and each other. Such a process should be grounded in the following core principles of constitution-making:

Principle 1. Inclusiveness. An inclusive constitution-making process is one that includes all components of Syrian society so that their representatives can equitably participate in the process. Those components reflect the full diversity of Syrian society, including its many different ethnic, religious, and sectarian groups; its men and women; its varieties of political thinking; and its geographic dispersion.

Principle 2. Transparency and Accountability. A transparent constitution-making process is one that is conducted in an open manner using a wide variety of means to keep the public informed. Transparency must be ensured throughout the constitution-drafting process so that each member of society can be easily aware of the constitution-making activities and can share suggestions through appropriate and accessible mechanisms, so that such opinions can be taken into consideration by the relevant committees. At the same time, a national body must monitor and call the committee to account to ensure its adherence to the principles governing this process.

Principle 3. Public Participation. Public participation in the constitution-drafting process should be encouraged as widely as possible. People should consider it a natural and legitimate right to be educated and informed about the process and the main constitutional questions. They should be given real, free, and impartial opportunities to express their opinions, interests, and preferences. They may do so via the infrastructure of civil society organizations, educational institutions, unions, syndicates, places of worship, or new groups developed for this purpose. Information systems and communication technology should be used to collect suggestions, recommendations, and other input so these may be analyzed and studied during the drafting of the constitution.

Principle 4. Consensus. A constitution-making process based on consensus is one where decisions are reached by drafting and ratifying bodies based on discussion, negotiation, and persuasion, and only as a last resort by majority rules. Along with inclusion and participation, this guarantees that the final document reflects the interests and the aspirations of the nation, and not just one societal interest.

Principle 5. National Ownership. Participation in the constitution-making process is a national duty and a right for all Syrians. Participation ensures that the constitution-making process and its outcome will be fully Syrian, while benefiting from the lessons of constitution-making in other states.

Principle 6. Deliberation. The national interest will be best served by comprehensive dialogue and quiet discussion within a realistic, comfortable timeline. This includes reflecting on historical resources and contemporary comparative experiences. It will also be aided by transparent mechanisms to prevent the conflict of sectarian, partisan, or personal interests.

Importantly, these core constitution-making principles are not rigid rules to be mechanically applied at each stage of the constitution-making process. At all times, however, they must guide procedural design choices to strengthen and promote the legitimacy of Syria’s transitional leaders, the constitution-making process, and the constitution itself, enabling Syria to reach its goals.

5.2.  Context

With the Ba’th Party’s seizure of power in March 1963, Syria’s constitution became an instrument for the consolidation of single party rule and the centralization of power in the hands of the executive. Viewed as the framework for Syria’s social and economic transformation, and for empowering social classes that had been marginalized by the country’s landed and business elite, the constitution of 1964 and those that followed enshrined the dominant role of the Ba’th Party in Syria’s state and society, denied citizens basic freedoms, restricted political competition, and provided a thin veneer of legalism for an authoritarian system of governance.

No less important, however, is the growing divergence under Ba’thist rule between the content of Syria’s constitution and the practices of its leaders. In the constitution promulgated in 1973 under Hafiz al-Assad, a document which remained in effect with only modest revisions until February 2012, Section Four includes numerous articles affirming the supremacy of the law, the rights of citizens, and the equality of citizens. Article 28 of Section Four states that “no one may be kept under surveillance or detained except in accordance with the law,” and that “no one may be tortured physically or mentally or be treated in a humiliating manner.” Yet by that time, Syria’s prisons contained thousands of political prisoners, surveillance and torture had already become routine, and the rule of law had been thoroughly corrupted by the lawlessness and criminality of the ruling elites.

Little changed with the succession of Bashar al-Assad in July 2000, despite the short-lived “Damascus Spring” that followed his rise to power. Bashar’s promises of political reform were never kept. It was only in late 2011, as a belated and grudging response to the Syrian revolution, that the Assad regime undertook limited constitutional reforms in an effort to dampen the spread of mass protests and popular demands for the fall of the regime. However, the constitution of 2012 was no more democratic than the one it replaced, and served merely to affirm the determination of the Assad regime to cling to power. The Day After project has this history in mind as we propose guidance for the next effort.

The Day After project has also reviewed cases of contemporary constitution-making in other post-conflict states, including processes occurring in Afghanistan, Benin, Columbia, East Timor, Egypt, Kenya, Uganda, Bolivia, Tunisia, and the process proposed in Yemen. In particular, we examined the divergent experiences of Iraq and South Africa, as well as the on-going processes of constitution-making in Egypt and Libya. A few lessons can be highlighted here; others will be referred to below.

South Africa’s process was exemplary in allowing groups enough time to build trust and largely adhering to the principles outlined above. Its permanent constitution was written over a period of two years by an inclusive constitution-making body. During the process, officials educated and consulted with millions of citizens, operated with transparency, and made decisions based on consensus rather than strict majority voting. South Africans attribute the relative peace of their democratic transition, reconciliation between white and black South Africans, and political stability today in no small part to the principles applied during the constitution-making process. The Day After project also took note of a distinctive aspect of the process in South Africa whereby the interim constitution included verifiable principles that had to be present in the permanent constitution. This gave the minority party that had previously ruled the country confidence to engage in the process, assured that their primary interests and concerns would be addressed. (This is discussed further in Box 1, below.)

The experience of South Africa stands in stark contrast to that of Iraq, whose 2005 constitution was written in approximately three months with almost no transparency or public participation, and to the exclusion of a significant component of Iraqi society, Sunni Arabs. As a result, critical constitutional issues could not be sufficiently examined, negotiated, and resolved, leading to serious governance challenges in Iraq today. More importantly, the marginalization of Sunni Arabs led directly to Iraq’s most serious sectarian violence in 2006 and 2007.

While it is too soon to fully evaluate the constitution-making processes in Egypt, Libya, and Tunisia, we have observed that at least Egypt and Libya have already suffered from a failure to apply the core constitutional principles set forth above. In Egypt, decisions about the transitional legal framework and roadmap for the design of the permanent constitution have been made largely in secret by an exclusive group of leaders, and the formation of the constitutional commission has been attacked for being insufficiently inclusive. In Libya, the National Transitional Council has also been accused of operating without transparency, being insufficiently inclusive, and failing to consult adequately with important components of Libyan society. In both Egypt and Libya, the manner in which the transitional legal frameworks and constitution-making processes have been designed has already led to tensions and mistrust, and has undermined the legitimacy of the transitional authorities and the transitions themselves.

Reviewing the recent history of constitution-making in Syria and comparing contemporary processes of constitution-making in other states has given The Day After project the opportunity to consider a variety of lessons, broaden its perspective, and deepen its reflection. This effort confirmed the profound importance of adhering to core principles, while also providing useful insights for developing the recommendations offered below.

5.3.  Challenges and Risks

Challenge 1. The need for a transitional legal framework

Negotiating and drafting a permanent constitution requires time and focus. These are unlikely to be available immediately after the fall of Assad. Whatever the nature of the transition, the initial aftermath of the end of the Ba’thist regime is likely to include some measure of crisis, chaos, and flux. A transitional legal framework may therefore be needed until the necessary circumstances and environment for a permanent constitution-making process are achieved. The transitional legal framework, however, will have to balance competing tensions: (1) the need for legal continuity as quickly as possible in the aftermath of the fall of the regime and the dissolution of the 2012 constitution; and (2) the difficulty in negotiating a transitional legal instrument amidst political and social crisis, chaos, and flux. The need to craft an interim legal framework to govern the transition itself and to guide the drafting of a permanent constitution is a challenge that other transitional states have faced, and met
(see Figure 5-1).

Figure 5-1: Facing Challenges: Creating Time and Trust in South Africa

  Facing Challenges: Creating Time and Trust in South Africa

A number of countries have faced the challenges of needing to conduct a principled constitution-making process in a context of initial post-conflict disorder and widespread social mistrust. South Africa’s experience may be instructive, suggesting possible routes for Syria to consider.

A first step is creating a provisional constitution to both govern the transition and guide the process of creating the permanent constitution. This allows the possibility of generating the conditions necessary—and particularly sufficient time—for a proper constitution-making process. Following the fall of South Africa’s apartheid regime in 1991, the two dominant parties entered into talks on how to transition to democracy. These talks took approximately two years and resulted in an Interim Constitution. South Africa governed itself by this provisional document until a permanent constitution was adopted more than two years later.

Another important step is finding the means to address profound social mistrust. Again, South Africa provides a useful illustration. South Africa’s permanent constitution was to be written by a constitutional assembly elected by all the South African people. The white minority knew that the elected body would be overwhelmingly dominated by the African National Congress Party, which could then design any constitutional framework it desired. In order to protect the interests of white South Africans, the African National Congress and the National Party included in the Interim Constitution an annex of 34 principles that were of greatest concern to the two parties and which could not be violated by the permanent constitution. The principles did not prescribe the exact articulation of each issue; they did provide broad contours and redlines that could not be violated. The presence of these principles allayed the fears of the parties and assured them that the eventual constitution would respect their most coveted rights and interests.

Part of the strength of these guarantees was that they were accompanied by an implementing mechanism. South Africa created a Constitutional Court to review the permanent constitution and ensure it did not violate any of the agreed-upon 34 principles. The Court, in fact, found that two provisions of the constitution indeed did violate principles and returned the draft to the constitutional assembly for revision.

Challenge 2. The loss of civic trust

Syria has become an increasingly fragmented society, grappling with many competing identities and considerable civic mistrust. Some of the fractures and mistrust were fostered and manipulated by the Assad regime. The more time before the current regime falls, the more exacerbated the fragmentation and mistrust between societal groups and interests could become. As the transition begins, Syrians may be reluctant to enter into a constitution-making process without certain agreements or understandings in place about especially difficult and divisive issues. This may be particularly true if Syria, like the other countries of the Arab Spring, opts to hold elections to constitute a body that will draft the permanent constitution (or select a commission to do the drafting). This too is a challenge that others have encountered, and overcome (see case Box 1).

Challenge 3. The inherent risks and opportunities of transitional moments

The negotiation and adoption of a transitional legal framework and permanent constitution offers a unique and extraordinary moment in Syria’s transition from tyranny to democracy. It is unique in that post-conflict states often have only one chance to “get it right” and create a legal framework that establishes rights, institutions, and practices that will support lasting peace, prosperity, democracy, and freedom. It is extraordinary because, after almost a half-century of dictatorship, the constitutional moment will offer Syrians a chance to make a clean break from the past and set the nation on a course where all Syria’s components and peoples can create not just a functional system of democratic governance, but begin to establish a culture of democracy and a state based on respect for the rights and freedoms of all people.

Such moments are inherently risky. If conducted unwisely—that is, not in keeping with the principles set forth above—constitution-making in Syria could exacerbate existing fault lines, undermine the legitimacy of the transitional authorities and any government that follows, and contribute to greater long term violence and instability. Such moments are also immense opportunities. The Day After project believes that if the constitution-making process is not merely a legal drafting exercise conducted by political elites, but rather a national dialogue that accommodates the needs and interests of Syria’s diverse society, then the transition will earn its legitimacy and Syrians will realize the goals and aspirations of the revolution.

5.4.  Detailed Recommendations

1. A Roadmap of the Constitution-Making Process

Having considered these goals and principles, identified these challenges and opportunities, and reviewed lessons and examples from other countries’ experiences, The Day After project recommends the following roadmap of sequenced tasks to negotiate, draft, and adopt Syria’s permanent constitution (Figures 5-2, 5-3, and
5-4
). The roadmap begins immediately after the fall of the Assad regime with civic education so that by the time the Constitutional Assembly is in place, the public will understand and be able to fulfill its role. The roadmap concludes three years later with the adoption (possibly through referendum) of a legitimate permanent constitution for a new Syria.

Figure 5-2: Tasks of the Roadmap for Constitution-making

Task/Phase

Negotiate and adopt transitional legal framework
Establish commission to begin civic education
Conduct civic education
Elections for Constitutional Assembly (CA)
CA establishes secretariat to help develop budget, procure resources, develop strategic plan, document and facilitate drafting process
CA establishes regional/district offices for CA to assist in civic education and consultations
CA establishes sub-committees to assist in researching and drafting
Conduct more civic education
Conduct public consultations
Analyze public inputs/views
Research, negotiate and agree on first draft of constitution
Allow public to comment on first draft
More negotiation and drafting, as needed
CA adopts constitution
Referendum, if appropriate
Implementation, including additional civic education on the final constitution

Figure 5-3: Time Proposed for Constitution-Making Tasks

Task/Phase

Time

Negotiate and draft transitional legal framework 2-3 months (perhaps longer if necessary to agree on guaranteed principles)
Prepare for CA elections (See Chapter 4)
CA preparation (formation of secretariat, outreach unit, regional offices, development of by-laws, budget and strategic plan, etc.) 3 months
Civic education 3 months
Public consultation 3-6 months
Research, negotiation, drafting, adoption by CA 3-6 months
Preparation for referendum 3 months

Figure 5-4: Timeline for the Constitution-Making Process

Day 1

6 Mos

1 Yr

1.5 Yrs

2 Yrs

2.5 Yrs

3 yrs

Negotiate and adopt TLF
Public outreach and communication strategy
Civic education/preparation
CA Elections
CA begins work
Civic education
Public consultations
Analyze public inputs
First draft
Civic education
Public consultations
More negotiation and drafting
CA adopts constitution
Civic education for referendum
Referendum

 

2. Options for the Transitional Legal Framework

As noted above, Syria will need a transitional legal framework both to govern the interim period and to guide the constitution-making process. The Day After project believes that the existing constitution of 2012 is wholly inadequate and inappropriate to serve as the legal framework during the transitional period. First, the 2012 constitution is completely undemocratic and would have to be comprehensively amended. Second, by suspending the existing constitution, Syria will demonstrate both a real and symbolic break with its dictatorial past. Such an act has legal grounding in the internationally recognized principle of “revolutionary necessity.”

The Day After project carefully considered two other options for a transitional legal framework: (1) amending the 1950 constitution to meet Syria’s transitional needs (for example, by including greater minority rights and recognition); or (2) creating a new transitional document. Participants in the Day After project engaged in significant debate over which was the better choice; each has benefits and risks. All of the participants, however, agreed that the decision of whether to use the 1950 Constitution (amended) or to start over with a new document would have to be guided by facts and variables that cannot be known at this time. How the transition transpires, the manner in which the current regime falls, and the nature of the transitional authorities that replace it will have a significant impact on the appropriateness of each option.

Option 1. Amended 1950 Constitution

Debate over the appropriateness of using the 1950 Constitution as the starting point for the transitional legal framework revolved largely around contrary perspectives on two main points.

  1. For some participants the 1950 Constitution evoked memories and feelings of a democratic, consensual, and peaceful period in Syria’s history, before the Ba’th dictatorship began. These participants also noted with approval that today’s revolutionaries are flying the flag of the 1950 Constitution, indicating that a connection is already being made between that era and the on-going revolution. Other participants, however, had a more negative view. For them, the 1950 Constitution represented an era of pan-Arabism in Syria, which was later distorted and polluted by the Ba’th Party and therefore can no longer be a positive and unifying symbol for Syria’s future. This group also argued that because it excluded reference to Kurds and other minorities, the 1950 Constitution would not reassure these groups; using it as the basis for the transitional legal framework would risk losing their support. Some participants argued that the manner in which the 1950 Constitution was adopted—not inclusive, non-transparent, and non-participatory—would send the wrong message about the principles of democracy that Syrians wish to highlight during the transition. And finally, some participants argued that an association between the present revolution and the 1950 Constitution is actually harmful to building a unified and inclusive state after the Assad regime falls, because not all Syrians are part of the revolution. These participants argued that the “new” Syria needs a fresh start with a transitional constitution that is not associated with an exclusionary past.
  2. Some participants argued that more than 80 percent of the 1950 Constitution could be used unaltered, decreasing the time during which Syria will operate in a legal vacuum while a transitional legal framework is negotiated and drafted. Others disagreed, stating that the 1950 Constitution would have to be substantially amended to make it a truly modern constitution and effective during the transitional period, and would therefore require about the same time to revise as would be needed to draft an entirely new constitution.

Option 2. New Transitional Legal Framework

To many participants, the main advantage of creating a new transitional legal framework is the fresh start for Syria that could incorporate the benefits and insights of the past 60 years of legal and political thinking and practice. A new document could be tailored to this new chapter in Syria’s history, and reflect the needs and aspirations of all Syrians. Participants also noted that the negotiation and drafting process could be a source of positive dialogue, and practice for the process of drafting the permanent constitution. The main disadvantage was the additional time it would take to start over, extending the period during which Syria would operate in a legal vacuum or under a transitional legal framework. This might cause drafters to rush—leading to less effective institutions, mechanisms, or processes. Participants also expressed concern that writing a new transitional framework would require negotiating many potentially contentious issues immediately after the fall of the regime, which could spark division, instability, or even mass unrest.

3. Process for Establishing a Transitional Legal Framework

Whichever option is chosen, the six core constitutional principles discussed above should be applied during the process. All components of Syrian society—the full range of ethnic, religious and sectarian identities, all political persuasions, men and women as well as youth—should be included in the design of the transitional legal framework. Excluding any component—even segments of society that supported the current regime—will undermine the legitimacy and stability of the transition. Transitional leaders should operate with the utmost transparency, communicating directly to the people not just the choices that are being considered, but the reasons why certain choices are made.

In this respect, one of the key elements in the roadmap provided above is public outreach, which begins immediately and continues throughout the entire process. It is imperative that the transitional authorities keep the public informed about developments in the negotiation and drafting of the transitional legal framework and subsequent constitution-making process, and indeed all other aspects of Syria’s democratic transition. Outreach will not only increase the transparency of the process, but will also help transitional leaders manage the expectations of the public, thereby increasing the likelihood of having their decisions accepted as fair and legitimate.

And while a comprehensive public participation process, such as the one proposed for the permanent constitution-making process described below, may not be feasible under the tight time frame of the transition, The Day After project also recommends that transitional leaders consult key sectors of society so as to build and retain legitimacy and trust, for themselves and for the transitional legal framework.

4. Content of the Transitional Legal Framework

While it would be inappropriate for The Day After project to dictate the language and provisions of the transitional legal framework (indeed, doing so would violate The Day After project’s core constitutional principles), it is appropriate to consider the general nature of what should be included. The Day After project believes that, broadly speaking, the following components should be in the transitional legal framework: (1) guarantees of basic human rights; (2) the rules, institutions, and procedures for transitional governance; (3) the roadmap for the negotiation, drafting, and adoption of the permanent constitution; and (4) consideration of procedural and substantive guarantees that will guide the drafting of the permanent constitution (see below).

Transitional leaders should also consider not just what goes into the transitional legal framework, but what issues are best reserved for the permanent constitution. Because the transitional legal framework will necessarily be negotiated and drafted in less time and with less participation than the permanent constitution, it should be as skeletal as possible and include only those issues that are essential for stability and governance during the transitional period. This may minimize the perception that a new constitutional order has been predetermined by political elites and imposed on the people.

5. Procedural and Substantive Guarantees for the Transitional Legal Framework and Permanent Constitution

As discussed above, to allay profound civic mistrust and to guide the constitution-making process, Syria may find it extremely useful to adopt a set of guarantees, as did South Africa (see Box 1). These guarantees would apply to both the transitional legal framework and the permanent constitution. They would assure Syria’s many social components of the fundamental safety of engaging in the constitution-making process, knowing their core interests and concerns would not be violated. Negotiating constitutional guarantees could be difficult and require considerably more time than promulgating a transitional legal framework without them. Transitional leaders will need to assess the social and political climate in post-revolution Syrian and determine whether such guarantees are necessary and appropriate, with an eye towards maximizing the legitimacy and stability of the transitional period. If Syrian leaders do decide to incorporate constitutional guarantees into the transitional legal framework, they must also create a mechanism to ensure they are not violated by the permanent constitution (such as the Constitutional Court established by South Africa, see Box 1).

The Day After project identified many constitutional issues that might be appropriate to include as constitutional guarantees, as described below. To be clear, these are only recommendations; more consultation between the different parties (and the people) would be critical to identifying the core principles that need to be protected and the assurances that need to be made.

Supra-Constitutional Principles: The principles below are binding guidelines that represent the spirit of the constitution from which it cannot deviate.

  • The transitional and permanent constitutions will begin with “We, the Syrian people,” to underscore that the people, and not any party or government, are the sovereigns in Syria.
  • Syria is a civil, democratic, and free state.
  • Syria is a territorially unified state.
  • Syria is a multi-ethnic, multi-religious, multi-lingual, multi-sectarian society that respects its diversity.
  • As a multi-ethnic society, Syria recognizes ethnic diversity as a valued part of its social fabric.
  • Syria is a part of the Arab world.
  • The state is neutral toward religion, respects its values, and neither compels nor impedes religion among the people.
  • Islamic sharia, Christianity, and other religious and humanist traditions are sources to inspire legislation.
  • Syria’s system of government will be based on the principle of administrative decentralization.
  • Fundamental human rights are to be included among the constitutional principles: in particular, anti-discrimination, equality, and due process, as well as freedom of thought, mobility, consciousness, belief, opinion, expression, assembly, and association.
  • The rights and freedoms are to be guaranteed equally to male and female persons.
  • Every individual is equal before and under the law and has the right to equal protection of and benefit to the law without discrimination.
  • Every individual has the right to life, liberty, and security of the person.
  • The constitution should guarantee the independence of the judiciary.
  • The military and security forces are completely subject to civilian authorities.
  • Private property is protected.
  • The economy should incorporate principles of social and economic justice.

6. Application of the Core Principles to the Roadmap

Inclusiveness

The election of the Constitutional Assembly is addressed elsewhere (see Chapter 4), but merits discussion here because it is absolutely critical that the Constitutional Assembly be sufficiently inclusive and representative of Syrian society. As affirmed in Chapter 4, all interests and components must be represented, and in some cases perhaps even disproportionately to their numbers. Constitutional assemblies are not like ordinary legislatures, where the regularity of elections means that if a group loses this time, it can do better next time. In contrast, the constitutional moment is unique, with much higher stakes. Groups that feel marginalized are less likely to feel part of the “new Syria,” or worse, may attempt to undermine or obstruct the democratic transition.

Therefore, Syrian leaders must take care to ensure that elections produce not merely democratic (in the sense of majoritarian) results, but rather legitimate results. The Day After project, therefore, recommends that in addition to the normal electoral process, Syria reserve an adequate number of seats in the Constitutional Assembly for groups that might lose through elections but nevertheless ought to be represented. The principles of inclusiveness and deliberation must be balanced to create a body that can effectively represent the nation and also design a coherent and competent constitutional draft. (Mechanisms for achieving such a constitutional assembly, in line with internationally established electoral procedures, are detailed in Chapter 4.)

Participation

Educating and preparing the public to participate in the permanent constitution-making process should begin even before the Constitutional Assembly elections. The Day After project recommends the transitional authorities create an official body (perhaps an independent commission or an office within the transitional government) to begin civic education and outreach almost immediately—and well before elections—in order to prepare citizens to meaningfully participate in the constitution-making process and reduce the time of the process itself. In addition, civil society should be encouraged to help in the civic education effort. These bodies can not only educate the public, but gather critical input to inform the drafting process. For example, people can be asked about the challenges they face, what they want the government to do (or not do), their priorities and needs, and their views on important or divisive constitutional matters.

Later in the process, the public should be given an opportunity to provide further input and comments as constitutional drafts are produced. A procedure should be established to analyze, collate, and present public input to constitution-making officials. And at each stage drafters should provide reasons for the choices that were made and indicate how they took the public’s input into account—so that the public can see that it was listened to.

Transparency and Accountability

As mentioned earlier, transitional authorities should construct a communication and outreach unit and strategy immediately after the revolution to inform citizens about what is happening, how decisions are being made, and how they can get involved. Constitution-making officials should conduct regular briefings to the media and public to update on developments, official documents should be available for inspection, and proceedings should, as much as possible, be broadcast on radio and/or television. Finally, civil society and the media should be encouraged to monitor and report on the process. Such transparency is needed to increase public trust in and the legitimacy of the process. Through the media and other mechanisms, constitution-makers will be held accountable to the people. Specifically, a code of conduct should be developed to clarify their responsibilities and duties, including how to avoid conflicts of interest that could damage the credibility of the Constitutional Assembly.

Consensus

Balancing the desire to reach decisions by consensus whenever possible with the reality that sometimes deadlock-breaking mechanisms will be necessary, The Day After project recommends that the drafters try to reach decisions on constitutional issues and provisions by 100 percent agreement as much as possible. In cases where consensus cannot be reached after three rounds of discussions, negotiations, and persuasion, decisions should then be adopted by two-thirds (67 percent) majority. Such a high voting threshold increases the likelihood of the final document reflecting the interests and aspirations of the nation rather than a certain sectarian interest. In the event no side achieves two-thirds majority support, other deadlock-breaking measures should be employed, including: (1) referral of the issue to a technical committee that can propose alternative approaches to the problem; (2) referral of the issue to a leadership council that can negotiate a compromise; (3) referral of the issue to a non-binding national referendum, which will allow the negotiators to see the public preference; and (4) referral of the issue to a binding national referendum, which would also require a two-thirds majority vote and in the event the measure does not pass the two-thirds threshold, the Constitutional Assembly is itself dissolved and new elections are held. The drastic effects of such an outcome would likely ensure that the Constitutional Assembly will find compromise solutions and avoid such a referendum.

Deliberation

The Day After project notes the short timeframes in which Egypt and Libya are conducting their constitution-making processes. In each case, the envisioned time frame can be measured in a few months. Tunisia is only slightly longer (about one year). It is understandable that any country would want to shorten its transition and achieve democratic governance as soon as possible. However, shorter constitution-making timelines come at a cost. The constitutional roadmaps for Egypt, Tunisia, and Libya do not allow time for meaningful public participation. The Day After project believes that in light of Syria’s social and political environment, public participation will be critical to creating a legitimate constitution-making process and realizing the goals of the revolution. In addition, The Day After project suggests that a longer process will allow more time to research, negotiate, and resolve critical contentions and divisive issues, as well as consult with relevant experts and the public. Therefore, The Day After project recommends that transitional leaders carefully consider a longer timeframe for Syria’s constitutional drafting.

7. Referendum

The roadmap concludes with the possibility of a referendum. The question of whether to hold such a referendum merits further discussion. Referendums carry potential benefits and risks. On the one hand, they can be definitive and popular demonstrations of ratification and support for the final constitution—increasing the legitimacy and national ownership of the constitution. On the other hand, they are expensive, time-consuming, and can be divisive and polarizing. The Day After project observed that in other countries referendums have been fought on one or two issues, undermining national support for the document as a whole. Ultimately, The Day After project believes whether Syria should have a referendum to ratify the permanent constitution should come down to the question of legitimacy. If transitional leaders conduct free and fair elections for the Constituent Assembly that result in a body that sufficiently reflects the diversity of Syria, and if the constitution-makers educate and fully consult with the people, then a referendum may not be needed for the people to feel they own the constitution. However, if there is otherwise insufficient public participation, or if political and social realities demand it, then a referendum may be necessary and appropriate.

8. Alternative Roadmap

The Day After project discussed the possibility that constitution-making in post-Assad Syria may require greater time and negotiation than set forth in this chapter. In a scenario where violence persists and sectarianism and mistrust dominate politics, the different political and social interests may require more substantial trust-building measures and assurances in order to allow for a peaceful and stable transition to democracy. Under such circumstances, a longer constitutional roadmap that provides greater guarantees for inclusiveness may be necessary. Such a roadmap might look like the following:

  1. The existing constitution is abolished.
  2. A Constitutional Commission is formed—its size and makeup to be agreed upon by the major political and social parties—to draft an interim constitution.
  3. The commission prepares a draft transitional constitution.
  4. The draft transitional constitution is adopted by a national conference. The size and make-up of the national conference is agreed to by the major political and social parties. Each political and/or social component selects its own representatives. The national conference must approve the transitional constitution by a two-thirds majority for it to be deemed adopted.
  5. The transitional constitution, which would be more comprehensive than the transitional legal framework proposed in this chapter, would remain operative for a longer period of time—perhaps two years.
  6. During the period governed by the transitional constitution, steps would be taken to elect a Constituent Assembly, which would negotiate and draft the permanent constitution in a fashion similar to procedures described above (see Chapter 4).
  7. The Constituent Assembly would adopt the permanent constitution, with an additional option for a national referendum if deemed appropriate.

5.5.  Selected Resources

Brandt, Michele, Jill Cottrell, Yash Ghai, and Anthony Regan. The Constitution-Making Handbook. Interpeace: 2011. Available in English and Arabic at http://www.interpeace.org/constitutionmaking/the-constitution-making-handbook [July 2012]

Democracy Reporting International. Briefing Paper #20. “Lessons Learned from Constitution-Making: Processes with Broad-Based Public Participation.” November, 2011. Available in English at http://www.democracy-reporting.org/files/dri_briefingpaper_20.pdf Available in Arabic at http://www.democracy-reporting.org/files/bp_20_ar.pdf [July 2012]

Constitutionmaking.org. http://www.constitutionmaking.org/ [July 2010]

International Institute for Democracy and Electoral Assistance. A Practical Guide to Constitution Building. 2012. Available at: http://www.idea.int/cbp/knowledge_resources.cfm [July 2012]

Miller, Laurel E., ed. Framing the State in Time of Transition: Case Studies in Constitution-making. Washington, DC: United States Institute of Peace Press, 2010.