Syria’s internal war (whether you view it as a civil or revolutionary, or other) is evidence of the Syrian constitution’s inability to preserve the country and the state, and an indication of the regime’s failure to keep the people safe and secure. Therefore, as soon as the war begins to end, it is imperative to confront the consequences of this failure and to address the challenges facing the country. Indeed, the social contract that regulates the common life of all citizens should be reformulated and the country’s legal system renewed. A new political form – one that meets Syrians’ aspirations for a stable, democratic, and free country – should be created.
The constitution is the source of all governmental powers and authority, the custodian of the polity, the umbrella of laws, and the guarantor of fundamental rights and freedoms. It regulates those overseeing the work of authorities and regulates the accountability of officials. On its basis and provisions, power can be transferred peacefully. Therefore, a democratic constitution agreed upon by all groups of society, regardless of their differences and diversity, is essential. This constitution should be sustainable and should help manage the country’s path to stability, freedom, and prosperity.
Needless to say, writing a new Syrian constitution under these circumstances is a real battle; a battle with the past, and all its burdens; with the present, in which the war destroyed everything; and a battle with a pessimistic image of the future.
Perhaps the first step on this difficult road will be selecting members of the constituent body to write the constitution. This body should include people with scientific, legislative, legal, and political experience, and it should represent all groups of society. We are of course aware that in the current situation it is a very complex matter to form a constituent body, and to write a constitution or even propose one in draft form. It is indeed difficult to apply the theoretical foundations of the constitution-making process in same form and manner seen in the work of constitutional writing bodies elsewhere in the world. The war and the social and national fragmentation have led to an atmosphere of mistrust between many of the political and societal groups.
In addition, there are forces that resist change, whether from the guardians of the regime, or from the traditional religious forces; or others that will lose their influence, positions, and privileges with a new constitution. There will be some forces that consider themselves the reason for the change in the balance of power and believe that gives them the right to impose their opinion on the new constitution.
From here it appears that drafting a new constitution for the post-war period is a very difficult task. But in order to make it possible to do so, one of the first tasks should be to establish a climate of trust between the warring components and granting reassurance to all – especially for the minorities who fear the victory of the majority, fearing that the majority will use its numerical authority at a certain moment to amend the constitution and enhance its position at their expense. Hence the importance of the preparatory phase for preparing the constitution.
The principles that will determine the work of the constituent body and the results of this work either are correct – and thus provide a climate of justice and consensus, and ensure that no single group or majority rules the country in a manner that does not take into account the rights of minorities – or those principles include ambiguity, indeterminacy and fluidity, which makes the country's future as a minefield that may explode at any moment, returning the country to chaos.
These principles are the ideas that everyone will agree on – more or less. Those ideas can be described as a national code of conduct or a road map bearing the philosophical, human, and social concept of the system of government and the structure of power. This code must be included in the draft constitution in one way or another, and it should not be contradicted in any article of the constitution, or by any law. These principles will define and shape the new constitution. It was agreed to call them supra-constitutional principles. Although the idea of the existence of supra-constitutional principles is a problematic idea in the science of constitutional law in theory, these are a necessity for Syria.
Super-constitutional principles as a legal concept
Super-constitutional principles, the founding rules of the constitution, or supra-constitutional articles all designate the guiding principles for the constitution drafters, and are of extraordinary importance. It can be said that they are exceptional. The reason for this exceptionality is that these supreme constitutional rules recognize the people’s supreme interests and define the rights of individuals and the state. It is also based on the principles of justice and non-discrimination between the components of a society in terms of religion, nationality, or social class. Super-constitutional principles are almost universal principles agreed upon among most countries of the world, as in the end, they include peoples’ aspirations for a decent life and the enjoyment of public freedoms, basic rights and so on.
Super-constitutional principles were mostly based on the principles contained in the Universal Declaration of Human Rights issued in December 1948, and before that on the principles contained in the Declaration of the Rights of Man and the Citizen of 1789 at the start of the French Revolution, as well as on the Declaration of Equality between Humans issued in the United States of America's Declaration of Independence in 1776.
In addition, most of the constitutions issued after the emergence of these principles have stipulated them. However, these universal principles, while important, are not sufficient by themselves to be supreme constitutional principles in every time and place. The constitutional jurisprudence concluded that countries, due to their different circumstances and historical development, face questions of their own related to their geographical, social, demographic, and historical characteristics. This leads to the emergence of special national principles that are related to the concerned country alone, that is, they are not necessarily noticeable in universal principles or other constitutions, as their necessity stems from the specificity of the country in question, as they arise because of its conditions and circumstances.
For example, the German constitution, in the third paragraph of Article 79, provides for the immunity of the German federal state. It prevented the legislator from making any amendments to the German constitution that would affect the formation of the federation or would affect effective participation of the states in the legislative process and federal decision-making. The Turkish constitution, for its part, stipulates in its fourth article that it is prohibited to amend articles related to the republican form of the state. Indeed, it raises the republican principle to the level of the supreme constitutional level, as it prevents any proposal related to modifying the republican form of the state. In general, the constitution prohibits amending and discussing the foundations of “the Turkish Republic as a democratic, secular, and social republic based on the rule of law.” In addition, Turkish territorial integrity is also an untouchable principle.
From here it can be said that the supra-constitutional rules are constitutionally fortified rules, that cannot be simply replaced under any circumstances as they concern the safety of the country and the people and constitute an agreement between everyone, regardless of religious, political, or ideological orientations.
What about Syria and the prospective Syrian constitution?
After long years of war that ravaged Syria, the agreement on a new social contract has certainly become a basic and indispensable issue for Syrians. It is the only means by which we can renew the values that guarantee the protection of the country, the society, and the future of their children. However, given the rupture in the structure of the Syrian society, and the dispersion of Syrians politically and geographically, an important question arises: Who can handle this difficult and important task?
After a difficult political struggle, the international community has succeeded through the United Nations to form a committee known as the Constitutional Committee, whose mission is to discuss the current Syrian constitution (2012), to reach an agreement to amend it or to prepare a new constitution. The committee consisted of 150 individuals, divided into three delegations: 50 members of the regime, 50 members from the opposition, and the rest representatives of the Syrian civil society. However, considering the severe stagnation and political division of Syrians, the work of this committee is still in its early stages, as it has not yet made any significant progress in its mission despite the start of its work on October 30, 2019 (eight months before the writing of this article). Yet the international community has begun to pay attention to the Syrian civil and societal cadres, sensing the dead end that the United Nations' efforts in this regard might reach. Although this interest remains at a low level, it is a beginning for Syrians to lay the foundations of the Syrian state and society after this long war. Indeed, Syrians have formed many societal initiatives and legal workshops that have achieved important breakthroughs, especially with respect to breaking the separation between Syrians, and removing the borders drawn between them by armed conflicts.
Among these initiatives is the initiative of the Council of the Syrian Charter, which brought together Syrian public figures, jurists, academics, politicians, economists, and tribe leaders from inside and outside Syria.
Most of these personalities, indeed all of them, are quite far from the political alignments of 2011, and they did not engage in any activities that divided the country and caused Syrians to flee the country, forming the diaspora. These people met and held a continuous workshop, during more than three years, and finally they issued the Code of Conduct for Syrian Coexistence. This document has eleven supra-constitutional principles, which were reached after dismantling the problems and of the Syrian society.
Although this effort has angered some who disagree with the Council of the Syrian Charter , what we certainly notice in the Council’s work is the calm required to reach a coherent social contract that provides Syrians with satisfactory results after their great sacrifices in the war, and gives them hope for an inclusive homeland, which they will build according to their interests and for the future of their children. Calling for one Syria, considering all Syrians defeated in the war, holding the perpetrators accountable, moving away from the logic of revenge, compensating those affected, addressing the file of detainees and war victims, and spreading the principles of citizenship, rule of law and equality. All mentioned principles cannot contradict the interests and aspirations of Syrians.
The council has addressed issues which are considered a red line for some. However, we note a real will to search for realistic solutions for the Syrian case. Talking about sectarianism does not necessarily mean sectarian talk, while talking about national differences between Syrians does not necessarily mean a call to divide Syrians. As frankness and disclosure are the basis for overcoming problems.
I believe that the principles of this code are fully suited to support any discussion on the Syrian constitution. Indeed, they may even be supra-constitutional principles that contribute, in one way or another, to the foundation of a new constitutional thought – eventually building a new homeland for all Syrians.
