Syria is getting a new constitution this week, 11 months after it was promised to angry demonstrators by officialdom. Such a demand, of course, is not new, having been sought by the Syrian opposition long before the uprising began in mid-March 2011. Previously, the Baathists had refused such a change, satisfied with the 1973 Charter that had been penned under former president Hafez Al Assad, because it gave them an absolute monopoly over power.
The main problem with that constitution was Article 8, which designated the Baath Party as "leader of state and society." There were 12 clauses related to a socialist state that were as bad as Article 8. Let's look at some of the pros and cons of Syria's new constitution, authored by a 29-member Constitutional Committee. To start with, that committee was appointed by the president last November, rather than elected by the people. All of Syria's constitutions since 1920 had been written by an elected assembly -- except for this one, and that of 1973.
The most positive element of the 2012 Charter is that it omits any reference to Baathism. Article 8 is gone, and so is an article that ordains a president while being sworn into office to pledge to uphold the party's trinity of "unity, freedom and socialism." Articles that mention a socialist economy, education, army, culture and society are all gone. Russia, which is closely coordinating with the Syrian government, has clearly advised -- from its own recent history -- that one-party rule, and all of its trappings, cannot survive in today's world.
Apart from that, however, the new constitution has several flaws that independents in the Constitutional Committee were unable to correct. Prime among them is Article 3, which specifies Islam as the religion of the president of the republic. In today's world, it is politically incorrect to prevent a Syrian Christian from running for the presidency. He/she would be unlikely to win, since Christians only make up 12 percent of Syria's population, and it is unlikely that the majority of Muslim voters would vote for a Christian. And if they did, then this would mean that such a candidate, acceptable to both Muslims and Christians, would certainly be qualified to become president. It is inconceivable that a Muslim Kurd can run for the presidency, whereas a Christian Arab cannot.
Red flags can also be raised about Article 85, which sets the presidential tenure at seven years. Prior to Hafez's rise to power in 1970, the presidential tenure had been five years, renewable only once. The new constitution, very regretfully, keeps the tenure at seven years, although no other country has a long presidential tenure, not even France, on which the Syrian model was originally based. A presidential tenure needs to be five years, renewable only once, rather than 'unlimited' as has been the case since the 1980s. Additionally, Article 91 gives the president immunity before a court of law, unless he commits "treason" against the state.
The president cannot be above the law, yet this article has been retained in the 2012 Constitution. The Baath Party's nomination of a presidential candidate has been eliminated, and so have the famous plebiscites with only one person running for office, common under military rule from 1949 to 1954, and ever since 1970. What eventually saw the light was a clause that said, "Any presidential candidate needs nomination of 25 per cent of parliament [meaning 50 out of 250 MPs]." This meant that if the Baath Party secured 50 seats in parliament, it could still nominate a candidate for the presidency. No election would take place, it added, unless two or more candidates are running for presidential office.
Another stumbling block, which will arouse plenty of controversy when put to a national referendum, is Article 95, which gives the president the right to name a prime minister, rather than keeping this right vested exclusively in the chamber of deputies. It also gives him the right to dismiss a prime minister at will, without resorting to parliament. The opposition has argued that once the Baath Party's monopoly ends, whichever party gets a parliamentary majority would get to name a prime minister, without necessarily consulting with the president. A sitting president needs to respect any party taking over parliament, regardless of whether he agrees with its programme or not. This had been the case in Syria from 1920 until Hafez came to power in 1970, after which he gave himself the right to appoint and dismiss a prime minister, greatly reducing the powers of parliament. All prime ministers since 1970 have had strong executive powers but no political duties, something that should have changed with Syria's new constitution. A new prime minister would have to be named by parliament, rather than the president, and can only be removed by a vote of no-confidence by parliament.
And finally, among the sticking points is Article 111, which gives the president legislative powers "when parliament is not in session". Again, the president cannot stand in for the legislative branch, no matter what happens. He needs to be subordinate to the legislature and the judiciary, and not the other way round.
Like everything else in Syria, however, the changes are coming as too little, too late. With the horrific death toll in Homs, continued military operations in rural Damascus, a stagnating economy holding people by the throat, immense lay-offs in the private sector, crippling inflation, all topped with a recent double veto at the UN by China and Russia, nobody in Syria is even looking at a new constitution. The mood is very different now from what it was in March 2011, when a new constitution might have soothed public anger -- if it had been followed by real political and economic changes. Today, however, angry demonstrators are demanding nothing less than regime change in Syria.
The new constitution will not solve the country's political, security and economic problems. It won't end the military operations, bring about cheaper heating fuel and, certainly, will not offer a life jacket for the Syrian regime. It does, however, lay the groundwork for a democratic platform that can be used to stage upcoming parliamentary elections -- and possibly -- early presidential ones as well, which can achieve "all of the above," including perhaps authoring a new constitution entirely, which would make this one, an interim charter.
Sami Moubayed is a university professor, historian, and editor-in-chief of Forward Magazine in Syria. This article appeared in Gulf News on February 14, 2012 entitled, "A Syrian Constitution that is coming 11-months too late."
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