Written by Alexander Mercouris; Originally appeared at The Duran
The ‘draft constitution’ Russia presented to the parties at the Astana conference is not a blueprint for Syria’s future and the Russians did not intend in that way. It was a diplomatic play to get the parties talking about other issues than the sterile issue of the future of President Assad, which has prevented process in all the negotiations up to now. In that it appears to have been successful.
Since shortly after the Syrian peace talks began in the Kazakh capital Astana rumours have circulated that Russia proposed at the conference a ‘draft constitution’ for Syria.
Rumours about the contents of this ‘draft constitution’ have spread widely, with concern widely expressed that Russia might be seeking to impose its ideas on the Syrian people in quasi-colonial fashion, and that Russia is overreaching itself.
There have also been serious concerns that the ‘draft constitution’ threatens the integrity of the Syrian state by enforcing its federalisation and by granting autonomy to the Kurds, and that Syria’s traditional system of government with a strong executive President is being threatened, thereby making the country ungovernable and unable to meet external or internal threats.
In my opinion these concerns are wrong, though not groundless. It is always an extraordinary step when one country produces the draft of what it calls a ‘constitution’ for another country, and it is certainly not something that should be encouraged.
Having said this, there were in my opinion valid – indeed obvious – reasons why the Russians acted as they did, and once these are understood and the document itself is explained, it becomes clear that the concerns which have been expressed about the ‘draft constitution’- though made in good faith – are in fact misplaced.
I would say that whilst this will take some explaining, I have no doubt the Russians have explained it all privately to the Syrian government which is why the Syrian government, and the Turks and the Iranians both of whom also oppose Syria’s federalisation, have been so quiet and relaxed about it.
In order to explain this properly, I will now provide a link to the complete text of this so-called ‘draft constitution’. This is a lengthy document, and I should express my grateful thanks to Mariam Al-Hijab, Editor-in-Chief for Inside Syria Media Center, and to Sophia Mangal, for sending it to me. Without their help this analysis would be impossible, though I should stress that it is entirely my own and I take sole responsibility for it.
The document – as any document which calls itself a ‘draft constitution’ must be – is very long. However certain claims which have been made about this ‘draft constitution’ turn out even on a quick reading to be untrue. For example, it has been claimed that it envisages turning Syria from a Presidential to a parliamentary republic, with the President losing most of his powers and limited to an essentially ceremonial role, and limited moreover to serving for just one term. The actual text of the ‘draft constitution’ shows that this is all wrong.
The powers of the President are set out in Chapter 4 page 23.
Article 48 makes it clear that the President exercises executive power alongside the government. Article 49(1) and (2) allow the President to stay in office for two consecutive terms each of 7 years, not just one. There is no provision that prevents the same individual from standing for a third or more terms as President, provided the third term does not follow directly after the first two.
Article 55 confirms that the President is the guarantor of the constitution, and of Syria’s “independence, unity and territorial integrity”. Article 57 gives the President the power to issue “decrees, edicts and instructions in accordance with the Constitution and the law”. Article 60 confirms that the President is the Commander in Chief of the armed forces. Article 60(1) authorises the President to issue “all the decisions necessary to exercise this authority”. Article 60(2) makes it clear that it is the President who is tasked with responding to any threat to the state, though he or she is obligated to inform the upper house of the country’s parliament of whatever action he or she is taking. Article 60(3) gives the President the power to declare a state of emergency, though only with the prior agreement of the upper house of the parliament or – if this cannot be obtained in the time available – with its agreement to be sought within one day.
Article 63(3) confirms that it is the President who “directs the general course of the Government’s activities”. Article 64 confirms that it is the President who appoints the Prime Minister and the Prime Minister’s deputies, and Article 63(3) confirms that the President has the right to summon the members of the government to report on their activities, and that the President has the right to preside over meetings of the government.
In summary, though the President’s powers may be somewhat reduced by comparison with what they are now, the ‘draft constitution’ clearly envisages Syria remaining a Presidential republic, with the President normally serving for two consecutive terms of 7 years each (14 years in total), and remaining in command of the armed forces and in control of the government. The President would still be the country’s leader, and it is doubtful whether in practical terms the position of the President would be significantly different from what it is now.
If rumours about what the ‘draft constitution’ does to the role of the President are wrong, what about the other more serious claims that have been made about it? Does it in fact provide for Syria’s federalisation and for the grant of sweeping autonomy to the Kurds?
As has been pointed out by several people, the words “federal”, “federalisation” and “federation” appear nowhere in the document. Article 1 says that that the names of the country are “the Syrian Republic” and/or “Syria”, with the two names being used interchangeably. Article 1(2) says that “Syria relies on the unity of its nation and is a common and indivisible homeland for all its citizens”. Article 9(1) says that “the territory of Syria is indivisible, inviolable and integral”. Article 9(2) says that “the territory of Syria is inalienable”.
These provisions are more consistent with a unitary state, such as the one Syria is now, then with a federation or with a federal structure. Certainly the right of secession of any constituent part of Syria is expressly ruled out.
The ‘draft constitution’ does however contain certain other provisions, which some see as pointing in a different direction. What do they say?
The key provision is Article 15, which reads as follows
- Syria consists of constituent parts;
- The law states the number of constituent parts, their boundaries and status;
- The organization of local administration is based on applying the principle of decentralization of authorities and responsibilities. The law states that the relationship between these units and the central authority, their mandate, financial revenues and control over their work. It also states the way such authorities are appointed or elected;
- The law shall the status of the Kurdish Cultural Autonomy.
Alongside Article 15, certain other provisions need to be considered. Specifically there are some particular provisions concerning language in Article 4 which pertain to this question. Article 4 reads as follows
- The official language of the state is Arabic. The law shall regulate how the official language is used;
- Government agencies and organizations of the Kurdish cultural autonomy shall use Arabic and Kurdish equally;
- Syrian citizens shall be guaranteed the right to educate their children in their native language in state educational institutions and in private educational institutions that meet the educational standard;
- Each region shall have the right to use another majority language in addition to the official language as is regulated by the law, if such use was approved by a locally held referendum.
One big change the ‘draft constitution’ introduces to Syria’s existing arrangements is that it replaces Syria’s existing directly elected unicameral parliament with a bicameral one. This is relevant to the question of Syria’s “federalisation” because of the way the new upper house of this bicameral parliament – referred to in the ‘draft constitution’ as the “Constituent Assembly” – is set up. The relevant provision is Article 40
- The Constituent Assembly shall be formed to ensure participation of representatives of the constituent parts in legislative activities and administration of the state;
- The Constituent Assembly consists of representatives of the constituent parts;
- The law shall specify how members of the Constituent Assembly are delegated, their number, status and term of service.
Article 44 sets out the powers of the Constituent Assembly. Mostly these mirror those of the lower house (the People’s Assembly) but in addition the Constituent Assembly possesses the following further powers: “resolving issues of war and peace” (Article 44(1)(3), “terminating the mandate of the President of the Republic” (Article 44(1)(4)), and “approval of the President’s decision to declare the state of emergency or mobilization” (Article 44(1)(5). The power to “terminate the mandate of the President” in Article 44(1)(4) requires an impeachment process initiated by the lower house and involving the country’s Supreme Constitutional Court, the details of which are set out in Article 61.
These are extraordinarily vague provisions. It is not clear for example whether the “Kurdish cultural autonomy” mentioned in Articles 4(2) and 15(4) is a political entity, or whether it is simply a provision granting Syria’s Kurdish people certain cultural and linguistic rights.
The number, boundaries and powers of the so called “constituent parts” and their relationship to the central government are left unresolved, to be decided by another law (passed by whom?). Amazingly, the ‘draft constitution’ leaves unresolved even the basic question of whether the governing bodies of the “constituent parts” are to be elected by the local people, or are to be “appointed” (by whom?), whilst it seems members of the Constituent Assembly will not be elected but will be “delegated” (again by whom?), which will inevitably reduce their status and power.
Of course not all constitutions define or discuss the parts that make up a federation. That of the US for example does not. However in such cases the federal parts that make up the union usually already exist or are in the process of formation before the new constitution comes into effect. That is far from being so in the Syrian case.
Such vague provisions are scarcely a programme for Syria’s federalisation, and – as I have said – some of the other provisions appear to envisage Syria remaining a unitary state, albeit one which may be somewhat more decentralised than it is now, though again the decentralisation provision is so vague as to be almost meaningless.
Such vagueness in such key provisions on such contentious subjects points to the real purpose of the ‘draft constitution’. It is not a blueprint for Syria’s future. It is a tool in a diplomatic play.
The ‘draft constitution’ was circulated to the Syrian parties at the peace conference in Astana. Russia’s objective at the peace conference was to consolidate the shaky ceasefire which is in force in some parts of Syria, to get the Syrian opposition groups which are attending the conference to accept Russia as an honest broker, and to get the Syrian parties talking about a possible settlement that will hopefully bring peace to Syria.
In order to have any hope of achieving these things the Russians need to get the Syrian opposition groups talking about issues which go beyond the sterile subject of the future of President Assad. This is vital because it is this issue which has stymied all attempts to secure an agreement up to now. The ‘draft constitution’ was the Russians’ tool to do this.
Everything about the ‘draft constitution’ suggests that it is a hurriedly cobbled together document probably farmed out to a postgraduate student at some institute. Most of it consists of cliches, whilst some sections – for examples the ones concerning the Constituent Assembly – seem to be based, though in a very sketchy way, on Russia’s own constitution. That the ‘draft constitution’ is so vague on so many of the most crucial issues however shows that it is not intended seriously as a true constitutional document, or even as a subject of discussion or a position paper.
Once the ‘draft constitution’ is understood in the way it is intended – as a diplomatic play – it becomes clear that none of this matters, and the true purpose of its provisions becomes clear. Precisely because it is not a genuine constitutional document or even a position paper, it is able to offer something to everyone whilst fully satisfying no-one.
The Kurds are given references to their language and their ethnicity, promises of some sort of vague ‘autonomy’, and a provision that some officials of the central government will be picked according to ethnic quotas, which would include them. Also the world “Arab” is removed from the country’s name.
The secular Ba’athists are given a strong directly elected executive President and a promise of what looks like a unitary state. The ‘draft constitution’ is also determinedly secular, and importantly it safeguards women’s rights.
The preamble reassures the Arab nationalists by referring to the Arab League and confirming that the official language will be Arabic, whilst the Islamists are offered a reference to the Charter of the Organization of Islamic Cooperation.
There are vague suggestions of decentralisation such as might give hope to some Sunnis in some of Syria’s provinces, with nothing however so concrete that the Baathists or the Arab nationalists might balk at it.
Needless to say none of these people – the Kurds, the Ba’athists, the Arab nationalists or the Sunni fundamentalists – would consider this ‘draft constitution’ remotely acceptable, and all of them have rejected it, as the Russians of course knew they would. The point is that by presenting it to them the Russians have got them all talking about something other than the future of President Assad, whilst highlighting areas for future discussion, and leaving open the possibility of a future invitation to Astana to the Kurds, who are currently being prevented from going there by the Syrians and the Turks.
Early indications are that the play was successful. It seems that the Jihadi groups who came to Astana have warmed to Russia, accepting that the Russians are indeed prepared to act as honest brokers and not simply steamroller over them on behalf of President Assad.
The result was that there were no tantrums or walkouts, the peace process is continuing, and the parties are all talking, if not yet to each other. The ‘draft constitution’ has given them topics they can all talk about other than the status of President Assad, and – since they all dislike it – even something they can all agree about.
If this all sounds clever, the answer is that of course it is. However one should not overstate this. Anyone who has been involved in mediation exercises knows that presenting a document like the ‘draft constitution’ is actually a standard diplomatic and mediation ploy to break the deadlock, get the parties to accept the bona fides of the mediator, and get the parties talking to the mediator if not yet to each other.
One of the great problems in international relations over the last several decades is that the country which has usually tried to fill the role of honest broker in international disputes – the US – is temperamentally unsuited to the role. What the US invariably does in any dispute it becomes involved in (which is to say all of them) is pick sides, reduce everything to black and white, and demand that the side it has decided against accept in its entirety whatever proposal the US considers the appropriate outcome to the quarrel. The result is that instead of peace there is usually war, with the settlement of disputes becoming incredibly protracted.
The Russians have a very different approach to diplomacy, one they have perfected over the centuries as a result of their long history as a great European and Eurasian power which – unlike the US – has had throughout its history to deal with other cultures and other countries on equal terms. The ‘draft constitution’ is exactly the sort of play that might be expected from them, just as it is the sort of play that an earlier generation of diplomats – a Bismarck or a Gorchakov for example – in a like situation might have also used.
With the shift in what old Russians still sometimes call “the correlation of world forces” (which means more than just the balance of power) it is likely that Russian diplomacy will become more prominent in future. If so then diplomatic plays of this sort will become more common, and we should try to understand them better.