Friday, March 10, 2017

The Russian proposal for a new Syrian constituition

As the conflict in Syria continues, the various parties in the conflict have continued to debate and disagree upon a means of resolution. Recently, the Russian Foreign Ministry presented a proposal for a new Constitution for post-war Syria, which you can find here.

Most of my readers will be aware of Russia's support for the government of Bashar al-Assad in the Syrian Civil War. While Syria under Mr Assad's rule has had a constitution, up until 2012 the document entrenched the rule of Mr Assad's Baathist Party, which controlled the National Assembly and presented a single candidate to the electorate to be accepted or rejected in a referendum (these referendums generally resulted in 98-100% 'victories' for the Baathist candidate).

It was only in 2012, once the civil war had started, that Mr Assad amended the document through another referendum, which secured a claimed 89% approval but was boycotted by rebel and opposition groups and condemned by Western leaders. No mention is now made of the Baathist Party, and the Presidency is now directly elected for a seven year term, renewable once, from amongst candidates who receive the nomination of 35 members of the 250-member People's Council.

Opposition members and Western leaders have claimed that this is merely window-dressing, and no candidates with the support of the armed domestic opposition contested the 2014 presidential election, which was won by Mr Assad with 88.7% of the vote, a poll condemned by the West and called into question on statistical grounds.

It's clear, then, that it won't just be institutions that will have to change for the conflict to be resolved in a way acceptable to the armed opposition: nominally democratic institutions can clearly be subverted, and there needs to be a spirit of good faith amongst the various participants for institutions to work. Nonetheless, institutions matter, and it is worth looking at the Russian proposal to see what its effects might be.

Rights, Freedoms, and Devolution

As is now the norm, the draft constitution contains a list of 'Basic Principles', which in very general terms outline the roles the Syrian government is expected to play, and a later list of Rights and Freedoms. These promise freedom of religion, freedom of economic activity, a ban on discrimination based on gender and origin, freedom of speech (excluding "social, racial, national or religious hatred or hostility"), the right to privacy, and various others. Some more specific economic rights are included, such as the right to work in safe conditions and the right to medical care.

However, more interesting in this section is the provisions regarding decentralisation and language. The north-east of the country, a region known as Rojava, is dominated by the Kurdish ethnic group. This region is currently controlled by the 'Syrian Democratic Forces', a Kurdish-led group which has introduced a unique and relatively democratic form of government. The Kurds will want to keep some of this separate status in a post-conflict Syria.

In relation to this, the proposal promises that government agencies of the "Kurdish cultural autonomy", a term which is left to be defined by law, shall use Kurdish and Arabic in equal amounts. Syrians are also granted the right to educate their children in their "native language", and regions are granted the right, subject to approval by a referendum, to use another "majority language in addition to the official language".

It is also stated that "Syria consists of constituent parts" and that "the organisation of local authorities is based on applying the principle of decentralisation of authorities and responsibilities". Nonetheless, this is undermined by the fact that all of the powers for these local authorities, as well as their boundaries, are dependent upon national law. The lack of any explicit guarantee over the status of these authorities would likely represent a sticking point for Rojava, which may want to hold onto its autonomous status.

Structure of Government

The proposal calls for a bicameral legislature. The lower house, named the "People's Assembly", is directly elected for a four-year term: details such as the electoral system are left to legislation. It has the exclusive power to ratify treaties.

The upper house, named the "Constituent Assembly" (at least in this translation: normally such a name is used for bodies that draw up constitutions) is to consist of "representatives of the constituent parts (the regions)". Its composition and term lengths are left to legislation. It appoints judges of the highest court (the Supreme Constitutional Court), as well as the chairman of the National Bank.

In terms of passage of legislation, both houses and the President have the authority to introduce legislation, but legislation is to be first examined in the People's Assembly. If the law receives majority approval (note that it appears to require the majority of the legislature, not merely the majority of those present), it then proceeds to the Constituent Assembly. Again, it requires majority approval of the entire Assembly.

If this is denied, a committee of the two houses may look at the legislation. Failure for this to get the legislation approved by both houses means that the People's Assembly, by a two-thirds majority, may send the legislation to the President's desk; otherwise, the legislation fails.

The Executive

Executive power, under the document, is shared between the President and the Government. The President is elected by the two-round system for a seven-year term, renewable once (it has been speculated that this is in place to allow Mr. Assad to hold power for an extra fourteen years). Candidates will still require the support of 35 members of either the Constituent or People's Assemblies. Oddly enough, there is no fixed date for presidential elections; the date is chosen by the People's Assembly, but must be within a certain window of the expiry of the incumbent President's term.

The President has substantial power under this proposal. They are given the authority to represent Syria in international relations, to declare states of emergency with approval of the Constituent Assembly and to approve or reject legislation passed by the legislature (which may override rejection by a two-thirds majority in a joint sitting of both houses). The President can be removed from office after being charged with high treason or another grave crime by the People's Assembly through a two-thirds vote, the approval of the charges by the Supreme Constitutional Court, and a two-thirds vote of the Constituent Assembly to remove the President.

A semi-presidential system is proposed, which appears to be of the president-parliamentary subtype. This means that the President appoints and dismisses the Prime Minister and ministers: this government must be appointed "based on the proportionate representation of all ethnic and religious groups". The government is also responsible to the legislature, that is to say, it can be removed by a no-confidence vote of the legislature in joint sitting.

However, the balance is tilted in favour of the Government and President by a provision requiring that no-confidence motions be signed by one-third of the members of either the Constituent or the People's Assemblies: if the motion fails, none of those members may sign another no-confidence motion. No no-confidence motion may be carried during a state of emergency.

In the book Presidents, Parties and Prime Ministers, David Samuels and Matthew Shugart show how under the president-parliamentary subtype, factors relating to the legislature (inter and intra-party conflict and legislative election loss) account for 43% of changes in the Prime Ministership in their sample of countries, compared to 76% for cases of the premier-presidential subtype (where only the legislature may remove the Prime Minister and cabinet). This shows that the President would have a key role in government appointment under this system.

Another key presidential power is the authority to unilaterally call binding referendums on "important issues which affect the higher interests of the country". Laws carried at such referendums are immune from constitutional review. This is a seemingly rare and extraordinary power for the President.

Miscellaneous Issues

A Supreme Constitutional Court is established, with judges chosen by the Constituent Assembly for renewable four-year terms. These terms are fairly short by international standards (France and Italy has nine-year terms, retirement at 70 for Australia and 75 in Canada, and judges of the US Supreme Court have life terms). Removal of judges can also be regulated by law, while it is more common for super-majorities of the legislature or other special procedures to be laid down for these judges.

The implementation of laws and the determination of policy is somewhat confusingly divided between the President (who "issues decrees, edicts and instructions in accordance with the Constitution and the law") and the Government (which "guides the work of ministries and public bodies" and "issues decisions and regulations").

Amendment of the Constitution can be done with 75% approval of both houses of the legislature and approval by the President. However, given that referendums initiated by the President are immune from constitutional review, this would appear to be the path of least resistance for de facto constitutional change.

Prospects for success

To say the least, the proposal has not been well-received by the existing armed opposition. It appears flawed in various ways for a post-conflict nation, but the key issue is its majoritarianism. No guarantee of regional autonomy is provided; it is still technically in the gift of the central government. 

More disconcertingly, the Constituent Assembly's composition is left entirely to law. Even were it to be initially chosen by elected regional governments, one party winning the Presidency and a majority in both houses could create weak, appointed regional government bodies and stack the Constituent Assembly (by legislating that it be appointed for long terms by the President, like the South African National Party did in 1955). The likelihood of such an occurrence would depend to some extent on the electoral system: the existing system is the multiple non-transferable vote, which can be highly majoritarian.

This proposal is an interesting contribution by the Russian Foreign Ministry to discussions for Syria's future. However, the document has the potential to create a top-heavy, powerful presidency, potentially filled by Mr Assad, which could create dissatisfaction amongst opponents of him and lead to future armed conflict. A better design for a post-conflict constitution would provide for more checks on this executive, such as a change to a premier-presidential system, entrenched power for regional governments, and a clearer outline for the composition of the Constituent Assembly.

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