ANHA interviewed Dr. Seifh Ezoli, who lives in the capital of France, Paris, about the mechanism of drafting the constitution in accordance with international law, and whether the mechanism of drafting the Syrian constitution is currently in accordance with international law.
Are the Syrian constitutions adopted since 1920, the 1973 constitution, and the last constitution of 2012 considered democratic constitutions under international law?
At the outset, it should be noted that in international law there is no single binding legal rule governing the drafting of constitutions and determining their content. The Constitution is the supreme symbol of the sovereignty and independence of the State. Therefore, every State has the right to choose freely and without any external interference, its Constitution and the way it is drafted. Provided that it respects the universally recognized democratic principles and foundations, the most important of which is to reflect and express the free will and aspirations of the people, and to guarantee them the enjoyment of fundamental rights and freedoms recognized in international covenants.
In general, under democratic systems, the constitution is drafted in two ways, either by a specially elected parliamentary committee or by the government or a committee of specialists. Drafting by a committee of specialists, but often lacks legitimacy because its members are not directly elected by the people unlike the parliamentary committee, so the constitution it proposes must be presented to the referendum to have the required legitimacy under international law.
As for the 2012 constitution, it was drafted in special circumstances after the outbreak of the Syrian revolution and to circumvent it. The drafting was entrusted to a constitutional committee formed for this purpose, where representatives of the Baath Party constituted one-third of its members to ensure the result of voting on its decisions.
Despite the positive amendments stipulated in this constitution, such as the abolition of Article 8, which enshrines the domination of the Ba'ath Party overall state facilities, defining the presidential term in two terms, and the establishment of some public and individual freedoms, that this constitution did not bring about fundamental changes that amount to the aspirations of the Syrian people and the enormous sacrifices he has made in order to achieve a truly democratic system that enshrines in public words and deeds the fundamental freedoms and fundamental rights of all components of the Syrian people.
Thus, the ongoing discussions on the formation of the Constitutional Committee are of great importance, although the development of a new constitution for the country is not the only obstacle to the establishment of peace and stability, but the constitution is the backbone of the state, and international experience shows that what will be adopted by this Constitutional Committee It will form the basis and foundation for post-crisis Syria, especially with regard to the form of the state, its system, the name of the republic, the separation of powers, the principle of accountability, the consolidation of the rule of law and pluralism, the protection of fundamental freedoms and the constitutional recognition of the rights and property of all components of the Syrian people.
From the legal point of view and recognized in the constitutions, how can the constitution be legitimate and democratic, reflecting the consensus between all the Syrian parties and their various segments?
Certainly, the previous constitutions that governed the Syrian Republic were not mostly democratic constitutions according to the standards adopted in international law. For the constitution to be legitimate and democratic, the means of its drafting and approval must be democratic and respect the fundamental rights and freedoms enshrined in international covenants and covenants. It should be the embodiment of the free and direct expression of the free will of the people. Therefore, one of the most important elements of the committee in charge of drafting the two constitutions that it must respect the will of the people, and must be independent and delegate of the people and express their aspirations, which seems not available in the Constitutional Committee.
Certainly, the Syrian situation today is no longer possible to procrastinate and it must be initiated first step because the continuation of this pace is not in the interest of the Syrian people, and it must be a quick peaceful solution through negotiation to end the state of permanent war for more than eight years, which killed more than half of the people and destroyed all the infrastructure of the Syrian state.
But the necessity of a quick exit from the current situation should not be at the expense of the right of the Syrian people to choose their constitution. The Constitutional Committee, agreed upon in line with the outcomes of the Sochi Conference, raises two problems with the mechanism of its composition - without talking about its working system and the mechanism for adopting its decisions - centered around two key points:
First, is its lack of independence because some of the conflicting states on the Syrian arena have exercised the right of veto to appoint their members.
The second point is that it is not inclusive and excluded the basic component of the Syrian people, the Kurdish component.
Thus, from the moment of its founding, it lacks legitimacy and violates the provisions of international law, in particular Security Council Resolution 2254, which states that the Security Council “reiterates that there is no lasting solution to the current crisis in Syria except through an inclusive political process led by Syria that meets the legitimate aspirations of the people. The first paragraph of the resolution emphasizes the pursuit of a Syrian-led political transition under a Syrian-owned process to end the conflict in Syria, stressing that it is the Syrian people who will decide the future of Syria.
The fourth paragraph also provides for the Security Council to support "the Syrian-led political process facilitated by the United Nations and within a targeted period of six months, establish a credible, inclusive and non-sectarian provision."
It is clear that the Constitutional Commission now established does not meet the conditions adopted by the Security Council resolution, and therefore it is difficult to reach a constitution that first reflects the will and aspirations of the Syrian people before the interests of the conflicting states on Syria.
Does the current constitution respect the rights of the components and can this committee draft a constitution to that effect?
The successive constitutions in Syria are totalitarian and far from respecting pluralism, whether political pluralism or racial and religious pluralism. This is true of the unified Jacobite republics that consecrate race, blood, language, and belonging, such as the Turkish state and even the French state.
Constitutional consecration of the rights of minorities in all categories is not only a democratic requirement but also a prerequisite and an essential pillar for the establishment of lasting civil peace and the guarantee of the unity and sovereignty of the country.
Many international experiences have shown that constitutions adopted after a political crisis or civil war, if not particularly guaranteeing the rights of minorities, will not guarantee lasting peace. For example, the Iraqi constitution, which was adopted on 15/10/2005, although it received 78.59% yes during the referendum, compared to 21.41% no, but it did not bring peace and security to the Iraqi people as a result of the feeling of the Sunni Arab component marginalized and even excluded on the political process, although 17 delegates out of 76 participated in the Constitution Drafting Committee, we can also mention the experience of Rwanda, Sierra Leone, Serbia, Kosovo, Congo...
Certainly, the constitution is not the only factor that guarantees civil peace and leads to the building of the state and the human being destroyed by the civil war. Construction is a very difficult process, which requires many years and tremendous efforts, the constitution is the first building block or, more correctly, the main pillar on which it will be built.
Exclusion of Kurds from drafting the constitution
For Syria, the guarantee of future civil peace passes through recognition of the Syrian character as a multi-ethnic and multi-religious state. It is naive to believe that peaceful coexistence between the various components can be restored according to the pre-2011 central state model.
Despite the many deep points of disagreement between the regime and much of the opposition, both sides agreed that the Kurdish component should be excluded from the political process and work to rebuild a centralized state, rejecting every form of federal decentralization.
Although the Kurds played a key role in the fight against terrorism, especially ISIS, and provided tens of thousands of martyrs in order to protect the Syrian territories, they were excluded from the political process and all the talks that took place in Geneva, Astana and Sochi, due to the Turkish pressure and the pressure of the regime. In addition to the lack of political and diplomatic support for Western countries, their allies in the fight against the Islamic State, especially America and France, did not use their international weight to impose the participation of the Kurds, especially the Autonomes Administration, in the political process.
It is noted from the American and French statements that support for the Autonomes Administration is limited to the military side to eliminate ISIS, without mentioning the issue of the Kurdish people and the need to reach their legitimate rights.
Today, this is a strange irony for the Syrian situation that all regional and international parties are complicit in the exclusion of the Kurdish component from the political process, despite their strong presence on the ground and the large and positive role they have played since the outbreak of the revolution, the Kurds are not represented today in the 150-member constitutional committee. The 50-member regime does not include one representative of the Kurdish component, and the 50 representing the opposition include two Kurdish persons who were chosen based on their ethnicity and who are part of the coalition delegation, not as representatives of the Kurdish National Council, which is part of the Syrian coalition. As for the remaining who were chosen by the UN envoy, their names are still unknown, even if they include some Kurdish national figures. This does not mean the presence of Kurdish representation, because this requires the presence of an independent delegation on behalf of the Kurdish component includes representatives of the autonomous administration and the Kurdish National Council, speak on behalf of the Kurdish people and express their aspirations to ensure constitutional recognition of its existence and the establishment of legitimate national rights under Syria, a federal democratic state guarantees all citizens and minorities, and its affirmation to renounce all separatism and work to ensure the territorial integrity and sovereignty of Syria.
Certainly what can be claimed for the Kurdish component must be emphasized and protected for all other components and all ethnic or religious minorities, by establishing a pluralistic state that respects pluralism, and a minority before the majority, thereby achieving a pluralistic democratic state and establishing the foundations of a just and lasting peace.