Syria's Constitutional Committee: The Devil in the Detail
Karam Shaar & Ayman Dasouki*
Publication date: 16 Nov 2020
The process of establishing a new constitution for Syria has been extremely slow. The movement toward constitutional reform began in June 2012 with the Geneva Communiqué of the U.N.-backed Action Group for Syria, reiterated more strongly in the unanimously approved U.N. Security Council Resolution No. 2254 of December 2015. Yet it took a further five years to reach an agreement to form a Syrian Constitutional Committee (SCC) at the Sochi conference in January 2018. The Syrian regime and Russia are largely responsible for this delay. The regime has continually stalled the political process while attempting to change the reality on the ground. Meanwhile, Russia has demonstrated little commitment to the political track after its military intervention in September 2015 helped the regime regain control over large swathes of the country.
The formation of the SCC was formally announced by the U.N. in September 2019, a further 18 months after the initial Sochi agreement. It consists of three representative blocs: the opposition Syrian Negotiations Committee (SNC), the “Middle Third” bloc (civil society), and the government (Assad regime). According to the U.N., the work of the SCC is part of a "Syrian-owned and Syrian-led" peace process. However, Turkey and Russia influenced both the formation of the SNC and the U.N.- nominated members of the Middle Third with the approval of the government, the SNC, and their respective backers.
SCC decisions are neither binding nor limited by deadlines. The committee consists of two main bodies, each of which has a distinct function. The smaller of these is tasked with drafting the constitution and has 45 members (15 members from each bloc). The larger body is mainly tasked with approving the draft constitution and comprises 150 members divided equally among the three blocs. It can convene periodically or in parallel with the ongoing work of the drafting committee. So far, the SCC has met three times, with the larger body present in only the first round.
The Terms of Reference stipulate that the SCC will reach decisions by consensus whenever possible. When consensus cannot be reached, decisions will require the support of a fixed minimum of 75% of members in the respective body (113 in the large body, 34 in the small). The SCC has a balanced arrangement for its presidency: two co-chairs, one nominated by the Syrian government, and the other by the SNC. The government and SNC blocs must agree on the agenda for discussion before any meeting. This is why some rounds have been constantly delayed.
Summary of the Negotiations So Far
The bottom line is that virtually nothing has been agreed since the SCC’s first meeting more than a year ago. The previous three rounds of talks show just how difficult the path to cooperation has been.
In the first round of talks, which commenced on Oct. 5, 2019, each of the three blocs proposed key points to serve as the basis for negotiations. The SNC proposed some constitutional principles, including the separation of powers and the transparency of elections. Some members of the Middle Third called for Western sanctions to be lifted and others called for the release of political prisoners. Meanwhile, the government demanded the SCC formally oppose terrorism, as part of a list of “national principles” — the government usually refers to all militant opposition as terrorists. When the SNC refused to accept this demand, the first round of talks collapsed.
Rounds two and three were similarly unsuccessful. The second round began on Nov. 25, 2019 after the U.N. brokered an agreement for all blocs to simply discuss the government’s “national principles” while ruling them out as preconditions. However, the parties couldn’t even agree on the principles. Round three was delayed until Aug. 24, partly due to the COVID-19 pandemic. When asked why the meetings weren’t held virtually, the Office of the U.N. Special Envoy for Syria noted that “there was not agreement among SCC members on that.” The meetings initially stalled as some members of the committee tested positive for COVID-19. They later resumed but no agreement of any sort was announced. The U.N. is currently attempting to hold a fourth round of negotiations after getting the government and SNC blocs to agree on the agenda.
Most Syrians think the work of the SCC is irrelevant. A forthcoming survey of nearly 3,000 Syrians conducted by The Day After found only 15% of the respondents have positive views of the SCC. Indeed, nearly 63% of respondents believed the SCC’s purposes are to “circumvent the real problem” and “pass time,” while the remaining 22% were either neutral or had more nuanced views.
While the SCC might have little chance of success, it should be acknowledged as the most constructive attempt to reach a political settlement to date. It is true that the Assad regime is uninterested in reaching a genuine political settlement to the conflict since this will lower its chances of survival in the long term. But Russia and Iran —which hold strong sway over the regime — very much are. Both countries have hemorrhaged money and blood into the conflict for years. Both hope to recoup some of their losses on Bashar al-Assad and his regime after a political settlement is reached and sanctions are lifted. Assad can only delay the process for so long. For their part, Turkey and the U.S. have increasingly asserted their influence via armed forces and sanctions, emphasizing they will not permit the conflict to be settled militarily.
In a nutshell, all players except the Syrian regime have finally realized that there is no military solution to the conflict, which has been reflected in the recent slowdown in violence.
This study collected background information on the SCC’s 150 members, as we believe that the successful development of any draft constitution is largely dependent on the numbers. Our findings come with a caveat: We do not guarantee the reliability of our data, some of which were collected from social media accounts or the testimonies of experts. The study also relied on multiple interviews with key stakeholders, all of whom chose to remain anonymous.
The Devil in the Detail
When investigating the composition of the SCC, it’s important to note that to come up with a representative list of members in terms of the relevant demographics, such as gender, age, ethnicity, religion, and political affiliation, in a council of only 150 members is a statistical impossibility. However, while some of the areas of disproportionate representation below may not need to be addressed, they do provide very useful insights into the inner workings of the SCC and its chances of adopting a publicly supported constitution.
The SCC is strongly skewed against the Kurds, who comprise only 4.7% of its total membership, less than half of their percentage of the population as a whole. Just as Kurds are under-represented, so Arabs have a disproportionately large share of membership. While the under-representation is true for Kurds in general, the Democratic Union Party (PYD), which exerts the greatest influence over the Autonomous Administration of North and East Syria (AANES), is entirely excluded. Nearly a quarter of the country’s population and much of its natural resources such as oil, wheat, and cotton are in AANES areas. By comparison, the rival Kurdish National Council, which has been excluded from power by the PYD and enjoys better relations with Turkey, has two members in the SNC bloc (4%).
Recent moves by the U.S. and Russia have focused on unifying the various Kurdish political factions in the hope of incorporating the PYD into the SCC. But the PYD has strong ties to the Kurdistan Workers’ Party, which has been designated as a terrorist organization by Turkey, the EU, and the U.S. Indeed, such ties partly explain why it was excluded from the SCC in the first place. Because the PYD is a key player in northeast Syria, the U.S. and Russian efforts should be welcomed. Backed by many Kurds, it has some historical grievances that deserve to be addressed. Involving the PYD in the political track will benefit all parties, including Turkey.
Which political camp are the members in?
In terms of the current political leanings of SCC members, we find that 53.3% in the small body/drafting committee are likely to be either pro-Assad or regime-leaning, 44.4% are either opposition or opposition-leaning, with the remaining 2.2% (one member) neutral. Similarly, in the large body, we identify 50% of members as pro-regime, compared with 47% who support the opposition. The remaining 3% (four members) are likely neutral. These figures contrast with research from the Institute for the Study of War in 2019 showing that a significant majority of the SCC is pro-regime. Because this study did not specify the political leanings of members, we could not confirm its findings on an individual basis.
The support enjoyed by different political factions among Syrians is up for debate. Nevertheless, we believe that the share of members supporting the regime in the SCC is significantly overblown. However, what matters is that neither party in the SCC approaches the 75% needed to pass a constitution, forcing all sides to compromise.
Ideally, the task of drafting a new constitution should fall to technocrats. However, after a decade of war, Syrians will get the opposite: a constitution drafted by people with deeply intrenched political views who have an influence on the ground. While this may improve the chances of reaching a consensus, it by no means guarantees the best outcome for the people.
The older the wiser?
The SCC is skewed toward older people, with none of its members under the age of 32 and at least 23% at or over the age of 60. A survey conducted by The Day After provides evidence of a generational split on many constitutional issues. Younger Syrians tend to differ in their views of the role of religion and the separation of powers, for instance. Thus, the constitution may meet the expectations of the older generation but risks being rejected by the majority in a national referendum.
Where are the females?
Just 27% of SCC members are female. The U.N. advocated strongly to the Syrian parties for a minimum of 30% representation in their self-nominated delegations. However, the Syrians delegations fell short of this target. This unequal representation may also impact the success of the constitutional process. As UN Women states: "Evidence shows that when women are able to influence the process, the likelihood of reaching a peace agreement and sustaining peace is significantly higher." Unequal as this proportion may be, it nonetheless exceeds the global average of women in parliaments (24.5% as of October 2019) and in the U.S. legislature, currently 23%.
Female representation in the SNC bloc is particularly low at 14%. Perhaps attempting to atone for this in its constitutional principles, the SNC has stipulated a minimum female representation of 30% for all national institutions. The share of females in the government bloc is higher, at 22%. Gender representation in the Middle Third, the delegation that the U.N. had a role in forming, is nearly balanced, with 46% of its membership being women.
The areas of Aleppo, Ar-Raqqa, and Deir ez-Zor are inadequately represented in the SCC. Just 13% of members are from these three governorates, which account for one-third of the country’s population overall, a huge imbalance in representation. Much of this under-representation is due to the excess presence of members from Damascus and its suburbs (Rif Dimashq governorate). The impact of these distortions on the work of the SCC remains to be seen.
Here the committee seems remarkably balanced, with only marginal over-representation of Christians and Alawite Muslims at the expense of Sunni Muslims, according to national statistics presented in the World Factbook.
SCC members are highly educated: over 42% are postgraduates, a far larger proportion than that of the population as a whole. Also, nearly 44% have studied law — a significant advantage when dealing with constitutional matters. In the smaller drafting body, this share rises to 51% (23 members). While many SCC members studied law, they cannot be described as technocrats since their political affiliations were clear from our research.
Where do the members live?
Nearly one-third (31%) of SCC members live outside Syria. Once again, there is an obvious disparity between the blocs on this measure, related to the leverage exerted by the regime over its opponents. While only one member of the government bloc is based overseas, this rises to 18 among the Middle Third and 22 for the SNC. Most of those opposed to Assad in these latter groups cannot risk returning to regime-held Syria. In the past, even timid opponents who attempted to return to the country were arrested upon arrival in Damascus; the property of others has been looted or confiscated. Other opponents have recently returned to regime-held areas only after withdrawing their public opposition to Assad. Indeed, harassment and blackmail of members of the SNC and Middle Third blocs explain why some well-established opponents simply refused to take up a spot in the SCC in the first place.
Twelve SCC members we categorize as opposed to the regime to some degree live under its control (eight in the SNC and four in the Middle Third). These individuals are likely to face threats and pressure from the regime when pivotal issues, such as the separation of powers or the religion of the head of state, are discussed.
[i] The most urgent priority for the SCC is to add Kurdish representatives to its membership, especially those who have the most influence on the ground. Recent U.S. and Russian efforts to reconcile Kurdish factions should thus be welcomed as a step toward including the Kurds within national politics as a whole. Turkey should view this process as an opportunity, not a threat.
[ii] A monitoring mechanism should be established that allows the U.N. to track any possible reports of threats or harassment by any party against SCC members. The mechanism should provide a secure channel for members to communicate with the U.N. A certain amount of political wrangling is both natural and healthy; the use of coercion to influence members’ votes is not. With harassment and blackmail likely to increase in frequency as the committee’s work continues, the need for a monitoring mechanism will become more urgent.
[iii] People’s constitutional preferences can be clarified through survey data, and these preferences must form the basis of all future discussions. For example, data from a forthcoming survey of 3,000 respondents shows that 64% favor delegating power to the governorates, an idea opposed by only 17% (the remaining 19% are either neutral or don’t know). An earlier study also indicated majority support for a decentralized political system. However, the current make-up of the SCC militates against the approval of a decentralized model of governance, with Turkey and the regime viewing this as benefitting the cause of Kurdish separatism. In any case, the use of new or existing data as the starting point for discussions significantly improves the chances of a draft being accepted in a referendum. Further, it will also improve public attitudes toward the workings of the committee.
[iv] Recognizing that the SCC is Syria’s best hope for lasting positive change, the U.N. must pressure all sides to issue a joint declaration of their commitment to it. All parties would likely sign such a declaration if only to deflect blame for stalling the work of the SCC. This symbolic statement would provide a much-needed nudge toward the political track at a time when opposition members are growing more frustrated with the SCC’s lack of progress and Assad continues to question its efficacy.
[v] Serious attempts must be made to engage a deeply skeptical public in the work of the SCC. These can come in the form of focus group discussions, policy papers, survey data collection, and so on. The Syrian people need to know that their opinions matter.
 The Day After is a Syrian organization that works toward empowering civil society and influencing policy-making to serve democratic transition and justice in Syria. It is based in Istanbul, Turkey (www.tda-sy.org).
 According to 2010 Central Bureau of Statistics figures
* Ayman Dasouki is a researcher interested in Syria's local actors and political economy. He is pursuing a master's degree in international relations at Gazi University in Turkey.