December 24, 2013

An Evaluation of the Constitutional Proposals in “Syria Transition Roadmap”

An Evaluation of the Constitutional Proposals in “Syria Transition Roadmap”

Syrian Economic Forum – December 24, 2013

by Andrea “Peako” Jenkins, a Public Service Initiative Fellow of Vanderbilt University Law School.

Addendum to “The Need for Constitutional Protection of Private Enterprise

In their “Syria Transition Roadmap,” the Syrian Center for Political & Strategic Studies (SCPSS) and the Syrian Expert House (SEH)[1] advocate for a future transitional government to issue a decree that suspends the Constitution of 2012 and temporarily reinstates the Constitution of 1950 without amendment, until a new permanent constitution is issued.[2] The Roadmap focuses on the Constitution of 1950 as a starting point because the constituent assembly that drafted it was popularly elected (including by women) and therefore enjoyed popular legitimacy, and it was advanced with respect to rights and freedoms for the time (based upon the Universal Declaration of Human Rights issued in 1948). The Roadmap notes, “The Constitution of 1950, also known as the Constitution of Independence, is a significant democratic development in Syria. It proclaimed Syria to be a representative state, granted broad powers to the prime minister, and at the same time limited the powers of the president. The constitution also strengthened judicial authority, as well as the state’s democracy and institutions, by modernizing the Supreme Court.”[3]

The Roadmap notes that the Constitution of 1950 contains some shortcomings— it was drafted 63 years ago amidst an extremely different sociopolitical situation, and the provisions on individual rights and liberties need updating in light of international conventions and treaties that Syria subsequently ratified.[4] However, SCPSS and SEH believe the Constitution of 1950 could play an important role in organizing the transition period until a new committee can be popularly elected to amend the constitution. It would not be possible to elect a committee directly after the fall of the regime, and therefore the Constitution of 1950 could not be immediately amended at the beginning of the transition period “in a manner that satisfies Syrians’ ambitions for a state that respects constitutional and legal legitimacy.” Thus, the Constitution of 1950 would act as a starting point until Syrians can agree on a mechanism for drafting a new and permanent constitution.

While the Roadmap offers many compelling reasons to use the Constitution of 1950 as a placeholder until the adoption of a permanent constitution, the Constitution of 1950 does not offer sufficient protection for economic liberties and private sector development. The Roadmap even states, “[I]n general the formulation of the constitution . . . needs further review and clarification regarding public and private property and the freedoms to own property, work, and invest that are enumerated in Articles 21 to 26.” It is important to analyze the economic shortcomings of the 1950 constitution before those provisions become entrenched features of the Syrian state.

 

Economic Rights and Liberties

 

The Constitution of 1950 presents an economic model dominated by socialist methods of state control and intervention, with weak and circumscribed protection for property rights. Article 151 provides that the state “shall supervise and organize the national economy in order to secure a high standard of living for the people by utilizing the land, promoting industry and trade, and providing work for all citizens.” Rather than allowing individuals to freely pursue economic activities of their choosing, Article 145 establishes a permanent Economic Council tasked with proposing economic plans and programs.

Article 21 provides for property that is public and private: “The State, legal persons, and individuals have the right of ownership, subject to the limitations provided by law.” Although this article guarantees the right to private property, it dilutes that right by stating, “The law shall determine the means whereby the possession and disposal of property shall fulfill its social function.” It further prohibits anybody from using private property “in such a way as to conflict with public interest.” These provisions contain very broad and malleable language, making them susceptible to abuse if the government wishes to arbitrarily interfere with an individual’s right to acquire, possess, enjoy, use, and dispose of private property in a manner of his or her choosing.

Article 22 contains even greater limitations on an individual’s right to land ownership. It imposes an obligation to utilize land and provides that “one’s right of use shall be forfeited” if the land is neglected for a period of time fixed by law.” Moreover, it provides for a maximum legal limit to the area of land that may be owned, exploited, and disposed of. In an effort at socialist redistribution, Article 22 further calls for the state to distribute land among landless peasants, as well as to “encourage the establishment of cooperative societies and supervise them.”

Rather than upholding an individual’s right to be free from unreasonable expropriation by forbidding the government from taking property except by law, for the public interest, and subject to fair compensation, Article 21 reverses the wording. It affirmatively grants the government the right to expropriate property, albeit subject to limitations. It states, “Expropriation on grounds of public utility shall be allowed and shall be effected in accordance with a law giving the right to a fair compensation.” Moreover, while general confiscation of property is forbidden, special confiscation is allowed either with a judicial order or “in cases of necessity in time of war or public catastrophe.” (Article 23) This provision could potentially give the government far-reaching powers during times of public unrest and carries the risk that government officials might unreasonably seize the property of dissidents or opposition figures. Article 24 also grants the state the broad right to “nationalize any institution or project on the grounds of public utility,” subject to fair compensation (a term left undefined).

Article 26 supplies a further means for state control over economic activity. The state is granted the power to secure work for its citizens “by directing and developing the national economy.” While many states provide protections for workers, such as a minimum wage or disability compensation, this provision has the potential to facilitate far greater state control over businesses. Furthermore, Article 29 allows for compulsory work in certain situations: “[t]o render cultural, constructional, and health services”; “[t]o combat public catastrophes”; and “[i]n a state of war or emergency.” These categories may be broadly construed, potentially allowing the state to exercise significant powers of coercion over individual labor.

The Constitution of 1950 should not be used as an economic model for the Syrian state. It grants the state broad powers to control and intervene in economic activity, while simultaneously circumscribing individuals’ rights to private property and free enterprise. The Syrian constitution, during the transition period and beyond, should affirmatively uphold individuals’ rights to private property, contractual freedom, choice of profession, market entry, and free competition. Furthermore, it should protect these rights from government interference.

 

Judicial Independence and Separation of Powers

 

The Constitution of 1950 does provide a strong foundation for judicial independence. It begins with the basic guarantees found in most constitutions (including the 1973 and 2012 Syrian Constitutions): “The judiciary is an independent authority;” (Article 104) and “Judges are independent. The only authority above them in the exercise of their power is Law.” (Article 105) But more importantly, it includes structural guarantees to prevent the judiciary from being beholden to another branch of government.

The judiciary is divided into three levels of courts: the Supreme Court, the High Court of Appeal, and ordinary courts. (Article 106) The Supreme Court consists of seven members. They are chosen through a process combining merit and appointment and involving both the president and the Chamber of Deputies, thus incorporating checks and balances. The president selects a list of fourteen candidates from “qualified individuals who have high university degrees and have reached their fortieth year of age.” (Article 116) The Chamber of Deputies then elects the members from that list. Members serve five-year terms and may be reelected, and a member may not be dismissed except by virtue of a decree approved by four or more of its members. (Article 118) The Supreme Court elects a president of the Court by a majority vote of its members. (Article 119) The Court bears responsibility for considering the constitutionality of laws, decrees, and administrative decisions, as well as for examining the validity of elections. (Article 122) It also conducts the trial of the president if he is impeached by the Chamber of Deputies for violating the constitution, high treason, or ordinary offenses. (Article 86)

The nomination, promotion, transfer, discipline, and dismissal of judges are governed by the Supreme Judicial Council. (Article 124) This Supreme Judicial Council consists of seven members: the Chief Justice of the Supreme Court as president, two members of the Supreme Court, and the four highest ranking judges from the High Court of Appeal. (Article 123) This system ensures that decisions concerning the make-up of the judiciary remain independent from the political branches of government.

In general terms—beyond the judiciary—the Constitution of 1950 does an admirable job enshrining separation of powers and incorporating checks and balances. For instance, Article 59 mandates that Parliament “shall not cede its legislative powers.” This ensures that the Chamber of Deputies does not grant the president both legislative and executive powers, thus concentrating too much power at the center. The Chamber is considered to be in permanent session. (Article 43) The president may introduce bills and is responsible for promulgating bills passed by the Chamber of Deputies. (Articles 58 and 61) The president may also return a passed bill for reconsideration, but the law shall be promulgated immediately if the Chamber reaffirms its former vote by an absolute majority of its members. (Article 62) If a quarter of deputies at the Chamber or the president object to the constitutionality of the bill, the Supreme Court shall decide on the matter. (Article 63)

The Chamber elects the president by a secret ballot. (Article 71) The president may not simultaneously serve as a deputy. (Article 74) His term lasts for five years, and he is not eligible for reelection until an interval of equal duration.  (Article 73) He is responsible for appointing the prime minister and other cabinet members (upon recommendation of the prime minister). (Article 90) While he may dissolve the Chamber under certain circumstances[5], the Chamber may also hold him accountable through impeachment. (Articles 85 and 86)

These provisions offer a stark contrast from the 1973 and 2012 constitutions, which granted the president vast, unchecked powers, including a significant amount of control over the judiciary. The structural mechanisms found in the Constitution of 1950 work to diffuse power and prevent the emergence of a dictatorship, if properly implemented. If they were utilized in conjunction with provisions providing for property rights and the protection of private enterprise, they would help to ensure that the Syrian state upholds economic liberties in practice.

 

Conclusion

 

The Constitution of 1950 does not provide an acceptable economic model for Syria, even during the transition period. Private enterprise should be encouraged and fostered from the very outset of a transition period in order to create the conditions for the revitalization of the Syrian economy. Adopting the economic provisions found in the Constitution of 1950, even temporarily, risks the suppression of the private sector in the short-term and the entrenchment of state-centric policies in the long-term. While the drafters of a future constitution should incorporate some of the structural mechanisms from the 1950 constitution to ensure judicial independence and separation of powers, these features should be combined with provisions that promote private enterprise and economic liberty. Provisional mechanisms should be adopted during the transition period to protect private property, contractual rights, choice of profession, market entry, and free competition.  However, if these provisional mechanisms cannot be adopted for political reasons, it would be preferable to abstain from addressing economic issues until the drafting of a permanent constitution, rather than following the statist economic orientation of the 1950 constitution.

[This report does not necessarily reflect the views of the Syrian Economic Forum]


[1] Tammam Albaroudi, the executive vice-president of the Syrian Economic Forum, is also a member of the Syrian Expert House.

[2] They also suggest that the transitional government issue a supplemental constitutional declaration that “clarifies the powers of this government, especially those regarding decrees and laws, the government’s tasks, working mechanisms, formation criteria,  and life span, and the legal time frame for carrying out elections.”

[3] The Roadmap also notes that reinstating the Constitution of 1950 has become “a point of near consensus among the Syrian opposition (especially in light of the nostalgia for the time of independence.)”

[4] In particular, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Syria ratified both in 1968.

[5] Art. 85 “(1) The president of the Republic may issue a decree dissolving the Chamber; such a decree must be taken by the Cabinet and state the grounds on which the dissolution was decided. (2) The Chamber shall not be dissolved before the expiration of eighteen months of the date of its election. (3) When the Chamber is dissolved the Cabinet shall resign and the President of the Republic shall appoint a cabinet of new members to supervise the elections.”

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