What Constitutional Future for Syria?

—Zoran Oklopcic (Carleton University) & Mohamad Ghossein (University of Ottawa)

As the discourse of military intervention in Syria gradually subsides, and a political solution to the conflict seems marginally more likely, a full-blown debate about the constitutional future of Syria may appear premature. But, initiating this debate—sketching out options, identifying more likely constitutional outcomes, as well as potentially combustible points of contention—should contribute to a more reasoned debate at the time when Syrian ‘mega constitutional politics’ begins in earnest. Given the situation on the ground, this piece is necessarily speculative and anecdotal. But its modest ambition is to contribute to this emergent debate by sketching, in brush strokes, main constitutional possibilities and challenges that await the post-conflict constitution-making in Syria.

The Kurdish constant: Robust territorial autonomy for Rojava

Irrespective of many constitutional ‘unknowns’, one feature of the future Syrian constitution seems very likely: robust, constitutionally entrenched territorial autonomy for the Kurdish region, Rojava. The Kurdish region in Syria is not territorially contiguous such as in Iraq. In fact, Kurdish regions comprise of small enclaves in the Aleppine countryside and a majority population in the governorate of Al-Hasakah, which, nonetheless, features a strong Arab presence in major urban centers.

At the moment, Kurds profit both from the logistical support from their co-ethnics in Iraqi Kurdistan, (some of whom are openly contemplating their secession from Syria), as well as from the Assad government. The recent collaboration between the Assad government and local Kurdish militias in Rojava should not be read as an everlasting alliance; it is merely tacit, subtle coordination against a common enemy – i.e. takfiri Islamists. As part of their tactical support for the Kurds, the Assad government officials seem to have dropped their vehement opposition to the territorial autonomy for the Kurds. Therefore, barring a spectacular military defeat of the Kurdish strongholds, it is unlikely that their existing de-facto autonomy will fail to be translated into a capacious territorial autonomy under any post-conflict constitutional settlement.

Another unlikely outcome will be Rojava’s secession. While there are circles who openly speculate and desire this outcome, this will not be the case both for geopolitical but also for deeper ideological reasons. Preserving territorial integrity—the container of people’s sovereign power—enables external interveners to posture not as imperialists, but as enablers and benevolent Rousseauvian Lawgivers who jumpstart the collective self-government of an existing people without engaging in hegemonic divide et impera machinations. In other words, committing to maintaining territorial integrity of an intervened upon country serves as a token of interveners’ good intentions.

While Rojava’s incorporation into a unitary Syria as well as its secession are equally unlikely, it is more difficult to predict the relationship the Kurdish territorial autonomy will have with the central authorities in post-conflict Damascus. They may seek representation at the central level, effectively seeking to transform Syria into a multinational federation.  Irrespective of the concrete power-sharing arrangement at the central level, the Kurds will likely not go below the symbolic recognition of Syria as a multinational polity. In fact, the members of the exiled Syrian National Coalition have proven unsuccessful at including the Kurds in their ranks, as the Kurdish Council, a coalition of Kurdish parties, has been adamant to define “Kurds as a separate people in a united Syria.”

Finally, the existence of two neighboring Kurdish regions, however—one in Syria and another in Iraq—each featuring ample powers, will inadvertently raise the question of their mutual juridical relationship. In this context, the “special parallel relationship” envisaged in the Dayton Peace Accords and practiced between Republika Srpska (RS) and Serbia may be used as a model to institutionalize political cooperation between two Kurdish regions that is poised to occur anyway. Such an institutional possibility might make cooperation more transparent, placate demands for outright unification, and conversely, assuage other actors that such unification won’t occur unilaterally.[1]

The republican rest: Power-sharing in a unitary state?

One of the reasons why it is hard to predict whether a robust Kurdish autonomy will also be represented at the central level is because such a move would likely precipitate the full-blown federalization of Syria. In fact, some members in the Syrian National Coalition have used the possibility of any autonomy for Rojava to stoke fears of fragmentation that might lead to “the creation of an Alawite state on the Mediterranean coasts.”[2] This may be unacceptable not only to a large segment of Sunni political forces, but equally—and perhaps surprisingly—to minorities such as Alawites and Druze.  Featuring strong republican, and pro-Syrian unity sentiments, their first order preference would be to remain united within a strong secular, republican Syria.

And this is where the analogies, recently percolating in the media, about Syria being “a second Yugoslavia” break down.[3] As a new generation of post-Yugoslav historians has argued, the advent of democracy led Yugoslav national groups, especially Serbs, to carve out territories in which they won’t be in a minority.[4] In contrast, the first-order constitutional preference amongst Alawites at the moment—irrespective of their quasi-hegemonic role under the current regime—is still not to demand the creation of an Alawite mini-state, or even territorial autonomy. What is reasonable to expect, if the secular component ends up predominating within the opposition forces, is a modicum of power-sharing in Syria—whether along Iraqi or Lebanese lines—which on the one hand will in practical terms assuage lingering fears on the part of minorities, while maintaining the republican and unitary character of Syria.

In fact, some commentators have already started discussing the appropriateness of the Lebanese Taif Agreement in the Syrian context. The Taif Agreement addressed the specific dynamics of post-conflict Lebanon, and, as such, it can hardly be applied without substantive modifications to post-conflict Syria. In contrast with Lebanon, Syria has had a strong republican tradition, which would make the introduction of a Lebanese-style confessional democracy repulsive to the significant part of Syria’s population across sectarian divides. Equally, as Stephen Rosiny has argued, Syria’s demographic makeup doesn’t make it conducive to proportional consociational power-sharing since Sunni Muslims constitute a dominant majority of its population.[5] However, as sectarianism has become an undeniable attribute of the Syrian war, some form of power-sharing will become inescapable. Rosiny has for example suggested “proportional representation in parliament”, “government guarantees minorities adequate participation in the exercise of power” and reserving “some key posts (the presidency or the prime ministry) for minority representatives.”[6]

The republican rest unraveled: the internal partition of Syria

The situation will change dramatically if pro-Baath forces end up excluded from the constitution-making process, or if secular Sunni political forces within the opposition become marginalized in favour of the Muslim Brotherhood’s vision of a more Islamic state.[7] Under such a scenario, predominately secular Alawite and Druze minorities will more likely seek to accomplish their second-order preference: a federalized Syria featuring their semi-independent territorial autonomies. In that case, there will be no shortage of regional players—such as the circles in Israel—that would encourage the minorities to pursue territorial autonomy—or even secession — in order to form a sort of a cordon sanitaire against Sunni resurgence in the region. [8]

But even under such scenario, for the reasons explored above, these autonomies in all likelihood won’t lead to a fully partitioned Syria. Even in the case of severe sectarian strife, the first-order preference of the relevant external actors would remain a loosely united Syria. Such Syria wouldn’t offend against the taboo of territorial integrity, while it might set the constitutional stage for paralyzing the entire Syrian state, an attractive alternative to some to carving out one hostile, but effective, Sunni rump state.

Barring a full-blown civil war, constitution-making under this scenario will probably be marked more by the question of internal partition of Syria and less so by power-sharing arrangements at the (quasi-)federal level. In the case of Syria, we can imagine the possible application of at least two “models”. The first, ‘Bosnian’ model, would make internal partition coterminous with the agreement on the institutional power-sharing make-up of a country.  Such model appears to carry a substantive moral hazard as it rewards the ‘situation on the ground’, ethnic cleansing, and ultimately presumes, but doesn’t test, the will of the population concerned.

The other, ‘Iraqi’ model, doesn’t make internal partition part of the constitutional bargain, but rather sets the parameters for a possible territorial reconfiguration over time.[9] In the spirit of the Iraqi solution, a new Syrian constitution might preserve the existing larger-scale directorates and use them as a springboard for any future territorial reconfiguration. In a manner similar to the one provided in the Iraqi constitution, smaller-unit referenda could be organized to merge, or to give more autonomy to Syria’s existing 14 muhafazat (governorates), or create new ones. For example, the Alawite region could emerge as a result of referendums in Latakia and Tartous, two directorates with an Alawite majority. Equally, such a solution could be implemented in Al-Hasakah, where a simple directorate-wide referendum could be used to upgrade its status to that of full-blown Kurdish autonomy. Such a solution—while possibly preferred by liberal consociationalists[10]—given the ethnic diversity of Syria would be highly imperfect, as it would leave trapped minorities within minorities in the newly-formed regions. One can imagine the Sunni population of Baniyas refusing to be included in the Alawite region, or, by the same token, the Alawite enclaves of Homs (e.g. the Zahraa’ district or the villages of Al-Shomariya and Miskar Al-Hissan) seeking to create their own mini-territorial autonomies. This, in turn, may inspire constitution-makers to keep refining the formula—perhaps including provisions for the formation of further nested territorial autonomies within newly-formed national regions, or may even impel them to bite the bullet and allow Swiss-style recursive referenda[11] in the Syrian manatiq (districts) that would then be used to reconfigure the newly-formed regions, but risking, in such a case, the formation of territorially discontiguous or meandering regions.[12]

Conclusion

This brief sketch is just a beginning of systematic thinking about the potential constitutional outcomes of the Syrian conflict. Many constitutional solutions will undoubtedly be highly idiosyncratic. The Dayton (1995) or Taif Accord (1989), or the Iraqi Constitution (2005) may be immediate points of reference or inspiration, but the republican and secular commitments across ethnic cleavages, the resilient, de-facto Kurdish autonomy, the rising tide of demands to reconfigure Syria as an Islamic state, and a remarkable concentration of geopolitical rivalries will make Syrian constitution-making, when it happens, highly unpredictable and potentially volatile, leaving a large margin for creative constitutional solutions.

Suggested Citation: Zoran Oklopcic & Mohamad Ghossein, What Constitutional Future for Syria?, Int’l J. Const. L. Blog, Oct. 11, 2013, available at: http://www.iconnectblog.com/2013/10/what-constitutional-future-for-syria