Syria needs an interim constitution quickly to ensure its institutions are not lost

Life in Syria is gradually returning to normal, but the future of the country's government remains uncertain. Reuters

Syria has been thrust into unprecedented territory. Bashar Al Assad and his Baath party are gone, but the road ahead is fraught with both opportunity and danger. Since 2005, there have been several transitions in Arab countries, all of which have failed and none of which have seen these many challenges.

To state but a few: Syria now has to deal with the consequences of incredible levels of economic hardship, the displacement of half the population, continuing conflict and tensions in different parts of the country and a plethora of pre-existing armed groups that are prepared to use force to achieve their aims. There are also pre-existing territorial divisions along multiple lines, the fact that the levers of state are now controlled by Hayat Tahrir Al Sham (HTS), a rebel militant group, a long list of foreign powers that have interests and military forces and proxies in Syria, some of which continue to bomb installations at will, among many others.

Given the context, it would be reasonable to expect that Syria will struggle to cope, and that it will likely face many more obstacles that we cannot yet anticipate. We can, however, look to other countries’ experiences, particularly on what not to do.

Syrians celebrate the fall of Assad

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Real change is already taking shape in Damascus. The Baath party has been dissolved, and there is a new government in place. However, there are a number of unanswered questions on how Syria will be governed in the short and medium term.

Some are hoping that elections will be organised, but for now that appears to be beyond reach. Elections are complicated even under normal circumstances, but in Syria the national territory is divided. There is not a single unified electoral commission or ministry that is capable of organising and implementing such a huge operation.

It isn’t even clear if the new authorities in Damascus are in favour of elections. Their past record of governance in Idlib suggests that they are ambivalent. Efforts should be made to prepare for elections, but it would be unreasonable to expect them to take place any time soon.

This means that, at least in the initial stages, constitutional and governance reform will have to be negotiated by groups whose legitimacy has derived from the force of arms and in a country that still remains heavily divided, politically and geographically.

In the circumstances, simply trying to pursue a classical constitutional negotiation process (that is, through a constitutional committee, or by an elected assembly) is unlikely to be successful.

Given the situation today, it would be preferable to follow an incremental and flexible approach towards negotiations. This could include starting by negotiating general principles, as South Africa did, but also, as some have already suggested, by reaching smaller agreements on and implementing partial agreements on discrete constitutional issues before negotiating some of the major final status issues. Such an approach could serve to build confidence between different factions that are obviously concerned about the future.

A boy sells pictures of the flag adopted by the new Syrian rulers, after the fall of Syria's Bashar Al Assad, in Damascus, on December 16. Reuters

There are different views about how fast reform should be implemented. Some have suggested that a new constitution should be adopted in six months. But no other country in the region has managed to negotiate and adopt an inclusive constitution in just a few months and Syria will not be an exception. In practice, the only way a new constitution or major reform can be implemented that quickly is if the process is not inclusive (see Iraq in 2005, and Egypt in 2012 and 2013).

As a result, immediate priority should be given to negotiating and adopting an interim constitution that should focus on how state institutions will function under current conditions. The interim constitution need not be overly long, but it must be properly conceived and reviewed by senior Syrian and Arab experts, otherwise Syrians could end up living with the consequences for a long time, as in the case of Libya.

Since its takeover of Damascus, HTS has been consistently messaging that any new governance framework must be inclusive and built through consensus.

Without parliamentary elections, there will not be any traditional form of oversight on the new government. To the extent possible, the new governing authorities could consider appointing an interim legislative assembly that is as inclusive as possible to carry out that function, and to start establishing a culture of justification and transparency. That was something that Sudan’s own revolutionary authorities planned but ultimately failed to do, and that delay had a demoralising effect on the uprising.

Since its takeover of Damascus, HTS has been consistently messaging that any new governance framework must be inclusive and built through consensus. Here again there is significant experience in the region that should be learnt from. Everyone should welcome inclusivity, but the way it is implemented usually only involves inviting people to attend meetings without giving them the means to make a real impact. This usually implies that those same people are ignored on the fundamental issues, like what happened in Yemen.

Rules requiring consensus are one way to achieve real inclusivity. The concern however is that if the required level of consensus is set too high, agreement may never be reached. As a result, all negotiating processes in the region since 2005 have included rules to allow for negotiators to move forward even if consensus was not reached.

The impact in practice was to discourage good faith negotiations altogether, as was the case in Yemen. In addition, past experience shows us that militant groups have an irrepressible urge to impose their will on constitutional negotiations and to govern on their own. That type of approach has led to disaster on many occasions. As a result, the preferable approach is to require consensus, even if this makes it more difficult to reach agreement. To mitigate that risk, support should be given to dialogue and mediation efforts at multiple levels and throughout the process.

Another question is what should be done with members of the former Baath party. HTS has already stated that those who committed crimes against the Syrian people will be punished, but the question is how far that should be extended. It is well established that the de-Baathification process in Iraq was a long-term disaster. It seriously impacted the state’s ability to deliver basic services and worsened societal and political divisions, as well as security. Some de-Baathification in Syria is inevitable, but it should be limited to the upper tiers of the Baath party only to allow for what remains of Syria’s bureaucracy to help the state carry out its functions.

Perhaps the most important priority for ordinary Syrians will be the economy, which in large part will depend on international involvement. Many countries are vying to influence developments in Syria. Economic assistance and sanctions relief are likely to be one of the principle levers.

In the past, sanctions have been used by the international community, and in particular, the US, as a negotiation tool. That was the approach in Sudan and it proved to be highly detrimental, and a contributing factor to the popular disillusionment with the uprising, to the coup d’etat and to the conflict that followed.

A different approach should be taken in Syria. To encourage goodwill and to provide Syrians with some necessary relief, a concerted effort should be made to allow relevant authorities to procure the essentials that the population needs without restriction. To the extent that specific authorities take actions that are unacceptable, sanctions can be re-imposed, but they should be lifted as a matter of urgency to provide relief to ordinary people. Given that HTS is a designated terrorist organisation, it is difficult to imagine that sanctions will be lifted fully, but a more nuanced approach should allow some state institutions to operate normally.

As Syria embarks on its new chapter, there is a glimmer of hope for a brighter tomorrow, although the road ahead is full of challenges. The journey will undoubtedly be difficult, but if there is one thing that should give us all hope it is the resilience and determination of the Syrian people, for a more prosperous future.