A poster of Bashar al-Assad in an apartment block damaged in a car bomb attack near Sayyida Zeinab. Photo by Getty Images.

A poster of Bashar al-Assad in an apartment block damaged in a car bomb attack near Sayyida Zeinab. Photo by Getty Images.

In late March, US Secretary of State John Kerry announced while meeting with Vladimir Putin in Moscow that the US and Russia would work together to draft a new constitution for Syria with an August deadline. No further official information has been given about this plan, but the timing of the announcement and deadline marks a shift in the terms of the Syria peace talks – namely, that a true transitional period might no longer be endorsed by the international powers involved in the conflict. As the International Syria Support Group (ISSG), co-chaired by the US and Russia, meets again in Vienna, this makes it even more likely that President Bashar al-Assad would remain part of any new Syrian government.

Previously, negotiations over a new constitution were not meant to start until agreement on a transitional government had been reached. Since the 2012 Geneva communique, the implied sequence for a peace settlement had been that an inclusive transitional governing body with full executive powers would be formed, followed by a review of the constitutional order and legal system on the basis of a national dialogue process. This was affirmed in the ISSG’s November 2015 Vienna communique and a month later in UN Security Council Resolution 2254.

The main sticking point about a peace settlement between the war’s external parties had been whether Assad could remain during a transitional period, not (at least ostensibly) on whether or not that transitional period would ever occur. Following Kerry’s Moscow announcement, a well-placed source claims that White House Advisor Robert Malley and Russian Presidential Envoy for Syria Alexander Lavrentiev are meeting privately in Switzerland to hammer out a draft new constitution based on a document authored in Damascus and then submitted to the Russians. Meanwhile, the Geneva Syrian peace talks which most recently concluded on 27 April have made no progress on agreeing the terms and timeframe for establishing a transitional government.

Constitutional principles

A key requirement for a new Syrian government or governing body to be authentically ‘transitional’ is for it to have the mandate to oversee a constitutional review process through which a national reassessment of Syria’s governance and social contract can occur. If a Russian-American drafted constitution is put on the table at Syrian peace talks later this year, it will mean that this defining element of a post-settlement transitional process is effectively no longer endorsed by the international backers on either side of this civil war.

Adopting a new constitution does not on its own equate to a transition having occurred. In fact, within the war’s first year a new Syrian constitution was drafted in Damascus and approved in a referendum with nearly 90 per cent of the vote. Not only are there many criticisms of that referendum’s legitimacy, but the war’s subsequent escalation and continuation demonstrate that a new constitution was by no means a transition.

The opposition has also argued after Kerry’s March announcement that discussion of a constitution is premature. High Negotiations Committee spokesman Salem Muslat affirmed in April that ‘the real agenda should start with the fully-empowered transitional governing authority and discussion of Assad’s role. Discussion of the constitution comes later.’ Rather, Muslat maintained, a future transitional authority would call for a general national conference. At this conference, a constituent assembly would be formed and tasked with drafting a new constitution. Others have proposed an alternative plan whereby once a transitional governing body is agreed, an international resolution would set out constitutional principles – not a new constitution – that would provide legitimacy and a legislative framework for the transitional period.

Redefining transitional governance

If the international powers involved in Syria’s war have moved away from endorsing the constitutional review element of a transitional process, this is yet another signal that the ISSG’s approach to a settlement for Syria is increasingly resembling the regime’s position on the issue. As others have pointed out, the UN mediator’s summary of the latest round of Syrian talks implies that the institution of the presidency would continue during the transitional period. This effectively means that Bashar al-Assad would remain president during at least part of a transitional period, as US and UK leaders have also hinted at over the last year. The well-placed source from the Switzerland talks also alleges that mediators are considering the creation of presidential deputy posts to be filled from among the opposition and allocated on a sectarian basis, serving under President Assad – i.e. a version of a national unity government.

The provisions contained in this draft constitution indicate that the president would be elected by parliament and that only Syrians residing in the country, who are more likely to be pro-regime, could vote for parliamentary representatives, according to the same source. This would mean that millions of refugees, who are more likely to be anti-regime, would not have a say in the election of the president.

The anti-regime regional powers, primarily Turkey and Saudi Arabia, who previously had been pushing back on this sort of shift are increasingly tied up with other regional conflicts that have escalated in the last year. Meanwhile, the upcoming American presidential elections could be a strong incentive for the White House to push for demonstrating some sort of achievement in Syria by the autumn. Redefining ‘transitional governance’ and pushing through a new constitution could serve this purpose in their eyes, particularly if regional powers are persuaded to concurrently reduce their support to the warring parties within Syria. However, abandoning the plan for a new constitution to be drafted, not just voted on, by means of a national process is likely to leave millions of Syrians at home and abroad believing that the conflict has not been resolved.

The Chatham House project Syria and Its Neighbours explores the strain the conflict has placed on neighbouring states and the social, political, economic and security effects.