Legal adaptation for the syrian constitutional committee formed based on un security council resolution 2245

Moreover, we assert that the illegitimacy of the Constitutional Committee's authority to amend the 2012 Constitution is reinforced by the illegitimacy of the text of Article 1 of the decision to establish the Constitutional Committee, which serves as the legal foundation for its work. Contrary to the rules of Syrian constitutional law, the text adopts a mechanism for amending the 2012 Constitution that violates the amendment mechanism specified in Article 150. Therefore, the text of Article 1 of the decision to form the Constitutional Committee, in the form in which it is presented, constitutes an amendment to the Constitution before the amendment.

Additionally, the approval of the conflict parties represented in the Constitutional Committee's membership could not confer legitimacy on the committee's authority to amend the Constitution. The legitimacy of the constitutional amendment requires the amendment to be made according to the procedures specified in the Constitution herein. Any constitutional amendment made contrary to that shall be illegal and illegitimate.

On the other hand, could the presentation of the constitutional amendments agreed upon by the Constitutional Committee for popular consent be considered a means of legitimising the Constitution's amendment? This notion stems from the idea that the people are the sovereign and the ultimate authority in the constitutional founding process, capable of exercising this power in each abrogation and amendment. In this context, some constitutional jurisprudence contends that legal formalities do not restrict the people's founding authority, as popular sovereignty is implicit in the popular founding authority. Therefore, if the Constitution binds derived authorities, it should not restrict the original founding authority, which is the source of the Constitution. Based on this, the people could amend the Constitution outside the procedures specified in the Constitution. Georges Burdeau, `Essais d'une theorie de la revision des lois constitutionnelles en droit positif fran<;ais' (these pour le doctorat, Faculte de Droit de Paris 1930) 9.

This view is reinforced by what is stated in the provisions of the Syrian Constitution of 2012. The Constitution affirmed in its provisions that `sovereignty belongs to the people, and no individual or group may claim it. It is based on the principle of the people's rule by the people and for the people to exercise sovereignty within the forms and limits prescribed in the Constitution. Constitution (n 3) art 2, paras 2, 3. The referendum is one of the forms of exercising popular sovereignty stipulated by the Constitution, where Article 49 of the Constitution states that `voting and referendum are a right and duty of citizens, and their practice is regulated by law.'

The authority to determine the timing of resorting to the referendum and to determine its subjects has been entrusted to the President of the Republic by Article 116 of the Constitution, which states that.

`the President of the Republic may hold a referendum on important issues related to the country's higher interests, and the result of the referendum is binding and effective from the date of its announcement, and the President of the Republic publishes it'.

The referendum can take various forms - legislative, political, or constitutional. The constitutional referendum, in turn, might be founding or amending, and it is defined as a referendum that aims to enact or amend the state's Constitution. This process involves presenting the draft constitution or amendment - as prepared - to the popular vote for approval or rej ection. Majed Ragheb El-Helou, Popular Referendum and Islamic Sharia (2nd edn, University Press House 1983) 181. Returning to the rules regulating the referendum process in Syrian law, it becomes evident that the referendum process is limited to the situation of the Constitution's drafting only. The language used, specifically the expression `in the referendum on the constitution and any other popular referendum,' Article 1 of Legislative Decree No. 3 of 1973, which includes the rules of Referendum in Syria. lacks a precise definition of the term's content. This ambiguity leads us to infer that, according to Syrian law, a referendum on the constitution encompasses both the drafting and amending of the constitution.

According to this attitude, the mechanism for amending the 2012 Constitution stipulated in Article 150 does not restrict the original founding authority possessed by the Syrian people, nor does it prevent them from amending the Constitution because the latter is a sovereign authority transcending the former. The derived authority is of a legal speciality, and it is a secondary or subsidiary authority that operates according to the specified jurisdiction in the constitution and amends the constitution according to the objective and procedural constitutional set restrictions. On the other hand, the original founding authority responsible for drafting the Constitution has the authority to review or replace with others.

In the context of effecting fundamental changes, Essam Said Abd Al-Obeidi, `Amendment of Constitutional Rules in a Democratic System (2016) 30 Moroccan Law Journal 115, doi:10.37258/1282-000-030-003. given that the original constituent authority is, by definition, an authority outside or above the Constitution and therefore not subject to it in its activities, Munther Al-Shawi, Philosophy of the State (Jordanian Dar Ward for Publishing and Distribution 2012) 397-9. it could be seen that the Syrian people, as the sovereign, could disregard the procedures for amendment stipulated in Article 150 of the 2012 Constitution and approve a constitutional amendment through a constitutional referendum. Consequently, if a proposal to amend the Syrian Constitution for 2012, submitted by the Syrian Constitutional Committee in Geneva, were to be coupled with the approval of the people, this would lend legitimacy to the amendment process because the people are the ones who approved the constitution through a popular referendum, and whoever owns the whole owns the part.

CONCLUSIONS

The study of the Syrian Constitutional Committee's formation and work, established based on UN Security Council Resolution 2254, is of utmost importance. As is well known, the Constitution is a national law subject to national sovereignty, and its creation is an issue that falls within the internal jurisdiction of the state. Therefore, international intervention in constitution-making can be an attack on or a diminution of national sovereignty. In the case of international intervention, we move on from the nationalism of constitution-making to the phenomenon of internationalisation of constitution-making or internationalised constitutions.

The intervention of the international organisation in the Syrian conflict and the issuance of UN Security Council Resolution 2254 was not an end per se; it aimed to put an end to the conflict and find a political settlement. The formation of the Syrian Constitutional Committee, authorised by the United Nations and given the power to conduct a constitutional review, was a step in this direction. The claim that international intervention in constitution-making conflicts with national sovereignty and diminishes it is a relative matter determined by the extent of the role played by the international community in the constitution-making process. Through this research, we have concluded that international intervention in the Syrian Constitutional Committee was partial and limited to supervision, facilitation, and achieving consensus among Parties to Syria's conflict without detracting from the national character of this committee as a Syrian entity. Without the conflict parties' consent, including the government and opposition, the United Nations resolution on formulating the Syrian Constitutional Committee would not have been issued. The formulating committee's resolution came as an expression of the Syrian government's will and approval, and the issuance of this resolution by the United Nations does not detract from the legitimacy of the committee's work.

Therefore, we can say that the issue of forming the Syrian Constitutional Committee in Geneva has become a legal issue governed by an international legal framework after it was previously outside the framework of national constitutional law. With the intervention of the international organisation in the Constitutional Committee's formation, we believe that being a Syrian entity does not detract from the Committee's national character. All members of the Committee, who represent the three parties, government, opposition, and the United Nations, and whose number is 150, are Syrians. Furthermore, the decision to establish the Committee herein, the international organisation, does not possess the authority to compel the same members of the Constitutional Committee to accept any proposed constitutional texts from any of the parties. As a constructive body, the Constitutional Committee is a Syrian committee led and owned by Syrians, and the role of the United Nations is limited to facilitation, not imposition or compulsion. This decision shall confirm the Syrian Constitutional Committee's formation, which refers in its first item to the strong commitment of the Syrian Arab Sovereignty.

Therefore, we believe that the United Nations' intervention in the Syrian Constitutional Committee's formation does not replace Syrian national sovereignty and does not diminish the Committee's national character. The Constitutional Committee is not a complete founding authority because it lacks the autonomy to adopt a new constitution or amend the current one at its discretion. It is a consensus committee of a technical nature whose role is limited to formulating proposals that require popular consent. The Syrian people are the sovereign who have the final say in approving any constitutional review proposed by the committee. In other words, the approval of any constitutional reform will be in the name of the people, by the people, and attributed to them, not to the Constitutional Committee.

As a result, the internationalisation of the formation and work of the Syrian Constitutional Committee is acceptable per se as long as the state has given its consent. The problem is not in the internationalisation of the Syrian Constitutional Committee as long as the conflicting parties have agreed per se. It has been about five years since the Constitutional Committee's formation, during which the committee has held seven meetings but has yet to achieve any tangible results.

REFERENCES

Abdel Wahab MR, Constitutional Law (Manshurat Al-Ma'arif 1990)

Al-Bahri H, `Constitution of the Syrian Arab Republic - Comparative Study between the Constitutions of 1973 and 2012' (2021) 34(2) Damascus University Journal of Economic and Legal Sciences 9

Al-Bahri H, Comparative Constitutional Law (Damascus University Pub 2021)

Al-Obeidi ESA, `Amendment of Constitutional Rules in a Democratic System' (2016) 30 Moroccan Law Journal 73, doi:10.37258/1282-000-030-003

Al-Shawi M, Philosophy of the State (Jordanian Dar Ward for Publishing and Distribution 2012)

Ardant P, Institutions politiques et droit constitutionnel (14th edn, LGDJ 2002)

Burdeau G, `Essais d'une theorie de la revision des lois constitutionnelles en droit positif fran^ais' (these pour le doctorat, Faculte de Droit de Paris 1930)

Burdeau G, Traite de Science Politique, t 4 Le statut du pouvoir dans l'etat (3rd edn, LGDJ 1983)

Cedra-Guzman C, `Repenser les Constitutions Internationalisees' (2015) 6 Revue du Droit Public 1567

Chantebout B, Droit Constitutionnel (23rd edn, Sirey Universite 2006)

Chemillier-Gendreau M, `Le Concept de Souverainete a-t-Il Encore Un Avenir ?' (2014) 5 Revue du Droit Public 1283

Dalla S, Principles of Constitutional Law and Political Systems (3rd edn, University of Sharjah 2022)

Duhamel O and Meny Y, Dictionnaire Constitutionnel (Presses Universitaire de France 1992)

El-Helou MR, Popular Referendum and Islamic Sharia (2nd edn, University Press House 1983)

Favoreu L and others, Droit Constitutionnel (5th edn, Dalloz 2002)

GoZler K, Le Pouvoir de Revision Constitutionnelle (Presses universitaires du Septentrion 1997)

Malberg RC, Contribution a la Theorie Generale De L'etat: Specialement d'apres Les Donnees Fournies Par Le Droit Constitutionnel Francflis, t 2 (CNRS 1962)

Maziau N, `L'internationalisation Du Pouvoir Constituant : Essai de Typologie: Le Point de Vue Heterodoxe Du Constitutionnaliste' (2002) 3 Revue Generale de Droit International Public 549

McWhinney E, Constitution-Making: Principles, Process, Practice (University of Toronto Press 1981)

Mohamed-Afify A, `La Constitution egyptienne de 2014: entre traditions et tendances revolutionnaires' (2015) 101(1) Revue franfaise de droit constitutionnel 121, doi:10.3917/rfdc.101.0121

Pactet P et Melin-Soucramanien F, Droit Constitutionnel (34th edn, Sirey Universite 2015)

Ponthoreau MC, Droit(s) Constitutionnel(s) Compare(s) (Economica 2010)

Sari G, Principles and Provisions of Constitutional Law (4th edn, Dar Al-Nahda Al-Arabia 2002/2003)

Sieyes E, Quest-Ce Que Le Tiers Etat? (Librairie Droz 1970)

Tannar H, Constitutional Law (2nd edn, Aleppo University Pub 2021)

Velu J, Droit Public, t 1 Le statut des gouvernants (Bruylant 1986)

Zulueta-Fulscher K and Bisarya S, (S)electing Constitution-Making Bodies in Fragile and Conflict-Affected Settings: International IDEA Policy Paper no 16 (International IDEA 2021) doi:10.31752/idea.2018.67

Размещено на Allbest.ru