Wednesday, September 5, 2012

Libya's Constitution Controversy

By Duncan Pickard

After widely applauded elections, Libya is preparing to draft its first democratic constitution after more than 40 years of Muammar al-Qaddafi's dictatorship. A 60-person committee will draft the constitution and reckon with key social issues facing Free Libya, including national identity and human rights, state and religion, and the distribution of political and economic power. The committee must frame a state in a country once characterized by weak social or political organization.

The process by which the constitution will be written is unclear. The National Transitional Council (NTC) -- which served as Libya's interim parliament after the ouster of Qaddafi until the July 7 election of the General National Congress (GNC) -- had proliferated a constitutional declaration to govern the transitional phase. The declaration called for the congress to appoint 60 experts to a constitutional committee, 20 from each of Libya's three historical provinces in the west, east, and south. But the NTC amended the declaration the week prior to the election, stating that the members of the constitutional committee would be elected rather than appointed.

While the overall number and 20-20-20 makeup of the committee is likely to stand, the question of appointment versus election is yet unsettled. The amendment is legally dubious due to its proximity to the election, and elected members of congress can overrule decisions made by the unelected NTC. Because an election would wrest the power from members of congress who are expected to hold the power of appointment, it is likely that they will overturn the NTC decision in the coming weeks.

The congress will consider other questions about the drafting process. The NTC declaration called for the committee to draft a new constitution within 60 days of its first meeting, and for a national referendum within 30 days after that. This timeline is unrealistic (Egypt's constitutional declaration allows for six months and the Tunisian constituent assembly, which has no legal time limit, may produce a constitution after about a year) and would allow for virtually no public input. Civil-society groups are preparing to lobby the congress to extend this timeline, and some in congress might push for congressional approval before the draft constitution is submitted to referendum.

Some Libyan lawyers and politicians favor a short timeline in part because they consider Libya's 1951 constitution -- drafted with significant assistance from the United Nations -- a solid basis for the new document. The constitution established a monarchy, but still it is seen to include good human-rights protections and strong national institutions.

Others believe that the 1951 constitution may be a poor starting point for the modern document. The 1951 constitution does not account for fundamental changes in Libyan political economy of the past 60 years. It constitution created a chronic imbalance of power and eventually failed because it did not account for the distribution of wealth after oil was discovered in 1959. The 1963 amendments to the constitution eviscerated the federal system, creating wide social instability and opening the door to Qaddafi's coup d'├ętat six years later.

Indeed, the distribution of political and economic power is one of the most important issues that will face today's constitutional committee. The 1951 constitution established a federal system with three sub-national governments, each with specific executive and legislative branches and the authority to levy taxes. The 1963 amendments abandoned the federal model. After the revolution, Qaddafi established what he called a jamahariya, a Byzantine system of overlapping jurisdictions that allowed him to emerge as the sole national authority. The administration was centralized in Tripoli to the extent that residents of Benghazi (Libya's second city, 600 miles away) had to travel to the capital to renew their passports. Defining a method of ensuring both administrative and political representation in Libya's government will be one of the key puzzles facing the constitutional committee.

The protection of human rights is another priority. Libyans expect their new constitution to safeguard certain rights, but the debate of which rights will be contentious. Some women's advocacy groups, for example, are lobbying for equal-protection clauses, and more specifically the right to pass citizenship to their children and claim equal inheritance benefits to male relatives -- rights long denied to them in Libya. Rights of ethnic and linguistic minorities are also in question, including access to citizenship, recognition of official languages, and the right of return for internally displaced persons. The mechanisms by which rights will be protected and the extent to which the government will be able to lawfully curtail rights -- for public safety, for example -- will also be important.

The debate over the relationship between state and religion is becoming tenser after recent attacks by self-proclaimed Salafis against Sufi mosques. The major political parties in the recent election all agreed that Islamic law school be mentioned as at least one of the sources of law in the constitution, but the extent to which members of the committee will deploy interpretations of Islamic principles to other constitutional features -- such as the judicial system or human rights -- will be controversial.

Debates in the constitutional committee will take place in the background of pressing challenges now facing Libya, including domestic security, economic development, transitional justice, and much more. Fortunately, the expert members of the constitutional committee will not be bogged down with legislative issues -- unlike in Tunisia, where the constituent assembly is both a parliament and a constitution-making body.

But as it stands, the short timeline for the drafting process will put unnecessary pressure on the constitutional committee and effectively exclude important voices from civil society. Some Libyan politicians have countered critiques of the timeline by pointing to the referendum that will, in their view, satisfy demands of public participation. But a referendum limits a voter's opinion to "yes" or "no," which is no substitute to a robust debate on the issues. A more inclusive process will also increase the likelihood that the Libyan electoral will accept the final text, an essential element in establishing a constitutional order.

-This commentary was published first in Foreign Policy on 05/09/2012
-Duncan Pickard is a constitutional specialist at Democracy Reporting International and a nonresident fellow at the Rafik Hariri Center for the Middle East

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