Libya’s Draft Interim Constitution: an Analysis
By Zaid Al-Ali, Senior Programme Officer, International IDEA, Cairo
Libya’s draft interim constitution, which is designed to guide the country through the coming period until a permanent constitution is finalized and enters into force, is a fairly standard text for the Arab region. It is at times progressive (it provides for a number of social rights, including social security; article 8), and intrusive at others (it requires the state to encourage marriage; article 5). It calls for the institution of a multi-party democracy (article 4), but refers a number of vital issues to future legislation, leaving open the possibility that non-democratic practices may develop (it provides that the conditions under which a warrant for phone tapping can be obtained, and that rules on the organization of political parties will be determined by law; articles 13 and 15 respectively).
Some commentators have expressed dismay that sharia (i.e. Islamic jurisprudence) is “the principle source of legislation” under the interim text (article 1), but that wording is not unusual in comparative practice, even when compared to the region’s more liberal countries. Tunisia's previous constitution (which has now been suspended) did provide that Islam was the religion of the state, but did not state that sharia was a source of legislation. Egypt's previous constitution (also suspended) went further and stated that Islam was "the principal" source of legislation. The new Moroccan constitution (which came into effect in July 2011) states that Islam is the religion of the state but does not mention sharia. It does state however that political parties cannot work against the Islamic religion.
Whatever the case may be, it isn’t clear that these constitutional provisions on sharia have any practical effect. The provision is mostly symbolic as it has not translated into firm obligations on the part of legislators to look first to Islamic sources before considering other sources of inspiration. In practice, if a parliament is mostly composed of Islamists, those legislators will look to Islam as inspiration regardless of whether or not the constitution is silent on the issue. If the parliament is mostly composed of communists, then Islam will probably not be a source of inspiration.
The draft interim constitution also firmly places itself within the wave of uprisings that have taken place in the Arab region in a number of ways. For instance, the text refers to itself not as an “interim constitution” but as a “constitutional declaration” (i3lan dusturi or اعلان دستوري in Arabic). That confusing terminology was first used by the Supreme Council for the Armed Forces in Egypt when it published its own interim fundamental law in March 2011, which appears to be setting a trend in the region. Secondly, the Libyan text sets itself apart from the countless number of interim constitutions that have been promulgated in the past in the Arab region by setting out a clear timetable for transition to the drafting of a permanent text.
The rules that it establishes to guide that transition could use some tweaking, as some detail is missing while some of the detail that is there could lead to a frustrating result. Libya’s National Transitional Council (NTC) is clearly conscious of its shaky claims to sovereignty and legitimacy; the draft text claims that the NTC derives its legitimacy from the revolution (article 17), which is both unclear and could lead to some raised eyebrows given the sometimes tenuous link between individual NTC members and the revolutionary fighters that sacrificed so much on the front.
Membership of the NTC is also poorly defined. Members are to be selected by local councils, but the selection mechanism itself is not defined (article 18). Although it would be natural to expect that members should be elected by the local councils, words to that effect are not actually included in the text, which opens the possibility that direct appointments could be made through non-democratic means. Given the power that the NTC will hold during the transitional period, this is perhaps one of the issues that most needs to remedied before the interim constitution enters into force.
Libya also appears to be following Egypt’s lead by calling for a quick constitutional drafting process. Egypt’s interim text calls for the future permanent constitution to be drafted in six months, while the Libyan text calls for an event shorter two months (article 30). Also in line with Egypt, the Libyan text calls for an extremely short period (30 days, the same as Egypt) during which the public can contemplate and discuss the draft before the referendum (Tunisia stands in contrast here; it appears to be the only country so far not to set a timetable for completion for the drafting of its new constitution). Given what we have all heard about the absence of political parties, civil society, and competent civilian institutions after 40 years of despotic rule in Libya, the decision to rush to draft the permanent constitution in such a short period appears to be highly misguided. It is also a missed opportunity given that constitutional drafting processes are the ideal time to debate a number of fundamental issues, including the nature and role of the state, the relationship between the individual and the state, etc.
Perhaps the most surprising aspect of the draft interim constitution is the manner in which it was published. With the proviso that it is close to impossible from outside the country to obtain a full picture of how the text was prepared, it appears at the very least that the draft was published before most of the revolutionaries that had been fighting at the front lines for months had a chance to see the text let alone comment on it. If Libya is to be a democracy, then it should do its utmost to provide an opportunity for all its citizens to participate in the development of its new fundamental texts and institutions.
It is worth noting that the interim constitution does depart from Egypt’s lead in one important aspect. It specifically calls for international observers from the United Nations to oversee the coming elections (article 30), something that has been clearly rejected (for all the wrong reasons) by the Egyptian military. This is a direct impact of the changed relationship between Libya and the international community.