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8.21.2011

Thoughts on the Draft Transitional Constitution for Libya

As the tides shift in Libya, the rebels have released a draft constitution for the transitional period. It calls for a democratic political regime (Art. 4), accession to human rights instruments (Art. 7—Libya is already a member of all the core international instruments) and the rule of law (Arts. 6 and 11). Article 1 provides that Sharia is to be “the principle source of legislation” and that Arabic is the official language; there is no mention of the Berber language Tamazight, though minority linguistic and cultural rights are to be preserved.

The most important operative portion of the text will be that on the governance structure. The Transitional National Council is the supreme authority, deriving legitimacy from the February 17 Revolution. It is to be composed of representatives of the local councils that have been established in rebel-held areas. The Council will operate through an executive office that seems equivalent to a cabinet; its chair can be dismissed by the Council.

Of central important is the timeline for writing the ultimate constitution. The constitutional assembly is to be elected by secret ballot; the electorate for this body is unclear in translation (“outside the members of the Transitional National Council” may simply mean that the Council members cannot run). The assembly will have to propose a constitution within three months for public referendum within an additional month. There is some ambiguity as to the time period for redrafting in case of rejection by the people; it would be ideal to be clear that the assembly has another three months in the case of rejection. Elections for the legislature and executive will then be organized by the Council, under the supervision of the United Nations. After the parliament is convened, the Council will cease to operate.

One provision that might need to be slightly recrafted is Art. 29 (which puzzlingly is repeated as Art. 33), a prohibition on the members of the Council, the interim government, or the local councils from running for the presidency of the state, or serving as a minister or member of the legislative council. This is an admirable instinct, designed to prevent self-interest in the crafting of the ultimate constitution. It has been used on occasion in other drafting contexts to approximate “veil of ignorance” rules. However, I have two suggestions. First, note how the provision already assumes that the ultimate constitution will be presidential in character, or at least have a presidency. The constitution-makers should be free to produce a parliamentary system should they choose; if the presidency is only symbolic, it may be less important to keep the interim leaders, who will likely be seen as heroes if they succeed, away from this office. Second, the extension of the prohibition to members of the local councils may be too broad. That will prevent anyone with experience in governing during the transitional period from assuming national office in the ultimate government that emerges. Preventing self-interest in constitutional design is important, but it will also be necessary to find people with actual governing experience, and the clause should not be too broadly drawn.

UPDATE: The final version of the transitional constitution did not include the prohibitions on current figures from running in future elections. they also wisely extended the timelines. Well done, Transitional National Council!

--TG

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