The feared unrest in Libya prior to 15 February and now the confusion introduced by the Libyan Supreme Court’s decision last Tuesday to invalidate Amendment No. 3 of Libya’s Constitutional Declaration can all be attributed to the poor constitutional design of the Declaration and particularly of Amendment No. 3.
If the General National Congress (GNC) decides to comply with public opinion in continuing to pursue elections, they will also have an opportunity to amend the failings of the Constitutional Declaration and carve out an appropriate leadership role for themselves vis-à-vis the constitution. Doing so should be done in close coordination with experts both local and international (canvassed here) and with civil society organizations playing an active role in constitutional matters (canvassed here) who can support and enforce the process.
In terms of substance, Libya’s constitutional roadmap should outline several key points, including essential principles of constitutional design, a timeline or identification of mandatory phases (to be addressed in the next article in this mini-series), and the manner of elections or combined elections and selection.
Once consensus is reached on these points, the GNC should pass a constitutional amendment to ensure implementation of the roadmap. There are several reasons a constitutional amendment should be the vehicle through which a roadmap is instituted:
1. Establishing a roadmap via constitutional amendment designed by major elements in society is consistent with best constitutional practice.
In comparative perspective, outlining a constitutional process or roadmap is a hallmark of interim constitutions. Roadmaps that have been successful in transferring power in a democratic and legitimated fashion are found in the interim constitutions of South Africa (1994) and Poland (1992).
In South Africa, the interim constitution outlining principles, requirements, democracy, and later, public participation, was negotiated behind closed doors between representatives of major forces within the country—the African National Congress and the National Party—essentially, the organizations representing the largest divide within the country. It was amended 10 times.
In Poland, a 1992 amendment to the Communist Constitution, dubbed the “small constitution” outlined a procedure for adopting the new constitution and again was a negotiated instrument between major elements within the country—the two largest parties. In addition to outlining a constitutional roadmap, this document fixed the problems of the old constitution by clarifying the relationship between the executive and legislative bodies and requiring at least half of the assembly to be in attendance in order to make important amendments.
Key to success of both of these interim constitutions is that they were decided by major elements of society that also represented a large majority of that society. Admittedly, neither group creating the interim document was inclusive of all elements. Yet both were “democratic” in that they represented, either by vote (Poland) or by the overwhelming size of their constituencies or legacy power (South Africa), the viewpoints of most of the country’s polity. This as opposed to interim constitutions designed largely by parties from previous regimes (South Sudan, 2005; Thailand, 2006). In Libya, including voices from major constituencies within Libya—the GNC, government, international and local experts, and civil society leadership—via a coordinating council to design a roadmap will track the design processes of the two most successful interim constitutions, that of Poland of South Africa.
2. A roadmap contained within a constitutional amendment is legally enforceable.
Enshrining a roadmap for Libya’s constitutional process within a constitutional amendment is the only way to make a roadmap legally enforceable. It is the method by which processes may be enforced legally by the highest authority of the land—something that a coordinating body, no matter how inclusive, would be able to do itself.
3. Dividing power will protect Libyans’ liberties.
By dividing power—procedural constitutional power to the GNC, substantive constitutional power to the Constitutional Committee—Libyans can be assured that neither body will overstep its bounds. This is the benefit and security of true checks and balances that separated power provides. For most countries with true separation of powers (found to a greater extent in presidential rather than parliamentary systems), the power of coeval branches helps to ensure that no one branch oversteps its bounds. The same kind of benefit and system could be taken advantage of in Libya for the limited time that both the GNC and Constitutional Committee are in simultaneous operation.
Danielle Tomson contributed to this report.
This article will appear as part of the fifteenth editorial in a series on constitutionalism in the Libya Herald authored by Lorianne Updike Toler, founding president of The Constitutional Sources Project and Lorianne Updike Toler Consulting. Mrs. Toler recently returned from a month in Libya where she documented their constitutional process thus far.