Blog of the International Journal of Constitutional Law

Libya’s Constitution: Take it Slow

[From the Chicago Tribune]

Now that Moammar Gadhafi has fallen, Libya’s victorious revolutionaries should heed Iraq’s missteps as they begin the critical task of political reconstruction, including Iraq’s hurried 2005 constitution-making process.

There are as many ways to write a constitution as there are spellings of Gadhafi’s name, and some processes can exacerbate conflict rather than resolve it. Iraq’s constitution was a complex bargain, drawn up in very different circumstances. But it offers lessons for Libya. Most important, the Libyan rebels should avoid the temptation to move too quickly.

The Iraqi Constitution was adopted on a very short timetable imposed by the occupation authorities. By insisting on producing a constitution before the various political forces had reached an underlying agreement, the occupation authorities ensured that much of the Sunni population was left out of the process. The constitution arguably inflamed the civil war.
In addition, the strict timetable Iraq imposed for completion of the constitutional draft caused many decisions to be postponed for a future legislature. But the gridlock in Iraq’s parliamentary system has meant that few of these decisions were ever taken. The distribution of Iraq’s oil revenues is to be handled by a law that has only this month been proposed in parliament, six years after the adoption of the constitution. An upper house called the Federation Council, to represent regions, has never been formed. A set of amendments proposed by a constitutional review commission has not yet been submitted to a vote. Many other crucial decisions have gone unresolved.

This suggests the need to let the political process evolve before committing to a permanent set of institutions. The Libyan rebel’s National Transitional Council issued an interim constitution last month. It calls for elections for a National Assembly within eight months of the liberation of Tripoli, and a new draft constitution two months after that. The draft will be presented to the public for one month of debate before being submitted to a referendum. This timetable shows an admirable commitment to a short transition, as there is the possibility for a new constitution in a little over a year. However, the timetable may be too ambitious.

Studies of other nations’ constitutions suggest that stability can depend on making a document with attention to detail, and with enough time for all factions to be heard. So it is important that Libya engage the long-repressed public. Post-Gadhafi Libya faces tough choices on governing institutions, on the organization of society and on how to deal with the old regime. Moving too quickly can inhibit public discussion of these issues and give the impression of an elite-led backroom deal. It can also give the advantage to the most well-organized groups, which seem to be the Islamists. To the extent that tribal and other interests need to be accommodated, there must be time for them to develop their positions and to bargain. Further, Libyans deserve a role in making their constitution and should be given an opportunity to provide suggestions. There also needs to be ample time for public deliberation of the draft constitution. All this will take several months in the best of circumstances, not the three months allocated for drafting and passage.

As the French revolutionary Mirabeau once said, “when you undertake to run a revolution, the difficulty is not to make it go; it is to hold it in check.” Slowing down and engaging the public is the best way to channel the revolutionary optimism into a stable governance structure for the future.

–Tom Ginsburg


One response to “Libya’s Constitution: Take it Slow”

  1. Lorianne Updike Toler Avatar

    Tom – interested – when you refer to “studies of other nations’ constitutions,” to which are you referring? Do they include any historical studies, or only those more recent and therefore incapable of verifying a constitution’s long-term veracity? Thanks! LaUT (

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