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While Egypt’s political transition is once again in turmoil, in Libya an important step has been made by the General National Congress’ adoption of the law to set up and elect the Constitutional Assembly after a lengthier than expected drafting process.

 

 

The new law is not being welcomed by all, however. It has drawn criticism from various groups. Ethnic minority representatives, in particular, are currently boycotting the GNC, demanding amendments to the law to enhance their representation and guarantees that their voice is heard.

 

 

They have also raised concerns about a seemingly technical aspect of the law. Currently the law foresees the Constitutional Assembly approving a constitutional draft with an absolute majority of 50 percent plus 1 of its members.

 

 

They have a point, in what should be a concern on minority protection. A 50 percent plus 1 majority is an expression of ‘simple majoritarianism’, which is not conducive to fostering consensus in working on the fundamental legal document. The situation in Egypt is a stark reminder as to why it is critical to get these technical details right.

 

 

In Egypt, an absolute majority was all that was needed to adopt the constitution and subsequently whilst drafting, last November, the Muslim Brotherhood majority managed to steamroller the constitution through the Assembly in a marathon session. By doing so it lost crucial public support.

 

 

In contrast, Tunisia requires a two-thirds majority to adopt the constitution. In case the assembly repeatedly fails to approve it, an absolute majority can adopt the document but in that case it would be put to a public referendum. While many Tunisians feel that their constituent assembly has progressed too slowly, it has been a body where meaningful and genuine deliberation and negotiations take place.

 

 

In fact, while it is true that the Tunisian assembly has deliberated for more than one and a half years now, that time frame is average for constitution-making such circumstances. Indeed a constitution can only serve as a stable, legal fundament if it is properly consulted, negotiated and agreed – which takes and deserves time. An instance on an absolute majority may indeed lead to a faster completion, but many out-voted or silenced stakeholders would feel overpowered and disenfranchised. The price of a contested, divisive document would quickly be paid for in instability. A super-majority requirement would help avoid that.

 

 

Once its is understood that constitutional success requires a super-majority then there will be greater willingness from the beginning to reach out across divisides and explore common ground. In the case of Libya’s planned 60-member Constitutional Assembly, this would simply mean that instead of 31 votes for adoption, there would need to be for example around 41 votes – enough to give extra-weight to the document, but not so much that limited dissent can hold the entire process hostage. It is no coincidence that in most constitutions around the world constitutional amendments require a super-majority — thus it is even more important to ask the same for an entirely new constitution.

 

 

A super-majority may even be more critical in Libya than elsewhere, because the country is undergoing a wider state re-building. To succeed with the twin challenges of building a democracy and the state, the constitution will need to have as much legitimacy as possible. With much of the constitution’s contents already disputed in different regions, a lack of sufficient constitutional consensus could easily open the door for challenges by those who feel excluded, undermining the more extensive enterprise of state-building.

 

 

For this reason, the Tunisian model of allowing a referendum in case no super-majority can be reached appears questionable. It could result in a politically polarised referendum campaign, for example, on ‘cultural war’ issues like state/religion relations, or on the already heated centralism/decentralism/federalism debate. Instead, Libya’s political class should commit itself from the outset to achieve a degree of consensus by way of a super-majority requirement. Such a requirement, coupled with wide public consultations, would chart a constructive course between minority demands, such as the Amazighs’ wish for veto rights, and the need to streamline a process Libyans about which are already becoming impatient.  Such a requirement is no reason to drop the need for a subsequent referendum. Indeed a successful referendum would deepen the legitimacy of the constitution and a super-majority requirement would automatically generate more support for the document.

 

 

A lot is being written these days about the shortcomings of a majoritarian, winner-takes-all understanding of democracy that bedevils the Arab transitions. Libya should do its utmost to avoid being listed in this catalogue of failures.

 

 

Tarek Megerisi and Michael Meyer-Resende **

* Published in Libya Herlad on July 24, 2013

** Michael Meyer-Resende is the Executive Director of Democracy Reporting International

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