On October 6th the registration process begins for those wishing to run as candidates to the Constitutional Assembly. The importance of this Assembly and the success of its work have never been greater. For the election of this Assembly, and the constitution they will create, are the final steps along the transitional path laid out by the National Transitional Council (NTC) in the Constitutional Declaration of 2011. As the other interim institutions inherit the consequences of a failure to properly plan and administrate public bodies, the Constitutional Assembly now also represents a demonstration of our ability to learn from mistakes. With political polarisation sharpening over many levels and issues which are all likely to appear in some form in the Assembly’s upcoming debates; this Assembly will also demonstrate our capacity to resolve rifts and create consensus through constructive and democratic means.
As such this working plan focuses on means and methods to encourage a smooth and inclusive drafting process which will help restore the people’s faith in national politics and crucially aid in the creation of a legitimate constitution which all can accept and build upon to construct the future Libyan state. This working model for the Constitutional Assembly will optimise their work whilst ensuring informed and representative consensus is reached on divisive issues. A process deemed legitimate by the populace has an increased likelihood of successful implementation and acceptance in Libya without frequent and potentially disruptive amendments or a constitution with a short life cycle. The amalgamation of the recommended model and process guarantee that drafting is as efficient, participatory, and inclusive as possible.
This structural model is based on two aspects:
- A Constitutional Assembly that is as representational as possible capable of conducting inclusive and informed debates resulting in a consensus that can be accepted by the country as a whole, freeing it from perceptions that the constitution favours or empowers one region or societal group over others.
- A secretariat that engages and educates the public and gathers their recommendations and that provides the necessary technical expertise from as wide a range of views as possible and provides all of these views to the assembly in a constructive manner conducive to aiding their debates.
This model will ensure that the Constitutional Assembly has guaranteed input from the aspects of society that Libyans feel need inclusion. Furthermore, it guarantees that 1) the final constitution is not only to a high technical standard, but also that the agreements reached have broad consensus and thereby legitimacy and 2) that its model for the nature and substance of the future Libyan state are the product of considered debate that is reflective of Libya’s wants and needs and is best suited to aid its united development.
This working plan also gives several organisational recommendations based on supplying the necessary structure, budget and procedure to the house. This is done with the intention of expediting the drafting process once the assembly convenes. By having these documents pre-prepared and sections of the secretariat already working, the assembly will be able to amend them while ensuring, at the very least, that all of these necessary organisational pieces are founded on best-practice solutions. The inclusion of a contingency plan here is done as a pre-emptive measure to ensure that if the worst-case scenario should occur, it can be handled in a smooth, fair and transparent manner rather than devolving into crisis.
This working plan ends with a process for the constitutional assembly’s work, segmenting the drafting process into the sections of the constitution. This process is designed to yield productivity and final quality dividends through organisational strategy. It gives a rough outline for a procedure for handling each segment that ensures the necessary participation from the public and experts needed for an informed debate. It further provides a loose dispute resolution mechanism for the scenario whereby consensus cannot be reached.
It is hoped that through consideration of this model, the GNC can build upon its recommendations to create the mandate and structure of a Constitutional Assembly, and constitutional process that has sound working practices and are founded on the principles of inclusivity, representative consensus building, and participation—all of which are necessary for a smooth and successful drafting process.
There are two issues that will bear most heavily on the final structure of the Assembly. These two issues are as follows:
- Fair and adequate representation, including the wide range of interest groups that lay claim or call for representation within the assembly ensuring that all interested parties are included in discussions;
- Consensus on the core constitutional topics that will inform the final document therefore consolidating as high a degree of legitimacy for the final document as possible
According to local CSO groups and the recent survey undertaken by the Benghazi University Research Committee, ensuring the legitimacy and credibility of the constitution—not to mention its successful ratification—will require inclusion of the following groups in the CA :
- Experts – Experts from various fields relevant to the constitution (Lawyers, Political Scientists, Historians, etc) should be included in the CA. This is a necessity for the committee to have informed debates and to produce a constitution that is precise yet flexible to endure for generations and written with an eye towards enforcement and judicial review, with full awareness of the difference subtleties can make in interpretations.
- Youth –With a population where under-25s make up approximately 50% of the population and under-35s form 70% of the population, representation of the youth is critical in the CA and will give it much greater credibility on the street (which is of heightened importance given the GNCs and government’s deteriorating standing).
- Religious Scholars – To protect Libya’s unique Islamic character, religious scholars should be consulted, thus ensuring that the constitution reflects Libya’s cultural and religious milieu against recent threats from foreign systems of Islam. Furthermore, their advice should be sought to ensure the inclusion of Shar’i principles in Libya’s legal system an issue of importance for a large majority of Libyans;
- Women – Female input and representation is needed to ensure the production of a constitution that is the product of Libyan society in its entirety. Women have played a uniquely integral role in our society, our revolution, and our country’s hope for success. As such, they deserve to lend their input. Safeguards should be erected to respect their role in our history and society and to ensure their representation in the CA as has been seen to a limited degree in the electoral law which guarantees 6 seats. Such safeguards are necessary to overcome our natural, historically conditioned preference for selecting male representatives. This will not only help the final draft be more representative, but ensure its optimisation (and ratification) through the respectful inclusion of their distinguished perspective.
- Tribes – Outside of urban population centres, tribal influence persists, particularly outside the urbanised northern regions. To ensure the legitimacy of the document through constitutional inclusivity and its credibility as a representation of Libya in its entirety, tribes should be represented through the the CA.
- Minorities –Societal groups such as the Amazigh, the Tebu, and the Touareg , due to demographics, risk having their voices drowned out in the electoral process and have already acted upon these fears by boycotting the GNC since the electoral law was announced. Although seats for each group are preserved in the law; to further the constitution’s legitimacy and its applicability to all Libyans, measures are essential to ensure their respectful representation.
Despite the need and popular expectation for and the CA to “gather the nation” through constitutional inclusivity, representation of all key groups within an elected Constitutional Assembly of 60 would be unrealistic. Further, in practical terms, doing so poses an insurmountable challenge. The difficulty of constitutional inclusivity coupled with the need for expert input into the content of the debates to ensure that agreements are formed through considered understanding suggests that Libya requires a unique formulation for its Constitutional Assembly.
An expanded secretariat that works in a complementary fashion with the elected assembly would: permit the Assembly to focus on building consensus over key constitutional issues, inform the debate, and provide needed technical assistance all whilst enabling a forum where different societal elements might find representation, thus easing the electoral process. Specific legislation or a constitutional amendment will be needed to create such a secretariat and define its relationship vis-à-vis the elected assembly.
Within the proposed structure, the constitutional assembly would form the main body responsible for constitutional policy decisions. Guaranteeing the inclusion of women and societal groups will create a body that is wholly representative of the spectrum of Libya’s communities. Their primary job would be to debate and achieve consensus on macro constitutional issues (e.g. Should Libya have a parliamentary or presidential system? What level of decentralisation is best suited for Libya’s government? What should be the role of Sharia’ in the law etc…). Election of this body by the people will help ensure the legitimacy, applicability, and acceptability of the final document for Libyans nation-wide.
The Secretariat would be an un-elected body comprised of the different groups whose perspective Libyans feel need inclusion—experts, tribes, youth, and religious scholars—and the technocrats necessary to draft the constitution’s text and to ensure that the Constitutional Assembly’s debates are suitably informed. Additionally, the Secretariat should perform the customary jobs of acting as administrators of the Assembly and organising, facilitating, and incorporating public consultation. Given the need for the Constitutional Assembly to begin substantive work as soon as they convene, the Secretariat should be selected beforehand and given time to begin organising their work and preparing for the Assembly’s arrival.
The members of the Secretariat can be appointed by a special, purpose-built GNC committee and drawn from existing Libyan institutions. Tribal leaders are already selected through internal mechanisms and as such would only need the state’s authorities to request their respectful inclusion. Experts may be called upon from Libya’s universities. Heads of departments from these institutions could be appointed and refer other experts who may be useful in their field. Legal scholars, in addition to those from the nation’s law faculties, may be found through Libya’s various bar associations. Religious scholars can be appointed, for the most part, through the Dar al-ifta’ with an additional effort made to appoint the country’s leading scholars (from both our historic Sunni-Maliki and Sufi constituencies). Finally, youth representatives can be found through universities, student bodies, and local, youth-focused civil society organizations. Each candidate for appointment from these institutions can be vetted by the committee through interviews and by a review of their resume’s and qualifications to ensure that experience and work is to the required standard. Creating an expert secretariat through these means would allow for a body that is both nationally owned and capable of competently tackling the difficult issues of the Constitution’s drafting with local expertise.
Division of Responsibilities
This technocrat secretariat would need to be divided into sections, staffed by the appropriate experts and representational groups, for dealing with the demands of constitutional drafting.
The research division will require a host of different expertise (e.g. historians, Sharia’ scholars, lawyers, geographers, political & social scientists, etc…), and also provide the forum for the different groups not assured a place in the assembly to contribute their point of view. Their duty will be to do thorough background research on the topics of the constitution, and produce a series of papers covering the many facets of each topic. These papers will then be delivered to the Constitutional Assembly to assist them in their debates. Furthermore, these experts should be available for interpellation sessions with the assembly during the debate where they can provide more detailed information on the requirements and ramifications of any potential decision, as well as answer any specific questions of assembly members. In order to be most effective and to ensure the timely progression of the drafting process, they should be formed prior to the CA’s first session, and begin preparing their working processes and research for the first item on the agenda.
The consultative section of the secretariat will require communication specialists, as it is a section centred around collecting, organising, and assessing public input on various topics although it will need to be split into two sub-committees one for consultation and one for education as both enterprises require different techniques and applications. The main duties of the consultative sub-committee will comprise the manufacture of mechanisms to collate suggestions from CSOs and the public at large and then work with experts within the Secretariat to formulate these suggestions into proposed constitutional texts. Gathering suggestions will require a break-down of Libya into its different milieu’s, as this will allow greater understanding of who is advocating what, and why. Public input is essential for the creation of a constitution that is owned by the people and representative of them and their wishes.
Creating an owned and representative constitution will require coordination. An agenda pre-planned by the Secretariat for the CA will allow the education sub-committee of this division the opportunity to run pre-emptive public education campaigns. After the campaigns, the consultative sub-committee can collate people’s opinions on various solutions and their suggestions for how they would like to see the topic tackled before it is up for discussion. This information can then be combined with the research department’s work for submission to the Assembly to help inform the debates. The need to educate the public with enough lead time to gather information and prepare it for submission before matters are discussed by the CA necessitates that this committee, like the research committee, should also be formed before the CA’s first session. Early creation will give the consultative division a running start in providing public education and consultation on the first agenda item, setting it up to be able to work ahead of the curve.
Each of the above sections is uniquely critical to the success of the constitutional process, but coordination between each section of the secretariat and the Assembly itself is crucial for efficient drafting. Their main role will be, based upon the Assembly’s schedule, to delegate the jobs at the required times to the different sections of the secretariat and then to deliver their work to the Assembly, relaying any feedback or additions requested by Assembly members. This will ensure a harmonious operation between the Assembly and the secretariat and also provide a management mechanism for the secretariat’s different sections.
This section should be staffed by legal experts. Their duty would be to take the agreements reached by the house and commit them to text in a manner that clearly describes the principles, spirit, and substance of each agreement. Their work would become the written letter of the Libyan Constitution. Each segment, once drafted, should be relayed to the Constitutional Assembly and voted upon to ensure that their work does indeed mirror the intentions of the Assembly. Furthermore, once the Constitution is drafted and ratified, they should also provide a recorder to the constitutional debates whose purpose is to record the minutes of each debate and eventually publish a constitutional commentary encompassing the nature of the agreement behind each segment in order to assist those who will be interpreting the document.
This section of the paper begins by setting a conceptual foundation for a Libyan Constitutional Assembly, determining what the people wish to see from it and what Libya as a whole needs from it. In this regard the overarching duty of this assembly must be to emerge with a document that all of Libya can accept as a foundation for a new state and to create consensus at a time when disunity is deepening. The Benghazi University Research Committee’s survey has shown us that the issue of representation will be the core component in the population’s judgement of whether to legitimise both the assembly and their work. These two concepts of representation and consensus are interlinked and mutually strengthening. In the end only a consensus reached amongst an accurate depiction of Libya’s interest groups will have legitimacy, and if the constitution is to set the character of the state then its legitimacy is of paramount importance.
This section then worked on a realistic model for actualising these components which are so crucial to the success of the body, the constitution, and by extension Libya’s very future. The Libyan population’s demands for an elected assembly have facilitated these ends by helping to improve the legitimacy of local representation at the very least. More than this, it creates an opportunity to gear the main chamber of the house and the debates which will define the Constitution’s articles to being based around achieving a comfortable consensus rather than an exercise in technocracy. This is as the GNC elections have shown us that candidates are likely to be picked either due to their stature within the community or their stance on an issue of great importance to the constituency; rather than on their technical expertise.
However whilst elections provide the perfect opportunity to create this vital consensus, an elected body encompassing the wide range of groups which Libyans feel deserve representation would lead to a very complicated electoral process. Furthermore the set size of the house and the geographical parity demanded could easily lead to an extremely complex array of small interest and representative groups. Achieving consensus amongst such an intricately divided house, whilst still possible, would be considerably more difficult and could well result in a longer drafting process which would be unwelcome given the transitional turmoil.
Therefore this paper advances a solution based upon tailoring the structure of the Assembly’s bodies. Creating the main chamber for consensus building and expanding the secretariat; whereby the nature of the representation of any particular group is used as criteria for their role in the constitutional drafting process. In this case many of the mentioned representative groups may be respectfully included within an enlarged secretariat, thereby providing them with a forum for their perspective’s inclusion in the drafting process. This is a solution whose structural realisation is discussed within this section and procedural participation protected through the Constitutional Process advanced in the second section.
Ultimately it is hoped that by approaching the question of a constitutional drafting process by first identifying what is wanted and what is needed by Libyans that the constitution itself is given its best chance for being a representative, and accurate depiction of the state Libyans wish to build from the ashes of the failed Jamahiriya. The re-structuring of an ordinary Constitutional Assembly to represent Libya’s extraordinary context in this section details the tangible framework of these ideals and is complemented through the procedural guidelines advanced in the next section.