By Lorianne Updike Toler.
12 November, New York City:
Now that a new government has been formed, the head of the UN mission in Libya Thursday called for the formation of a Constitutional Commission. With talks of constitutional procedure and substance will come a renewed discussion of separation of powers, last broached by GNC members when Mustafa Abushagur’s proposed government was rejected on 7 October.
“Separation of powers” was exemplified in Libya by its absence for 40 years until the 17 February Revolution. Hitherto, Muammar Qaddafi claimed all legislative, executive, and judicial power for himself, demonstrating the kind of tyranny that can result from their combination.
In the last article in this series on constitutionalism, the history of “separation of powers” as an idea was outlined from Antiquity up through the modern constitutional era. This article will pick up where that article left off in discussing how separation of powers principles have been applied in other contemporary states.
According to Middle Eastern constitutional law scholar Chibli Mallat, constitutional options today are necessarily limited. All written constitutions involve a legislature, executive, and judiciary with particularised power. These powers, or “branches” of government, are expressed through a presidential or a parliamentary system, or a hybrid of the two. Separation of the three governmental powers bears out within these systems in different ways.
Within a presidential system, powers are theoretically separated more distinctly than in a parliamentary system. A president is elected directly by the people and has specific powers, normally over international relations and the military and to execute legislative laws. The executive is equal in power to the other two branches, which provide checks on the president via impeachment, subjecting executive officers to civil suit, and declining to pass his or her initiatives into law (or holding them unconstitutional).
In practice, separation of powers exists in very few countries that have adopted the presidential system, most notably the United States. Presidential systems tend towards dictatorship in new or weaker democracies, as in Venezuala. Although ostensibly separated under their constitution, the legislature operates more as a tool of Hugo Chavez, who infamously used the outgoing legislature of 2010 to gut the power of incoming opposition legislators and permit him to rule via decree for 18 months.
In Mexico, separation of powers became more of a reality in 2000 with the rise of the Alliance for Change and the election of Vicente Fox, the first non-PRI (Institutional Revolutionary Party) president in 71 years. Until that time, the constitution and the separation of powers it outlined has been called “nominal” by Jose Gama Torruco, a former secretary for the Mexican presidential cabinet.
The United States may have been able to avoid the slide towards totalitarianism because of its federated structure, wherein power is divided not only vertically between three branches, but horizontally, between a national government and the many robust state governments. Separating power into so many discrete divisions has served to cabin it. Additionally, the United States benefited from an initial president, George Washington, who voluntarily stepped down from power not once, but twice—once as head of the military, again as president—prompting his archrival King George III of Britain to call him the “greatest man in the world.”
In contrast, parliamentary systems, of which Britain’s is the oft-cited example, closely followed by Japan and Germany’s post-War iterations, will more readily combine powers. In such systems, the prime minister and cabinet are often chosen out of and held accountable to the parliament. There, the prime minister operates as the head of the winning party and can therefore be changed by the party without new elections. It also means that platforms and initiatives are more easily passed by the supporting parliamentary majority.
Some scholars have suggested that parliamentary systems in new democracies are less likely to devolve into dictatorships. Too, a World Bank study from 2001 indicates that such systems are less prone to corruption.
For all of its efficiency and effectiveness in new democracies (and for the UK’s long history of success with the model), parliamentarianism is not without its critics and challenges. It often results, depending on electoral laws, in a party that, although unable to garner a majority of votes in election, nevertheless enjoys outsized power, as in Hungary. Such systems can be unstable due to fracturing of parties and coalition governments such as now found in the UK. Too, a parliament can dominate other branches, producing a weakened judiciary without strong forms of judicial review to enforce a constitution such as in Canada and New Zealand.
Parliamentarianism seems to be the model of choice for states within the Middle East and North Africa. Through the 1989 Lebanese Taif Agreement, Lebanon moved away from a semi-presidential system to a parliamentarian model, allowing Muslims greater power. In 2005, Iraq also chose a parliamentary system to avoid Shiite domination.
Most recently, the new Moroccan constitution, ratified in June of 2011, has provided its parliament with greater power in allowing it to nominate its own president (or equivalent of a prime minister) and legislate in all areas. Whether this change will result in actual separation of powers, or enliven the legislative power to compete with a very powerful executive embodied in the king, remains yet to be seen.
Hybrids of the two models are legion. Such systems include Kosovo, France, Belgium, and Austria. Within these systems, a dual president and prime minister are often criticized as redundant or, worse, gridlocked when the two come from different parties.
Libya’s current parliamentary model, as pointed out in the last article, benefits from incorporating more separation of powers principles than most parliamentary systems. Its prime minister and cabinet members are not also members of the GNC. The efficiencies of a more typical parliamentary system are missing, however, because parties do not play a dominating role within the GNC or the current political and electoral structure of the country.
The lack of party influence is an important consideration as Libyans look forward to a new constitution and selecting either a presidential or parliamentary system (this author would not recommend a hybrid, which captures the worst of both systems). A parliamentary structure depends upon strong parties. If Libyans continue to proceed without major political parties (or if such do not grow organically), a new parliament will behave very differently than other parliaments. It will function less efficiently. Yet this is not an inherent weakness but could prove to be a great strength, as legislation will require more time-consuming, broader coalitions and therefore be more inclusive.
Assuming that local governments can be strengthened through democratic elections such as that being held in Tripoli, the role of federalism within Libya may also serve to support a presidential system. If power can be separated, wherein various levels and branches are actually independent, the likelihood that any one person could seize omnipotence, Qaddafi-like, is minimised.
In short, both presidential and parliamentary systems may be viable options for Libyan constitutional governance. What is perhaps more important than identifying any one model, however, is specialising a system that is tailored to Libya’s current needs and circumstances and prevents another Qaddafi from coming to power.
Danielle Tomson contributed to this article.
This is the fourth in a series of articles wherein constitutional principles, procedures, and histories are examined and compared in-depth in preparation for a new constitution in Libya.