By Lorianne Updike Toler.
New York City, 7 December:
Groups of young veterans, frustrated by unfair economic and political treatment after fighting valiantly . . .[restrict]in the revolution, forcibly closed government functions in rural areas and attempted a seizure of a strategic weapons stash. Later, these same militants were permitted to participate in discussions regarding the constitution’s passage, opposed it, but then accepted defeat and the new constitution.
Although the above vignette may sound like a page from Libya’s future constitutional history, it is, in fact, the story of a militant group in Massachusetts and their role in opposing, yet later accepting, the U.S. Constitution.
Contrast this to Egypt’s current turmoil, wherein disfavoured groups have been excluded (either by choice or procedural favouritism) in drafting Egypt’s constitution, set for a vote on 15 December. Protests in Tahrir Square have already resulted in many dead and wounded.
The last two editorials in this series have focused on methods of constitutional public participation both pre and post-constitutional draft. This editorial will focus on the risks and benefits of public participation in Libya’s constitution drafting. The next editorial in this series will culminate the discussion of public participation in recommending a practical plan for participation in Libya’s constitutional process.
The above historical and contemporary examples of permitting or denying public participation underscore the risks and benefits of including the public, especially militant and disfavoured groups, in crafting Libya’s constitution.
First, the risks. Although facts regarding the presence of violence remain in dispute, an incident in Beida on 5 December during Zeidan’s official visit may highlight ongoing security issues for any participatory campaign. If local militias identify aspects of a campaign or process that are not to their liking, it could prove uncomfortable or even dangerous for a visiting official or delegation.
Setting aside terrorist activity, incidents of violence in Libya may be the result of a long tradition of oppression wherein violent opposition was the only method of protest available. If other forms of protest are permitted or even encouraged, as with militant groups in Massachusetts, the cycle of violent protest may be avoided altogether.
Additionally, allowing even terrorist and extremist voices to be heard throughout the constitutional process will deprive them of later claiming they were unjustly marginalized and provide a forum for them to vent their concerns in a non-violent format.
Some may claim another risk to permitting public involvement in constitutional decisions is the lack of political or constitutional education among Libyans, especially in rural areas. This phenomenon is the natural and expected result of a forty-year rule under authoritarian government where such education was barred. The result of political illiteracy would be to allow the public a say in something they know little about, producing ill-advised decisions and constitutional structures.
Yet this concern may be better viewed as an opportunity. Libyans are eager to learn and participate in what may become a seminal moment in Libyan history. Civil Society groups such as Libyan Lawyers for Justice have already designed programs in creative mediums to involve and educate Libyans on constitutional issues. This programming has been met with apparent success.
Another concern may be the time it would take to devise an appropriate participation process. The shortened timeframe of six months currently allotted will certainly not allow for much consultation with the public. However, if time is used wisely before the six-month clock starts, and especially if a period is added after the six months to allow for incorporation of post-draft public feedback, Libyans may yet enjoy the fruits of public participation. More of the practical aspects of the process will be addressed in the next editorial in this series.
Now to benefits of public participation. The greatest benefit is public buy-in. As illustrated by the militant groups in Massachusetts who voted against passage of the US Constitution, participation was the key to later acceptance of the final result.
In a more modern context, critics of the lack of public participation in Afghanistan’s constitutional process claimed that, “If [militant and terrorist] groups feel that their arguments have been part of the process of shaping the text and have publicly committed themselves within the context of debate to being part of that process, they will be under more pressure to accept eventual compromises.” The same could be said of militant and terrorist groups in Libya.
As discussed in the last editorial, a dedicated participation process may also provide an acceptable alternative to electing the constituent assembly. Currently, Libyans are only provided two means of participating in the process: electing drafters and ratifying the final product. The general cry for elections may be assuaged if the GNC provides alternative avenues for meaningful participation in the process.
In addition to buy-in and possibly providing an alternative to elections, another benefit to a participatory process is creating a peaceful alternative to violent rejection. Parties are able to come to the negotiating table and work out differences in constructive fashion.
Finally, a participatory process breeds legitimacy and potential longevity for the constitution. Constitutions that are viewed as being legitimate, inclusive contracts among framing generations have a greater likelihood of outlasting the 17 year projected lifespan of constitutions. Long-lived constitutions will foster development of rule a law based on a foundational text, contributing to economic and political stability.
This is the seventh 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.