By Lorianne Updike Toler
Tripoli, 6 February 2013:
In the face of looming nationwide demonstrations scheduled for 15 February, the General National Congress (GNC) . . .[restrict]today announced that they will proceed with elections for the Constitution Committee.
All efforts of the GNC’s Constitutional Dialogue Committee to gather information on the issue—including conducting town-hall like meetings in 11 localities—have been suspended.
The GNC-approved survey being conducted by the Benghazi Research Centre out of Benghazi University, however, has not been suspended because it is independent and begun on the Centre’s own initiative. The Centre began polling 1,700 Libyans across the country yesterday.
The survey includes eight questions. One question, which will still be asked, concerns whether individuals prefer election or selection. Other questions deal with greater specifics regarding elections. These include whether political parties should play a role, whether lists should be used, whether proportional representation or individual elections should be incorporated, what criteria to require of candidates, and whether to include women and minorities in the Constitution Committee.
According to Azza Maghur, without a constitutional amendment, elections are required by the “universal suffrage” language of Amendment 3 to the 2011 Constitutional Declaration (note: English translations differ, as there is no official translation of the amendment).
With the country now set for elections of its Constitution Committee, it is important to understand what the decision means and how it fits into Libya’s constitutional history. Here, this article will analyse the challenges of elections, comparative examples of other successful constitutions, and Libya’s own constitutional history.
Challenges of Election
Elections, as did selection, present unique challenges. The first issue is timing. Elections require the re-establishment of the electoral commission, the passage of an electoral law, and the calling of elections. Because much is already in place from the last election, re-establishment of the electoral commission will not be too difficult, as with calling for an election.
Crafting and passing an electoral law is a different matter. Because the issue of “districting” will likely be contentious, the politics of constructing an electoral law may delay the process significantly. The public and civil society could press for quicker passage, but they may want to ensure they are consulted in the process. This, too, could take time.
After passage of the electoral law, election experts anticipate that elections will require at least another five to six months, placing elections in October. For Libyans eager for a constitution, this will not be welcome news.
The five to six month timeframe is necessary, however, to allow for adequate civic education, candidate registration and vetting, voter registration, and campaigning. Campaigning was especially cut short in the last elections, preventing voters from knowing who candidates were and what they stood for. Experts recommend that candidates be required to disclose their positions on key issues such as federalism, sharia law and human rights and that this information be published in pamphlet form for the voters’ benefit.
Currently, the constitutional declaration and its amendments provide for a 60-member body “similar to the committee of sixty that was established to develop the constitution of the independence of Libya in 1951.” It is presumed from this text that the 60-member body will include 20 members from each of the three Libyan regions. Although it may also be presumed that 1951 boundaries will provide three electoral districts, the text is not specific enough to prevent contention and division on the issue.
Inclusivity is another issue. In order to include significant percentages of women and minorities, seats will likely need to be reserved, undermining the democratic nature of the elections. Alternatively, ballots could be designed in a unique but complex fashion. The complexity of such an option, however, could give ground for transparency challenges and invalid ballots.
Although called for by the constitutional “manifesto” of a network of civil society organisations, the inclusion of youth and experts may not be guaranteed through elections. Requiring much expertise of nominated candidates would necessarily exclude youth and the honest, wise tribal leader, not to mention many qualified women and minorities.
Possibly most troubling, political parties would seek to play a dominant role in elections. This has been the case in all other countries that have opted for election of their constituent assembly, often with drastic results. The problem in comparative constitutional processes is that political parties by nature seek to expand their short-term power, which often presents a conflict of interest in forming a document designed to be long-lived. For this reason, Libyans should seek to exclude politicians who are personally interested in the outcome of constitutional decision-making.
Comparative history demonstrates that while recent popular constitutions had constituent assemblies that were elected, the constituent assemblies of constitutions proven successful through longevity were selected.
Successful constitutions (or those that are long-lived or likely to be so because of their present popularity) have been drafted by both elected and appointed independent constitution-writing bodies.
The constitutions of Uganda (1995), South Africa (1997), and Iceland (2012) were each written by elected constituent assemblies. In Uganda, elections were held for 214 members of the constituent assembly. The remaining 70 “special delegates” of the constituent assembly included those appointed by the president, the outgoing dominant political party and others, trade unions, the National Youth Council, and the National Union of Disabled Persons and the 39 women elected by special bodies.
In South Africa, the two branches of the legislature convened in special session together to serve as constituent assembly. The 490 members were specially elected in historically democratic elections for the purpose, yet they also had plenary power as a legislature.
Icelanders recently adopted their constitution through a transparent, representative, and inclusive process. The 25 members of their constituent assembly were elected separately from the legislature, and were commissioned with the sole purpose of drafting a constitution.
The three constitutions listed above have generally been praised as successful and as having had participatory, democratic processes. Together, they may reflect a recent constitutional trend towards election of constituent assemblies as an important piece of a process that produces legitimate constitutions and, as a result, longevity.
Yet it has not always been so. Most of the longest-lived and most-copied constitutions were drafted by appointed bodies. Although the actual drafting body for Norway’s 1819 Constitution, as outlined in a previous editorial, was elected, the pre-drafting body that made the important decision to write a constitution was a “great man meeting” of notables and scholars gathered by the king.
Additionally, Japan’s Constitution (1947) was essentially drafted by two lawyers on U.S. General MacArthur’s staff. Under similar post-World War II international pressure and direction (yet with far more drafting autonomy), the 65 drafters of the German Basic Law (1949) were appointed by the many German states.
Finally, the oldest constitution is the U.S. Constitution, written in 1787. This document was drafted by 55 men appointed by the legislatures of the thirteen original states.
Libya’s Constitutional History
Amendment three to the Constitutional Declaration requiring elections was passed by the National Transition Council (NTC) in a then-controversial move just two days before the 7 July 2012 elections. This, in an effort to placate federalist demands. The NTC’s hastily-constructed amendment did not receive the requisite absolute 2/3 +1 majority vote. Subsequently, a legal challenge was lodged against the amendment. The Supreme Court of Libya, however, has abstained from deciding the matter, citing lack of jurisdiction. (Invalidating the amendment, however, would have cast doubt on all other, less controversial constitutional amendments as they, too, were not passed by a 2/3+1 absolute majority vote.)
Although now generally desired, the pressure for elections began in the federalists’ camp. They contended that because Tripoli would be strongly represented in the GNC, that would in turn impact the composition of the constitutional committee of 60. Elections would allow them greater direct impact on the constitutional committee.
Almost from the moment the revolution began, the 1951 constitution has been a focal point for federalists. The procedural history of that document demonstrates that the struggle over election or selection for the constitution-writing body is not new in Libyan history. Again, the arguments of proportional representation proposed by the Tripolitanians and equal representation by those from the other two regions dominated discussions. Yet though they strongly differed on this point, all were eager to unite Libya.
Most relevant for the GNC’s consideration today is that, for the 1951 constitution, the 60 representatives were selected. Twenty were selected by the Mufti of Tripolitania, 20 by the Sayid Mohammed Idris el Senussi of Cyrenaica (later to become king), and 20 by Ahmed Bey Seif al-Nasr, the French-appointed governor of the Fezzan.
Yet selecting the 60 member committee was not the original plan. UN Commissioner Adrian Pelt’s original proposal for the Committee of 60 to the Council of Libya in 1950 was for elections, albeit indirect. He proposed that representatives be chosen by elected bodies in each of Libya’s three regions. This process would have allowed for the inclusion of experts and minorities, but kept the process democratic. Pelt regretted that he did not press for this option early when it remained feasible.
Pelt would likely be pleased with the GNC’s decision today. If they can determine a path forward that successfully navigates the many issues elections presents in a timeframe and manner that responds to public and civil society, he would be pleased indeed.
This is the eleventh editorial in a series on constitutionalism authored by constitutional legal historian Lorianne Updike Toler, founding president of The Constitutional Sources Project and Lorianne Updike Toler Consulting.