العنوان هنا
Policy Analysis 10 October, 2011

An Assessment of the Constitutional Situation in Libya


Mohammad Ali Ahdash

Professor of Islamic Studies at the European Academy and the Islamic Centre, London, United Kingdom

Libya is currently experiencing a frantic race between the different proposed drafts of constitutions for the country, which are being formulated on the basis of partisan or ideological visions. Ordinary Libyan citizens are caught in the middle of the confusion of the various differing perspectives on the issue. The modern Libyan state was founded on December 24, 1951 with a constitution that was a condition for the country's independence; he also claims that the Qaddafi coup of 1969 effectively disrupted the working of the Constitution of Independence. For generations of Libyans who grew up after independence have - unfortunately - been raised in isolation from their country's past, hostages to a distorted and counterfeit memory.

From a legal and constitutional perspective, the Constitution of Independence is still valid and should be activated. In Libya today, there is a political, not a constitutional, vacuum; adherence to the Constitution of Independence does not necessarily entail a return to the monarchy, for this constitution was not bestowed upon the Libyan people by the king, nor was it a gift from the colonizer. In the absence of a constitution, it would of course be logical to demand a constitution. When a constitution exists, however, the correct view is that this existing constitution be activated and amended. The current demands for a constitution should be regarded as being in blatant disregard of - and ingratitude for - the Constitution of Independence and the heroes who fought for that independence.

My argument is that Libya needs to promote a culture of respect for the constitution, not to engage in a battle for the formulation of new constitutions. In advanced countries, the constitution is only drafted once, and is not considered an insignificant document that is created and then thrown away each time the ruler, or government, changes. If a country changes their constitution, which is the overarching law, other laws will be more vulnerable to tampering.

Among the advantages of the Constitution is that it was drafted before the monarchy by the people represented by their deputies who led the militant struggle for independence. The drafting process was overseen by a committee of experts, the most famous of whom was the constitutional expert Adrian Pelt. The process was conducted with the approval of a group of scholars and leaders, such as the Grand Mufti Sheikh Abu al-Asad al-Alim. As such, it combined various important elements, including modern drafting, procedural legitimacy, and a text that explicitly states the state religion is Islam and upholds public rights and freedoms, the respect for all religions and creeds and the freedom of thought and expression; it won the approval of the United Nations.

The Constitution of Independence is drafted in a way that allows for amendment without undue complication. Indeed, it has been modified in the past, such as when the term "united" was removed when the state's political system changed from a federation to a centralized state system in 1963. Therefore, there is no need for a new constitution though there is the need to amend this existing constitution to repeal provisions relating to the monarchy.

Therefore, the attempt to draft a new constitution offers implicit recognition of Qaddafi's coup d'état, his abolition of the Constitution of Independence, and his contempt for that independence. It is also an unnecessary prolongation of the transitional period that opens the debate on sensitive issues in the charged atmosphere that prevails after the devastating war. This also paves the way for further strife and societal division in the context of grave risks in light of the high level of international and regional interference in Libya. In order to formulate a new constitution Libya would have to experience extensive social dialogue, which could only take place under stable conditions. As such, it would be best to stick with the Constitution of Independence and postpone its review until the country's situation is stable. There is a frantic race and an open market for draft constitutions at the moment. Groups of intellectuals, specialist, and non-specialist individuals are currently engaged in preparing draft constitutions, which are driven either by good intentions, desires for fame, or guided by particular partisan or ideological visions. In light of so many projects, the Libyan citizen is most likely struck with confusion amid the chaos. Observers need provide precise and accurate evaluations of the country's constitutional status.

The Constitutional Situation in the Qaddafi Era

During Qaddafi's reign as the ruler of Libya, there was no kind of political, democratic, or constitutional work in the country. From September 1, 1969, the country was governed according to what the Council of the leadership of the coup saw fitting. This lasted until the supposed application of Colonel Qaddafi's Green Book on March 2, 1977, and what he called popular authority: popular congresses, popular committees, and the General People's Congress. The reality, however, was that decisions relating to all matters were made in the colonel's tent.

Back to the Roots

The modern Libyan state was founded upon the country's independence on December 24, 1951, and its constitution was a requirement of its independence. The state started to form its institutions. The National Assembly was formed, and the experience of democracy and the institutional state - with its accomplishments and shortcomings, successes and failures - was a lived experience until September 1, 1969. It was, overall, a good experience that promised improvement and movement from good to better. Qaddafi's coup, however, disrupted the application of the constitution, forcing people to apply what was stated in the Green Book, which considered parliamentary representation to be a hoax, and political party work to be treason. This was the situation until the current revolution.

Article 195 of the Constitution of Independence states: "The application of the provisions of this constitution are not in any way to be impeded, except temporarily in time of war, or during the application of martial law." It is thus quite clear, on a legal and constitutional level, that the Constitution of Independence is still in force. The Constitutional Proclamation of December 1969, issued on the anniversary of the coup, must then be considered legally invalid because it was contrary to the constitution and was not issued by a competent body; additionally, the Constitutional Declaration of the Transitional National Council does not abolish the Constitution of Independence for the same reasons, which is not to say that the National Council can be compared to the tyrannical Qaddafi dictatorship in any way.

The constitution is legally present; what is missing is the elected legislative and executive branch. This is what needs to be re-built in the coming period in accordance with a timetable. Libya today faces a political vacuum, not a constitutional void.

The Constitution of Independence and the Monarchy

The period of Libyan independence was a great historical era, but it is one that is largely unknown to many of the sons of this revolution. The majority of today's revolutionaries were born in the era of Qaddafi; they had not heard of the anthem that they sing today, nor had they seen the flag they now salute. It is a fallacy and a distortion to say that the Constitution is the constitution of the monarchy, for it is the Constitution of Independence and the constitution of the Libyan people; this constitution was neither a grant from the deceased King, nor was it a gift from the colonizer.

It should be pointed out that acceptance of the Constitution of Independence does not necessarily entail the return of the monarchy. The Libyan people have agreed to accept the flag and anthem of independence, and have shared its constitution. Given that they do not agree to the return of the monarchy, this monarchy should be abandoned.

Education and Awareness: Not paper and ink

What the Arab peoples, including the Libyan people, need is a change in the culture in which tyranny can develop. For the Libyan people this means the spread of a culture of respect for the constitution. This is the priority after decades of Qaddafi's rule, characterized as it was by the forgery of history and neglect and contempt for the heroes of the struggle for independence. The priority for Libya today is not the onset of a craze or a battle for the drafting of new constitutions.

The problem is both simple and dangerous - Libyans do not comply with the existing constitution, and the ruler deals with this document the way pre-Islamic Arabs dealt with eating dates. They would build their gods with the dates at the beginning of the day, and eat them at the end of the day when hungry. There is no justification before our contemporaries for eating the constitution, and no longer are there any wonders in our contemporary reality. The Arab world now holds the record for the speed at which constitutions are changed and discarded. Constitutions are changed whenever the ruler finds it desirable since our rulers do not distinguish between ballot boxes and garbage bins; they see the same value and the same fate in both containers. To be fair and honest, the ruler is not the only one who bears the responsibility for the lack of respect for the Constitution; the citizen does not feel the importance of the constitution as well. He sees his country's constitution violated and does not care. Imagine the counterfactual scenario in which the Libyan people objected to Qaddafi in the first days of his coup, standing up to him and saying "go back to your base Colonel; the Constitution does not allow you to rule and you do not have the legitimacy or the mandate to do so." Would Qaddafi's reign have continued?

In the world today there are many dictatorships; they boast modern constitutions that guarantee such things as freedoms, the separation of powers, the rights of the citizen, and other lofty principles and ideals. The reality is that the provisions of these constitutions do not exist in lived reality. On the other hand, there are countries like the United Kingdom that have no written constitution, but there are constitutional principles and a constitutional culture and awareness.

The Culture of Respect for the Law and the Constitution

In any case, the constitution is not a sacred text sent down from the heavens. It is a position that includes a set of basic principles and general rules that broadly deal with regulating the relationship between the state and its citizens before the details of this relationship are further regulated by laws and legislation. It is subject to revision and amendment, and can be tailored in the way that the Libyan people see fit in light of changing circumstances, developments, and the experiences of other nations, so as to ensure the Libyan citizen access to the highest degree of responsible freedom. What prevents us from taking up this constitution as a comfortable vehicle upon which to cross the distance dividing us from stability and normalcy in our country, a comfortable and familiar carpet that fits us all and upon which we can rest for a while, while we re-stitch its old fabric or, if we collectively decide to do so, to replace it altogether?

Constitutions are only drafted once. It is not some silly thing to make and discard every time there is a change of ruler or a change of government. Take the United States for example; it has adhered to the same constitution since its inception, and has amended this constitution when the need has arisen.

If people tamper with the law of laws, other laws will be more vulnerable to tampering. The constitution is not sacred, but it regulates and organizes the state, which this is no simple matter. Without this, we will be left with chaos, which will make the people nostalgic for the injustice and oppression of the Qaddafi regime.

Respect for the Constitution of Independence is the best and most mature way to initiate the establishment of a constitutional state, a state of law and order. The phenomenon of lack of respect for the constitution and laws exists in the society. This phenomenon was entrenched by Qaddafi and the culture of his reign, which began with a coup and the violation of the military oath, disabling the constitution and the laws. The Constitutional Declaration issued by the National Council unfortunately ignores the constitution, even though it has incorporated some of the exact wording of the Constitution of Independence, which denotes both disregard and plagiarism.

Knocking down what preceded and starting from scratch every time is not sound practice. Every time we start from scratch, we take two or three steps forward and then stop for some reason, returning to the initial starting point. The sum of our efforts thus amounts to zero.

The nations that have no past have no future; there can be no fruits without roots. Nations such as these hire scholars to invent a past for them, even if it is a forgery, and the advanced nations immortalize the present so the generations of the future have a past of which to be proud. This is all because the present and the future are extensions of the past. If the Libyans do not adopt the Constitution of Independence, their ranking among nations will be lower than that of East Timor and the Republic of South Sudan. In the absence of a constitution, it would of course be logical to demand a constitution. When a constitution exists, however, the correct view is that this existing constitution be activated and amended. The current demands for a constitution blatantly disregard, and show an insulting ingratitude for, the Constitution of Independence and its heroes.

A constitution cannot be a grant or a favor from anyone, whether it is the governor, a group of intellectuals, a party, or even from the revolutionaries or the Transitional National Council; an interim constitution issued by an actual or legal government is akin to such a grant. It is more important for the Libyan people in this difficult stage to hold on to the Constitution of Independence and build their state. The right thing to do is not make what has already been made or to repeat what has already been repeated.

Drafting a Constitution under Exceptional Circumstances

The formulation of a new constitution requires extensive societal dialogue under very stable conditions, something that is not possible in the current situation. The dialogues currently underway are being carried out by particular groups, and are relatively limited in number as a result of the intellectual and personal disharmony across the spectra of the opposition.

The attempt to draft a new constitution opens the debate on state religion, the sources for legislation, identity, and language, in the wake of a devastating war that has left scars that have not healed, as well as divisions in the Libyan social and political body; this is also taking place in the context of international and regional parties that are looking to take advantage of the country's current situation to satiate their own greed and interests. Opening the debate on drafting a new constitution opens the door to differences and strife, to all people demanding what they allege to be their right, and to discussions on every article; all of this will raise the difficult partisan and intellectual issues.

This does not mean that we should run away from our problems, nor is there something wrong with debate and discussion. The atmosphere, however, is highly charged, and such an atmosphere does not allow for extensive and deep debate, especially since the state is fragile on the eve of finally emerging from a major schism; it cannot withstand a major shock or any other disorder.

Among the advantages of the Constitution of Independence

As mentioned above, the Constitution of Independence was not written by the King or the colonizer, nor was it drafted under exceptional circumstances. On the contrary, it was through this constitution that the King was appointed and his powers delineated. It was written and refined by the people represented by their deputies, who led its military and political struggle, and who, on behalf of the people, formulated the constitution after confirming the nature of the people's will. "The Libyan National Assembly drafted and approved this Constitution in its meeting held in Benghazi on Sunday 6 Muharram 1371 corresponding to October 7, 1951, entrusting to its president and his deputies to issue it and submit it to His Majesty the Great King and to publish it in the official newspaper of Libya."

A committee of experts, the most famous member of which was the constitutional expert Adrian Pelt, oversaw the drafting process. The process was conducted with the approval of a group of scholars and leaders such as the Grand Mufti Sheikh Abu al-Asad al-Alim and others. As such, it combined various important elements, including modern drafting and procedural legitimacy. The drafting process lasted about two years and was carried out with the assistance of the United Nations. Ultimately, it was the outcome of considerable expertise.

It must be made clear that the Constitution of Independence explicitly provides that Islam is the state religion. It resolved the issue of sources and references with the following provisions:

Article 5 states that Islam is the state religion. Article 40 claims that sovereignty is God's alone, and through the will of the almighty it is entrusted to the nation, and the nation is the source of authority.

The source and reference of the constitution is Islam, for this Islamic reference and source for the state is a national necessity and a guarantee of the preservation of its identity and heritage. Any demand for a new constitution will affect this article in one way or another.

The Constitution of Independence enjoys international approval because it was prepared under the auspices of the United Nations and has its recognition. This is an advantage that can be used internationally because it will be difficult for the great powers and the United Nations to repudiate or take a negative attitude towards this constitution.

The constitution also provides for public rights and freedoms, including as follows:

Article 21: Freedom of belief is absolute. The state respects all religions and sects, and ensures Libyans and foreigners living in the land the freedom of belief and religious observance so long as that does not violate public order or public morals.

Article 22: Freedom of thought is guaranteed and each person has the right to express his opinion and broadcast it in all the ways and means, but may not abuse this freedom in contravention of public order or morals.

Article 23: Freedom of the press and publication is guaranteed within the limits of the law.

Article 24: Everyone has the freedom to use any language in private transactions or in matters pertaining to religion, culture, journalism, other publications, or in public meetings.

Article 29: The freedom of education is ensured so long as it does not violate public order or public morals.

Article 192: The state ensures that it will respect non-Muslims with respect their personal status.

Constitutional Amendments: Not a new constitution

I will not claim that the Constitution of Independence is the best of constitutions, but it currently offers the best way out of potential strife over the proposed new constitution. The Libyan people are not in need of a new constitution, but they are in need of amendments that delete provisions relating to the monarchy in the fifth and other chapters, replace the monarch with the president of the republic, and change the naming of the country from a kingdom to a republic, after a popular referendum on the state's system of government that is acceptable to the free will of the people.

It is up to the Libyan people to benefit from the previous experiences surrounding them. After the revolution, the Egyptians amended their constitution rather than draft a new constitution; Iraq witnessed the drafting of seven constitutions, the most recent of which was drafted under the auspices of the American colonizer, which entrenched and adopted - in letter and in spirit - the despicable system of quotas.

There is nothing preventing the amendment of the Constitution of Independence in the ways guaranteed by the constitution itself after the dust of the current war settles, when people return to their normal lives and when there is a supportive atmosphere for the development of new amendments or a new constitution that meets the aspirations of the people that is in harmony with the current developments in order to keep pace with the times. The Constitution of Independence is not a static document, nor is it impossible to modify or so easy to change that such change can be done in record time as is the case of the Tunisian constitution, which was changed several times to extend the reign of Zine El Abidine Ben Ali, or the Syrian constitution, which was changed within half an hour to allow for Bashar al-Assad's inheritance of power after his father's death. The Constitution of Independence is framed in a manner that allows for amendment without undue complication. Indeed, it was amended in 1963 to remove the word united to signal the change from a federal political system to that of a centralized government. The king had planned to amend it again to transform the country into a republic, an amendment that should be made at the current juncture.

The Constitution of Independence and Stability

Whoever demands a new constitution immediately is actually calling for the extension of the transition period, the postponement of the exercise of normal political life, and the disruption in the process of change and development. Everyone knows that Somalia has not come out of its transitional phase since the fall of Siad Barre, which has been more than twenty years. In such a situation, Libya would remain in a state of instability for an unlimited period of time, and the country would plunge into a maze of chaos and conflict in light of the proliferation of weapons and the intensification of international ambitions and interests. Not adopting the Constitution of Independence will lead to open-ended discussion on large issues upon which the political parties and currents are divided and polarized, leading to even less clarity on the future because of the different political and intellectual forces that would be involved in its drafting, and then to the weakness of the state, insecurity, lack of order, and the risk of outside interference.

The activation of the Constitution of Independence is essential for the success of the revolution as a nation's constitution cannot be formulated while it is in transition. Holding firm to the Constitution of Independence is necessary for the safe and rapid emergence from the current state of transition to a state of stability.

As such, it is imperative to start working on the basis of the Constitution of Independence as this is what is obvious, for in any revolution that takes place the next step is always to seek stability of the state. The acceptance of the Constitution of Independence will achieve stability at a time when people need to pay attention to work, education, and development and to reverse the effects of Qaddafi's coup, ridding the country of its remnants. The organization of Libya is behind in all fields, so there is no time to lose after four decades of stalled development. More time will be needed to heal and recover from the effects of these decades.

Acceptance of the Constitution of Independence will save a great deal of time and effort, as what it entails is that a set of amendments, necessary and justified in practice, be put before the people for approval. The drafting of an entirely new constitution is not justified, whether in terms of circumstance or timing.

Foreign Interests and National Unity

I fear that there will be a kind of custodianship and control over Libya by some parties that will wish to impose choices that will lead to forms of superficial democracy, which will exploit the goodness and simplicity of a people that: do not need much to be satisfied, did not uphold the constitution of their independence, have not had the time to fully understand their rights, and do not have the sufficient experience and familiarity with constitutional and democratic work and its manifestations.

A partnership with countries of vastly superior strength has been imposed upon the Libyan people today. These countries have their calculations and interests in Libya, and elsewhere, and these interests come before the interests of any of their partner. It is also obvious that the Libyan people are the junior partner in this relationship, and that these countries have found themselves forced into this partnership because of what the February 17 revolution imposed upon their plans in Libya.

It is not certain that foreign designs and interests will correspond to the interests of Libya, or that things will unfold in the ways that Libyans hope they will. Instead of exhausting time, effort, and energies in analysis, and debate over these designs and interests and the possibilities that may arise from them, it is the right of the Libyans, and the main responsibility of the Transitional National Council to the people, to get this country and its resources out of the crisis and to safety, taking precautions against any eventuality.

The adherence of the Transitional National Council to the Constitution of Independence (the Constitution of 1951) would be considered a weather vane of the good intentions of the Council, who should take concrete steps to confirm these intentions, that it sees itself as the temporary shepherd of the Libyan people as a whole, and that it refuses any offers, dictates, or pressures from any external or internal party.

Similarly, in upholding the country's 1951 constitution - given its status as the last document upon which the Libyan nation in its entirety gave its consensus - transmits a clear and important message from the Transitional National Council that will reassure the different parties of the Libyan people that this Council is dealing with the Libyan people as a single unit, respecting its historic decisions, and upholding a constitution, the drafting of which involved representatives from all the components of the Libyan people and all areas of their country.

Standing with Qaddafi?

Perhaps those who advocate for the drafting of a new constitution do not know that they are standing side-by-side with Qaddafi. The formulation of a new constitution means the implicit recognition of Qaddafi's coup, his abolition of the constitution, and his contempt for independence. The people rose up and did not find anything from the pre-Qaddafi era except the flag and anthem of independence, so they held on to them; if they now search for a constitution, they will find that the constitutions of the political parties will not serve them. If, however, they hold on to the Constitution of Independence, they will have maintained the independence and unity of their country.

Will our people accept this recognition of Qaddafi's actions after they worked and sacrificed everything to rid themselves of his reign? What Qaddafi did was corrupt, and all that is built on corruption is corrupt. How can we give legitimacy to the crime of the coup and the abolition of the constitution? The Libyan people may be forgiven for what has passed because of Qaddafi's oppression and terrorism, but what is their excuse today?

The Libyan people are at a crossroads; we ask God Almighty to restore our nation and our people to health.


Libyan Constitution of Independence