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November 21, 2012
Now that Libya’s General National Congress (GNC) has appointed and installed a government, its attention will turn to the selection of a committee to write a new constitution for the country. The fundamental question in this debate is whether or not the committee should be popularly elected or appointed by the GNC.Some in the eastern part of the country, which was marginalized under the Gaddafi regime, advocate an elected committee in order to guarantee that their interests are represented fairly in a Tripoli-based committee, especially around questions of decentralization.

Those who prefer appointment over elections argue that Libyans just went through an elections process to select their GNC representatives—many of whom expect to have a say in the constitution-making process. Furthermore, appointment could ensure that a qualified mix of people compose the committee, which should reflect the long-term interests of the country and not simply the current political dynamic. Libyan voters, the argument for appointment goes, will weigh in through a public referendum at the end to accept or reject the constitution.

There are potential solutions that would reflect a compromise between these two positions. The current plan, laid out in the former National Transitional Council’s amended constitutional declaration, is to form a committee with sixty members, twenty from each of the three historical provinces of Libya: Tripolitania (including Tripoli), Cyrenaica (including Benghazi), and the Fezzan (including Sabha and a number of other desert cities and towns). This arrangement has the advantage of distributing power away from Tripoli since the three are far from equal in population. Yet each of these provinces contains so many diverse ethnic groups that the logic for selecting large, all-encompassing constituencies is questionable. Smaller constituencies representing particular cities and towns, such as those that comprised the NTC, could promote fairer representation of local interests.

In any case, if the GNC amends the constitutional declaration to select members of the constitutional committee by appointment, rather than by popular election, it raises the question of what criteria should be used. First, the membership of the committee should reflect the purpose of a constitution in modern Libya. Generally, the constitution should promote national unity, provide a coherent legal framework for public administration, and protect fundamental human rights. The committee, therefore, should represent a broad spectrum of Libyans with all their complex social diversity, as well as technical experts with knowledge of political systems and Libya’s human rights obligations.

Second, the constitution should be crafted with a long term perspective in mind. While it might be naïve to think that the constitution will live forever, it should embody national values that extend beyond current politics. The membership of the committee, therefore, should not reflect the political arrangement in the Congress; rather, it should inspire the confidence of Libyans decades from now regardless of the fate of the existing parties.

Lastly, the membership of the committee should be selected based on the design of the drafting process. For example, if the draft constitution will be submitted to judicial review (as in South Africa), there might be less need for legal experts on the committee since the courts will ensure that the draft is legally coherent. Furthermore, if the process does not include a formal mechanism for input by civil society, then one or more seats should be reserved for civil society representatives.

The overall composition of the drafting committee is also relevant: drawing upon specific expertise will be important when debating particular constitutional questions.  For example, it would be helpful to include economists on the committee to debate various ideas for the distribution of wealth and national resources, journalists to debate media protection, and army officers to discuss the structure and oversight of the military. Representation of various tribes and ethnic groups will help toward building national consensus around critical questions of identity, such as language and citizenship rights. Those determining the composition of the committee should ensure that lawyers are not over-represented; lawyers have an important role to play to ensure that a constitution is legally sound, but generally, lawyers should interpret constitutions, not make them. Lawyers contribute only one perspective that is not sufficient for a consensus document.

Whatever system the GNC decides to adopt to form the committee, it is important that it is done as efficiently as possible. The precarious security situation in the country necessitates quick and decisive action. At the same time, all effort must be made to minimize political tensions so that the constitution-making process does not turn violent, which is a distinct possibility.  Even as the government focuses on domestic security, job creation, and rebuilding infrastructure —the usual priorities of any postwar country—the constitution development process must continue forward. The thoughtful selection of a broadly representative constitutional committee, given sufficient political cover by the government and local councils, are key ingredients to a consensus-driven constitution-making process in Libya.

Karim Mezran is a senior fellow and Duncan Pickard is a nonresident fellow at the Rafik Hariri Center for the Middle East.