Bolstering the Constitutional Declaration to Strengthen Transitional Governance in Libya

The August 2011 constitutional declaration of the National Transitional Council provides the current legal framework for the transitional government, but the document is woefully vague and leaves far too much discretion in the hands of those who hold power. Since an entirely new interim constitution might be political unfeasible or require too much time, the constitutional declaration should be strengthened to demarcate the responsibilities of government.

Interim constitutions provide the architecture of government until a more permanent constitution can be completed. Interim constitutions do not settle contentious social and political issues, but rather they serve as a bridge during deliberations for a final text. Interim constitutions, therefore, need only assign areas of responsibility and oversight to various organs of government. The constitutional declaration that currently holds in Libya provides a general outline, but should be far more specific to be effective.

Several interim documents used in other countries illustrate the weaknesses of Libya’s constitutional declaration. Tunisia’s mini constitution, currently in effect, was adopted as law by the National Constituent Assembly in November 2011, one month after its first meeting. The mini constitution includes provisions to enable the specific powers of the Assembly (draft the constitution, appoint the government, and enact interim legislation) and to balance the powers and responsibilities of the legislative, executive, and judicial branches. It also empowers local governments and independent authorities, including an elections commission and the central bank. Other interim constitutions are more specific than this: Poland’s 1992 “small constitution” had a structure similar to Tunisia’s but specified timelines for constitution-making and the legislative process.

A comparison of the Libyan constitutional declaration with the Tunisian model reveals several shortfalls in the delineation of public authorities. First, the constitutional declaration does not outline executive, legislative, and judicial authority. The declaration refers only to a head of government (the prime minister) and does not mention the powers of an acting head of state, which Muhammad Magariaf has assumed as president of the General National Congress, Libya’s elected interim legislature. The division of executive authority between the prime minister and GNC president is not clear. The mini constitution of Tunisia clarifies executive power in articles 11, 17, and 18. The president:

  • Promulgates laws
  • Controls foreign policy
  • Names the prime minister with the consent of the Assembly
  • Commands the armed forces
  • Declares war
  • Declares states of emergency with the approval of the prime minister and the Assembly

The prime minister:

  • Enforces laws
  • Appoints ministers with the consent of the Assembly
  • Presides over cabinet meetings
  • Creates public institutions
  • Holds all executive power not assigned to the president

When powers are not clearly defined, there is no legal check against the president or the prime minister overstepping his authority. Libyan officials have already criticized President Magarief for overstepping his mandate by appointing a cabinet of advisors and representing Libya at the UN General Assembly in September.

Legislative power is also unclear in the constitutional declaration. Article 6 of the Tunisian mini constitution assigns legislative powers to the Assembly, including the authority to pass laws relative to:

  • Ratification of treaties
  • The judicial system
  • Oversight of information and media
  • Domestic and national security
  • Elections
  • Personal status
  • Human rights and freedoms
  • Nationality and obligations
  • Crimes and amnesty
  • Taxation
  • Currency
  • Civil service
  • Fiscal and monetary policy
  • Education
  • Private property
  • Public health
  • Energy, the environment, and natural resources

The Libyan constitutional declaration does not grant authority over any of these or other policy domains to the General National Congress, which is the sole elected body that could perform a legislative function. Therefore, there are no legal bounds to what the Congress can do, opening the door to state impositions on civil rights — a common consequence of the absence of sufficient checks and balances, as in postwar Eastern Europe — as well as confusion around the division of responsibility between the legislative and executive branches for critical policy areas such as defense, economics, and foreign relations.

In addition to limiting legislative and executive authority, the constitutional declaration should empower the Congress and the executive to make progress on some of Libya’s most pressing priorities, namely the resolution of intragovernmental conflicts, transitional justice, and coordination of domestic security services.

The authority of local councils in Libya should also be clarified. Without any legal status in the constitutional declaration, local councils are subject to national ministries that claim responsibility over a broad range of public functions — such as trash collection and policing — that might be better handled in a decentralized manner. Provisions could be added to empower local councils on a temporary basis. Article 71 of Poland’s small constitution serves as good model for what an interim text could look like.

  1. Local self-government shall concern itself, within the limits defined by law, with the performance of a substantial part of public tasks, except for those tasks which are, by statute, reserved exclusively to the competence of governmental administration.
  2. Units of local self-government shall perform public tasks ascribed to them, in their own names and with their own responsibility, in order to satisfy the needs of the inhabitants.
  3. Units of local self-government, within the limits defined by law, shall exercise powers of governmental administration.  For this purpose, they shall be provided with appropriate financial resources.
  4. Units of local self-government shall fulfill their tasks by means of their own constitutive and executive bodies, and shall, within the limits defined by law, be free to formulate their organizational structures.

This text provides a general framework by which power can be devolved to local authorities but does not call for a full-fledged program of decentralization, a potentially divisive issue that should be open for debate in the full constitution.

A final practical problem with the constitutional declaration is that the General National Congress already has exceeded the timeline laid out for drafting the constitution and appointing a new government, which is understandable in an unstable political environment. The failure of the declaration lies in that there are no provisions for amending that timeline or recourse should the deadlines be broken. The Congress should consider cancelling the timeline in the constitutional declaration and instead pass legislation to govern the constitution-making process. This would give the Congress the time to think more deliberately about how to craft an inclusive process in a reasonable timeframe.

To summarize, the constitutional declaration should be amended to:

  • Delineate the powers of the prime minister and president
  • Outline the powers of the legislature, especially over critical areas of security, economic, and foreign policy
  • Include a provision for resolving intragovernmental conflicts
  • Empower local councils to make certain decisions appropriate for municipal authorities
  • Create a new timeline for government formation and constitution making

These amendments should be debated and then passed in accordance with Article 36, which requires a two-thirds majority to change the constitutional declaration.

A democratic constitution will not create a functioning democracy by itself. Strong political institutions are also necessary to implement the constitution, safeguard the division of authorities, and ensure the rule of law. Yet a revised constitutional declaration and its permanent successor would go a long way in helping to consolidate Libya’s nascent democracy, especially in this critical transitional phase when the abuse of power is far too easy and political paralysis is far too common.

Duncan Pickard is a nonresident fellow at the Rafik Hariri Center for the Middle East.

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