The Case for an Interim Constitution in Libya

Who is in charge of Libya? Muhammad Magarief, the president of the General National Congress (GNC), spoke at the UN General Assembly as de facto head of state. Mustafa Abushughur, the prime minister–elect, is another good bet. An argument could even be made for the ghost of the disbanded National Transitional Council (NTC), whose 2011 constitutional declaration still governs the transitional phase.

The question is not just academic. Libyans and their political leaders have different ideas of who reports to whom and who is responsible for what — a troubling sign in advance of the impending announcement of Abushughur’s cabinet. The confusion about responsibility within the Libyan government is a textbook example of the need for an interim legal framework to provide a basis for the transition to democracy.

Tunisia’s so-called mini constitution is a good example of the value of such a text. The elected National Constituent Assembly, one month after its first meeting, passed a law on the provisional organization of public authorities. The Assembly did not tackle any of the important questions they now face, such as state and religion, human rights, the system of government, or decentralization. In fact, the mini constitution had no bearing on the drafting of a permanent constitution; rather it outlined the responsibilities of the principal organs of government: the assembly, the judiciary, the president of the republic, and the prime minister. It also provided a legal framework for legislation and executive orders, which is critical to establishing the rule of law.

The need for legal and political clarity is perhaps even stronger in Libya where security risks present an existential threat to the transitional government. Take the example of the Supreme Security Council (SSC), a new umbrella body intended to consolidate the disparate security apparatus in Libya. The membership, responsibilities, and oversight of the SSC are unclear, and responses to security incidents — including the attack on the US consulate in Benghazi and car bombs in Tripoli — have been uncoordinated. An interim constitution would place the SSC within the hierarchy of the government and lend it credence as it campaigns for allegiances of regional militias.

Security is not the only policy area where public authority must be clarified. An interim constitution should assign legal and policy responsibility for transitional justice, economic development, international affairs, and, most importantly, political reform. Constitution making in Libya is still governed by the NTC’s constitutional declaration, which gave a yet-to-be-selected committee four months to submit a draft to referendum. Libya’s new constitution should be written through careful deliberation with a high degree of public involvement — a practical impossibility in four months. The Congress is sovereign to adjust the timetable, but it should do so within a clear legal framework of an interim constitution.

Some argue that a short timeline is sufficient since the defunct 1951 Libyan constitution is roughly adequate and must only be updated. A recent analysis, however, points to significant flaws in the constitution, suggesting that a longer process might be in order.

There is a justified fear that an extended constitutional timeline would be a move on the part of Congress to entrench its power. In the worst case, this could lead to the Congress’s refusal to leave office as in Eritrea, where a democratically drafted constitution remains unimplemented. But, in fact, a provisional document could prevent the return of authoritarianism by providing a system of checks and balances that would keep one person or body from becoming too powerful.

The Congress can further allay fears of a power grab with an interim constitution that lays out an extended timeline and emphasizes the transitional nature of its authority. The Congress is justified in doing so: it would be replacing the NTC legal framework with one that is more representative and legitimate.

The Congress has an opportunity to exercise the electoral mandate it enjoys from credible elections. To capitalize on this legitimacy and to provide enough space for a credible constitution-drafting process to take place, the Congress should pass an interim constitution to provide a clear legal framework for the government as it works toward a democratic, peaceful, and pluralistic Libya. Without such guidelines, Libya risks setting a dangerous precedent either by weakening the rule of law or shortchanging constitutional development.

Duncan Pickard is a constitutional specialist at Democracy Reporting International and a nonresident fellow at the Rafik Hariri Center for the Middle East. The views expressed above are those of the author alone.

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