Libya sets out pathway to democracy

“The circumstances in which a break with the past and the need for a fresh start come about vary from country to country, but in almost every case in modern times, countries have a constitution for the very simple and elementary reason that they wanted, for some reason, to begin again. This has been the practice since 1787,” wrote Kenneth Wheare in his 1966 book Modern Constitutions.

Libya is no exception with its new transitional constitution. Outburst of freedom and desire to break free from the Gaddafi regime are the vectors of the new constitution. But what does this constitution say? Is it all rosy? There may be some controversial articles in this new constitution, but if you read beyond these, there is some good news, and also some remarkable statements.

The controversial

The first article states: “Islam is the Religion of the State and the principal source of legislation is Islamic jurisprudence (Sharia).” It is clear that this statement does not try to create a fundamentalist theocratic state.

This view is confirmed by many other statements of the constitution proclaiming various human rights, such as the right to worship freely, also in article one; the right of equal civil and political rights and of “same opportunities without discrimination due to religion, belief, race, language, wealth, kinship or political opinions or social status” (article 6); freedom of opinion (article 13); and the right of women “to participate entirely and actively in political, economic and social spheres”.

The rebels of the Nefusa mountains, the fiercest opponents of the Gaddafi regime, will be disappointed with the first article stating that Arabic is the only official language of Libya. They have been fighting for recognition of their Berber identity and Tamazight language for over 42 years and had officially asked the National Transitional Council to ensure their identity would be recognised constitutionally.

Article 10 prohibits the extradition of political refugees. This may be quite a controversial statement.

The good

The rest of the document contains most of the useful ingredients of good modern constitutions: rule of law, independence of the judiciary and fair and open elections.

The constitution also guarantees some fundamental rights and sets the frame of a supreme constitutional authority.

It adopts the model of the German, French or South African constitutions, where the key fundamental rights are guaranteed against any of the judiciary, legislative and executive powers. Note that the UK unwritten constitution does not go that far - yes, the country has the Human Rights Act 1988, but its scope is limited by the parliamentary sovereignty principle.

The remarkable

Unlike the transitional constitution of the Republic of South Sudan, the Libyan timeline is clear. After one month of Libya being liberated, the members of the Constitutional Authority will be appointed and within three months of its first meeting, the final constitution will be approved.

The constitution will then be referred to the people of Libya for a referendum, and once agreed, the laws of the legislative and presidential elections will be laid down within 60 days. Within six months of the laws being passed, legislative and presidential elections will be held. The life expectancy of the current draft constitution should not exceed one year. So the transitional constitution sticks to what it says it is: only transitional.

Another important consideration is that one article is repeated twice in the constitution and is highlighted the second time. This article says: “The members of the Transitional National Council may not nominate or assume the position of the President of the State, the membership of the legislative councils and ministerial portfolios.” This is clearly a big punch to nepotism or despotism.

Three very important considerations need to be kept in mind: firstly, we have only reviewed a draft, secondly, it is only intended to be a transitional constitution with a short life expectancy and thirdly, how the constitution is applied remains to be seen. But we are hopeful, and even if the current draft is not perfect, gargantuan progress has been made since the Libya Constitution of 1969.

Philip Wood and Camille Astier are members of Allen & Overy’s Global Law Intelligence Unit