Libya’s draft interim constitution, designed to guide the country through the coming period until a permanent constitution is finalised and enters into force, is a fairly standard text for the Arab region. It is at times progressive (Article 8 provides for a number of social rights, including social security) and at others intrusive (Article 5 requires the state to encourage marriage).
It also calls for the institution of a multi-party democracy (Article 4), but refers a number of vital issues to future legislation in a way that leaves open the possibility that non-democratic practices may develop; for example, it provides that the conditions under which a warrant for phone-tapping can be obtained (Article 13) and that rules on the organisation of political parties will be determined by law (Article 15).
Some commentators express dismay that sharia (i.e. Islamic jurisprudence) is “the principle source of legislation” under the interim text (Article 1); but that wording is not unusual in comparative practice, even when compared to the region’s more liberal countries. Tunisia's previous constitution (now suspended) provided that Islam was the religion of the state, but did not declare that sharia was a source of legislation.
Egypt's previous constitution (also suspended) went further in stating that Islam was "the principal" source of legislation. The wording of the new Moroccan constitution (which came into effect in July 2011) is that Islam is the religion of the state, but it does not mention sharia (though it does say that political parties cannot work against the Islamic religion).
Whatever the case may be, it isn’t clear that these constitutional provisions on sharia have any practical effect. The provision is mostly symbolic as it has not been translated into firm obligations on the part of legislators to look first to Islamic sources before considering other sources of inspiration. In practice, if a parliament is mostly composed of Islamists, those legislators will regard Islam as their inspiration regardless of the constitution’s reference to (or silence on) the issue. If the parliament is mostly composed of communists, then Islam will probably not be a source of inspiration.
A question of precedence
Libya’s draft interim constitution also, and in a number of ways, firmly places itself within the wave of uprisings that have taken place in the Arab region in 2011. The text refers to itself not as an “interim constitution” but as a “constitutional declaration” (i3lan dusturi or اعلان دستوري in Arabic). That confusing terminology was used by the Supreme Council for the Armed Forces in Egypt when it published its own interim fundamental law in March 2011, and this template appears to be setting a trend in the region.
In addition, the Libyan document sets itself apart from the countless number of interim constitutions that have been promulgated in the past in the Arab region by setting out a clear timetable for transition to the drafting of a permanent text.
It is worth noting that the interim constitution does depart from Egypt’s lead in one important aspect. It specifically calls for international observers from the United Nations to oversee the coming elections (Article 30), something that has been clearly rejected (for all the wrong reasons) by the Egyptian military. This directly reflects the changed relationship between Libya and the international community.
The rules that the Libyan text establishes to guide that transition could benefit from some tweaking, as relevant detail is missing (while detail that is included could lead to a frustrating result). Libya’s National Transitional Council (NTC) is clearly conscious of its shaky claims to sovereignty and legitimacy. The draft text claims that the NTC derives its legitimacy from the revolution (Article 17); this is unclear, and could lead to tensions given that the link between individual NTC members and the revolutionary fighters that sacrificed so much on the front was sometimes tenuous).
The membership of the NTC is also poorly defined. Its members are to be selected by local councils, but the selection mechanism itself is not defined (Article 18). Although it would be natural to expect that members should be elected by the local councils, words to that effect are not actually included in the text, which opens the possibility that direct appointments could be made through non-democratic means. The power that the NTC will hold during the transitional period makes this one of the issues that perhaps most needs to remedied before the interim constitution enters into force.
A matter of timing
Libya also appears to be following Egypt’s lead by calling for a quick constitutional drafting process. Egypt’s interim text indicates that the future permanent constitution should be drafted in six months, while the Libyan text prescribes an even shorter two months (Article 30). Despite this difference, the time granted to the public to contemplate and discuss the draft before the referendum is the same in Libya as in Egypt (only thirty days); Tunisia stands in contrast here, as the only country so far not to set a timetable for completion for the drafting of its new constitution.
There has been much talk of the legacy of forty years of despotic rule in Libya, including the absence of political parties, civil society, and competent civilian institutions. In this light, the decision to rush the draft of what will become a permanent constitution appears very misguided. It is also a missed opportunity, given that constitutional drafting processes are the ideal time to debate fundamental issues such as the nature and role of the state, and the relationship between the individual and the state.
Perhaps the most surprising aspect of Libya’s draft interim constitution is the manner in which it was published. With the proviso that it is close to impossible from outside the country to obtain a full picture of how the text was prepared, it seems at the very least that the draft was released before most of the revolutionaries that had been fighting on the frontlines for months had had a chance to see the text - let alone comment on it. If Libya is to be a democracy, then it should do its utmost to provide an opportunity for all its citizens to participate in the development of its new fundamental texts and institutions.