Open Debate on the Latest Draft of Libyan Constitution

Post Conference Report 

11-12 March, 2016

Open Debate on the latest draft of the Libyan Constitution

Organized under the patronage of Libyan Institute for Advanced Studies (LIAS)

As part of its ongoing support of the Constitutional Drafting Assembly’s efforts, and as part of its communal contributions to the components of the Libyan social spectrum, the Libya Institute for Advanced Studies (LIAS) organized a symposium on the Libyan Constitution in Tunis on the 10^th and 11^th of March, 2016. Over 80 Libyan thought leaders, met in Tunis to discuss the final draft of the Libyan constitution with the aim finding common ground on various articles and chapters in order to ensure final adoption through referendum.

The main objective of the conference was to ensure the widest participation and accord between different political and social parties so as to sign an approval of the final draft of the constitution through referendum by the largest majority.

For this reason, LIAS seconded members of the CDA, including boycotters, as well as legal experts, intellectuals, scholars and tribal elders representing all Libyan cities, towns, villages, and oases. The forum addressed many topics including, but not limited to, the transitional procedures, the form of governance, local government units, natural resources, the judiciary authority, in addition to the rights and liberties; to mention but a few.

The participants responded vigorously to many critical questions that are currently shaping the constitutional discourse; even the boycotters of the CDA engaged in the symposium’s discourse.

It became clear that differences of opinion can be transcended and that the stakeholders in this process can rise above their differences to enable the CDA to complete the Constitution that the Libyan people have been eagerly waiting for, on time to contribute to overcoming the ordeal and the plight of our wounded homeland.

With this understanding, a Committee was formed from among the participants with the aim of finding a consensus of views among members of the CDA including the boycotters.

The Committee called upon the boycotters to reassume their duties in the Constitutional Drafting Assembly for the welfare of Libya. The boycotters have positively responded to the Committee. Consequently, the Conciliation Committee held a meeting with Dr. Mohamed Al-Toumi, and Mr. Dhaou Al-Mansouri.

Points of disagreement were reviewed and an atmosphere of dialogue and goodwill prevailed. Dr. Toumi and Mr. Al-Mansouri have positively responded to the conciliation call; compromise was the dominant factor that led to the acceptance of finding reconciliatory perspectives that may enable the delegates to overcome their differences for the sake of saving the nation. This led to meeting with the following continuing members of the CDA:

1. Jamal Al-Ghazal.
2. Ibrahim Papa.
3. Suleiman Al-Mansouri.

The Conciliation Committee then met with the continuing members of the CDA in order to narrow the gap between the two camps. Points of differences were delineated and the Committee succeeded in bridging the rift to unite the efforts, hearts, and minds of the participants for the noble target of completing the Constitution.

Points of Disagreement:

1. The Capital
2. Localization of Authorities
3. Election of the Head of State
4. The Two Chambers (The Shura Council)
5. Local Administration
6. Natural Resources (Wealth)

After extensive discussions and interviews, in several meetings, it was agreed on the conciliatory points listed below for the final drafting of the Constitution:

I: The Capital

Committee members agreed that Tripoli is the Capital of the Libyan State.

II: Localization of Authorities

The Committee agreed to temporarily localize authorities for a single electoral cycle; after that it is left to the Shura Council to decide upon it.

III: Election of the Head of State

Amend the text of Article (202) to read as follows:

1. Only for the purpose of the first presidential election, the country shall be divided into (13) electoral constituencies
2. The President of the country will be the successful candidate who attains the absolute majority of the votes provided that the attained votes shall not be less than 10% from 9 electoral constituencies.
3. If none of the candidates does not achieve the afore-mentioned conditions in the previous clause, the two most represented candidates in the electoral constituencies, who obtained the minimum total votes in the second round, where the winner will be the candidate who obtains the absolute majority of the votes.

IV: The Shura Council’s Two Chambers

The members of the Committee agreed to keep the two Chambers (The Senate and the House of Representatives) and to transfer some of the mandate of the Senate to the House of Representatives as follows:

• Referendum Laws
• Emergency and Martial law
• Amnesty Law
• Laws concerning State emblems, flag, anthem, and decorations
• Public Budget Law shall be transferred to the House of Representatives to approve by a two-thirds majority
• Ratification of international treaties and conventions shall be transferred to the Shura Council’s two Chambers (The Senate and the HoR)

Moreover, the Senate’s mandate on some designations, such as appointing the State’s Ambassadors and Representatives at the international Organizations, shall be devolved to the Prime Minister.

V: Local Administration

Local Administration will replace Local Government

VI: Article 186

Replace (then) with (and) as follows:

A law shall determine a percentage from the returns of the non-renewable resources to create alternative projects that give priority to the areas of production vis-à-vis their spatial capacity and the need for upgrading their infrastructure; then to the less developed regions.

A law shall determine a percentage from the returns of the non-renewable resources to create alternative projects that give priority to the areas of production vis-à-vis their spatial capacity and the need for upgrading their infrastructure; and to the less developed regions.

VII: The Social Components

The Conciliation Committee held a meeting with the Tuareg members in the CDA:

1. Mr. Ibrahim Allaq
2. Mr. Ali Hamdani

During the meeting, it was clear that the draft of the CDA Work Committee has included the bulk of their demands in the report of the Outreach Committee.

The Conciliation Committee agreed to the Tuareg members’ request to replace the title of Article 65 (National Languages and Cultures) with (Multilingualism and National Cultures).

Symposium Agenda

The main symposium agenda was devised with the support of the symposium’s Advisory and Review Committee, as well as the input of the local Organizing Committee in Libya. The conference included six plenary sessions and   featuring a series of TV broadcasts live on Libya’s Channel.

Day 1 – Thursday, March 10 2016

• Welcoming address by LIAS organizers
• Primary basics & framework in latest draft of the constitution
• Questions and interaction from participants
• Transitional undertakings in latest draft of the constitution
• System of Governance
• Final close up and discussion

Day 2 – Friday, March 11, 2016

• Opening address by LIAS organizer
• Local Governance and Resources
• Judicial Authority
• Rights and Liberties
• Recommendations to CDA by tribal elders, judiciaries & immigrants

THE SESSIONS

Plenary Session DAY 1

Dr. Ali Hamouda’s opening address set the tone of the symposium in the critical period leading to the final submission of the constitutional draft, in the context of political divisions, social and civil insecurity that threaten the unity and welfare of Libya. The latest draft must be revised to reach a final consensus. The completion of the Constitution is a dire necessity.

1. The Constitution will be the cornerstone to social and political peace and only through its final adoption can we speak of citizens’ rights and responsibilities in a state of justice and law.
2. Building the republic on solid basis of law and justice is the only hope for future generations.
3. Reconciliation and compromise remain our priorities for the short- and long-term. The agreement must be total.

Hedi Abu Hamra, a key member of the political assembly, insisted that the assembly has judicial and legislative prerogatives as an entity that was lawfully elected by citizens from different regions of the country, representing diverse political leanings. It follows that its sole duty at this point is to submit a final draft of the Constitution, which best reflects diversity, concordance and the democratic process. “The whole process so far has been built on agreements and the Constitution will be a mirror to this spirit of diversity and plurality.

1. We can no longer issue any abstract or theoretical solutions to current problems and obstacles in Libya.
2. Our first objective is to come up with the largest consensus possible for the sake of limiting unlawful interference or armed resolution.
3. The only path to consensus is the constitution itself.

Dr. Omar Naass, another member of the constitutional drafting committee spoke at length of the Tunisian and Egyptian models, which in different ways have succeeded in establishing the democratic and judicial foundations for future republics and states. Dr. Naass insisted that without the consensus in Tunisia, for example, there could never have been parliamentary and presidential elections, which even according to international standards were transparent, honest and democratic.

1. “We know that the situation in Libya is different but we still maintain that by adopting parts of both the Tunisian and Egyptian models proved to be effective during the drafting process.”
2. “We in Libya, by contrast, believe that the referendum process is also compulsory to ensure the largest participation of civil society and diverse regions of Libya.”
3. “We have also set up subcommittees to deal directly with civil society and the various regions of the country for the final draft to be as perfect a mirror as possible of the needs and aspirations of the citizens of Libya.”

The Constitutional drafting process has passed through three different stages: 1) electing a political assembly, 2) an extended drafting process, and 3) a final referendum. “We dream of a democratic state where the peaceful transition of power becomes its foundation.”

On the question of the basics of the constitutional process, panelists Dr. Nadia Omran, Dr. Ibrahim Albaba and Dr. Mohamed Toumi agreed on the main economic, political and cultural frameworks through which diversity becomes a necessity and not a curse.

Dr. Omran spoke about Article One which proclaims Libya as free, unified and indivisible, and where the question of identity is also a key issue (including heritage, ‘Arab-ness’ and cultural diversity.) On the question of the Capital, the national hymn and the national flag, there seems to be a consensus to retain what currently exists as symbols of continuity, although “we strongly believe that the constitutional message has to reassure citizens that there can be no reverting to the multiple transgressions that have been played under these indicators for decades in the past.

“As members of the drafting committee we have undertaken a long process of debate and institutional work on these foundations and the choice of the capital has been the hardest issue at length.

“On naturalization we have also been exposed to sensitive issues of fraud and injustice, and in consequence our priority has been to draft a text that leaves the issue for the state and judicial authorities to legislate and enforce.”

According to Dr. Albaba this is the first event for years that has been opened to the media and there is a belief that there is solid groundwork for a referendum.

1. Article One declares that Libya will always remain unified and indivisible.
2. On the questions of identity and language they maintain that ‘Arab’ heritage and Libya’s unique traits must be preserved.
3. There is no fear of diversity.  On the contrary, there is a belief that diversity is the only option for a democratic and institutionalized Libya.

Dr. Mohamed Toumi addressed the main polemic: “Do we want a free Libya or an independent and unified country?”

“To answer this question,” he said, “we need to discuss the issue of the Capital as certain parties (both political and civil) are trying to force the choice of three different capitals whereas we believe that the political capital should be the only alternative as is the case in most advanced countries of the world.”

1. A political capital does not necessarily mean that it should have dominant power. It is more like the center of governance, no more, no less.
2. Capitals are more like strategic and geographic locations in which political power resides.
3. Marginalization and regionalism can never be considered as a justification for the option of multiple capitals. Citizenship has to be the main reference and not any other consideration.

On “Transitional Initiatives” Dr. Hedi Abu Hamra explained that there is a need to come up with a judicial text that secures human dignity against any form of abuse, and at the same time provides a healing of past transgressions through the justice system and not extralegal and personal vengeance. “The new Constitution has to be the only basis for overall justice.”

1. Our first priority in transitional justice is to uncover the truth behind criminal acts.
2. It is critical to seek justice for the victims of past transgressions.
3. Judicial proceedings must be conducted according to international laws, and within the framework of Islamic ‘Shariah.’
4. Social peace and stability must be secured and extended to regions of the country that have been marginalized.

Finally, after decades of dictatorship and injustice, Libya is now building a new system of government. The last panel of the day, comprised of Dr. Omar Naas, Dr. Mohamed Toumi and Dr. Imrajaa Nouh, addressed this subject. “Overall stability in the country can only come through Judicial, executive and constitutional powers.”

Dr. Naas insisted that a fair distribution of power has to be delegated to two main axes: the Parliament and the Council of Elders. This is the only way to reduce social divisions, and overcome regional discrimination. “It is only by dividing power between the center and periphery that we can finally achieve balance and reduce tension.”

Plenary Session/Day II

The second day of the conference addressed disagreements in the latest draft of the Libyan Constitution. The main debate tackled major articles on “Local Governance and Resources,” “Judicial Authority” and “Rights and Liberties.” On the chapter “Local Governance and Resources” there was a widespread agreement between almost all participants that key models of decentralization like those adopted by Morocco and Tunisia provide basic groundwork for future unity, stability and democratization. Although some of the attendees openly expressed apprehensions about decentralization leading to division of the state and abuses of power by local authorities, the main arguments favored the decentralized model as the only appropriate paradigm for the near future. “Only effective decentralization can ensure the unity of the country, social stability and more importantly demographic permanence,” stated Ibrahim Albaba, a member of the Constitutional Drafting Committee. According to Dr. Omar Naass, there should be no fear of transgression or abuse from local authorities as long as the aim is for a stable and unified Libya governed by the rule of law. “It is justice and only justice that shall prevail.” On the chapter “Judicial Authority,” the session was paneled by prominent legal experts from the constitutional assembly Dr. Hedi Abou Hamra, Mr. Dhaou Almansouri and Dr. Touati Bochahh, each addressing this subject from a different angle, stressing the importance of separating the constitutional from the legislative in reference to the chapter on “Rights and Liberties.”

On local governance and distribution of resources, Dr. Ibrahim Albaba insisted that decentralization is one of the main priorities of citizens in different regions of Libya.  He said, “At the assembly we have struggled to issue a text that secures legal distribution of resources and that gives citizens the right and legal capacity to become contributors in the local regions to which they belong. We aim for a wide decentralization from which the union of the country is secured through social security and geographic connectedness.

Dr. Ahmed Almachay on the other hand expressed his disapproval of this system of local governance on the ground that it might degenerate into multiple small governments. “Decentralization,” he said, “is the progenitor of chaos.”

Dr. Naass elaborated on his position by citing articles from the constitution (155, 158, 161, 164), and reminding opponents that the whole chapter is backed up by texts that should eventually become judicial laws of governance. “Local authority and power are the backbones to any state of law and justice, and paradoxically local governance is also regulated by law,” he said.

The last panel on judicial authority created some pressure on members of the drafting committee, especially from opponents to the contents of this chapter. The main points of discussion and criticism revolved around the following:

1. Any constitutional rule must become judicial rule by law.
2. Temporary imprisonment must be limited by a constitutional text so as to reduce false and unjust action.
3. Organizing judicial authority through clear texts on legal management, leadership, lawyers etc. is crucially important.
4. There must be a clear mandate for the Supreme Court to assemble judiciaries, qualified lawmakers and independents.
5. An article must be added on State Council on the ground that judicial specialization can also include administrative judges in the future.
6. It is imperative to stress the importance of the constitutional court, its management and membership.