By: Giuma Ahmed Atigha*
For a long time, I have been trying to explain a topic was aroused after February revolution in 2011, related to reactivating the
anarchy’s constitution, as a solution to the dilemma of drafting a new constitution. Day after day, I am more convinced that such calls lack understanding of simplest principles of constitutional culture that have been absent for long times. Despite my convictions that good will do stand behind these calls, its renewal now and trials of political powers to use it as horse of troy pushes me to raise the topic again.
The Kingdom’s constitution was issued by the National Libyan Association (60’s committee) in the month Moharram 6th, October 7th 1951, in Benghazi (before constitutions’ declaration). It was modified later according to law No. 1 in the year 1963.
It was then considered as one of the best contemporary constitutions given its language and formation. It succeeded in founding the Libyan State amongst extremely difficult conditions; Libya’s independence was in danger of division projects and international custody amongst similar to today’s political conflicts.
When constitution came out, only 6 days remained of the United Nations imposed time limit, imposed in its resolution, November 15th 1949. Wisdom of founders won and constitution was issued and independence happened. The military coup of 1969 declared all institutions’ fall and issued a temporary constitutional declaration, which last mandate said it lasts till a permanent constitution is issued, a thing that haven’t happened.
When constitution was assaulted, no one defended it, due to lack of awareness and constitutional literacy. No one believed the assault as insult of “constitutional legitimacy”. Contrary happened; mass demonstrations went out to welcome the coup before they knew who was behind it.
What to be dealt with now is that the original year 1951 constitution and the modified constitution of year 1963 stated that Libya is “Hereditary Kingdom” (article 2).
Article (59) states that the king is (safeguarded not responsible), while a whole chapter (fifth) and other articles state that the king holds the legislative authority, in partnership with the Nation Council (article 41), and holds executive authority in boundaries of constitution (article 42), king is the highest head of the country (article 58), and the supreme leader of armed forces (article 68), can anyone turns blind eye on the change of conditions that makes old constitution reactivation an idea of exhausted desiring mind?
My thoughts have been received by (Okey, let’s modify it), those may have forgotten or didn’t know that the article 197 states that (It isn’t allowed to propose modifications to the provisions of the royal rule and the system of succession to the throne).
This means a cancellation of its backbone and nonsense of calls for full recall on constitution; this is in addition to the shortages in articles dealing with rights and freedoms entitled (rights of the people), from article 8 to 35, compared to developed generations of human rights and accumulation of constitutional experiments. Although it can be modified but my point is that call, if presented in an aware form, it would be a call of (Constitutional Monarchy) that is present in several countries. It may be more accepted here though lack of its elements.
Drafting constitution is no more (recreation of bicycle); models and examples are plenty, commons are several, and differences are the exclusive cases of religion, society, and geography. We just got used to hiding facts and twisting reality because of inability and depend on slogans even if reality is laughing at us.
Did Constitution Drafting Assembly (CDA) declare failure?
I read a statement of the committee chief, Ali Tarhouni, which attributed draft’s delay to disputes over type of rule and announced intention to send members to inspect Egyptian and Tunisian constitutions. Now after 2 years of electing the CDA, it could have held public referendum in the beginning to resolve the problem democratically. The Tunisian and Egyptian experiences were available long ago, the experience of (60 Committee) could have been used too, as the National Association formed a suggestions committee of 18 members aided by UNSMIL and Arab and Western legal advising. The committee then studied a lot of federal system based constitutions and put each chapter it finished for discussion and vote in front of the National Association. This was mentioned in details in the association’s diary (I hope the committee members read).
Clamor work environment is not suitable, such environment was clear in showing committees’ outcomes; language was substandard and not different as constitution from laws and bylaws. Now and before, large sums of money and time spent, we are still in square one, which pushed desperate people to resort to the past to get rid of this dilemma even if reality, circumstances, and treatments are different.
I won’t discuss now the structural flaw in electing the CDA, we may do in the future, but the bottom line is this confused reality and failed trials may negatively affect the future of constitutional experience. People can lose hope in the idea of constitutions like they did about other things we thought they were constants, add to that, our country’s main problem isn’t to be solved by constitution articles, no matter how good it is, if reconciliation and consensus remain absent; the thing that gave us all (collective neurosis).
*A Libyan Lawyer and writer
Translated By LIBYAPROSPECT: Source