Article 30 of the Libyan Constitutional Declaration deals with how the country’s new Constitution should be drafted. It says that a 60-member commission be tasked with this job. Nonetheless, the debate about the commission and how it should be selected has surfaced.

As George Grant wrote recently in the Libya Herald: “Article 30 of the 2011 Constitution states that the Congress shall be responsible for “selection of a statutory body from among non [NTC] members, which shall develop a draft constitution for the country”.”

Article 30 of the Libyan Constitutional Declaration deals with how the country’s new Constitution should be drafted. It says that a 60-member commission be tasked with this job. Nonetheless, the debate about the commission and how it should be selected has surfaced.

As George Grant wrote recently in the Libya Herald: “Article 30 of the 2011 Constitution states that the Congress shall be responsible for “selection of a statutory body from among non [NTC] members, which shall develop a draft constitution for the country”.”

“Lawyers have subsequently been debating what is meant by the word “selection”, generally agreed to be a vague term, but almost all are convinced it does not mean elections by the general public.”

“However, on 5 July, just two days before the 7 July Congressional elections, the outgoing National Transitional Council announced Constitutional Amendment No. 3 (2012) to the Constitutional Declaration. The amendment specified that the committee would be chosen by direct and free elections, as opposed to its being chosen by the Congress.”

“That decision sparked widespread criticism from both Congressional candidates and other sections of the public who felt the NTC was wrong to make such a momentous decision in the twilight of its term in office. Others objected on the principle that time-consuming and costly public elections were not the best way to choose a highly specialist body such as this.”

This issue continues to cause problems; in particular, the role that the GNC should play in drafting the new constitution. This particular debate centres on the separation of powers within the new Libyan government.

Some believe that the GNC has every right to take part in the drafting of the Constitution by appointing the commission members. They say the GNC was elected by the Libyan people in the first free and fair elections in the country. This gives the GNC a mandate.

Several members of the GNC have expressed this opinion, including Mohammed Magariaf, the GNC’s chairman, and Mahmoud Jibril, Libya’s former interim prime minister and leader of the National Forces’ Alliance.

However, opponents of this argument say that the GNC was created by the Constitutional Declaration and as such, it doesn’t have any right to alter it – even if it has been fairly elected. They believe that the commission members should be elected by the public.

Those against election say it will cost too much time and money. It is also likely to upset constituents in eastern Libya, in places like Benghazi. 

But those who support public election of commission members say that the GNC shouldn’t simply be allowed to appoint the members because this would make the commission less independent.

They point out that the GNC was elected to do two main things: choose the government and oversee the election of the commission that will formulate the real Constitution. These critics also point out that the Constitutional Declaration was formulated during violent revolutionary conflict inside Libya and that because of this, it was passed without much opposition and that in fact, it needs to be reassessed.

Should the Constitutional Declaration be amended, it may well cause further conflict in a country where historical wounds are far from healed, they note.

Whatever method is chosen, both entail a degree of risk.