The constituent commission responsible for drafting the Libyan Constitution, which began its work one year ago, has now come into the phase of discussing a final draft. Until now, the committee’s efforts have been limited to putting forward ideas and preliminary texts, and not always successfully.
The preliminary results of the specialized committees were not entirely well-received by the people, who either strongly disapproved them and completely rejected them and those who approved them and left no room for any discussion around them.
The constituent commission responsible for drafting the Libyan Constitution, which began its work one year ago, has now come into the phase of discussing a final draft. Until now, the committee’s efforts have been limited to putting forward ideas and preliminary texts, and not always successfully.
The preliminary results of the specialized committees were not entirely well-received by the people, who either strongly disapproved them and completely rejected them and those who approved them and left no room for any discussion around them.
Therefore, the finalization of the drafting of the Libyan constitution and the conduction of a referendum continue to be a path full of risks because of the absence of consensus among the components of the Libyan society. Controversy about the form of government and extremist religious streams are still opposing the transitional process in Libya, as well as the Constitution.
To further elaborate on this topic, Correspondents met with Maraj Ali Nouh, head of the committee on the form of government and system, of the constituent commission tasked with the drafting of the constitution.
Maraj Ali Nouh, there are voices calling for suspending the work on the draft constitution because of political divisions, the fighting in Libya and the presence of displaced people inside and outside the country. As a commission, how do you deal with such calls?
First, most of the constitutions in the world are written under heated conditions because the task of the constitution is to gather the different parties together and to bridge differences between the different components of the Libyan society. We, as a commission, hope that our work will contribute to putting an end to the war. We are trying to draft a constitution that brings together all the Libyan people.
Second, we have communicated with the refugees and displaced people inside Libya, the Tawergha in Tripoli and Benghazi, and a number of our members met with the displaced people in Tunisia. Regarding the displaced Libyan in Egypt, we could not communicate with them because of the prevailing security conditions as we were informed by the Egyptian government. However, we have received many suggestions from the displaced Libyans outside the country.
The mere thought of suspending the work on the draft constitution will not serve the interests of Libya.
You also have the difficulty in calling the Amazigh component to join you. Have they boycotted the constitutional elections?
We have communicated with the Amazigh more than once in two separate delegations, but we did not receive from them any response on joining us or on electing their representatives in the constitution drafting commission. They said that first of all they want their demands, which we did not receive until today, to be met. It should be noted that the Supreme Council of the Amazigh had promised to send us the demands but it didn’t. Salem Kannan, a member of the former transitional council, was among those we met.
I also think that a delegation from the World Council of Parliaments visited the Amazigh in Libya and urged them to participate, because this participation is one of the requirements of democracy. The delegation told them that if they refuse to participate in the elections, this will mean that they have abandoned your democratic rights.
There are those who say that the committees in charge of drafting the Constitution did not communicate with a large number of different segments of the population. For this reason, they claim that most of the Libyans are not aware of the outputs, especially with the presence of failures in means of communication via the international information network. Do you confirm or deny such claims?
We know that the communication between us and the citizens is weak, and we did not invest in the media as required. The reason for this is that we didn’t want to open up to the media given that we are still at the beginning of our work. We didn’t want to be attacked in the same way that happened after the issuance of the draft Yemeni constitution, which suggested a federal state of six districts, after which the Houthis attacked Sana’a. The same thing happened in 1958 when people attacked the premises of the French commission for the drafting of the constitution. Now, the time is suitable to speak to the media.
But at the same time, there are some channels that did not give us sufficient space after the issuance of the December 24, 2014 draft constitution, in order to clarify many issues, perhaps because the owners of many satellite channels were not convinced of the constitutional process as a whole.
Libyan public opinion believes that the reason behind abandoning direct elections by the people was to weaken the chances of some charismatic leaders such as Mahmoud Jibril and Major General Khalifa Haftar of reaching the country’s presidency. Is this true or not?
What we reached is the election of the head of state through the indirect electoral system. We have suggested that the voting for the president of the republic should be made by the members of the second chamber, known as the Shoura Council, which was proposed by the constitution commission which will be composed of elected persons from the three regions: Cyrenaica, Tripoli and Fezzan, with a total of 72 members, i.e., 24 members from each region
We did not opt for direct elections because we believe that the fighting between Libyans is caused by the absence of balance in the societal majority in all places. The media played an important role in highlighting the fears from this majority. We knew that these trends will affect equal opportunities for Libyans in selecting their president. As it is known, the societal majority divides the society vertically, not horizontally. For example, if the Bani Walid city has a presidential candidate, he will be opposed by the entire city of Misrata because of the hostilities between the two cities. This means that the choice of the president will be based on regional rather than a comprehensive basis.
Another issue that negatively affects direct election of the head of the state is the use of money in politics or the “black” money as is happening in Kuwait, where there is lots of economic well-being and a multiple vote electoral system where the buying of votes thrives. In Tunisia, civil society organizations have also complained about the buying of votes. However, I would like to draw the attention of the Libyans that there is nothing final. Everything can be amended, similar to what happened in Turkey. The president used to be elected by the parliament but now he is elected directly by the people.
What are the guarantees available for the Shoura Council and which the people lack in choosing their next president?
First, everyone should know that the members will be accountable to their departments. In the constitution, we have new commissions and these are the independent constitutional commissions which are not part of the executive and legislative bodies and their tasks are supervisory.
The Court will be composed of three persons with the rank of consultants at the Supreme Court. These are all guarantees, in addition to civil society organizations and others. Thus, observing 72 members is much easier than observing all the people, especially if we consider that Libya has witnessed a high corruption rate in the past and current years. In addition, there is reluctance among the people to participate in the elections and there is also a state of frustration among the Libyan society. All these factors will have their impact if we opt for direct elections.
The Egyptian constitution was completed in six months and you in Libya are still producing drafts after one full year.
There are differences between the Libyan and Egyptian case. Egyptians have a constitutional legacy dating back to 1923. We have inherited from the Committee of 60 of the 1951 constitution. With the help the UN, we got only 24 reference documents, but we did not find any preparatory work at all.
The Egyptian constitution commission took 149 articles from the 2011 constitution. In Tunisia, the finalization of the constitution took almost two years without causation or consolidation. We in Libya are working on the constitution in specialized committees and we are creating everything from scratch.
When are you going to finalize the drafting of the constitution?
We have a big problem in the voting process inside the commission which is composed of 56 members. There is another obstacle, which the general conference had created in the seventh amendment of the constitutional declaration. It is stipulated that constitutional articles can only be approved by the approval of two third of the members or through consensus.
When we talk to the different components, they tell us that everything in the Constitution concern us. This means that when we vote, the approval is taken without counting the votes. In order for an issue to be passed, everyone, with no exception, should approve it. If we suppose that there is voting on a certain article and 55 members votes yes for it while only one member votes no, the article will not be passed. For this reason, we cannot tell when we will be able to finalize the constitution.
The constitution commission has formed a consensus committee headed by Dr. Itimad al-Masalati, in order to reach a consensus formula and to put a plan on how this consensus is going to be reached. Dr. Najib al-Hasadi has also provided us with a valuable study on the concept of consensus and we are going to take this study into consideration.
What form will the referendum take? Will it only be on the Constitution or on its sections and articles?
When we finalize the final draft, we will print it and distribute it among the people. On the referendum day, people will vote on the full constitution. If two-thirds of the voters say yes or no in the first round, and in the second round they say yes, the constitution becomes effective. If the people say no, the constitution will be redrafted within a period of one month during which a study will be conducted to determine the reasons why people said no.
We have noticed that you have allocated one full section for the army and police in the draft constitution. Does this have any special connotations?
This was to confirm that the army and police institutions enjoy full autonomy which is necessary for the protection of people, the country and its resources. The articles of this section were more than four and for the sake of classification and clarity, we allocated a special section for this topic in order to be clear and transparent.
Why did you endorse the three-colored flag that was used during the overthrow period of Gaddafi’s regime in the draft constitution, in the section on the form of the state without resorting to voting?
The specialized committee in this section relied on the opinion of the majority of people. According to one of the studies conducted by the University of Benghazi in 2013, a high percentage of the Libyan people are satisfied with the flag of the Libyan state.
Finally, how do you justify the demands of the commission’s members of diplomatic passports and high salaries under the current financial situation and with the decrease of the oil production and declining prices?
Diplomatic passports do not mean a lot to us. They are only a way to facilitate our movement outside Libya when we attend workshops, especially when the UN lecturers started to refuse to come to Libya. They asked us to go to safe areas such as Lebanon, Tunisia and other countries.
As for the high salaries, these were set by the UN at US $20,000 per month, but the head of the commission and its members saw that this is a very high amount and they decided to pay 1000 Libyan dinars (US $7500) as a basic salary and 5000 Libyan dinars for housing allowances. This is not a high amount and it is better than staying in hotels which cost the state much more (US $3685).
