Members of the Constituent Assembly (CA) responsible for writing a new Libyan constitution are elected, ensuring they have different values, concepts, and tendencies vis-à-vis the issues projected in the constitutional process.

Members of the Constituent Assembly (CA) responsible for writing a new Libyan constitution are elected, ensuring they have different values, concepts, and tendencies vis-à-vis the issues projected in the constitutional process.

Human rights and freedoms are among the most controversial issues being debated. Correspondents interviewed Dr. Mraje Ali Noah, a member of CA’s Working Committee,  to clarify how CA’s members have dealt with the divergent views included in the draft constitution, which was recently referred to the House of Representatives (HoR). It will later go to a referendum.

Article 8 of the draft constitution refers to “schools of religious thoughts and legal interpretations” to support the Islamic Sharia as the source of legislation. What are these schools and interpretations?

The draft states Sharia is a, rather than the, source of legislation. Sharia cannot be the only source of legislation because it leaves some issues unanswered or sets generic provisions for them leaving their elaborate interpretation to people depending on their time, place, needs and interests. We believe that the Prophet Muhammad’s saying: ‘You know better about your worldly affairs’ has the final say in any dispute in this regard.

In view of the dispute concerning whether Sharia only means Koran and Hadith, or also jurisprudence and Islamic thoughts and legal opinions, CA’s members have agreed to keep the interpretation of texts in accordance with the schools of thought and legally acceptable opinions without commitment to specific opinions.

Because conclusive and firm texts like Koran and Sunna –  over which there is no possibility for opinion – are low in number, the draft constitution provides for the need to refer to the approved legal opinions and Islamic thoughts only, which provides an opportunity to include all Sunni schools other than the four famous schools of thought. There are over 50 Sunni schools, most prominently the school of Al-Layth ibn Sa’d, a scholar of Egypt, about whom Imam Al-Shafi’i said: “Al-Layth is more well-versed in jurisprudence than Malik ibn Anas.” In addition, there are other schools of thought like Zahiri, al-Thawri, and al-Awza’i, to mention but a few. Thus, the opinions to be considered are not only those of the well-known jurists but also of other jurists provided that they fall in line with the Sunni doctrine of Libya.

Article 170(3) provides for supporting women and preventing gender-based discrimination. How can women’s rights be protected and women be made equal to men while Sharia stipulates that they inherit half what men do?

Libyans are Muslims who invoke Sharia to resolve disputes. Article 8 states that Sharia is a source of legislation. Accordingly, the difference between women and men in regard to inheritance is not considered injustice given that it is set forth in clear and conclusive texts. Besides, in many cases women get a larger share of inheritance than men.

Article 57 describes women as “twin halves of men.” This saying has been quoted from a tradition by Prophet Muhammad, which means that women are equal to men. Consequently, Islam has made women equal to men in rights. The Article also uses ban, rather than prevention, of discrimination to stress Islam’s complete prohibition of discrimination against women and preserve their status in society.

Not a single text prevents women’s rights, including access to the presidency. A woman can hold that position if she wins people’s confidence through voting.

Article 172 provides for establishing a Sharia Research Council (SRC). Will the SRC replace the Fatwa Authority, the Islamic Affair Commission and the mufti?

The SRC will replace the Fatwa Authority. It has been tasked with certain duties, like issuance of individual fatwas on creeds, worships, personal dealings, preparation of Sharia research, etc.

Public fatwas may only be issued by order and request of government authorities to avoid overlapped fatwas. Importantly, SRC’s members will be selected from all regions under HoR’s guidance. A member will serve for a period of six years, and the posts of SRC’s head and deputy head will be occupied for three years, by rotation.

Article 12(2) states: “Persons born to a Libyan mother may be nationalized in accordance with law.” Does that mean that such persons are considered Libyans or that they may or may not be nationalized?

The draft leaves the door open before law. Furthermore, it makes the second part of the text to be according to law. In other words, the law may provide for nationalization terms and conditions in conformity with international conventions.

Furthermore, Article 58(6) gives children of Libyan mothers all the rights enjoyed by Libyan citizens, excluding political rights, mainly the right to vote and run for office.

Article 110(3) states: “Presidential candidates may not be married to non-Libyans.” Does this not deprive a segment of Libyan society of a right? What is the national interest behind it?

It deprives no one of any right. It is only a regulation that aims to keep the secrets that come to the knowledge of the president. When the president’s spouse holds another nationality, his or her loyalty could be divided or biased to their original homeland.

Article 110(1) reads: “A presidential candidate shall be Libyan born to Muslim parents.” What is the harm of having a candidate whose mother is not Muslim?

I repeat that this post represents a sovereign position and it is necessary to avoid any suspicion. I believe that the laws of developed countries or so-called democratic states also stand against this option. In Germany, there is the Christian Democratic Union of Germany, and in the US only Protestant people have become presidents. When Catholic John F. Kennedy became president, he was assassinated.

In general, it is a precondition that no convention or international covenant views as a human rights violation.

Article 110(5) states: “…enhancement of cooperation with national and international human rights organizations.” What are the aspects of cooperation with human rights organizations that demand, for example, the freedom of belief and also gay rights?

Cooperation occurs in light of the HoR-endorsed international agreements. As regards the articles against which Libya has expressed reservation, like Article 2 of the Convention on the Elimination of all Forms of Discrimination Against Women, Libya is not committed to.

This is because the issue violates the principles of religion, national security or interest. The United States withdrew from the International Labour Organization when the latter denounced Israel’s aggressive action against Palestinians. The US has also refused to sign the Kyoto Protocol about reduction of emission of poisonous gases, having found that the protocol harms its industrial and developmental interests.

Article 198(3) talks about “social disputes and addressing them to achieve national reconciliation.” How can the truth about these disputes be disclosed?

Through investigations by the Reconciliation and Transitional Justice Commissions referred to in Article 197(6), which will design effective and comprehensive justice and reconciliation programs drawing on the experiences of many countries that have suffered inter-communal belligerency and armed conflict. The responsible committees must have members of the various ethnicities mentioned in the Constitution, like Toubou, Amazigh and Touareg, to ensure impartiality, independence and efficiency.