After the Libyan revolution, plans to form a new country fell apart. There are various reasons. To name a few, lack of outside support and ulterior incentives created by Gulf nations. However, something often forgotten is the order of steps taken to form institutions. In particular, the formation of a relatively large elected body to write a constitution, which devolved into an albatross with now viable outline to date.
There were good intentions behind the formation of the Constitutional Drafting Assembly (CDA). It was pushed by concerns for representation and democracy. However, it became a monster designed by committee. There were too many people, with little incentive to work together and with objectively wrong intuitions about what a draft up for vote will look like.
Constitutional design is written about extensively in political science. In particular, mixed constitutions and constitutions for mixed populations has been discussed since Montesquieu. Nonetheless, much of the lessons in literature have not been headed. It’s not that the CDA in any draft lacked an understanding of what governments do or how governments should function and what powers to give which individuals. Rather, the CDA devolved into a partisan and sectarian mess in a fairly homogeneous society by being overly concerned at an constitutional level with representing minorities in writing when constitutions act as a securer of negative liberty most effectively by limiting government and defining its parameters. In a country as a unstable as Libya, minority rights deserve broad protection but the specifics played out unnecessarily. When incentives let groups overplay their hand and the constitutional drafting process is setup without risking the reputation of every single member severly one gets the current result.
The main cause is not that the Tebu have weapons or that Amazigh have weapons. Rather, it’s the idea that one can write a constitution in such a detached manner where the draftees are not held to account because they exist as large partisan blocs and there are many of them. They are not pushed to simplify and focus on the philosophy of the government they desire for their countrymen but rather become bureaucrats managing portfolios. It detracts from the discussion, wastes time and makes the process of building a constitutional democracy less reputable. It’s without a doubt a popular sentiment on the Libyan streets that CDA is pointless and spineless.
How can this be avoided? Changing the order in which the state is formed is the main solution. The NTC should have been firm in adopting an alternate of an older Kingdom-era document with alterations and without federalism, leaving the first elected parliamentarians the sole individuals responsible for amendments. All they needed were to enshrine freedom of expression into the any 1960s Kingdom constitution and write a preamble commemorating the shared dignity Libyans gained from the fight against tyranny. Leaving, their representatives the job of forming the specifics, such as language recognition and islamic justice. This is because much of what we would like to make of what is justice or moral as a society comes with time rather than what can ever be fitted to any charter of any kind. While positive rights can be enshrined successfully in constitutions, in instability they are harder to enforce (especially when there is no document that unites disparate parties).
- NTC leadership writes minimalistic charter based on older documents to create a common ground for courts (would solve the issues of mutiny in Libya East to West).
- GNC and HoR later would add amendments (only as additions) and codify a living document to describe their duties, limits and functions.
- Post interim-government amendments limited to the procedures defined by interim governments.
- Proper army formed around allegiance to the document.
Canada, after repatriation of its constitution, and the United States form perfect examples of the way forward for Libya on constitutional design. It is the terrible order of operations that does not force people to act to support of good institutional design and rule of law. It would be illogical to suppose Libyans do not understand what is needed to protect their rights from tyranny.