By Lorianne Updike Toler and Tobias Peyerl.

Tripoli, 11 August:

Just two days before the National Congress election on 7 July, the Libyan National Transitional Council (NTC) issued an amendment to the 2011 Constitutional Declaration – the legal document defining the basic rules of Libyan society for the transitional period. The amendment to Article 30 designated that the Constituent Assembly, dedicated to draft a new Libyan constitution, would be elected by the general public rather than selected by the Congress.

The timing of the amendment was surprising. Several Libyans have been made “furious” by the sudden change, as many candidates for the Congress had campaigned on their qualifications to select the Constituent Assembly. These candidates felt the last-minute change undermined one of the main premises for their election.  There is a strong current of opinion that the new Congress should reverse the NTC’s decision on the basis that it was not theirs to make, reinstating the Congress as the body to select the Constituent Assembly, but no concrete proposals have yet been formulated.

As Libyans consider proposals for selecting the Constituent Assembly in coming days, they can benefit from a thorough review of various methods of selecting constitutional drafters from the region and from history.  Such models can inform Libyans about problems to avoid and successes to follow in creating an overall constitutional procedure that legitimises their constitution and prepares it for long-term success.  This article provides two models from the region—Egypt and Tunisia—and four from history—Massachusetts, the United States, Poland, and Norway.

Libya’s current constitutional procedure

With the 5 July amendment, Libya’s current constitutional procedure found in Article 30 of the constitutional declaration has now been amended twice, the first time  on 13 March 2012.  This amendment specified that the Constituent Assembly should consist of sixty members “‘On the model’/’like’ the committee of sixty that was established to develop the constitution of the independence of Libya in 1951,” none of whom could also be Congress members. With the 5 July amendment, the 60 members (who may also not be Congress members) will be elected through direct and free ballot on a yet unspecified future date.

Both the 13 March and 5 July amendments have been attributed to the NTC’s desire to allow for greater regional representation in the transitional process in response to federalist movements, ala pre-Qaddafi era, that threatened to boycott the Congress elections and to disturb the security of the transitional process in general.

The 1951 “Committee of Sixty”, expressly mentioned in the above amendments, consisted of 20 members from each of the main Libyan regions: Tripolitania, Cyrenaica and Fezzan. By using “similar” or “like” without further specification, however, the exact set-up of the constitution-making body remains formally unresolved. The Congress will have to clarify this issue as well as election procedures in the next weeks subsequent to the automatic dissolution of the NTC upon the first meeting of the Congress.

Regional Models

If the Congress stays the course and direct elections are held for the Constituent Assembly, Libya’s constitutional procedure will blaze a middle ground between Tunisia and Egypt’s constitutional procedures.  Currently, all three countries are set to adopt an entirely new constitution rather than amend an existing document.

As the first nation to oust its dictator, the Tunisian transitional government equipped the elected Constitutional Assembly with legislative as well as constitution-making powers. No separate institution exists or competes for either function. First drafts of constitutional texts—such as the preamble—have been finalised and a referendum on the entire text is set for 23 October 2012, subject to change.

Following former Egyptian president Hosni Mubarak’s flight to Sharm El-Sheikh last February, the Supreme Council of the Armed Forces (SCAF) issued a “Constitutional Declaration” that foresaw that three separate bodies—the Constituent Assembly, Parliament and the Shura Council—would all be tasked with law-making functions. The Parliament selected the 100 members of the Constituent Assembly and included in that number members of the Parliament itself, the legality of which is now the subject of disputes in front of the administrative courts as well as the Supreme Constitutional Court (SCC).

After the Constituent Assembly convened, the SCC dissolved Parliament because elections as designed proved unfair (quotas for partisan and independent candidates meant in practice that independent candidates, of which there were more, needed more votes than partisan candidates to secure a seat in the Parliament).

The combined effect of SCAF’s amendment of the Constitutional Declaration—which, among other things, transferred legislative power to an undemocratic military body—together with the attempt of President Morsi to reinstate the Parliament and the pending cases potentially dissolving the Constituent Assembly has paralysed Egypt in a mire of constitutional chaos.

Despite the surprising temporal proximity between the 5 July amendment of the Constitutional Declaration and the elections, in contrast to Egypt, the constitutional roadmap in Libya remains forthright. In comparison to Tunisia, although there legislative and constitutional functions are combined in a single assembly, the selection process for that body and that currently identified for Libya are very similar.

Historical models

Both Tunisian and Egyptian constitutional procedures can be best understood in historical comparison; additionally, historical practices from some of the first constitutions combined with and contrasted to contemporary regional procedure provide models for Libyans that are both relevant and been proven effective over time.

Formal constitutional procedures began with the first formal, written documents to be called “constitutions.”  Although certain precursors exist, the first formal plans of government that operated to both define and limit government and be called “constitutions” can be found in the 13 original American States in 1776, prior to their declaring independence from Great Britain. These constitutions changed the conception and standard of substantive constitutionalism ever after. But not, as will be seen in Poland and Norway, constitutional procedure.

The procedure for adopting these American constitutions evolved.  Initially, provisional legislatures (official law-making authority ceased when royal colonial governors fled beginning in 1775) passed constitutions as they would ordinary legislation.

Soon, however, complaints were raised that such a body was not specifically authorised by the people to author such an important document.  Beginning with the Virginia “Fifth Convention,” which met on 6 May 1776 and passed the Virginia Constitution on 29 June 1776, special elections were held, similar to Tunisian procedure, authorising a specific body to author a constitution and to legislate in other necessary respects.

Yet, in October of 1776, when the interim Massachusetts legislature requested authorisation from Massachusetts towns to write a constitution, the town council of Concord rejected the proposed constitutional procedure.  Instead, Concord called for a procedure similar to what the Libyans are set to follow—a body elected completely separate and distinct from the provisional legislative body, specifically elected (and only elected) to write a constitution.

The reasoning the Concord council gave for this procedure was that the rights and privileges a Constitution was designed to afford citizens against the government could never be secure if the same body to create the constitution remained in existence, as the power to create inhered the power to change and abolish.

The Concord council recognised in their sister states that even though interim assemblies became legally different entities after a constitution was proclaimed, the new legislative bodies, composed of the same membership as the interim ones, later changed constitutions with impunity.  (This prescient observation has also proven true throughout history, despite post-creation plebiscites.)

This objection eventually gained the day and constitutional procedure was eventually changed in Massachusetts, where a constitution written by John Adams was adopted in 1780.  This constitution remains as the longest-standing constitution in continuous operation.

The Massachusetts constitutional procedure was eventually adopted for the federal constitution of the United States in 1787 with one variation: instead of direct election of the federal “convention,” each state legislature selected their representation.

Despite the size of each state delegation (ranging from 2-8), each state only had one vote, introducing, in effect, a supermajoritarian element to all decision-making.  One benefit of state selection of drafters was that the wisest and best equipped of the time (rather than those who would necessarily win elections) were convened in Philadelphia, causing Thomas Jefferson in Paris to deem the body an “assembly of demigods.” In part due to the stature and continuing legacy of the “Founding Fathers,” the American Constitution continues to be widely respected by its people as the second oldest continually-operating constitution in the world.

Poland’s was the next state to adopt a formal constitution on 3 May 1791.  There, the procedure was more like that found early in 1776 in the American states wherein the legislature took it upon itself to pass a new constitution.  Beginning in 1788, the Polish Sejm, seizing the opportunity while normally-dominant Russia was distracted by war with the Ottomans, declared themselves a “Confederation of Deputies” to block the effect of the “liberum veto,” wherein a small minority or even a single member could derail any progress made.

In addition to this procedural irregularity, the “Four Year Diet” (‘Diet’ being a traditional term for a legislative assembly) was doubled in size when, in the elections of 1790, the members of the previous Diet were retained within the confederation to continue progress with reforms and a new constitution.  A final procedural irregularity was breeched when the final constitutional draft was prepared in secret by King Stanislaw and a cadre of reformers and proposed and passed over the Easter holiday when many dissenters were absent from the proceedings (and not sent recall notices).  A quorum was therefore not present on 3 May 1791 when the Constitution was passed by acclamation.

Ultimately, the disgruntled members of the Sejm stirred up anti-constitution sentiment and invited Russia to “restore” the previous regime.  The latter ultimately resulted in the 1793 partition of Poland.  Although the 1791 Constitution died a quick death, it has continued to live on in Polish memory and 3 May is yet recognized as the Polish national feast day.

Many more constitutions were written in quick succession after the American and Polish constitutions, including French (1791, ’93, ’95), Dutch (1798), Swedish (1809), and Spanish constitutions (1812).  Yet the next constitution to remain in current operation is the Norwegian Constitution of 1814.

After being annexed by treaty to Sweden early in 1814, the Swedish king declared that, after hearing the “most revered men” of Norway, he would proclaim a constitution for the country.  The diplomatically removed vice regent of Norway, the Danish crowned prince, toured his former realm to get the people’s sense towards the new Swedish union and constitutional declaration.  He gathered eminent men in a “great man meeting,” including notables and scholars, to discuss the situation.

These “great” men recommended the convening of a Norwegian constitutional assembly rather than accepting a constitution by proclamation from Sweden.  An election was announced wherein the people were encouraged to choose “enlightened men” to meet at Eidsvoll  (later referred as the “men of Eidsvoll”) to create a new constitution.  The constitution adopted by the elected assembly on 16 May 1814 drew from all of the (national) constitutions to precede it.

Despite a war fought over the new constitution and many changes to Norway, their 1814 constitution, amended several times over, remains as the fundamental law and central to Norwegian national identity nearly 200 years later.

Learning from regional and historical models

What can we learn about constitutional procedure from these various regional and historical examples?  First, constitutional procedure varies by country, yet not all constitutional procedures are created equal.

Some, like Egypt and Poland’s procedures have the tendency to be divisive and can lead to dissolution of the process and even the country.  Others, like the early constitutional procedures of individual American states, are rejected and improved by its citizens on ideological grounds.  Yet other procedures, such as those of Massachusetts, the U.S., and Norway (and likely Tunisia, although it remains to be seen), contribute to legitimising the constitution and its procedure, leading to stability and longevity.

Which method of identifying constitutional drafters—via election or selection—will contribute most to the legitimacy and stability of the Libyan constitutional procedure?  In taking cues from history and the region, it would seem that elections and selection by an institutional authority both offer advantages and drawbacks, analysed here, but that either procedure can ostensibly contribute to procedural legitimacy for the constitution.

The enlightened “men of Eidsvoll” in Norway, the Massachusetts Convention, and the Constituent Assembly in Tunis were each legitimised through direct democratic elections.

In the case of Norway, the elections were further legitimised in being recommended by the “great man meeting,” selected by King Frederik.  In Massachusetts, the people had long requested a separate convention that could not also legislate and thereby impugn their rights.  The election of delegates to a convention was given greater legitimacy by not only being democratic, but by being responsive to a popular request.  In Tunis, the sheer precision and lack of violence and discord in following the constitutional procedure as initially laid out seems to have had a legitimising impact on the process and, potentially, the resultant constitution.

In the case of having an elected legislature and an elected constitution-writing body as is currently proposed in Libya, there is some risk that the presence of two elected bodies might also produce an undesired competition for power in the new societal order. Members of both bodies derive their legitimacy from a strikingly similar procedural legitimacy enabling members to claim to speak for comparable constituents. In addition, they possess the legal tools to obstruct one another: The Congress by changing the procedures and set-up of the Constituent Assembly and the Constituent Assembly by decreasing a future legislature’s powers under the constitution.

Yet if history is to be a guide, this scenario is unlikely due to legal constraints and political pressures.  The benefit of holding a separate convention in Massachusetts was to separate legal functions of the two elective bodies: one was to legislate, the other to create a constitution.  The division of power also helped to check the power of the other and to create a wall of separation between the exercise of both powers.

Legislators in this way were not making constitutional decisions about the exercise of their own power, in effect being the creator and the created.  Similarly, constitution drafters were not attempting to enshrine their own political power.  This dynamic, called a “veil of ignorance” in political theory, where the drafters are not personally and directly interested in the outcome of their labors, is highly desirable yet so often missed as an element of constitutional design.  Whether by design or accident, the current constitutional procedure of Libya as planned incorporates this important element.

Direct general election of the constituent assembly, however, may render the process rather politicised and focused on current political debates. As the foundation of the legal system, a lasting and stabilising constitution should be written, as the Massachusetts, American, and Norwegian constitutions, to endure for generations, and, to the extent possible, be detached from day-to-day discussions and questions.

The text should generally be able to provide legal solutions for varying and unforeseen problems, which requires longer-term vision of the future consisting of a higher degree of abstractness and generality than immediate power politics anticipate.  In short, grand visions are not well served by political expediencies.

Non-partisan experts selected by elected bodies are often more independent from the influence of special interests and can be chosen for their expertise and skill as for example the American Founding Fathers were, rather than their ability to win an election (often the best experts may also shy away from running for office).

Such experts can be better suited to follow a long-term perspective and better prepared for the technical task of drafting the new constitution.  As was the case with the Massachusetts, American, and Norwegian constitutions, the wisdom and expert reputation of constitutional drafters can often lend the underlying document credibility and therefore longevity.

Yet as has been seen with the “men of Eidsvoll,” men and women with requisite education, wisdom, and expertise can also be chosen through elections, so long as such qualities feature prominently in the selection by the people.

In short, both direct election and indirect selection of Libya’s Constituent Assembly may lend the constitutional procedure with requisite legitimacy, so long as men and women of sound understanding and expertise are chosen and the process ensures separation and independence of the Constituent Assembly.

It is possible that a combination of election and selection may best serve the interests of the Libyan people, not unlike the two-step process of Norway, wherein wizened experts are chosen by the Congress and democratic representatives are chosen by direct election.  In any event, the Congress remains free to change the process, having now assumed the mantle of power from the NTC.

Lorianne Updike Toler is the president of Lorianne Updike Toler consulting and the founding president of The Constitutional Sources Project in the United States.

Tobias Peyerl is Programme Director at the Middle East Constitutional Forum, an initiative of Right to Nonviolence, in Beirut.