3 myths about the past and a new constitution
By Carmen Gehaa & Frédéric Volpib
Libya’s 2011 revolution enabled ordinary citizens and an emerging civil society to voice their demands on a variety of key issues including Libya’s new constitution.
The 1951 constitution: viewing Libya’s first constitution through tainted glasses
Libya is a former colony of Italy that progressively acquired its independence after the end of the Second World War. Under Ottoman rule prior to the Italian conquest in 1911, Libya had no parliamentary institutions.
It was administered as a province (vilayet) by a governor appointed directly by the Ottoman Sultan. The views and interests of the province were presented to the Ottoman Parliament (Mejlisi Mebusan) through a few local representatives of the province.
As in other parts of the Arab World, the Ottoman era was characterised by patron–client relations. Most of the political and economic power was located in Tripolitania and Cyrenaica (Western and Eastern Libya).
In 1835 the government of Sultan Mahmud II took advantage of local disturbances to reassert its direct authority over the regions of Tripolitania, Fezzan and Cyrenaica and held it until the collapse of the Empire.
It was only after the First World War that self-rule was introduced.
During the 1918 peace treaty between the Ottoman Empire and Italy, the latter gained nominal control over Tripolitania and Cyrenaica.
In June I919 the Italian Government enacted an Organic Law in Tripolitania whereby an Italian wali was appointed to administer the civil and military affairs of the territory, assisted by an elected local council.
A similar law was enacted in Cyrenaica in October of the same year. With the advent of fascism in 1922 and the accompanying rise of imperialist ambitions, any Italian consideration for the development of a parliamentary system in Libya disappeared.
Under fascism, a form of military dictatorship prevailed for nearly a quarter of a century. Vandewalle noted that ‘opposition to Italy within the provinces had differed and had remained focused largely around local, provincial interests’.
During the Second World War, The Allies’ expulsion of German and Italian troops from North Africa led to the creation of a British Military Administration in Tripolitania and Cyrenaica, and of a French Military Administration in Fezzan.
In the wake of independence Libya was a divided territory with no previous experience as a unitary state. Independence generated an opportunity to bring together representatives from different regions to build the foundations of a common state.
The role of foreign states was crucial in this process. The Allies agreed in accordance with the terms of the Peace Treaty with Italy to refer the case of Libya to the United Nations for a decision.
In 1948 the UN General Assembly began to consider the independence of Libya. On 21 November 1949 the General Assembly adopted a resolution stipulating that Libya should become independent as soon as possible and no later than 1 January 1952.
Under the auspices of the United Nations, the three provinces formed a National Assembly, which at its first meeting on 2 December 1950 agreed that Libya was to become a federal state and a constitutional monarchy, with Idriss al-Sanussi as Head of State.
The federal system of governance gave extensive powers to the three autonomous provinces – Tripolitania, Cyrenaica and Fezzan. In 1951, the National Assembly drew up Libya’s first constitution.
Pargeter noted that given the divergent interests of the different regions, and particularly those of Cyrenaica and Tripolitania, what emerged was a complex and cumbersome political system, comprising a parliament, a federal government and powerful provincial councils, whose heads were appointed by the king.
In this situation, local governors and councils were in a position of strength vis-à-vis the central administration.
The dilemmas of decentralisation were eventually resolved in favour of the central administration in a drastic and autocratic manner through the 1963 constitutional amendment abolishing the federal system and establishing a unitary form of government.
Limited analysis has been made of the 1963 amendment, but scholars attribute this reform to the ambition of King Idriss to have a stronger grip over economic and political development.
Of relevance to the argument developed here, however, is the process of construction, and then of representation, of the ill-fated 1951 constitution.
For contemporary Libyan constitutionalists this process was perceived as a success for several important reasons:
First, as Berween suggested, the ‘founding fathers’ of Libya displayed a great deal of political awareness as the drafting committee spent at least 25 months and conducted more than 187 meetings with stakeholders from the three provinces.
The drafting committee also requested from Adrian Pelt, the UN commissioner overseeing the process, the translation of a number of constitutions of both federal and unitary states that they studied closely.
In addition, the committee also displayed openness by inviting legal consultants from Egypt, Palestine and Great Britain. After the 2011 revolution, Kaddoura, a Libyan constitutional expert, stressed that the significance of the 1951 constitution resided not in the content of the constitutional text but in the inclusive process of drafting it.
A second distinguishing feature was the role of UN commissioner Adrian Pelt, who remains appreciated by contemporary political activists and constitutional experts in Libya.
Pelt spent weeks in each of the three provinces, meeting with local leaders and stakeholders before selecting a consultative committee for drafting the constitution.
He ended up choosing four representatives, one from each of the East, West and South regions and an additional person to represent minorities.
At the time, there were more than 13,000 Jews in addition to a few hundred Greeks residing in Libya.
The third important characteristic of the 1951 process was the Committee of 21 members that was selected by the Pelt Commission after months of consultations in the three providences.
Although there were demographic disparities, the commission agreed to appoint the same number of representatives (seven) from each region to give equitable hearing to each of them.
Only two conditions were set for these representatives: that they should not be members of the main political parties and that an opportunity would be given to non-partisan actors to participate in the General Assembly.
The Assembly itself comprised 60 members, 20 from each province, and was responsible for drafting the constitution.
For the purpose of this analysis, it is worth noting that a significant outcome of the 1951 constitutional process was the formal recognition of important civil liberties and principles of governance:
First, Libya was among the first Arab countries to adopt the Universal Declaration of human rights.
Second, the parliamentary system established an equal representation of citizens from the three regions.
Third, it adopted federalism, making Libya a sovereign state grounded on a power-sharing agreement between the central administration and provincial governments.
Since the 1950s, observers and activists have hailed the document as hopeful and promising for Libyans. In 1953 Pelt wrote for the Barqa Algadida (new Cyrenaica) newspaper on 25 December that ‘the Libyan new constitution aimed at democracy and respect of human liberties’.
While the 1951 constitution stated that ‘all Libyans are equal before the law’, it also more problematically affirmed Islam as the religion of the state and declared Arabic to be the official language.
As it turned out this constitutional experiment was to be short-lived. Yet, in the contemporary Libyan context, a debate on the intrinsic reasons that might have caused the failure of the 1951 constitution was not deemed by post-2011 political activists to be highly relevant to the reconstruction of political order after the fall of the Qaddafi regime.
Political order and the Jamahiriya: a formal absence with an informal presence
By the time of the 2011 uprisings, Libya was one of the richest countries in the world with some of the largest oil reserves and approximately $168 billion in foreign assets for a relatively small population of a little over six million.
At the time of independence, however, the country’s major export was scrap metal from the debris of the Second World War military campaigns, and the government’s operating budget was provided almost completely by foreign states.
According to one analyst writing in 1957, ‘Libya’s value as a case study is that it provides an example of universal poverty in an extreme form’.
The discovery of oil a decade after independence would change fundamentally the system of governance of the country. King Idriss faced new challenges to regulate the oil production and the distribution of revenues.
Although government revenues from petroleum rose from $40 million in 1962 to $800 million by 1968 this affluence did not immediately translate into better standards of living for the Libyan population.
The discovery of oil meant in practice that the state neglected agriculture, and centralised resources management and public good distribution through the central administration.
In the 1960s, the King faced another serious challenge, ideological this time, with the rise of Arab nationalism in the region. This challenge became more pressing over time as political parties had been banned and political life focused on succession within the ailing king’s inner circle.
On 1 September 1969 the 27-year-old Captain Qaddafi led a bloodless coup against the king and emerged as the charismatic leader of the Revolutionary Command Council (RCC).
Inspired by Nasser, Qaddafi attempted to lead the cause of pan-Arabism, as illustrated by the ‘Zuwara speech’ of 1973. In this declaration, Qaddafi spelled out how greater Arab unity was not possible under the existing forms of government.
Only through the dismantling of the state’s institutions could the will of the people be realised, and ‘direct democracy’ was the means to achieve a PanArab state.
Conveniently, this positioning justified domestically the dismantlement of most of the political institutions that could pose a threat to his rule. In 1969 already, when Qaddafi had suspended the constitution and in 1972 he had banned political parties.
By the end of the 1970s, analysts would often describe Libya as a state without government or a nation without a state.
In practice, Qaddafi created para-public organisations carrying out both the administrative and legislative functions of the state (1980). By 1973, more than 2400 locally appointed popular committees had been approved by the RCC and took up the role of the state administration at the provincial level.
In 1975 Qaddafi had published the Green Book in which he stated that the country’s citizens directly managed political and economic life; a proposition in stark contrast with a political system where decision-making was restricted to Qaddafi and his advisors.
At the same time according to Joffé, the regime also ‘introduced a more insidious phenomenon: a de-politicization of the population and an atomization that took place as any type of organized activity was forbidden’.
After 1977 in particular, the structure of government in its traditional legal-bureaucratic sense was dismantled, and the ‘people’s authority’, exercised through people’s congresses and committees was proclaimed.
In the Green Book, Qaddafi had denounced the idea of a constitution on the grounds that ‘the problem of freedom in the modern age is that constitutions have become the law of societies’, but law should be based on human freedom.
The Green Book came to replace a formal constitution and served to legitimise the Libyan leader’s policies. In it, Qaddafi had argued that a society has fundamental laws derived from either tradition or religion.
This is what constitutes the moral code for a society that would direct the people in their practice of self-government so that the need for a man-made civil religion, for instance, is avoided.
Nowhere in the Green Book is there a reference to agents performing a role similar to that of a lawmaker. Instead it is claimed that anyone who has ‘the boldness to proclaim the will of the society’ opens ‘the way to dictatorship’.
The typical functions of a formal constitution that would normally delineate power and authority and organise relations between citizens and the state, as well as between different branches of government, were thus mainly irrelevant in Qaddafi’s Jamahiriya.
It would take Libyans 41 years, but in 2011 they would eventually burn and ridicule the Green Book in the street protests against Qaddafi that started in Benghazi in February 2011.
The protestors said it had allowed Qaddafi to act with impunity and had disregarded the responsibilities of the state and the rights of the citizens.
It was telling that at the start of the revolution, citizens directed their hatred not only towards pictures of Qaddafi himself but towards his book.
From early on in the uprisings, Libyans took to the streets to call for reforms, including the introduction of a constitution.
As with the 1951 constitution, in the aftermath of the Libyan revolution, important questions were not asked about the dismantling of the Jamahiriya.
While the lack of a formal constitution certainly gave freedom to interpret the Green Book any way the regime wanted, this did not make Libya that different from other regimes in the region where the presence of formal constitutions was hardly a hindrance for autocratic rule.
In addition, the neo-sultanistic system of governance underpinned by the Green Book did also reflect a power balance between different groups, and national preferences.
For all the empty rhetoric contained in the ideological guidelines that were meant to replace a formal constitution, the ever-evolving authoritarian system put in place by Qaddafi over the years took into account the strength of the various social groups that could mobilise against the regime (tribes, armed forces, religious groups, etc.).
Hence the formal absence of a constitutional order did not amount to the absence of constraints on governance in the Jamahiriya.
Carmen Gehaa – Department of Political Studies and Public Administration, American University of Beirut, Beirut, Lebanon.
Frédéric Volpib – School of International Relations, University of St. Andrews, St Andrews, United Kingdom.