Why some Libyans see a solution to the country's political crises in a document that was published 63 years ago.
- By Lorianne Updike TolerConstitutional historian Lorianne Updike Toler is founder of Libertas Constitutional Consulting and ConSource.
As Libya’s temporary governing institutions struggle for survival amid political, legal, and security problems that threaten civil war, an oasis of order can be found in the small eastern city of al-Baida, where a committee of 55 has been quietly writing a constitution. Specially elected by various constituencies but equally representing Libya’s three regions, they bear the responsibility for writing a new constitution. Paradoxically, however, the greatest obstacle to their work may be less their country’s troubled present than widespread nostalgia for its past.
The reason is that, despite the convening of the National Constituent Assembly (NCA), Libyans from all walks of life have been calling for restoration of the country’s last pre-Qaddafi constitution, which was established in 1951. The widespread devotion to the document might be surprising: It establishes a monarchy and declares Islam to be the official state religion without specifying the role of sharia, or Islamic law. Both aspects are, in fact, controversial. The overwhelming majority of Libyans reject the restoration of the king, and Libyans differ widely on whether sharia should be the only source of law and legislation, a source among many, or left out of the constitution altogether. Yet a pending General National Congress (GNC) proposal backed by GNC member Ahmed Langhi — whose family was closely tied with the pre-Qaddafi regime — is urging a referendum on whether the 1951 constitution should be used as a basis for a new constitution. (This is the second such effort by GNC members within a year.) If it were put to a popular vote, Libyans would likely choose reinstatement.
Others have distanced themselves from the 1951 constitution. Amr Ben Halim, whose father served as prime minister under the former king, has personal experience with the shortcomings of the 1951 constitution. He remembers the monarchical period through the eyes of his father, who experienced the disarray of the government created according to the tenets of the old constitution. In his authoritative history of 20th-century Libya, American scholar Dirk Vandewalle describes a system in which regions received federal monies without accountability, leaving the national government with almost no ability to enforce its own law. While he does not support reinstatement of the 1951 constitution, he views its drafting process as a model for today. The process ensured that Libya’s regions were represented equally and that the public was consulted at the early stages. Support for the 1951 constitution’s drafting process by people like Ben Halim is precisely why the NCA’s drafting process ensures equal representation from Libya’s three districts.
This "realistic nostalgia" — a term coined by Ahmed Langhi’s daughter, Zahra, a women’s rights activist — has given hope to Prince Mohammed el-Senussi, the man who would be king if the old constitution is restored. In June, the leaders of Libya’s 40 tribes convened, ostensibly to "pray for peace and unity" at the Zawia Baida, the white monastery in the same small town accommodating the NCA. The private purpose of the meeting was to begin harmonizing the tribes to ultimately oppose radical elements within Libya. Given the alleged architect of the meeting, Prince Senussi himself, it is not difficult to guess how this harmonizing might have been done: The tribal leaders aimed to influence the NCA to adopt the 1951 text or to vote on its adoption among themselves. Prince Senussi is the great-nephew and heir apparent of King Sayed Mohamed Idris al-Mahdi el-Senussi, who heralded Libyan independence and its first constitution in 1951. A restored and un-amended 1951 constitution would reinstate the Senussi monarchy.
The push from tribal leaders, coupled with the popular cry for restoration of the 1951 constitution, does not bode well for the NCA, which has established a committee to determine the governing structure of a new Libya. (The photo above shows Libyan officials, tribal leaders, and civil society representatives at a ceremony launching the constitution-drafting process in April.) A fully resurrected 1951 document would preclude any choice in the matter. The NCA, elected by the people, should be able to determine Libya’s constitutional future, including its form of government, constitutional monarchy or otherwise. That said, the NCA would do well to consider using healthy portions of the 1951 text and structure to capitalize on its popular support in legitimating the final document.
Libyan’s hankering for a 60-year-old constitution seems at odds with current constitutional trends toward the expansion of human rights and the reduction of the number of constitutional monarchies. Indeed, from most scholars’ viewpoint, reinstatement of the 1951 constitution, in the words of one influential international authority in Libya, "makes no sense."
Above all else, the 1951 constitution establishes an incredibly powerful head of state. While such power was safely entrusted to Sayed Idris, a man who consistently put the interests of the greater good ahead of his own, there is always a risk that Libya may not be so lucky with future monarchs. Putting such faith in the lottery of genetics — with the added temptation of potentially corrupting oil wealth — will lead to disaster.
Libya has the world’s ninth-largest crude oil reserves, the largest in Africa. Qaddafi was happy to exploit these assets to bolster his own dictatorship. Libya’s recent past, including its experience of the "resource curse," reinforces the urgency of the need for the separation and balance of powers. Oil wealth invariably encourages the head of state to expand executive power to rake in more profits: Witness the careers of regional leaders such as Qaddafi, Nasser, or Ben Ali. To curb executive expansion, the new constitution must dole out equal amounts of power — and protective checks — to the other branches of government. It should also include better provisions on open meetings, record keeping, and a right to access information, not to mention specifics on how oil revenues will be distributed and contracts kept transparent.
Other major issues of the 1951 text are regional power and governance structures and the role of sharia. As "progressive" as the 1951 constitution is, its singular recognition that "Islam is the religion of the state" will likely not attract the kind of Libyan consensus that will be required for constitutional longevity. The old constitution also prohibits dual citizenship; limits freedom of religion and thought; bans teaching anything "contrary to morality"; lacks any accommodation for minority languages; and establishes two capitals, an unworkable setup. It also guarantees an "appropriate standard of living" for everyone, which, while admirable, might not be economically feasible. Its inclusion of the rights to work and education might be unenforceable and would effectively award legislative powers to the judiciary by allowing unelected judges to dictate complex employment and education policies. Meanwhile, the 1951 constitution fails to ensure judicial independence, a problem that could be remedied by including articles on life tenure and judicial review.
In some respects, nevertheless, the 1951 constitution can serve as a useful model. For instance, its legislature arrangement — a proportionally elected Chamber of Deputies and a regionally elected Senate — could provide a workable compromise between federalists and non-federalists (or those in favor of proportional representation, largely those in population-dense Tripolitania). The human rights section, which includes provisions banning torture and guaranteeing public trials, equal opportunity, and freedom of conscience, also provides a good first draft of a bill of rights.
Perhaps the greatest strength of the 1951 document is its place in history. Libya has been free only once in its pre-Qaddafi history, and the 1951 constitution is a potent symbol of liberty to Libyans. With good reason, the Senussi era of independence has a firm hold upon the minds of Libyans. Including passages from this constitution could unite Libyans around the new constitution as a representation of a hard won freedom.
When revolutionary stirrings first began in Benghazi on February 17, 2011, some accounts witnessed Libyans flocking to the Benghazi courthouse, raising the Senussi flag, and calling for the Senussi constitution. Those who have since waved the 1951 flag — which is ubiquitous in Libya — would certainly support a constitution that preserves the old charter’s elements and character. Popular support of a new constitution is no small matter in producing an enduring text, a consideration the NCA would be wise to take seriously in its deliberations.