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Libya's mysterious new constitution

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COMMENTS

7 September 2011 13:56

Minerva Nasser-Eddine is a Research Fellow in the School of International Studies, Flinders University.

As the world's attention focused on the historic footage from Tripoli of rebels entering Bab Al-Azizia, Gaddafi's stronghold, the BBC News website reported that the Libyan National Transitional Council (NTC) had published a 14-page 'Draft Constitutional Charter for the Transitional Stage'. The link took the reader to a document which is purported to be the draft constitution.

But then it vanished. By the time I read the BBC report and visited the NTC website it could no longer be found (no doubt the NTC took the document down after criticism it received for a lack of consultation), and I was only able to access the draft charter via the link provided by the BBC.

The document is clearly only a draft, yet the reports that emerged from Paris late last week following the 'Friends of Libya' Conference, where 60 foreign governments and international bodies were represented, suggests this is the working document the NTC are using.

At the three-hour 'conference', NTC Chairman Mustafa Abdel Jalil outlined the council's roadmap for a new constitution, elections and measures to avoid further conflict. It is plausible that the draft constitution found on the internet might be the same one Jalil referred to in his speech.

The few who have commented on this draft have rung alarm bells. They have focused on the opening Article, which asserts, among other things, that 'Islam is the Religion of the State, and the principal source of legislation is Islamic Jurisprudence (Sharia).'

This is not unusual in the Arab world and in Islamic-dominant countries. In fact, when many Arab countries gained their independence in the 1940s-60s, their respective constitutions contained similar declarations. Yet most did not become the bastions of Ayatollahs and Islamic extremism. The connection between the state and religion is a given in Islamic-dominant countries. The constitutional separation of the two is not considered necessary to for democracy to function successfully.

Overall, this purported draft constitution is a thorough document which seeks to allay the concerns of Libyans, regional players and Western governments. It sets up a multi-party democracy, with:

  • Government and justice according to the rule of law, with equality before the law for all Libyans 'based on law and not tribal, proud or personal loyalty'.
  • Freedom of speech and religious practice.
  • The respect of human rights and freedoms, including recognition of rights for non-Muslims.
  • Preservation of linguistic and cultural rights.
  • Respect for the family, marriage, motherhood, childhood, and the elderly.
  • Care for children and people with disabilities.

Particularly impressive is the desire to eliminate corruption, a key demand by many protesters participating in the Arab Spring throughout the region. Article 20 explicitly states that members of the National Transitional Council cannot assume any other public office and cannot be appointed on a board or company. Furthermore, during the member's term neither they nor their husband, wife, or relatives may 'buy or rent any State property or lease or sell to or barter with the State in his capacity as obligator, supplier or contractor'. This is quite a refreshing approach, not seen in Arab constitutions (let alone many non-Arab ones) in the past.

However, two Articles of the draft released online stand out as needing further attention. More on those in a follow-up post.

Photo by Flickr user Maggie Osama.

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