Tuesday, 23 August 2011

Libya: Learn from Egypt's Constitutional Gridlock

Libyan rebels make a chalk drawing of their tri-colored flag.  Photo AFP. 

Lorianne Updike Toler

Although Libya yet finds itself in a state of chaos, as the end looms for Gaddafi and his supporters, Libya's civil and political rebel leaders should consider a strategy for avoiding an Egypt-styled  constitutional gridlock.

It may seem somewhat presumptuous to begin planning for a new government now even as Gaddafi's sons and he himself are unaccounted for and appear out of rebel control.  Yet if and when Gaddafi falls, as most major western leaders are now recognizing, it will be almost too late to put together a long-term strategy, as the country will require some measure of stability almost immediately.

Consider Egypt's plight: constitutional amendments were quickly voted upon in March, calling for elections of a parliament first, who would then identify a constituent committee to draft a new constitution.  Yet when it became apparent that the new parliament and therefore the constituent committee would be dominated by Muslim Brotherhood forces, other parties cried foul.  Several constitutional proposals have been proffered by various parties and leaders, and the deputy prime minister has now issued a document which takes each of these proposals into account in proposing a new constitutional procedure.  Despite this act of reconciliation and inclusion by the current military regime, the Muslim Brotherhood and it's political affiliates are crying foul, saying the initial, popularly-adopted procedure outlined in March is that which should be followed.  

The root of Egypt's problem was a failure to carefully plan and then institute a constitutional procedure which would be inclusive and build consensus from the beginning.  Elections are the default mechanism for a  democratic government.  Yet as Egypt's recent history has demonstrated, such a default mechanism is not appropriate--nor will it work--for long-term constitutional change.  More inclusive, supermajoritarian procedures should be used for constitutional moments; such inclusiveness will help to legitimate the process, precipitating wide-spread acceptance of a constitution as the supreme and first law of the land upon which a healthy rule of law can be established.

Even though Libya's new beginning is not yet, I would encourage rebel leaders to start planning an inclusive, consensus-building constitutional procedure now.  The more they involve all the various parties and voices throughout the process, the more support a new constitution will have, resulting in greater economic, political, and social stability.

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