Monday, 13 August 2012

Selection or Election of Libyan Constitution Drafters?

After elections July 7, the Libyan transitional assembly met last Wednesday, signifying the first peaceful power transition in Arab Spring countries.

Now Libyans must face the question raised by the July 5 Amendment to the Constitutional Declaration: should they directly elect or allow the new assembly to select the drafters of the new Libyan constitution?

In a Libyan Herald editorial published Saturday, I discuss this question with a co-author from The Right to Non-violence in Beirut, Lebanon, Tobias Peyerl (for the full article, click here).

After reviewing contemporary regional history and the history of the world's first successful constitutions, our conclusion is as follows:

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.