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Sunday, July 8, 2012

Libya (and the E.U.): Writing a Constitution

Should writing a constitution, or “basic law,” be done piecemeal by successive amendments (e.g., the E.U.), or all at once (e.g., the U.S.)? In terms of unions of states, the answer might depend on how comfortable the state leaders are with transferring governmental sovereignty to the union. Whether at the state or union level, if “all at once” is the desired way, it is worth pondering whether a committee of a legislature should be assigned the task, or alternatively whether delegates to a dedicated convention should be selected—either by popular election or appointment by a legislature. These questions may seem antiquated where a constitution has stood for some time. Even so, in July 2012 in the midst of a legislative election, Libyans had a vested interest in the rather pressing questions.

According to the New York Times, the election in Libya selected a 200-member legislature that was initially expected to draft a constitution while it governed the state for 18 months. However, the interim Transitional National Council stripped the legislature of that authority just two days before the vote in an attempt to placate Libyans in the eastern part of the state who protested that the legislature would be stacked in favor of the more populous northwestern region around Tripoli. (One hundred members are from the west, 60 from the east, and 40 from the desert south.) “The council instead decreed a new election to choose a smaller panel to draft the constitution that would be composed of equal numbers from each region.” While sufficient and fair representation is a legitimate concern, an additional benefit of a convention is that pressing issues of governance, which are necessarily salient to legislators, can be bracketed to some extent. That is to say, a convention can have more room to look at the big picture with a more long-term perspective. Ideally, the delegates would be sequestered such that they are immune from pressing external pressures, though this is admittedly not possible at the union level, wherein the delegates represent sovereign or even semi-sovereign legislatures.

Whereas a convention at the union level must contend with the strictures placed on delegates by their respective states, delegates at the state level must deal only with local elites, rather than with entire legislatures (this is yet another reason not to conflate a state with a union thereof). Whereas a sovereign (or semi-sovereign) legislature has a legitimate right to tightly instruct its delegate, a delegate elected by the people of a locality of a state can legitimately not receive any instructions. Sequestering such delegates, who are dedicated to the sole task of writing a constitution, can effectively bracket momentary and partisan political pressures.

As the ballots were being counted in Libya, the New York Times surmised that the interim council’s last-minute change would probably be overturned by the new legislature. To be sure, the candidates for the legislature campaigned to be part of a constitutional assembly. Even so, it would be sad were the advantages of a dedicated convention beyond questions of local representation relegated or ignored, particularly given the conflict-ridden relations between the tribes and regions of Libya at the time. Getting delegates from all the tribes and regions together in a room and bracketing them from the outside such that they could sit down and take some real time to focus on basic questions of governance would be particularly worthwhile.

Concerning the value of getting a group alone to focus for a few months or so on a system of basic law, or constitution, would not be a bad idea for the E.U., particularly given its common currency and the existence of some anti-federalist states not using it. Although the states, being semi-sovereign, would have the right to appoint the delegates, the conflict-of-interest facing the states on whether to give up additional sovereignty suggests that it might be better were the citizens of the E.U. elect the delegates, perhaps in the districts used for the E.U. Parliament.

In conclusion, Libya (and Egypt) as well as the E.U. in 2012 amid a chaotic change of government and a serious debt crisis, respectively, reminded the world that basic or constitutional questions had not suddenly become passé by the twenty-first century. Setting up or establishing a new system of government, whether for a simple republic or a union of such republics, is difficult in itself, even without the inevitably pressing political pressures. Isolating some reflection dedicated to the task by people with power to propose a system of government is very important, yet strangely this point is typically discounted or disregarded altogether by people in power.


David D. Kirkpatrick, “Braving Areas ofViolence, Voters Try to Reshape Libya,” The New York Times, July 7, 2012.