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