Libyan Constitutional Union

 

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The Constitution:

A major achievement and a gain for the people

It should be neither forgotten nor squandered *

 

 

By: Hisham Ben-Ghalbon

Many Thanks to Mustafa for the Translation

 

I am, naturally, referring to the Libyan Constitution, formulated and embraced by our people in the first and only occasion in which they voiced their opinion freely.  The Constitution that led to our country’s independence on 24th December 1951[i], and gave birth to the Libyan state.  The very Constitution that the renegade junta repealed as soon as they seized power through a treacherous military coup d’etat, having labelled it -due to ignorance or shear aggression- “The Constitution of the Monarchy”.  They did that without any mandate or authorization of any sort from the Libyan people to whom the constitution belongs.

 

It is right and proper that we celebrate the date (7 October 1951) when this Constitution came into being as a national event of singular importance and an achievement of the highest order, just as all civilised nations of the world do. This celebration will serve as a reminder of the tremendous feat by our people in creating this document and will consolidate the awareness of the Constitution among the citizens.

Further, this annual remembrance will help make the future generations aware of their rights and endeavour to obtain them, knowing that these rights are neither favours from the ruler nor are they subject to the whim and fancy of any one in power, so that a constitutional culture is cultivated amongst the nation. 

This annual act of collective remembering will help the future citizenry recognise their duties and responsibilities towards their country and countrymen to act accordingly with devotion and sincerity. This will prevent any repeat of the last tragedy that engulfed our country. And that will lead to the idea that violation of the Constitution is an infringement upon the people’s will and choice. Further, this idea will be rooted deep in the consciousness of these generations. Therefore, any violation of the Constitution will become an early warning signal betraying the true intentions of the ruler who should be resisted before he takes hold of the people lives and destiny as happened before in September 1969.

These goals are not impossible to achieve especially when the citizen learns that the Constitution is not a dispensable luxury that is available to some countries and not to others and neither is it a collection of laws and esoteric legal phrases written for the few specialists. 

It is in fact a document embodying the fundamental principles and laws of a nation that will form the contract that both the ruler and the ruled consent to abide by.  This contract guarantees that the ruler does not act unfairly towards the citizen, who in turn has the power to withdraw his support for the ruler and unseat him if this ruler violates the terms of this contract.

The Constitution is the legal document that offers “ The norms that govern the workings of the state institutions, their relationships and their functions. And this document guarantees for the citizen a life that is free, secure and worthwhile.”[ii]

Many studies, articles and essays of exceptional importance have recently appeared adopting the constitutional methodology.  It is most heartening to note that these publications are written by Libyan dissidents of all persuasions, be they individuals, groups or organisations.  The Constitution and the Constitutional rule is finally getting the attention it deserves in Libyan opposition debates.

In this brief article I would like to mention particularly a couple of examples such as the study by Dr. Abdul Rahman Said with the title “ Towards Constitutional Awareness” which has appeared in the “ National Front for the Salvation Of Libya” website in 7 instalments.[iii]

Also, issue No 14 of “ Sh’oun Libia” the magazine of “The Libyan Movement for Change and Reform”, which was almost entirely dedicated to the subject of the Constitution.[iv] Further, in an article in this issue entitled “Why do we demand the return of the life under the Constitution ” the author, Dr Abdul Rahim Saleh, went as far as concluding, “He who does not live under a constitution does not deserve to live.”[v]

Proposals, tentative solutions and outline of solutions have come from many different sources with the aim of finding a way out of this dilemma our people and our country are suffering from. Constitutionality and constitutionalism are the backbone of all these attempts of solutions. And it is heartening to know that this approach is widely accepted among the people whose reactions engendered by these attempts, are mostly favourable. As an example the “Libyan Islamic Grouping” (The Muslim Brotherhood) asked in a pamphlet dated 5 September 2002 for “.evolving legal reforms as a step for a comprehensive Constitution that accords with Sharia as this is the real route to a healthy and responsible politics.”[vi]

Meanwhile, 5 Libyan dissident groupings   signed a document calling for “ The salvation from the present regime and the instituting of a constitutional and a democratic rule inspired by the Libyan People’s faith, their heritage, their history and their values. And the legitimacy of this rule comes from the Constitution and the popular mandate through the free choice.”[vii]

However, most of these interpretative judgments could be criticized for falling in the trap and the predicament of calling for “ a constitution”, not “ The Constitution”.  Thereby, these judgements appear not only to condone the putschists’ heinous crime but also to consolidate it. This is a dangerous precedent in dealing with this important document. For, this precedent nullifies the principle of collective accumulative work and opens the way for a phenomenon, which is spread widely in the backward countries and among peoples who have no place in political history.   This dreadful phenomenon is of course the legacy of the one party system, and the single leader whom the history of the nation starts with the day he assumes power (or the salvation of the people as they often claim). Some dissident groupings went as far as writing, printing and distributing constitutions.

It is apparent that this route leads to problems we can do without, questions we can’t answer or we do not want to be asked. The simplest of these questions are: who are you? Who gave you the right to act? And by whose authority? .etc. 

This will open the way for repealing of the (new) constitution by the subsequent ruler and its replacement by another document written to reflect his conceptions of the “ideal” way to govern the country, eventually rendering this document worthless and ending up like the flag of the country has ended up. For the putschists have (repeatedly) replaced the national flag with several ones until it has lost all of its symbolism and has become a piece of green cloth that has nothing to do with Libya and means nothing to the Libyans.  This piece of cloth will no doubt be the first thing the next regime will change.

It is quite puzzling to witness this negative attitude towards the country’s Constitution at the time when virtually everybody holds it unreservedly in high regard.  And it is noticeable that some of these testimonies are held by people known for their struggle for the cause and their expertise in constitutional and legal matters. Examples of these opinions are the following few extracts:

1.     In his book, “ The Revolutionary Tyranny and the Genius of Folly”, Dr.Mohamad Megariaf states, “ The state of Libya, known later as the United Kingdom of Libya, was born 21 December 1951. The Constitution, a modern document, which was largely responsible for this development, was prepared and agreed upon 7 October 1951 by a “National constitutive Assembly “ representing all the inhabitants of Libya.  Some members of this assembly are well known for their competence and dedication. Help and expertise for this assembly were provided by the UN under the direction of Mr Adrian Pelt, who was the Assistant Secretary- General of the UN then. The Libyan Constitution, in contradistinction to other constitutions, established the state and not the other way around, for the state had not been in existence when it was formulated. The Constitution was not written in response to the will of a king, a president or a government authority, it was written in response to the will of entire people as expressed by their representatives. Therefore, it was not strange for it to be described by the constitutional experts as a subtle and a fully integrated constitutional document.[viii]

 

2.      In an article, under the title of, “ Reflections on the Quest for the Constitution”, Mr Ibrahim A Sahad, wrote, “ It can be said without any exaggeration that the Libyan Constitution is considered to be a very well crafted legal document containing all the guarantees that are available in the constitutions of the advanced countries for the citizen and his rights. It can even be stated that the constitutions of the neighbouring countries lack the guarantees and liberties the Libyan Constitution calls for. Furthermore, in contradistinction to many constitutions, the Libyan Constitution established the state and not the other way around. But in spite of all of that, the Constitution was still prone to be repealed in a very hasty and improvisational way. [ix]

 

3.     In a speech before the European Parliament, Dr Hadi Shalluf, described the Libyan Constitution as, “ Libya, like the other countries that became independent after WWII, had a modern constitution that secured its stability and the basic freedoms of its citizens. Libya established its first Constitution in 1951. This Constitution was written by legal experts from different countries under the umbrella of the UN. However, a coup d’etat was staged by officers of the Libyan army 1 September 1969 and this Constitution was repealed and replaced by the so-called Constitutional Proclamation, 11 September 1969.[x]

 

4.     In instalment number 6 of a study by  Dr Abdulrahman Saed, with the title of “Towards Constitutional Awareness” it is stated , “ The constitutional committee crowned its efforts with the endorsement of a great integrated constitutional document which has been approved unanimously by members of the National Assembly when it was put to the vote. Therefore, The National Constitutive Assembly responded swiftly and decisively to the decisions of the UN Council in Libya according to Mr Adrian Pelt’s plan.  The parts of this plan, which are especially relevant, are the ones that deal with the writing of the proposed Constitution, its approval and the establishment of a national Government  so that Libya would be, according to the the UN criteria, deserving its independence and ready for it and that would take the initiatives out of the hands of whoever wanted to use the delaying tactics against it.”[xi]

 

5.    In his article, “ What are the most important characteristics and pillars of the State after Independence? ” Mr Suliman Al-Shamikh described the Constitution as : “ ..the state has been established on the basis of the Constitution…..and this Constitution has been established on the basis of the will and free choice of the  people through their representatives and notables…”[xii]

6.     Mr El-Sanusi Blala, elaborated in an article entitled “ The Day of Independence: A goal and not just a remembrance “, about this Constitution, when he wrote: “ The enactment of The Constitution has been the first step in guaranteeing the realisation of this future (hope). This document was the embodiment of the national will which was characterised by its full appreciation of the responsibility and its foresight. This determination was later crystallised and summarised in one of the most important achievements of the National Constituent Assembly 7 October 1951 when The Constitution was approved. Some constitutionalists consider it as a balanced and fully integrated document. Mr Adrian Pelt, UN commissioner for Libya, in an article that appeared in the newspaper “ Barqa Algadida” 25 December 1953, said “ The Libyan Constitution aimed at democracy and the respect for human liberties. Some might object that it contains articles more suitable for the highly developed democratic countries.  Therefore, they argue, this Constitution does not suit the Libyan people at this stage of their development. I do not share this opinion. For, when the newly independent people are governed under a constitution, it is wise to widen the scope of their political activities and not to restrict it.”[xiii]

The special significance of Mr Adrian Pelt’s testimony, quoted above, is quite apparent.

Some might say that this Constitution (approved by the people and repealed by the Coup d’etat) was enacted and approved more than fifty years ago under different circumstances and in response to different challenges and therefore cannot be applied now.

Moreover, this Constitution touches on a fundamental and a vital issue namely the form of the state and the type of its government.  The chief deficiency in dealing with this controversial issue is the absence of the central figure that had been the main factor behind the success of the people’s struggle in that early period of the country’s history.

On the face of it, this certainly appears to be a cogent argument.  However, it can be refuted using the text of the Constitution itself.  For, this Constitution has been so well written that it takes into account the changing circumstances with the change of times and individuals and it contains the mechanism for its own evolution and development which would prevent the people from falling into the trap of its repealing and the regression to the absolute beginning which would be determined by the new “saviour”. The Constitution has been written with the idea that it is a permanent one for Libya and it would endure in spite of the time changes and transformations of even the form of the state and the type of government.

The articles of the Constitution emphasized the supremacy of the principles of Liberty, Justice and Equality; however, the form of government is not underlined as much. Therefore, it is possible to change the form of government without altering the main principles upon which the Constitution is based. Hence, the change affects only the modifications to the powers given to the King and his regime so that these powers can be transferred to a new regime like a republic.

Amending articles in constitutions is something that is fairly common in all the countries around the world. This act of amending is neither an innovation nor a violation of the law but a flexible tool provided by Law in different countries to adjust their constitutions in response to changing circumstances. Moreover, the ability to amend constitution articles is a safety valve that allows the alteration and the modification of the regulations that govern the workings of the administration and the bureaucracy of the state to be more in tune with modern times. These constitutional amendments are made in many different countries to safeguard their interests and in accordance with the function of their administration responsible for the internal and external affairs.

There was an honourable precedent for this in the early history of our country, when this outstanding mechanism was employed to amend the Constitution and thus allowing it to develop in line with the requirements of the historical phase of 1963. This came about when the Constitution Articles concerned with the form of the State were amended and the Federal system – that was chosen by the people immediately after Independence- was repealed in favour of a unitary system unifying the three federal states with its own individual powers into a state with a government that has central powers and authority.

It is noted from what has been mentioned above that when the form of the State was changed, the whole Constitution was not repealed. Some Articles were repealed and rewritten to reflect the general outlook and the set goals.[xiv]  This radical step was made in a legal and civilised manner. The method by which this change was effected should be a source of pride for us. And it is a precedent that -if followed- would prevent the country from sliding into a dangerous labyrinth.

It is instructive to be reminded by what was stated in the explanatory article concerning the amendment Law (of 25 April 1963) mentioned earlier: ” One can not escape noticing that what is suitable for a particular state at a particular time may not be suitable for the same state at a different time.”[xv]

Accordingly, the act of amending the Constitution should be subjected to conditions and criteria that would make it impossible for ravagers and adventurers to use this document for their own ends and as a tool to serve whoever is in power, as recently has been witnessed in some countries in the Arab world.  Such practices encouraged Gaddafi and others of his kind, the usurpers of power and engenders of chaos, to make constitutions objects of fun and ridicule. 

This will ultimately lead this document to lose its credibility, respect and authority as the ultimate arbiter between the ruler and the ruled.

Therefore, it is incumbent upon us as dissidents (inside or outside Libya) not to confuse the notion that our people are counting on us for salvation from their predicament with the authorization to speak or act on their behalf. Indeed, the Libyan people have not authorized anybody to do that since they were humiliated by the military on that miserable day. There is a big difference between the two situations. We do what we do as an obligation towards our country that has been humiliated and treated with contempt.

And for that we need neither authorization nor permission from anybody. However, we have to be mindful not to overstep our limits and to act within our boundaries.

Moreover, the careless and the disrespectful manner in which we have been dealing with our Constitution, by acquiescing in its repealing and then embarking on a course of action, which suggests replacements. This embroils us in the trap of applying double standards.  For, how can we then condemn the coup d’etat when “it repealed the Constitution on 11 September 1969, and a so-called “Temporary Constitutional Proclamation” which, gave all the executive and legislative powers to the new leadership, was decreed to replace it”?[xvi] .  Further, how can we object to the coup’s “Great Green document of Human Rights in the Jamahyria Era” which was declared on 12 of the so-called “Summer Month (June)” 1988, to become later the reference document for all the legislations used by the regime to subjugate the people?

It might be said that this talk of  “ The Constitution” or  “ a constitution” at these difficult times is not fruitful and a waste of time for, what we need is a programme for action and struggle and not an outline of the mechanics of government.  And how is it possible for an old constitution such as this to be useful to help the country get rid of this hellish nightmare of coups and counter coups?

However, as I watch the national dissidence arena with its new momentum, the vitality that has come back to its veterans, the many new capable activists giving hope for the struggle against tyranny, and the hard work to find a solution, an outline of a solution or something approximating to a solution, driven by the suffering of our country and the disparagement shown by the tormentors toward their people. I fear most of all the return to the vicious circle that wasted the efforts of keen countrymen during the eighties and squandered precious opportunities to achieve the desired aim.  All of this happened in the absence of a great national achievement that belongs to everyone and felt as a part of everyone.  Let us start unifying our work so that it becomes the extension of the struggle and the labour of our forebears and the continuation of their achievements and contributions.  This will widen the base upon which the common work of the active nationalist forces is anchored on one hand and narrow the division between the people and the dissidence movement on the other. So let us work together to achieve a common goal in facing a common enemy.

In addition, everyone has the right to have their reservations about certain articles and the right to express – if they so wish- these reservations and present them as suggestions to amend the Constitution (in the future when we pass this troublesome stage).  This can take the form of a proposal advanced by a party or an organisation, when the time is suitable to make proposals, in a referendum or in a poll in order for the people to decide and exercise their right to choose inside the country if and when the country regains its freedom and the people can voice their opinions for the second time in their history.

This will also prevent the time wasting and the squandering of efforts in presenting ideas and proposals outlining what is better for the future of our country. This dissipation of energy caused in the past and will cause in the future disunity, scattering of efforts and lost opportunities.

The most serious common mistake in this regard is to consider the Constitution as incompatible with the aspiration for a government to rule in harmony with the letter, the spirit and the intentions of Islamic Sharia.  But this cannot be the case when the first and one of the most important articles states “ Islam is the religion of the State”. Moreover, the Constitution contains within it the mechanism that guarantees for the legislature their function to make laws and replace bad laws with better ones in tune with the hope and the desire of the Islamic society. These laws can be as comprehensive and as wide ranging as the society can absorb and desire so that the executive branch of government can apply with speed and efficiency, that can be tolerated by the citizen, without having to resort to coercion, tyranny or oppression.

    In summary, even if there were laws that were not in line with the spirit of the Sharia and that these laws needed to be amended or repealed so that laws more in harmony with the Sharia can replace them, it is not due to the deficiency of the Constitution or its failure, but it might be due to the international situation, the circumstances prevailing then, and the need for the newly born State for foreign aid and contributions and its total dependence on them.  These laws that are not in harmony with the Sharia can also be attributed to the negligence or the incompetence of legislature and the executive branches of government, which as individuals or machinery of government can be brought to account.

However, this does not justify going down the slippery slope of being stripped of our greatest popular gain.

 


[i] The 1949 UN Resolution Relevant to Libya's Independence “That a constitution for Libya, including the form of the government, shall be determined by representatives of the inhabitants of Cyrinaica, Tripolitania and Fazzan meeting and consulting together in a National Assembly”  (Modern Libya, by Dr. Majid Khaddouri. The John Hopkins Press 1963)

[ii]  http://www.libyanconstitutionalunion.net/Al-HytArcl4Jan93.gif   “The Constitution and The Phantom Alternative ”, an article by Sheikh Mohamed Benghalbon in the London based Arabic Daily “Alhayat newspaper”, issue no. 10920, 4 January 1993.

[iv] “ Sh’oun libia”  magazine, issue no. 14, July 1999.

[v] ibid, page 16

[vi] “ Press release concerning the recent developments in Libya” issued 5 September 2002 http://almukhtar.dns2go.com/showthread.php?s=ef3a0bcff1e8e30dd49d53b001f1f015&

threadid=568&highlight=%CF%D3%CA%E6%D1

[vii] http://www.nfsl-libya.com/PressReleases/3013.htm “A charter, established principles and the goals of the Libyan struggle” , a press release, 9 May 2003, signed by : “The Libyan National Alliance”, “Libyan Movement for Change and Reform”, “The Republican Assembly For Democracy And Social Justice”, “The Libyan Tmazight Congress” and “The National Front for The Salvation Of Libya.”

[viii] http://www.nfsl-libya.com/Studies/5020.htm#_ftn2  Excerpts from the book: “The Revolutionary Tyranny and the Genius of Folly”, Battling The Constitution, The Judiciary and the free Press, 1 of 2 installments.

[x]   http://www.libya1.com/adab/shallouf/hs28102a.htm , A paper by Dr. Elhadi Shalluf, read before The European Parliament, 8 October 2002.

[xii]   http://www.nfsl-libya.com/Articles/1078.htm.   What are the most important characteristics and pillars of the State after Independence?

[xiv]   The federal system was repealed by Article no. 1, 1963 and the name of the State was amended to read  “ The Kingdom of Libya” in accordance with the same code. The following codes were repealed by Article  no. 1, 1963:  36,37,38,39,150,151, 152, 153, 154, 155, 156, 157, 158, 173, 174, 175, 177, 178, 179, 180, 181, 182, 183, 184, 185, 199, 205, 206, 207, 208, 209, 210, 211, 212, 213.

[xv]   http://www.libyanconstitutionalunion.net/m3page_8.htm.  A booklet issued by the Libyan Constitutional Union, 1981 on the occasion of the thirtieth anniversary of Independence.

[xvi]    http://209.151.83.49/modules.php?name=News&file=article&sid=  “ Human rights under the Libyan legal and judicial systems” by Dr. Elhadi Shalluf.

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*  "The original Arabic version of this article was published on this page on 17 June 2003, http://www.libya1.com/adab/ghalboun/hg17063a.htm, and later appeared on the LCU's web site http://www.lcu-libya.co.uk/dostoorartcl.htm .  

This translated version was also published on "Libya Our Home" on 24 December 2003, the 52nd anniversary of Libya's independence. http://www.libya1.com/adab/ghalboun/hg24123a.htm

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