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
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The very Constitution that the renegade junta repealed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.
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.
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.
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.
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
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.
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]
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.
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]
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]
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]
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
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.
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.
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.
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:
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]
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
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]
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]
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]
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]
special significance of Mr Adrian Pelt’s testimony, quoted above,
is quite apparent.
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.
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.
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.
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.
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.
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.
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.
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]
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.
will ultimately lead this document to lose its credibility, respect
and authority as the ultimate arbiter between the ruler and the
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.
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.
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?
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
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
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.
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
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.
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.
this does not justify going down the slippery slope of being
stripped of our greatest popular gain.
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
“ Sh’oun libia” magazine,
issue no. 14, July 1999.
“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.”
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.