LFJL publishes the first instalment of its commentary on the draft constitutional recommendations, will deliver to the Constitutional Drafting Assembly

On 24 December 2014, Libya’s Constitutional Drafting Assembly (CDA) published its first set of recommendations drafted by its individual thematic committees on its website. Lawyers for Justice in Libya (LFJL) has called regularly for an inclusive and transparent drafting process, citing the need for popular engagement and dialogue.  This is essential to the creation of a lasting document drafted by consensus, in which all Libyans can find protection and behind which they can unite.

Until the December release of the recommendations, the drafting process - which began in April 2014 - had been largely closed and had not been the subject of expansive popular engagement.    The release of draft recommendations represents an important opportunity for all communities and key stakeholders, including members of civil society, to participate in the drafting process and to engage in a dialogue to overcome the limitations of the process so far.

In particular, this stage of the constitution drafting process is vital to overcome the CDA’s contested legitimacy due to the fact that it convened before it was fully constituted, thereby excluding substantial segments of Libyan society from the first stage of the drafting process. Dialogue and participation is also important to address the composition of the CDA which does not reflect Libya’s diversity adequately: only 6 seats are held by women and only 2 seats were reserved for each of the 3 key minority communities. Unless the CDA conducts a far-reaching and concerted outreach programme it will struggle to overcome these deficiencies and write a constitution that represents the whole country and all of its inhabitants.

To that end, LFJL is producing a series of commentaries assessing the work of the committees individually, by reference to key articles. This approach reflects the fact that the work of the committees may not yet have been subject to a plenary review to ensure coordination of the work and consistency of the provisions, and that some articles and provisions overlap. LFJL has examined the draft from three perspectives:

• Popular Consensus: LFJL conducted its own outreach as part of its Rehlat Watan constitutional tour, during which the Destoori team travelled all across Libya to engage with over 3,000 people from 37 different communities. The team conducted over 200 in-depth surveys, 500 interviews and interactive activities with hundreds of Libyans. The findings from Rehlat Watan formed the basis of LFJL’s Destoori Report and Recommendations, published in June 2014 and delivered to the CDA. LFJL has evaluated the draft recommendations from the perspective of its findings from the Rehlat Watan tour and assessed the draft for its consistency with the views and aspirations of the population.
• International Standards: Libya is party to many international human rights treaties and is therefore obligated to ensure that its domestic law implements the treaty provisions. This means that, as well as providing measures that specifically enact each provision, Libya must provide a framework that supports these measures, for example by enshrining accountability and transparency of government institutions, and the independence and impartiality of the judiciary.  LFJL has evaluated the draft to ensure that it supports Libya’s international obligations and provides a strong framework for enforcing those obligations.
• Constitutional Standards: Lastly, the commentary considers constitutional norms and best practices and evaluates the draft against these, paying particular attention to regional models.

LFJL will publish the commentary in stages, beginning with its analysis of the work of Committee 1 on the Form of the State and Fundamental Cornerstones and with analyses of the work of Committees 2 and 6 to follow during the coming weeks. LFJL is also preparing, in collaboration with its project partners, in-depth analyses of the complete draft recommendations to comment on how they would function as a safeguard of the right to freedom of expression and the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

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Overview:

Having considered the whole draft, the following represent LFJL’s most immediate concerns:

• Contradictory provisions: The draft is sometimes disjointed, occasionally between articles in the same chapter. For example, Committee 1 makes provision for equality between men and women, but also provides that citizenship may only pass from a Libyan man but not a Libyan woman.

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• Uncertain standards: Many concepts are covered multiple times and in varying levels of depth. For example, Committee 1 has drafted measures for the environment, natural resources and health, all of which are covered elsewhere. The CDA must either merge these provisions or ensure that they are dealt with in a complimentary manner.

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• Drafting style: Many of the provisions are not drafted from the perspective of enabling members of the public to enforce them. Instead, the recommendations sometimes read more as ‘policy directives’, meaning that rather than providing an enforceable obligation on the state, they might be interpreted as guidelines or suggestions. This is particularly noticeable and problematic in the section on Rights and Liberties, where it is essential that provisions are framed as enforceable rights.

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• The relationship between religion and the state: The current draft recommendations represent a departure from Libya’s constitutional history in respect of the relationship between the state and religion. Religion will potentially play a larger role in the Libyan state than ever before, without safeguarding the rights of religious minorities or ensuring the non-interference of religious bodies in the three branches of government.

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• Detailed limitations of key human rights: A constitution should establish its framework of rights in the broadest, least-restrictive terms. The current draft recommendations frequently limit the scope of key rights, for example freedom of expression is subject to detailed limitations. Limitations to freedom of expression include for defamation, libel and the ‘deliberate falsification of facts’ which should not be dealt with at the constitutional level. Obstructive limitations on civil society are also included, such as those requiring civil society organisations to register and prohibiting them from receiving certain foreign funding.

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• Non-consensus on divisive issues: On contentious issues, the draft recommendations do not reflect a consensus view. For example, on the point of national and official languages, Committee 1 has not yet agreed on a draft article that reflects the aspirations of minorities that speak the Tebu and Tamazight languages. On citizenship, the draft risks enshrining systems which discriminate against women and minorities.

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• Non-implementation of equality: Although commitments to greater equality are made, they are hollow as no provision is made for their implementation. For example, no mechanisms are proposed to secure seats for women and minority groups, and no gender and equality commission is proposed in the independent institutions.

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LFJL’s director, Elham Saudi, noted “The CDA has opened the door to much-needed feedback and discussion from the public and civil society, and LFJL urges the CDA to honour that commitment in order to find consensus on the constitutional provisions. The final draft constitution must reflect the needs and aspirations of the whole country, and protect the rights and freedoms of all those in Libya. LFJL's commentary highlights key areas where the current draft recommendations fall short of these expectations. LFJL is ready to offer its technical assistance to the CDA during the remaining drafting process."

Click here to read the first instalment of LFJL’s commentary, on the work of Committee 1 on the Form of State and Fundamental Cornerstones.