Old Constitutional Controversy Ignited in Libya

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More than two years after deposing dictator Moammar Gadhafi, Libya continues to grapple with controversy around its new constitution.

Libya’s Feb. 17 Revolution holds within itself a special controversy that distinguishes it from the rest of the Arab Spring uprisings, and probably from many revolutions in history. This is on the grounds that it is not just a revolution for democracy against despotism and corruption — as is the case of the Tunisian and Egyptian revolutions, for instance — but also a revolution against a chaotic regime.

Based on that, it is a revolution [to build] the state. The Libyan jamahiriya era added to despotism and corruption a third element — that is, anarchy.   

[Former President of Libya Moammar] Gadhafi’s jamahiriya was anarchist par excellence, and his ideology was also chaotic. This is assuming people like him [and those who embrace] anarchy can even have an ideology to begin with. For this reason, he bragged that we did not have a government, a parliament or army. What this means is that we lack the fundamentals of a real state. The greatest evidence of the absence of a state in Libya before the revolution is probably that the situation in Libya was different from that in Tunisia and Egypt before the revolutions. The Libyans were able to seek recourse in Tunisia and Egypt for treatment, because health services in Libya had deteriorated as a result of the collapse of the administration and the state. The three elements — despotism, corruption and anarchy — have never prevailed in any other place as they did in the deplorable jamahiriya.

From this point of view, the Feb. 17 Revolution is a revolution that sought to build a state. Despotism and corruption alone did not make the Libyans’ blood boil. Rather, chaos and the absence of the state [were added to these two elements]. Moreover, the [Libyan] revolution is not similar to the revolution in Tunisia or Egypt, because it is a revolution against anarchy. Herein lies the danger, [because] it is subject to losing itself in chaos, where it emerged. How to reach a result that combines between the thesis and antithesis? How to build a state?

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The big controversy of the Feb. 17 [Revolution] is that it is not just a revolution to build the state, but an armed revolution, considering its difficult birth from the womb of chaos. The tyrant ended all despotism, corruption and chaos that he produced by confronting the uprising — whose early days were peaceful — by the silliness and violence that he was known for, which forced youth civilians to turn into militants.

Rare are the cases where an armed revolution has immediately moved toward democracy. This does not require less than a collective awareness and founding fathers who have the caliber [of the founding fathers of] the American revolution, let alone if the nation is plagued by factional, sectarian, regional or tribal affiliations, immature parties — which one takes to mean tribes more committed to the interests of their party’s members rather than the nation — not to mention egocentric purposes. The armed elite does not always lay down its weapons. How do they lose “revolutionary legitimacy” and “the gains of the revolution,” while many of them do not realize [the meaning of] the state, the law and other such abstract concepts.

The controversy of the Feb. 17 Revolution was greatly represented on July 7, 2012, when a people eager to have build a state grabbed the ballot and barricaded behind the ballot boxes during the elections of a General National Congress, where foreign observers confirmed the transparency and integrity [of the election process] in a country where there is no police or army. On Sept. 21, 2012 — on “the Friday of saving Benghazi” — the same people took to the street to declare that they reject any armed formations, and to prove that waiting in line for their turn to vote with discipline did not deprive them from their rebellious spirit to build the new state of Libya. The people certainly deserve to be  admired, when they coupled renewable ability to revolt and an ever hopeless longing for a state.

Yet, the question is still unanswered: When will the time come to bring the thesis and antithesis together, under the rule of law for which tens of thousands of lives were lost?

It could be said that one should only bet on the Libyan people. Just as they came out on election day and the “Friday to save Benghazi,” they will still be able to save the country from the grips of armed groups. Yet, they remain a defenseless population, plagued by several interactions [in a country] without institutions or political reference. In Egypt and Tunisia there is the army, which may intervene to prevent the disintegration of the country. Yet, the “non-regime” that prevailed for four decades in Libya did not leave behind any civil or military institutions.

Mahmoud Jibril, leader of the National Forces Alliance recently dropped a bombshell by saying that "along with some parties, he is for adopting the 1951 constitution that was amended in 1963 and suspending constitutional articles on the form of government,” instead of drafting a new constitution, as required by the current constitutional declaration.

Yet, we should not leave out that the 1951 constitution is distinguished by the mechanism of “self-detonation” if this assumption is correct. Constitutional Article 197 stipulates that “no proposal may be made to review the provisions relating to the monarchy form of government, the order of succession to the throne, the representative form of government or the principles of liberty and equality guaranteed by this constitution.” The monarchy form of government in the 1951 constitution is a principle that is “above the constitution.” [This means that] if removed from the constitution, the constitution will automatically fall apart, it will lose its homogeneity and coherence, and its provisions will become disconnected, [allowing] anyone to use them without being able to claim that he is acting in conformity with the 1951 constitution.

The slogan “take it or leave it” applies to this constitution, in terms of its principles that are “above the constitution”! It is possible to amend its secondary provisions, but without prejudice to its fundamentals, chief among these is the monarchy form of government. Or else, it will be an empty shell, even though it is subject to popular referendum, because it will not regain its meaning.

The possibility of going back to the 1951 constitution that was amended in 1963, necessarily includes the restoration of the monarchy form of government — which is its cornerstone and centerpiece — as the constitution stipulates. This even though its secondary provisions can certainly be amended to fit in with the international contemporary experiences in the field of constitutional monarchy. Thus, the safest way is to continue to act on the basis of the current constitutional declaration until the 1951 constitution that was amended in 1963 is revised as soon as possible — while preserving its monarchy structure and amending its non-basic provisions, in line with the recent constitutional monarchy experiences — and then to submit it to a popular referendum.

We mentioned that the Libyan people remain defenseless to threats without institutions or political reference. The monarchy form of government, which was made absent for 40 years or so — if restored in a new modern form such as a constitutional monarchy, in which the king does not govern or rule — may probably bring back to the people its political reference and one of its most important political institutions that was lost. [It will probably] once again become the balance between the various regional, tribal and partisan interactions, and a symbol of national unity as it was before the coup [led by] Gadhafi.

The spirit of the Feb. 17 Revolution lies in [the possibility] that it is against chaos and disrespect for human dignity. It is a revolution for the rule of law and human rights above all other things. Some of those who are exploiting anarchy and do not see a meaning for the revolution except for replacing figures with other figures and  tyranny with tyranny, want for Libya to be a new jamahiriya in which Gadhafi, his sons and his popular and revolutionary committees disappear so that tyranny is practiced by other tyrants.

[Keeping] weapons in the hands of everyone only means a new chaotic jamahiriya in the absence of the state, which the chaotic and wild ideology was keen to prevent from being established and which we only revolted to restore.

History may miss a unique opportunity if the Feb. 17 Revolution ends with anarchy, since it originally [rose up] against chaos seeking to build the state.

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