On 15 March 2013, Constitutional Transitions’ Faculty Director Sujit Choudhry spoke at a panel event, “Principles vs. Pragmatism in Constitution-making: Challenges and Opportunities in the Libyan Constitutional Process.” The event was organized by the Department of Political Affairs (DPA) at the United Nations Secretariat in New York. He was joined on the panel by Muin Shreim, Director of Political Affairs at the United Nations Support Mission in Libya (UNSMIL) and Jason Gluck, Senior Political Affairs Officer at DPA.
Libya is currently governed by an interim set of constitutional arrangements inscribed in its Constitutional Declaration, which endows a Constituent Assembly (CA) with the responsibility for drafting a permanent constitution. A major point of controversy has been whether the CA should be selected by Libya’s legislature, the General National Congress (GNC), or elected directly by the country’s electorate. The Constitutional Declaration originally provided for a selected CA, but was amended in July 2012 to require elections. In February 2013, the Libyan Supreme Court struck down this amendment because it had not secured support from a super-majority of legislators in the GNC.
Choudhry suggested that the Libyan Supreme Court’s judgment provides an important pause to reflect on how best to assign legislative and constitution-making powers during constitutional transitions. The threshold decision, Choudhry argued, is whether to vest both functions in the same body, with a legislative committee charged with drafting the constitution, or instead to establish a CA that is distinct from the legislature and elected separately. A directly elected CA has the advantages of avoiding possible conflicts of interest that arise from entrusting politicians to draft the constitution that grants them powers. Depending on the electoral system used, a directly elected CA can also be more inclusive and representative than one selected by the legislature and can include non-politicians.
However, a CA separate from the legislature also poses disadvantages. Limiting the legislature’s role in creating a constitution may result in political elites not supporting the constitution, rendering it politically unstable. Thus, establishing bodies that combine legislative and constitution-making functions, as occurred in India and South Africa, may be a preferable constitutional option.