NEW YORK CITY – Over the past week, the General National Congress (GNC) has turned to the question of who should draft the new constitution. The question is whether drafters should be selected as originally planned in the August 2011 Constitutional Declaration or its amendment immediately prior to the 7 July elections. The debate raises the question of the role the public should play in drafting the constitution.
At the core of modern democracy is the idea of popular sovereignty. It is generally thought that governments are more just and legitimate when the law emanates from the people by their election of lawmakers. Yet democracy extends beyond voting law-creators into power. The people can and should participate in law creation itself when possible and advisable. Especially in the creation of the fundamental law of the country: the constitution.
Substantively, public participation in constitution-making will likely yield a constitution that better ensures rights and protections for the people and will be more reflective and inclusive of those people.
Practically, public participation will increase the legitimacy of the constitution and enhance voluntary compliance with the law both in founding and subsequent generations.
Legitimating a constitution through public participation may increase its longevity (currently, constitutions have a predicted lifecycle of 17-19 years) and enhance long-term stability and economic growth.
Participation at an early stage of constitution creation will allow the public to shape the issues and structure of the constitution, making them meaningful co-creators.
Early-stage participation, or before a completed draft is produced, can take several forms. Among them are informal methods where the public seeks, without invitation from the official body, to influence the outcome. Such methods include protests, petitions, and editorials such as this.
Protest is a method with which Libyans are familiar—those who protested the approval of members of Zeidan’s cabinet who had served under Gaddafi were successful in non-violently influencing the composition of the cabinet.
Likewise, the Arab Spring was begun and perpetuated through public protest.
As effective as protest and other informal methods have been, because it is uninvited and falls outside formal processes where most law-making is done, it may not be the most effective (nor safe) method for the public to impact constitution-making. For drafters, a formal invitation for the public to participate may decrease the pressure and security issues protest can present.
Public selection of constitutional drafters through election is a sometime-used method of public participation. The public may participate indirectly by electing parliamentarians who select the drafters (the original design of the 2011 Constitutional Declaration), or directly, as was opted by the NTC immediately prior to elections in July. If the GNC follows the NTC’s controversial constitutional amendment, the public would arguably be allowed a greater, more direct impact on the Libyan constitution than has been allowed for Egyptians in their constitutional processes, who followed the more indirect route in nominating drafters.
Hearings are another form of constitutional public participation. The benefit of hearings is that they can be held in rural and disadvantaged areas as they were in South Africa. They also allow personal, one-on-one communication with drafters who sit on hearing panels. The downside is that hearings will never accommodate the public en masse. They may be appropriate in Libya’s constitutional process to determine what issues to address in the constitution and especially to reach remote, sparsely-populated areas.
At a more advanced and involved level of public participation, South Africa requested pre-draft constitutional submissions from the public. Millions of submissions and petitions were received. Yet because of the sheer volume, this information was hard to incorporate. South Africa’s experience indicates that submissions and comments may be more useful after provisional texts are drafted, perhaps on an ongoing basis as was recently done in Iceland via an online form and on Facebook.
Libya, although bigger than Iceland, may have a small enough population to allow for this kind of ongoing online commentary for draft texts. Given the tight timeline currently scheduled for its drafting, Libyan constitutional procedure may be served well through this kind of real-time public participation.
Iceland also webcasted constitutional drafting sessions live. Although open forums are not always advantageous (sometimes closing doors allows drafters to be more candid and reach crucial compromises as occurred in the United States’ constitutional convention), webcasting plenary sessions would be another method wherein the public could watch and even participate through live, monitored chats, Internet difficulties permitting that is.
Another pre-draft method to involve the public is to host plenary sessions in each of Libya’s three regions to allow live participation and viewing by local residents.
Finally, perhaps one of the most effective methods of pre-draft public participation that could meaningfully and productively incorporate the opinions of a large number of people are surveys and pre-referendums.
Iceland held a referendum for its constitution that involved specific questions related to the constitution. (The difference there, of course, was that it was already in near-final form, needing only to be sent to the legislature for final approval.)
Depending on what the GNC decides in its current debate, Libyans may capitalise on another election to select its drafters by including constitutional issues on the ballot. These may be drawn from public hearings and could include questions on essential questions such as federalism and Sharia law. Doing so would provide the public a meaningful, substantial way of participating at an early stage in a usable format.
In sum, if Libyans are serious about incorporating sound democratic principles into their constitutional process and in the practical benefits of legitimacy and longevity for its constitution, they should consider incorporating pre-draft opportunities for the Libyan people to participate in the process. Direct elections are already a possibility. Before the election, hearings in various urban and remote areas could be held to develop a list of issues and concepts that are important to the people.
From this open-ended list, several questions on key constitutional issues could be posed directly to the people on the ballot. Votes on key issues would then be binding on the deliberative body. Plenary sessions could be webcasted live and provisional texts could be posted for commentary throughout the process to allow and encourage participation.
Involving the public in these substantial ways will set the stage for an ultimately successful post-referendum (already planned), saving time in the long-run and ensuring a process that is broadly accepted and respected.
Additionally, although much of the pre-draft public participation recommended here would be conducted before the official body meets, it is possible that it could, especially if the timeline was lengthened by at least two months, be easily incorporated into an abbreviated constitutional timeline.