Jonah Patel
Libya has had a tumultuous constitutional history, with several constitutions and amendments enacted over the years. The country's constitutional monarchy came to an end in 1969 following a military coup, which abolished the previous constitution and established a provisional governing document. This was followed by the Green Book, which served as a guiding document for the country's governance. In 2011, after the overthrow and death of Colonel Qadhafi, the National Transitional Council published an interim constitution to govern the country until a permanent one could be drafted. The Libyan interim Constitutional Declaration, finalized in 2011, has been amended several times, with the latest amendment taking place in February 2023. As of October 2023, there have been 13 amendments to the interim declaration. The country has also had several draft constitutions, including one in 2017, but a permanent constitution has not yet been adopted.
| Characteristics | Values |
|---|---|
| Current supreme law of Libya | Constitutional Declaration |
| Date of finalization | 3 August 2011 |
| Number of articles | 37 |
| Number of sections | 5 |
| Number of amendments | 13 (as of October 2023) |
| Date of latest amendment | February 2023 |
| Number of members in the committee to draft a new constitution | 24 |
| Date of approval of the twelfth amendment | 10 February 2022 |
| Number of members in the Constituent Assembly of Libya | 20 from each of Tripolitania, Cyrenaica, and Fezzan |
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What You'll Learn
Libya's Constitutional Declaration
Articles 1–6 of the declaration outline general provisions regarding Libya as a state. Article 1, for example, describes Libya as a democracy, with the people acting as the source of political authority. Article 3 defines the flag of Libya, and Article 4 declares the aim of establishing a democratic state based on a multi-party system. Article 6 describes the principle of the rule of law taking precedence over tribal or personal loyalties, and it also guarantees non-discrimination and equal rights for all citizens, as well as the state's upholding of women's rights.
Articles 7–15 specify civil rights and public freedoms, while Articles 17–29 detail the operation of the interim government. Articles 30–32 ensure an independent judiciary, and Articles 33–37 are "conclusive provisions". Notably, Article 29, repeated as Article 33, states that no member of the National Transitional Council may nominate a candidate or assume certain positions, such as President of the state or a member of the legislative council.
Article 30 of the Libyan Constitutional Declaration outlines a process for drafting a permanent constitution, with time limits for each section. The goal was to have a permanent constitution in place by December 2013 at the latest. However, this process has faced several delays, including political wrangling over the position of Prime Minister. As a result, the target date for appointing a Constituent Assembly was missed.
Since its introduction in 2011, the Libyan Constitutional Declaration has undergone several amendments. As of October 2023, there have been 13 amendments. The tenth amendment, for instance, divided the country into three voting districts (Tripolitania, Cyrenaica, and Fezzan) for the 2017 draft constitution referendum. The twelfth amendment established a 24-member committee to draft a new constitution, which was approved by the House of Representatives in February 2022. In March 2023, the thirteenth amendment was passed, defining a new system of government and outlining the roles of the elected president and prime minister.
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The 2017 draft constitution
However, there have been concerns raised about the 2017 draft constitution. One concern is that parliament's approval is not required before a presidential declaration of a state of emergency, as is the case in the Iraqi constitution. In addition, there has been criticism of the ambiguity regarding the membership and decision-making methods of the high judicial council. The human rights elements of the draft constitution have also been criticised for lacking details on how they would be enforced in courts.
Despite these concerns, the 2017 draft constitution was initially considered the only viable basis for the country's future. In February 2018, the House of Representatives (HoR) rejected the CDA's draft and called for an amendment of the 1951 Constitution of the Kingdom of Libya instead. A legal case against the validity of the 2017 draft constitution proceeded to a hearing by the Supreme Court, which dismissed lower courts' decisions against the draft.
The twelfth amendment, approved by the House of Representatives in February 2022, created a 24-member committee to draft a new constitution, replacing the 2017 draft. However, the High Council of State rejected this amendment. As of February 2023, the 2017 draft constitution has been replaced by the thirteenth amendment, which defines a new system of government and the tasks of the elected president and prime minister.
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The role of the National Transitional Council
The National Transitional Council (NTC) was formed in February 2011 during the Libyan Civil War to represent the Libyan people and write a new constitution. It also coordinated the military defeat of dictator Muammar Gaddafi. The NTC governed Libya for ten months after the war, holding elections to a General National Congress (GNC) in July 2012 and handing over power to the newly elected assembly in August 2012.
The NTC aimed to provide political and military leadership, organise basic services, and represent Libyans abroad. It was not a government but aimed to "steer" Libya into a post-Gaddafi era and then guide the country to free elections and the establishment of a constitution for Libya. The council claimed to be the ""only legitimate body representing the people of Libya and the Libyan state"" and was widely recognised as such.
The NTC faced significant pressure from Federalists, Islamists, and minority groups during the drafting of its Transitional Constitutional Declaration, promulgated in August 2011. As a result, many were unhappy with the final version, and some suspected that certain groups had taken advantage of the pressure to push through their agenda.
The NTC made a last-minute change to the electoral roadmap, further demonstrating its susceptibility to external pressure. Despite these challenges, the NTC played a crucial role in transitioning Libya towards a new political system and paving the way for free elections.
The NTC struggled to keep Libyans united and faced criticism for its inability to withstand external pressure. However, it successfully coordinated the military defeat of Gaddafi and laid the groundwork for a new constitution and free elections. The role of the NTC was to provide interim leadership and facilitate the transition to a democratically elected government.
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The interim government
The Libyan Interim Constitutional Declaration is the current supreme law of Libya. It was introduced in 2011 following the overthrow of the Gaddafi government in the Libyan Civil War. The National Transitional Council (NTC) published a draft of the interim constitution, which was finalised on 3 August 2011 and publicly announced on 10 August. This interim constitution was intended to remain in effect until a permanent constitution was written and ratified in a referendum.
Articles 17-29 of the Libyan Interim Constitutional Declaration outline the operation of the interim government. The National Transitional Council is the highest authority of the Libyan state and assumes the supreme functions of sovereignty, including legislation and the determination of general policy. It is composed of representatives of the local councils, with the number of representatives from each council determined by population density and geographic context. The NTC is the sole legitimate representative of the Libyan people and draws its legitimacy from the revolution of 17 February. It is responsible for guaranteeing national unity, the security of the national territory, the definition and dissemination of values and morals, citizen safety, the ratification of international treaties, and the establishment of a civil, constitutional, and democratic state.
The interim constitution also lays out a process for drafting a permanent constitution. The General National Congress determines the electoral criteria and regulations to ensure the representation of all constituents of Libyan society. The Constituent Assembly, consisting of 60 members, is then elected through free and direct elections. This assembly has 120 days to draft and adopt a permanent constitution, which must be approved by a two-thirds majority of the General National Congress. A referendum is then held within 30 days, and if the Libyan people approve the constitution by a two-thirds majority, it becomes the country's permanent constitution.
As of October 2023, there have been 13 amendments to the Libyan Interim Constitutional Declaration. The twelfth amendment, approved by the House of Representatives in February 2022, created a 24-member committee to draft a new constitution. However, this amendment was rejected by the High Council of State. The thirteenth amendment, passed in March 2023, defined a new system of government and the tasks of the elected president and prime minister.
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The permanent constitution
Libya has not had a permanent constitution since the military coup of 1969, which abolished the previous constitution. The National Transitional Council (NTC) published a draft interim constitution in 2011, following the overthrow and death of Colonel Muammar Abu Minyar al- Qadhafi. This interim constitution, called the Constitutional Declaration, was finalised on 3 August 2011 and consists of 37 articles in five sections. It is intended to remain in effect until a permanent constitution is written and ratified in a referendum.
Article 30 of the interim constitution lays out a process for drafting a permanent constitution, with time limits for each section. However, this process has been subject to several delays, and as of October 2023, there are 13 amendments to the interim constitution. The twelfth amendment, approved by the House of Representatives in February 2022, created a 24-member committee to draft a new constitution, replacing the 2017 draft. The Constituent Assembly of Libya, consisting of 20 members from each of the country's three historic regions (Tripolitania, Cyrenaica, and Fezzan), was elected in February 2014 and finalised the 2017 draft constitution in July 2017.
The latest amendment to the interim constitution dates from February 2023, replacing articles 17 to 30. It is unclear if this amendment affects the process for drafting a permanent constitution outlined in Article 30 of the interim constitution.
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Frequently asked questions
As of October 2023, the Libyan interim Constitutional Declaration has been amended 13 times.
The Constitutional Declaration was introduced following the overthrow of the Gaddafi government in the Libyan Civil War. It was finalised on 3 August 2011 and was intended to remain in effect until a permanent constitution was ratified.
The twelfth amendment created a 24-member committee, divided equally among Libya's three historic regions, to draft a new constitution. It was approved by the House of Representatives on 10 February 2022.
