Special Interview with the Constitution Drafting Assembly Member Al-Hadi Bouhamra

Libya is moving forward into a political transitional period starting with the recent agreement to UN Special Representative Ghassan Salame’s proposal for amendments to the executive authority and a constitution referendum awaiting a vote the House of Representatives to hold it. To shed some light on this period Arraed LG interviewed Al-Hadi Buhamra, a member of the Constitution Drafting Committee .

Arraed LG: To begin, Libyans have demanded a constitution for their state, what is the current status of the draft constitution and are you one of the members who drafted it?

Response: The process of establishing the Libyan state started by electing the constitutional body through the Libyan people by free and direct general elections. The constitutional body completed the draft constitution and is nearing completion of its mandate. There is only the referendum remaining. The final stage in establishing the Libyan state awaits the Libyan people voting in the referendum on the draft constitution. We can then transition to a constitutional state based on our constitution.

Arraed LG: Did the political division affect the assembly and did it lead to division within it especially after the meetings in Salalah, Oman? What are the stages that were passed by the assembly?

The Constitution Drafting Assembly (CDA) was formed from different regions of Libya by general elections and included the various political orientations existing in the Libyan society. It had different views and opinions. The assembly started by making various working groups. We created the first working group, then the second working group and finally ending with the first draft constitution. After that, there was a disagreement  among the members of the assembly but thanks to the desire to build a new State without discrimination, the assembly met again without external, internal or international interference and agreed on the draft constitution which we consider to be exemplary as it unites Libyans without exception, is built on the peaceful transfer of power, on the unity of the country, on the independence of the judiciary, and aims to build rights and liberties under the guidance of international standards and in accordance to the fundamentals of Islamic law.

Arraed LG: There are those who seek to introduce the work of the CDA within the political dialogue led by the United Nations Mission in Libya. What do you think?

Response: Of course, the first thing is to emphasize that the political transition is completely separate from the constitutional track right from the date of the transition. The “very clear” constitutional process begins and ends with the Libyan people. The process begins with the election of the constitutional body to draft the constitution and then moves on to the referendum. However there are those who try to integrate the constitutional path into the political dialogue, which is clearly seeking to obstruct the establishment  of the new state, through attempts to disrupt the process. Therefore we must insist on completing the constitutional path of the Libyan state. The constitution begins with the people and ends with it, so that no political facades can obstruct this path or corrupt it for political, personal or partisan purposes.

Arraed LG: The principles of the constitution are based on the separation of powers and their independence, especially the judicial ones. What are the guarantees provided by the project for the maintenance of this principle?

Response: Firstly, in general, if the project is objectively looked at without any background of regional and political dimensions, you will find it is built on international standards in the construction of legislative, executive and judicial powers. It benefits from human experience, comparative studies by the Committee and experts hired by the Committee, including the judiciary. The judiciary was built on the necessary international standards to ensure the independence of the judiciary as an authority on the one hand, and the independence of the judge on the other. The establishment of the constitution has been constructed based on international standards and its articles in international conventions, as well as other countries.The project separates the ordinary judiciary and the constitutional judiciary and defines both these judiciaries within the rights and freedoms and transfer of powers and it guarantees the authorities of the legislative and executive powers are limit to their responsibilities.

According to the draft submitted, Libya is a civil state ruled by a republic. How do you  characterize this system and its benefits in light of the historical and political events experienced by Libya?

Response: The draft constitution is based on the fact that the future Libya is a democratic civil state, in complete exclusion of the concept of ​​a religious state. It is a state within the constraints of Islamic law, but it cannot be a one-party state or one-party orientated. In other words the constitution is based on political pluralism and multi-party. It completely excludes a state ruled by the army, because this constitution is based on the peaceful transfer of power and all the pillars and elements of a civil state clearly and unequivocally define in this project.

Arraed LG: The referendum law has not yet been implemented by the HoR, and when it is completed it will be sent to  the Electoral Committee for review. In your opinion, does the Committee have the capability to carry out this responsibility?

Response: First, the referendum or the preparation of the Libyan people for the referendum on the draft constitution is the main task for which the transitional phase was created for. Therefore, the bodies present in the transitional phase have the primary and essential task of preparing the country for the referendum and getting out of this transitional stage to reach the constitutional state of Libya. The main task of the UN mission is to prepare the country for the referendum, and therefore it falls on the United Nations’ mandate. The existing bodies are currently working to complete the institutional process which ends with a constitutional referendum.

As for the Committee it has announced more than once its ability to hold the referendum and conduct the elections resulting from the referendum. I think that the United Nations should play a very large role in preparing the country for the referendum and refrain from highlighting differences between Libyans which hinders the constitutional process. The United Nations Mission must focus on the constitutional process, and end this transitional period, in order to enable the people to vote on the referendum for the draft constitution so that  Libya can be like other countries – based on a constitution governing the peaceful transition of power.

Arraed LG: Observers see some political bodies rejecting the draft constitution because it ends the transitional stage and passes the country into a permanent stage. Is this true?

The constitution must be understood in the following manner: the constitution is a “death certificate” for all existing political bodies and a “birth certificate” for the new state of Libya; therefore, whoever is in power is now trying to block this project, for it is the death of the Supreme Council of the State, and other bodies, because it establishes the new state of Libya in which these bodies end. I believe in communication with the House of Representatives and the Supreme Council of the State, many members of the two Houses are strongly supportive of this process to enable the Libyan people to say yes or no this project, but it seems that some do not care for institutional building, but rather, they are focused on their personal benefit. Of course, this is not in the interest of the country, and hinders ending the transitional stages and the building of the Libyan state.

ArraedLG: There is a view that says: The rule on which the country should be based is the constitution, the people determine its system of government, and the elections take place on a constitutional basis. What do you think?

Response: Any perspective presented outside the constitutional framework is the perspective of an individual. All who are in power now are only Libyan citizens, no more and no less. They have the right to say yes or no, and from the date of the election of the constitution drafting assembly the assembly is authorized by the Libyan people to draft the Constitution.

That is, all deputies and members of the Supreme Council of State can say “yes” or “no” and they do not have to block this path, or to develop alternative scenarios as this would lengthen the transitional stages and lead to the corruption of the constitutional process.

In other words, any member of the House of Representatives or the Supreme Council of the State is simply a Libyan citizen who has to persuade people to say (yes) and can persuade them to say (no), but he has no right to corrupt the constitutional process.

The Libyan people have come out to elect the assembly on the basis of very clear rules that we must respect to the end. Any hesitation  will cost the Libyan state a lot and prolong the transitional stages that have exhausted the country and the people.

Arraed LG: The Administrative Chamber of the Court of Appeal of Al-Bayda issued a judgment concerning the appeal against the assembly represented by its Chairman as its legal representative. How do you view this ruling?

Response: The ruling is not a ruling of revocation, nor is the ruling of annulment, nor of the rule of absence. Rather it is a provision issued through an urgent appeal and it is an interim ruling issued by the Administrative Chamber of the Court of Appeal of Al-Bayda, which is currently before the Supreme Court. Of course we see very clearly in accordance with the Constitutional Declaration according to the applicable documentation or even according to comparative experience that there is no jurisdiction for the administrative judiciary on the work of the constitutional body.

If anyone objects to the work of the assembly on the duration, procedural track or the steps taken by the, they should resort to the Constitutional Chamber of the Supreme Court. The administrative judiciary in Tunisia was clear that it did not have a mandate over constitutional matters. The same happened in Egypt, and the Egyptian Administrative Court ruled that its jurisdiction on constitutional matters.. We hope that this judicial dispute in the administrative chamber of the Supreme Court will its rulings on the constitutional process.

Arraed LG: Are there tardes taking place within the assembly in the sense that you give me and i’ll give something in return?

The members of the assembly were independent and there was no external or internal interference in the work of the committee. This approach was rejected by the assembly  and there were deep debates and workshops between the members of the assembly mittee and its different points of view . National experts and foreign experts were used to reach inclusive solutions that included the various perspectives on the basis of compromise. The word “trade” has no place, it is a “distortion” of the work of the committee, and prejudice to the draft constitution, and “bargaining” is not possible especially in the work of a democracy and in a body elected by the Libyan people.

What is happening is negotiations and discussions to reach a compromise and solution which combined the various propositions or proposals within the committee. There was a federal system proposal, or a simple state, or to return to a monarchy, or the presidential system, or the parliamentary system. Does debating these scenarios or offering arguments in regards to these perspectives be called bargaining? Of course not, it is not bargaining and can not be described as being such as and this description is a negation of the truth. The fact is there have been discussions of legal debate, the debate of policy to achieve balance, both on the institutional side or on the rights side. We believe that this vision is a perfect balance of the “middle grounds”.

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