The CDA

On 20 February 2014, the CDA was elected to write Libya’s draft constitution. Adopting this draft in a yes-or-no public referendum and electing a new legislature accordingly would mark the end of the country’s transitional period.

1. Islam shall be the religion of the State, and provisions of the Islamic Sharia shall be the source of all legislation. Any legislation in violation thereof may not be enacted. All legislations enacted in violation thereof shall be null and void.

2. The State shall be committed to enact the necessary legislation to prevent propagating and spreading beliefs contrary to the Islamic Sharia and practices contrary thereto.

3. The State shall be committed to enacting legislation that criminalises aggression against Islamic holy places or offenses against God, Holy Quran, Sunna, Prophets, Prophet Mohammed (PBUH), Mothers of Believers [Wives of the Prophet Mohammed] or Prophet’s Companions, may God be pleased with them.

The committee added a provision to this article providing for non­adjustability. Article 17 of the same chapter put international conventions and agreements in supremacy over the law but below the constitution, and provided that these conventions shall not violate any Sharia provisions. This chapter declared that “the state shall issue the required legislation

to amend all laws and regulations currently in force which violate the provisions of Article (8) of this constitution, provided this legislation will be issued with the necessary gradualness as per the legislator consideration.”

On the other hand, the Committee on the Rights and Liberties opted for an understanding that would limit the role of Sharia.

What if a conflict arises between certain basic rights and freedoms and Sharia provisions? According to the rights and liberties chapter, the preference should be given to the former: “It is prohibited to interpret any article [...in a way] that aims to have constitutional rights and liberties damaged or restricted beyond the extent it was provided for.” Consequently, it would not be allowed to rely on the article constitutionalising Sharia in order to restrict any rights and freedoms protected by the constitution.

As such, the outcomes of the thematic committees, as a whole, pleased neither camp in Libya. The more religious group saw them as insufficient, especially the chapter about rights and liberties. This was clear in the statement that the Council of Libya's Religious Scholars (CLS) issued. While it supported the understanding of Sharia as detailed provisions, which the Form of State Committee opted for, the CLS called for changing Article 1 of the rights and liberties chapter so the reference would be to Sharia's provisions without limiting it to conclusive ones. The CLS also asked for amending the article concerning the interpretation of the rights and liberties' provisions to refer to ‘Libyan society' instead of ‘a democratic society' and ‘objectives and provisions of Sharia' instead of ‘ojbectives and constant elements of Sharia.' Additionally, it proposed to deem the article constitutionalising Sharia superior to other articles of the constitution so that it would prevail in case of a conflict between provisions.

Less religion-oriented groups also had their reservations about the outcomes of the thematic committees. In their view, Article 8 that constitutionalised Sharia “establishes a religious theocratic state which does not recognise public will as (interpretations of) religious disputable texts [...] are determined by a group of religious men in accordance with those men's understanding and interpretation of those [disputable] texts. As such, this article practically demolishes the concept of a constitution by laying the foundations for a state guided in all aspects of life by fatwas and interpretations of religious men” (Sanusi 2015).

The second outcome of the CDA was the draft of the so-called Working Committee. The CDA formed this committee in June 2015 from amongst its members to prepare a first draft for the entire CDA's consideration. In October 2015, the Working Committee announced a draft in which it opted for a role of Sharia in lawmaking stronger than that envisaged in the drafts of the thematic committees (CDA 2015). The Working Committee's draft recognised Islam as the religion of the state, and Islamic Sharia as the source of legislation and the basis upon which “the provisions of the constitution are to be interpreted and restricted.” The Working Committee also proposed the establishment of a Council of [religious] Senior Scholars (CSS), an autonomous constitutional institution composed of fifteen experts chosen by parliament, among others, to advise state authorities on religious aspects of public affairs, to provide Sharia-based opinions, and to conduct religious inquiries to address emerging and current problems. The opinions of the CSS would be advisory, and there would be no specific obligation on state authorities to seek them.

The draft did not please many.

When it reviewed its draft in February 2016, the Working Committee largely retained the provisions concerning Sharia. Nevertheless, the new draft removed the requirement that provisions of the constitution would be restricted by the Sharia. The draft also replaced the CSS with the Council for Shari Research, with fewer powers to conduct religious inquiries on public issues of religious nature. The advisory nature of the recommendations was also underscored.

The CDA later amended the Working Committee's draft, but it maintained the Sharia-related provisions in the draft it announced on 19 April 2016. Still, the east-based Institute for Islamic Endowments and Affairs criticised it. In a statement published on 29 July 2016, the Institute said that it had formed a committee to communicate with the CDA about producing a constitution compatible with Sharia and Libya's customs; yet, the CDA ignored the comments and suggestions, and produced a draft that contained violations to Sharia. The Institute ended its statement by advising against approving the draft constitution until it would be reviewed and amended by relevant entities, such as the Supreme Council for the Judiciary and the Supreme Commission for el- Efta (in the east) (Libya al-Mostakbal 2016).

The CDA indeed reviewed its draft and approved an amended one on 29 July 2017, but this draft too did not please religious groups. In its statement dated ι August 2017, the Supreme Commission for el- Efta praised the draft for deeming Sharia the source of legislation; still, it accused the CDA of proposing numerous explicit violations to Sharia. Examples of these violations, as to the Commission, included establishing: unqualified freedoms of thought and expression, formation of political parties and civil society organisations, and equality between men and women. At the end, the Commission advised the Libyans, both the rulers and the ruled, to discard the draft constitution.²⁸

Indeed, this draft will be subject to a public referendum and will need the approval of two-thirds of the voters to pass. This is indeed a high threshold that the draft will unlikely be able to achieve as the issue of Sharia is indicating. While there will be voters opposing the draft for the same reasons that the Supreme Commission for el-Efta advocated, there will be also others who reject it for completely the opposite reasons. When declaring Sharia the source of legislation, the draft could risk influencing Libya towards becoming a theocratic state.

Apparently, the CDA has no easy way out of this. The question is whether there is a way out at all?