By Saad al-Aker on the draft constitution drafting body: according to the law! – Al Marsad

Opinion article by Saad Al Aker
We are asked many questions regarding the work of the constituent body to draft the draft constitution? Among the questions:

Has the Commission exceeded the period specified for it; to draft the draft constitution? Is it permissible for the Commission to violate the period specified by the constitutional declaration to write the constitution?

In my answer to the first part of the question:
The Commission has exceeded the period specified in the constitutional declaration to write the draft constitution, since the constituent body has completed its term of office without fulfilling the tasks entrusted to it, in accordance with article 10, paragraph (10) of the Constitutional Declaration, Which states that “… the draft constitution shall be finalized and adopted no later than one hundred and twenty days from the date of its first meeting.”


The constituent body held its first session in Al-Baidah on Monday 21/4/2014. The last session, on which the draft was adopted, was on Saturday, 2017/7/29, so that the Commission took 1194 days to write the draft constitution , Which exceeds the legal period specified in the Constitutional Declaration (1074) days.


The second part of the question: Is it permissible for the Commission to violate the period specified by the constitutional declaration to write the constitution?
This question invites us to ask another question: what is the value of the constitutional declaration?


The Constitutional Declaration is a provisional constitutional document by its very nature, consisting of several articles that guide the country for a certain period. The Declaration contains constitutional texts of high prestige and status, such as the constitutional texts contained in the constitutions. Thus, the provisions of the Constitutional Declaration have a constitutional nature. From him, and not contrary to his rulings, and the occurrence of the excess is not significant, which is the absence either.


This clarification clarifies the value of the constitutional declaration, and since the constitutional declaration has been organized and defined in its texts the controls of the work of the constituent body, it is incumbent upon the body to abide by and abide by the provisions of the articles of the constitutional declaration, and not to violate them, (120) days stipulated by the declaration in accordance with item (B) paragraph (10) Article (30) which is an explicit violation of the Authority.


However, the Commission and its members have not only exceeded the period specified for them, but increased and said: that no authority to anyone on the body, it is a constituent body – it is not permissible – even the judiciary control of its work, and this dichotomy in the opinion of the members of the Commission is guided by the ruling of the Supreme Court The Administrative Chamber) in the appeal submitted to it No. 182/64 BC in the judgment issued by the Court of Appeal of Al-Bayda Administrative Judicial Department on 22/5/27 in the Administrative Case No. 2017/81, where the Court (accepting the appeal in form, Concerning the work of the Constitution in Libya).


If we agree that there is no jurisdiction for the administrative judiciary on the work of the constituent body in accordance with the provisions of Article 2 of Law No. 88 of 1971 on administrative justice, In this clear provision, which does not require interpretation or interpretation; to give another interpretation contrary to the rule, namely (no power to eliminate the body in general) and this is a wrong understanding of the Supreme Court ruling on the one hand, and contrary to the basic principle of litigation, namely : (The judiciary is the holder of the general jurisdiction in the adjudication of disputes) on the other.


The Constituent Assembly, although independent, has the right to make such constitutional provisions as it deems appropriate. Whereas the Constitutional Declaration did not restrict the drafting of the Constitution by any body, nor did it require any condition, nor was it required to follow any constitutional, legal or (B) Article 10, paragraph (30), with regard to the quorum required for decisions of the Commission, and the duration of its work – The constitutional declaration in paragraph (12) of Article 30 also specifies how the constitution should be presented to the referendum, The quorum required for adoption, and procedures for approval and promulgation if accepted by the people, or the return of the body in the event of not being approved to amend it, and put forward once again to all of Astvta- during specific dates.


This means that the judiciary is represented by the Supreme Court (the Constitutional Chamber), which has jurisdiction over the constituent body to draft the constitution, not in terms of the constitutional provisions in itself, but also in control of the procedures established by the constitutional declaration for the exercise of its work. Restricting the Constituent Assembly to specific restrictions and controls, and that if it wishes otherwise, it shall not set mandatory dates for the Commission to carry out its tasks.


We have seen in all of the above supported by an increase in what we have said; two other things are: in previous provisions of the Constitutional Chamber of the Supreme Court:


The first is the ruling of the Supreme Court (the administrative district), which the members of the Commission try to cite; (In the operative part of the ruling issued by it), it has been stated in the causation: (Without prejudice to the jurisdiction of the Constitutional Chamber in the Supreme Court in respect of what is issued by the constituent body to draft the draft constitution in violation of the procedures set forth in Article 30 of the Constitutional Declaration …) Moved characters from the text of the judgment of the court; The Court, it was pointed out, may be challenged by the Constitutional Chamber.


Second: precedents of judgments of the Supreme Court «Constitutional Chamber»:


1. Case No. 28 on the unconstitutionality of infringement