Monday, 21 January 2013

A quick note on my Libya article

I just published a new article outlining what I believe to be 10 main lessons Libya can learn from Egypt's failures in writing a constitution. My conversation with Zaid Al-Ali @Zalali on Twitter about the article has made me realise I might have improperly expressed point number 4 of the article though.

My argument here is not existentially favour of a short constitution, but rather a reminder that: a constitution does not necessarily have to be long as a design rule, that there are things that should belong in the body of law and not constitutional text, and that some articles might have some literary qualities but would perhaps either better belong in a preamble or even not exist altogether due to potential unintended (?) problematic implications arising from vagueness. Also, in case of extreme difficulties on agreeing on certain articles, they could even theoretically be postponed to a post-referendum extended debate and amendments, assuming they could wait.

In other words, no country is forced to get into "who's got a bigger constitution" contest.

Having said that, I do actually believe in the idea that countries transitioning into democracy would benefit from articulating as many consensus governing principles as possible to avoid the repetition of the past or even a different and worse future. And in a country like Libya where modern democracy and state institutions are (hopefully) making their actual debut, a strong constitution is necessary.

Finally, I was also asked about the subject of "vagueness" in the Egyptian constitution. I actually do address what I believe to be its most important aspect while arguing that a clear commitment to human rights should be at the centre of the new Libyan constitution. Ultimately, some intentional textual vagueness can be a workaround to diffuse some Conservative-Liberal tensions (intentionally postponing the fight to the legislative process based on the interpretation of the article), even in traditional law making. But vagueness, as a rule, should be avoided whenever possible.

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