Independent Constitutional Bodies: Comparison between the Tunisian Constitution and the Libyan Draft Constitution

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By Fadoua Ouni

Early February 2016, the Libyan Constitution Drafting Assembly (CDA) has announced the latest draft Constitution. This new draft elaborated by the CDA’s ‘Working Committee’ is composed of twelve chapters with a preamble, having also settled the capital city controversy and decided on three major capital cities: Tripoli (Political), Benghazi (Economic) and Sebha (Touristic and Cultural).

Among the twelve chapters, there’s a specific one dedicated to “Independent Constitutional Bodies”[1]. Six main bodies are regulated by this draft:

  • The High National Electoral Commission;
  • Accounts Department/Audit Bureau;
  • National Council for Human Rights;
  • National Council for Cultural and Linguistic Heritage;
  • Sharia Research Council;
  • Sustainable Development Commission.

Careful examination of this list easily reveals a certain similarity and parallelism with the equivalent chapter in the Tunisian Constitution, along with several substantial differences between the two.

I. Main Similarities and Areas of Influence:

If we compare this section in both the Tunisian and Libyan constitutions, we will definitely notice a certain similarity in three main topics: elections, human rights and sustainable development.

Regarding the Elections Commission[2], the similarity is quite obvious, especially with the composition of the commission and the renewal of positions (nine members, six-year mandate, renewal of a third of the members every two years). The same could be said regarding the Human Rights Commission in both constitutions, except for few differences: In the Tunisian case, the commission has a mandatory advisory role when it comes to draft laws related to its area of expertise[3], whereas the commission has no such role in the Libyan case. Another difference is the renewal of the six-year mandate, which is only available in the Libyan case[4], whereas it’s a unique mandate for the Tunisian commission. The same applies to the Sustainable Development Commission[5], where we find a mandatory advisory role in the area of expertise along with a unique six-year mandate in the Tunisian Constitution, but not in the Libyan draft Constitution.

It is quite clear that the Libyan constitution writers have been influenced by their Tunisian counterparts in this specific area, not only due to the cultural and historical similarities between the two countries, but also due to the fact that the Tunisian Constitution has achieved a certain level of progress by not neglecting Independent Constitutional Bodies, as they form an important piller of the democratic transition and rule of law.

II. Substantial Differences:

One of the main differences between the two constitutional documents, is the placement of the “Audit bureau”, which is the highest authority for financial and accountancy control in the State. Such an institution is considered in the Tunisian case as a major component of the “Financial Judiciary”[6], as part of the general Judicial system. In the Libyan context however, the “Audit bureau” is considered as an Independent Constitutional body, managed by a president, with statute of General Auditor and a vice-president or more, as undersecretary; and whose six-year mandate can be renewed only once.[7]

Another main difference, is article 174 of the Libyan draft Constitution, which lists several authorities to be created by the legislative authority, while instructing the organising laws to be in accordance with the standards fixed by the constitution regarding their composition, areas of specialty, working mechanisms, guarantees for their independence and the impartiality of their members. The bodies to be created by law are:

  • Commission for Administrative Oversight;
  • Commission for Transparency and Anticorruption;
  • Commission for Statistics;
  • High Council for Media and Press;
  • Science, Technology and Inventions Council.

If we switch to the Tunisian context, we find that two of the five listed bodies to be created (The “Audio-Visual Communication Commission”[8] and “The Good Governance And Anti-Corruption Commission”[9]) were included and organised by the Tunisian Constitution, mainly for their crucial role in ensuring a smooth transition.

It is to be noted that two of the bodies previewed in the Libyan draft Constitution (i.e. the “National Council for Cultural and Linguistic Heritage”[10] and the “Sharia Research Council”[11]) were not included in this comparison since they are deeply related and rooted in the Libyan history and specificity, and therefore have no equivalent in the Tunisian Constitution.

This current draft Constitution has taken a lot of effort on the part of the “Working Committee” that elaborated the document, and it is now up to the “Constitution Drafting Assembly” to approve it and pass it for referendum in order to be adopted as the official Libyan Constitution.

 

 

[1] Chapter Seven of the Libyan Draft Constitution; Chapter Six of the Tunisian Constitution.

[2] Article 168, Libyan Draft Constitution; Article 126, Tunisian Constitution.

[3] Article 128§1 of the Tunisian Constitution.

[4] Article 170 of the Libyan Draft Constitution.

[5] Article 173 of the Libyan Draft Constitution; Article 129 of the Tunisian Constitution.

[6] Article 117, Section Four: Financial Judiciary, Chapter Five: The Judicial Authority (Tunisian Constitution)

[7] Article 169 of the Libyan Draft Constitution.

[8] Article 127, of the Tunisian Constitution.

[9] Article 130 of the Tunisian Constitution.

[10] Article 171 of the Libyan Draft Constitution.

[11] Article 172 of the Libyan Draft Constitution.