New 'liberal' Libyan constitution based on Shar'ia

Rebels celelebrating victory in Green Square, Tripoli

It looks as if the Gaddafi regime is gasping its last, with rebel forces sweeping into central Tripoli. According to the 'liberal' draft constitution unveiled by the Libyan Transitional Council, the new Libya would no longer would be 'Arab' - a nod perhaps to its Berber population, but stopping short, unlike Morocco, of affirming cultural or linguistic Berber rights. But Shar'ia still remains the main source of legislation, putting non-Muslims at a disadvantage. Brian Whitaker, Middle East editor of the Guardian's Comment is Free has this analysis on his blog, Al-Bab (with thanks: Eliyahu) :

This week the Libyan National Transitional Council issued its "Draft Constitutional Charter" – a sort of provisional constitution for the country in the immediate aftermath of the fall of Gaddafi.

The Project on Middle East Democracy lists some of its specific provisions here, but a more revealing exercise is to compare and contrast the NTC's document with the Libyan constitution issued in 1969, shortly after Gaddafi's revolution.

Article 1 of the 1969 constitution says:

"Libya is an Arab, democratic, and free republic in which sovereignty is vested in the people. The Libyan people are part of the Arab nation. Their goal is total Arab unity. The Libyan territory is a part of Africa. The name of the country is the Libyan Arab Republic."

Article 1 of the NTC's draft begins:

"Libya is an independent democratic state wherein the people are the source of authorities ..."

There is no assertion anywhere in the document that Libya is an "Arab state", and this omission cannot be anything but deliberate. The nationalism and pan-Arabism of the Gaddafi era have gone.

This is also a recognition of the country's diversity – in particular its marginalised Amazigh (Berber) communities. Unlike Morocco however (which has now recognised Amazigh as an official language), Arabic will remain the only official language in Libya "while preserving the linguistic and cultural rights of all components of the Libyan society".

A much-debated question is to what extent the NTC has an Islamist character. Article 1 of the NTC document says "Islam is the religion of the state" – though it should be noted that Gaddafi's 1969 constitution says the same (as do the constitutions of most Arab states).

Personally, I don't think states should have a religion but, since this is such an established idea within the constitutional frameworks of the Muslim world, its inclusion is not surprising.

Somewhat more troubling is the statement that Islamic jurisprudence (sharia) will be "the principal source of legislation". The exact role of sharia in legislation – and how to express it in the constitution – has long been a bone of contention in Arab countries. The form of words adopted by the NTC ("the principal source of legislation") is a moderately strong one, borrowed from Egypt, though not as strong as it might be.

For comparison, sharia is "the source of all legislation" in Yemen. In Oman it is "the basis of legislation" while in Bahrain, Kuwait, Syria and Qatar it is "a main source of legislation" (note the indefinite article).

The Iraqi constitution, approved by a referendum in 2005, specifies Islam as "a fundamental source of legislation" and says that "no law that contradicts the established provisions of Islam may be established." It also, rather confusingly, says that no law must contradict "the principles of democracy" or "the rights and basic freedoms stipulated in this constitution".

The Sudanese constitution (issued before the south seceded) establishes no official religion as such. It merely says that "Islam is the religion of the majority of the population". Article 65, however, specifies "the Islamic Sharia" as the source of law, along with "national consent through voting, the constitution and custom", though it also goes on to say that "no law shall be enacted contrary to these sources".

The NTC document adds that non-Muslims in Libya will be allowed to practise their religion and, as in Egypt and several other Arab countries, it talks of different personal status laws for different religions. This might sound fair in theory, but experience in Egypt and elsewhere has shown that attempting to operate different personal status laws for members of different religions is a minefield.

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Read text of draft Constitutional Charter here (with thanks: Stuart)