Special Report

Efforts and Corpses

The new Libya and its constitution.

By 10.24.11

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Some time during the fourth century before Christ, according to the historian Sallust, the ancient Mediterranean city-states of Carthage and Cyrene came to blows over the delineation of a shared border. War-weariness, in time, produced a curious compromise. Instead of deploying more phalanxes and triremes to settle the matter -- so the story went -- each North African polity instead designated a group of young men to set out on a littoral journey, heading east and west respectively. When the Carthaginian youths met their Cyrenaican counterparts, there the border would be confirmed. Yet the Carthaginian party, consisting of two brothers from the Philaenus family, abandoned any notion of fair play and set out towards the rising sun well before the appointed time, and at a decidedly brisk pace. As a result, when the representatives met at a site on the coast of the Gulf of Sidra, Carthage had claimed a great swathe of the Libyan coastline and desert, contrary to the rather ingenuous expectations of its rival.

Outraged, the Cyrenaican youths expressed a willingness to recognize the new border, but only under one gruesome condition: the Philaenus brothers would have to be buried alive on the spot. There, in the words of another classical historian, Valerius Maximus, "they now rest in peace, having expanded the Punic empire with their efforts and their corpses." The Altars of the Philaeni, the twin pillars marking the brothers' tumuli, were promptly erected by a grateful Carthaginian state to honor its morally flexible sons. In time the religious site -- located between the azure waters of the Mediterranean and the scouring sands of the Libyan desert, where wandering Bacchus was said to have very nearly perished of thirst -- would be further sanctified, if the word can be used in such a sense, by generation after generation of grisly Punic human sacrificial rites.

Owing, perhaps, to the uncanny aspects of the Philaeni affair, the borderline established that day would prove almost preternaturally enduring. First marking Carthage's frontier with Cyrene, and subsequently with Egypt, the altars would, by Late Antiquity, serve to separate the Latin-speaking Western Roman Empire from the Graecophone East. The Ottomans, heirs to the Byzantines, maintained the distinction between the provinces of Tripolitania and Cyrenaica, as would the Italian empire-builders, who first seized Tripoli in 1911 but struggled to subdue Cyrenaica and the arid province of Fezzan to the south. When Benito Mussolini -- inspired, as he put it, by the "the spirit which once carried the legions of the consuls to the farthest limits of the earth" -- moved to consolidate Italy's Maghreban holdings, it was under the Roman-inspired name Libia Italiana, but recognition of the ancient internal divisions remained. Mussolini may have considered coastal Libya to be Italy's quarta sponda, its "fourth shore," but even the imperialist Fascisti could not ignore the border between Tripolitania and Cyrenaica, long ago demarcated by the bones of the Philaeni.

Thus on March 16, 1937, the Italian colonial authorities unveiled the Arco dei Fileni, known to the natives of the country simply as El Gaus, "The Arch." A striking monument located along the strategic Libyan Coastal Highway, the structure featured bronze statues of the famous brothers, as well as the Horatian slogan "Alme Sol, possis nihil urbe Roma visere maius [Nourishing Sun, may you never look upon a city as great as Rome]." Like the Carthaginian altars before it, El Gaus firmly marked the border between the two historic Libyan provinces, and though Libyan authorities demolished it soon after Muammar Gaddafi's 1969 coup d'état, aspects of the monument persisted. The bronze sculptures of the entombed siblings, writhing in their sand-choked death throes, as well as various Trajan Column-inspired bas-reliefs depicting Italy's African missione civilizzatrice, could until recently still be found at a local museum in Sirte (the site of Colonel Gaddafi's birth and death). And just as the Philaenus brothers' physical legacy has yet to be eradicated, the invisible border they supposedly established has likewise survived, with grave consequences for a Libyan state presently wracked with internecine strife and now faced with the gargantuan task of restoring its bruised and battered body politic.

In the aftermath of the Italian defeat in the Second World War, and a little less than a decade after the construction of the Arco dei Fileni, a British lieutenant colonel by the name of Sillery presented a dire warning to the Royal Empire Society regarding the post-colonial prospects for an independent Libyan state. Difficulties abounded in maintaining a unified Libya, maintained Sillery in his November 27, 1946 remarks, given that "the paths of Cyrenaica and Tripolitania diverged" considerably during the decades of Italian rule. In Tripoli, according to the old Libya hand, "the majority of the population fatalistically submitted to the new regime," while "in Cyrenaica, on the other hand, rebellion soon broke out and continued" for years. What was more, the Tripolitanians, "although all Moslems, are composed of different sects, nourishing mutual animosities of which the Italians no doubt took advantage," while "the people of Cyrenaica were and are united in one religious and political creed [i.e. that of the Senussi Order] and have no fissiparous interests that their fanatical loyalty to their leader does not override." The Cyrenaicans consequently viewed post-war "amalgamation with Tripolitania with some misgiving," Sillery concluded. The distrust was mutual.

Recognizing this, the United Nations appointed a Dutch national, Adrian Pelt, to supervise the careful drafting of a Libyan constitution by the post-war provisional Libyan National Assembly. Working with representatives from the United States, Great Britain, France, Italy, Pakistan, and Egypt, as well as with native Libyans representing Tripolitania, Cyrenaica, Fezzan, and various non-Arab-speaking minority groups, Pelt and the newly fledged National Assembly agreed in 1951 to the establishment of a federal monarchy, with Muhammad Idris al-Mahdi Al Sanusi, Amir of Cyrenaica, serving as the head of state. This federal system, designed in large part to constrain the more populous and more economically developed province of Tripolitania, was a bold experiment, especially when viewed in the context of Arab constitutional history. The national government handled matters of foreign affairs and defense, as well as issues relating jointly to Tripolitania, Cyrenaica, and Fezzan, but the residuary powers were left with the provincial governments. Only the post-Trucial United Arab Emirates granted more autonomy to its constituent regions than the nascent Libyan state, though the 2005 Iraq constitution later established a similarly federal system.

Yet the experiment in Libyan federalism was soon undermined by the power-acquisitive monarchy, and by 1963 the constitution had been amended to strengthen the role of the crown and the central government. For six years Libya continued as a unitary monarchy, before a Gaddafi-led revolution swept away the not-so-ancien régime. Power was quickly concentrated in the Revolutionary Command Council, and in the person of Colonel Gaddafi. The new constitution, promised in 1969, went unwritten. A 1977 "Declaration on the Establishment of the Authority of the People" was meant to suffice, but the myriad of popular committees and congresses that were supposed to govern the country through direct democracy never came into being, for reasons that are apparent enough. The 1977 document's insistence that the "Holy Koran is the Constitution of the Socialist People's Libyan Arab Jamahiriya [People's Republic]" further muddied the constitutional waters, and Libya drifted from its initial civil law model towards a more Islamized legal system. As Ann Elizabeth Mayer observed shortly after the 1977 declaration, while "many conservative Muslim groups advocate a revival of the shari'a, Libya is the first country to have launched a major effort to reinstate shari'a rules after the previous adoption of Western, codified laws." The transformation of the secular, federal Libyan constitution was complete. The process had taken little more than a quarter-century.

In the forty-second year of Gaddafi's dictatorial rule, amidst the Arab Spring, peaceful protests led to violent uprisings, and the Cyrenaica-based National Transitional Council gradually wore down the regime's resistance, with help from Nafusi rebels in the Western Mountains, as well as from NATO jets. As early as April 21, 2011, a concerned Qaddafi government was raising the possibility of wide-ranging reforms, with Saif al-Islam, the Colonel's son, proclaiming that "Libya will not go back to what it was," that the "era of the first Jamahiriya is gone," and that "a new draft constitution has been prepared." Gaddafi's son was right on all three counts, as it happened. The Gaddafi era ended with rebel victories in the battles for Tripoli and Sirte, the regime was replaced by the transitional government, and the new leaders of Libya began work on a new constitutional foundation for their country, one which will presumably differ considerably from whatever the dying government would have produced in its desperation.

Shortly after the fall of Tripoli, in August of 2011, a curious document was borne along the tides of the Internet, entitled the "Draft Constitutional Charter for the Transitional Phase." Of the thirty-seven articles that comprise this rather rough draft, it was the first that attracted the most attention, providing as it does that "Islam is the Religion of the State and the principal source of legislation is Islamic Jurisprudence (Sharia)." The former of these clauses in present in Article Five of Libya's 1951 Constitution, but the latter, concerning shari'a, is a Gaddafi-era holdover that, boilerplate or not, raised many an international eyebrow. Just as noteworthy, however, is the draft charter's lack of references to federalism or provincial authority. While acknowledging the revolutionary efforts of the "Libyan people in different districts of their country," and lauding the establishment of democracy on behalf of the "political multitude," no mention is made of the roles of the provinces themselves in this or any future constitution. Instead, under Article 16, the Transitional National Council, "the supreme authority in the State of Libya," shall "undertake the works of the supreme sovereignty including legislation and laying down the general policy of the State." As the "sole legitimate representative of the Libyan people," the National Council will work with Local Councils, but no mention at all is made of Tripolitania, Cyrenaica, or Fezzan. National unity is stressed above all, and there are no indications that anything approaching federalism is even on the table.

This draft charter is obviously a sketch, not a finished product, and a Herculean task awaits those two hundred members of the planned National Congress, a body which will be formed eight months after the end of hostilities and which will be charged with drafting a permanent constitution and paving the way for multi-party elections. The publicly available draft nevertheless provides some insight into the thought process of the democratic revolutionary authorities, and their intention to keep power firmly consolidated in the national capital, just as was the case with their monarchical and dictatorial forebears. While Iraq's Prime Minister Nouri al-Maliki recently informed his Libyan counterpart, Mahmoud Jibril, that his country stands ready to assist with the process of constitution-drafting and election-holding, it seems that the federal precedent offered by post-dictatorial Iraq does not have the same appeal to Libya's National Transitional Council. Be that as it may, Libya's historical, cultural, and linguistic divisions are sufficiently deep that talk of national unity, balanced by the occasional sop to the "political multitude," will not be enough to prevent discord in a country in which territorial continuity "has not of itself contributed toward the creation of a single Libyan national identity," as Frank Golino has persuasively argued.

Not long before Colonel Gaddafi's coup, the Libyan Ministry of Information and Culture published This is Libya (1967), a pamphlet that refers mournfully to "gaps [in Libyan history] which research has not yet been able to fill." Over the course of the subsequent decades, a sultanistic regime bent on pursuing a course of Arab nationalism made no attempt to fill those gaps. The historical and cultural palimpsest that is Libya -- with its waves of Phoenician, Greek, Roman, Vandal, Byzantine, Ottoman, and Italian colonization, its indigenous groups of Berbers, Tuaregs, and Tibus, and its tenaciously-held geographic identities -- was ignored first by the monarchy and then by the Gaddafi regime, though the latter occasionally stressed the African character of the country. With the overthrow of the Jamahiriya now more or less concluded, an opportunity to rediscover Libya's multifarious identity presents itself, one that should not be squandered in the pursuit of centralized power.

The National Transitional Council now faces, and the National Congress will soon face, the very same problems that were confronted by Adrian Pelt and post-war provisional Libyan National Assembly faced, King Muhammad Idris al-Mahdi Al Sanusi faced, and Muammar Gaddafi. This time, however, Cyrenaica is triumphant, and after four decades of persecution the victorious Berbers of the Western Mountains are free to express their Tamazight culture and speak their Tamazight language. Thus, in addition to the multitude of thorny issues with which the provisional government must grapple -- ranging from the role of fundamentalist Islam within a multiparty democracy to the human rights implications of the recent treatment of black citizens, guest workers, and mercenaries -- the specter of regionalism, federalism, and potential disunion will continue to rise. The future of Libya as a viable state now depends on how the quondam revolutionaries will address the divisions inherent in the country they fought so hard to control.

Deep in the mists of history, the Philaeni brother were said to have established the borders that now cross-cut Libya "with their efforts and their corpses." In later centuries, efforts to control or transcend those borders continued apace, and the corpses piled up. By 1951, the notion of a Libyan "struggle" had entered the public consciousness, with the word appearing twice in the constitution adopted that year. King Idris even had his Ministry of Information and Culture refer to him has the "Struggler." On the fourteenth anniversary of Libyan independence, Prime Minister Hussein Maziq referred to Libya's "will to struggle," and described a "book of history" in which "the page of yesterday, with its grim pictures of tyranny, oppression and terror, lies facing the page of today, adorned with the pictures of freedom and independence, prosperity and abundance." For Maziq, the "battle of yesterday, into which our people plunged with obstinate determination for the protection of their national identity," had been won.

Unfortunately, the prime minister's conclusion was that Libya, a "nation proud of its Arab character," was finally ready "to face the challenge of Zionism and to win the liberation of beloved Palestine." All the wrong lessons had been learned. Libya became a unified state, then a dictatorship, and soon thereafter a notorious state sponsor of terrorism, before collapsing again, but only after forty years of oppression, torture, and the attainment of international pariah status. Today, the book of history is opened to those same pages, and the same pitfalls await those who make the wrong choice. The members of the transitional government should not wade into the age-old morasses of Libyan politics, and it is to be hoped that the "Libyan people in different districts of their country," as the draft constitution puts it, do not let them.

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About the Author

Matthew Omolesky specialized in European affairs at the Whitehead School of Diplomacy's graduate program, and received his juris doctor from The Ohio State University's Moritz College of Law. Formerly a researcher-in-residence at the Institut za Civilizacijo in Kulturo (Ljubljana), he is presently a researcher for the Laboratoire Europeen d'Anticipation Politique (Paris) and a specialist in international human rights law.