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In Defense of Representative Democracy
(3)

Before dealing with the democratic legislative process, let me briefly say something about the importance of a constitution. As I indicated earlier, no system of government deserves to be called democratic unless it has a democratically drafted constitution. Perhaps the defenders of the current government would enlighten us about the constitutional status of the current so-called jamahiry regime.

Constitutions:
The foundation upon which a democratic government rests is its constitution--the formal statement of its fundamental obligations, limitations, procedures, and institutions. The constitution of the country is the supreme law of the land, and all citizens, leaders to peasants alike, are subject to its provisions. At a minimum, the constitution, which is usually codified in a single written document, establishes the authority of the national government, provides guarantees for fundamental human rights, and sets forth the government's basic operating procedures. A good example is our 1951 constitution, which was made after the English model.

Despite their enduring, monumental qualities, constitutions must be capable of change and adaptation if they are to be in keeping with the rapidly changing times. The world's oldest written constitution, that of the United States, consists of seven brief articles and 27 amendments. This written document, however, is only the foundation for a vast structure of judicial decisions, statutes, presidential actions, and traditional practices that has been erected over the past 200 years--and kept the U.S. Constitution alive and relevant.

This pattern of constitutional evolution takes place in every democracy. Generally speaking, there are two schools of thought about the process of amending, or changing, a nation's constitution. One is to adopt a difficult procedure, requiring many steps and large majorities. As a result, the constitution is changed infrequently, and then only for compelling reasons which receive substantial public support. This is the model of the United States, whose Constitution is a brief statement of the general principles, powers, and limits of government, together with a more specific listing of duties, procedures, and, in the Bill of Rights, the fundamental rights of individual citizens.

A much simpler method of amendment, which many nations use, is to provide that any amendment may be adopted by approval of the legislature and passed by the voters at the next election. Constitutions able to be changed in this fashion can be quite lengthy, with specific provisions that differ little from the general body of legislation. No constitution like America's, written in the 18th century, could have survived unchanged into the early 21st century. Similarly, no constitution in force today will survive into future without the capacity for change--while still holding fast to principles of separation of powers, individual rights, due process, and government through the consent of the governed. Ironically, the so-called Constitutional Proclamation (CP) that was issued after the coup on December 11, 1969 stated in two places that: " [T]he present CP is made to provide a basis for the organization of the state during the phase of completion of the national and democratic revolution, until a permanent constitution is prepared...(Preamble)" and again in Article 37 (1): The present CP shall be in effect until a permanent constitution is issued...". Even more intriguingly Article 34, of the same CP, states that: "All existing provisions of laws, decrees, and regulations which are note in conflict with the provisions set forth in this CP remain in effect. References to the King and Parliament in these laws shall be regarded as references to the revolutionary command council and reference to kingdom shall be regarded as reference to the republic".

Unfortunately, those few who took power by unconstitutional means began deciding the constitutional fate of the whole nation though they gave the impression that they intend to return the country to democratic republican constitutional arrangements. The Libyan tragedy started when those who stole power abandoned the British model, chose the Egyptian dictatorship instead, and then replacing it later with a full-scale fascist form of government. Absolute "constitutional" power resides in the hands of the autocratic leader and a very few of his loyal operatives.

The Democratic Legislative Process:
Representative Democracy is based on the notion that a people should be self-governing and that the representatives of the people should be held accountable for their actions. The legislature, which represents the people and acts as their agent, is therefore at the core of the representative democratic tradition. In a simple sense, a legislature makes laws. The Oxford English Dictionary defines a legislature as "a body of persons invested with the power of making the laws of a country or state." But this definition barely begins to address the broad range of activities and responsibilities performed by a legislature, and it does not account for the many kinds of legislatures that exist in the various countries of the world.

I will attempt to describe the basic functions that all legislatures in functioning representative democracies share. I will try to show some of the ways in which legislatures can differ, focusing mainly, but not exclusively, on the United States Congress and the British Parliament, which have served as models for many of the world's legislatures. These differences involve the form of the legislature, the role of the majority and opposition parties, the role of outside groups, and internal organization.

For any democracy, deciding how to form the legislature, how to elect its members, what powers to invest in it (and in the other branches of government), how to provide rights and channels of expression for minority parties, and how to organize its internal functions and deliberations are crucial issues in determining how the government, and the democracy, will function. Every country's political system develops and evolves according to its history, makeup, and political social conditions and culture. There are no simple or universal answers to any for these questions, because cultural considerations, historical experiences, and political realities affect the evolution and development of legislative bodies.

Although legislatures are known primarily as lawmaking bodies, it is important to recognize that these institutions have many other important responsibilities. The first and foremost characteristic of a legislature is its intrinsic link to the citizens of the nation or state--representation. As John Stuart Mill wrote in 1862, in a representative democracy the legislature acts as the eyes, ears, and voice of the people: "[T]he proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts, to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable.... In addition to this, the Parliament has an office...to be at once the nation's Committee of Grievances, and its Congress of Opinions." For that reason, the so-called People's Congress, which only meets once a year, falls short of fulfilling that important function. Thus, currently in Libya all the power is concentrated in the hands of the executive (dictatorship) while the constitutional presence of the judiciary is virtually non existent.

In addition to gaining their legitimacy by representing the public will, legislatures have other distinguishing features. For instance, most consist of a rather large group of individuals who come together, at least in theory, as equals. While some members may assume leadership positions or special responsibilities, each member's vote is customarily weighed equally. Thus, legislatures operate under a system of collective decision making. Also legislatures adopt policies and make laws through the process of deliberation. While usually based on some broad set of principles contained in written and unwritten constitutions, decisions need not proceed from the rule of law or specific legal precedents. In this way legislatures differ from the courts.

To be continued

Abdelrahim Saleh


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