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The current constitutional crisis in Libya

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By: Azza Maghur*

After signing the Political Agreement in Shkirat, last December, by

Azza Maghur
Azza Maghur

the parties to the Libyan dialogue under the auspices of the United Nations Special Mission In Libya, singes of a constitutional crisis appeared regarding the implementation of the Political Agreement, specifically its entry into force. And due to the ambiguity surrounding the accord implementation in the agreement itself, especially in article 65 that stated modifying the Constitutional Declaration without clearly stating the body authorized to do the modification nor the method, such constitutional crisis started to escalate like snow ball, which might cause the failure of the accord and create new conflict. We should first discuss and explain such crisis legally, then find an exit.

The current constitutional crisis

The political accord signed by members to the dialogue, included two main poles to the Libyan crisis, the House of Representatives (HoR), the current legislative authority selected in 2014 based on constitutional modification and the election laws issued by the General National Congress (GNC) from one side, and the GNC itself, the former legislative authority that was elected in 2012, which returned to the political scene after 2014 elections and stormed the Libyan political course, created division and forced the country into civil war.

Thus, signing the deal by all parties is a legal action comes with commitments stated inside the accord that requires them to abide to.

In a previous article of mine, entitled (the Libyan Political Agreement between signing and entry into force), I cleared that the political accord cited three main steps: recognition, signing and entry into force. I also said that recognition and signing is actually one step, but the deal hadn’t clearly specified the body authorized to force the agreement into effect, so it may pass parties who signed and be applied to everyone, and here lies the crux. That’s why we have to dig deeper into the accord articles to clarify such procedural issue. I also have to read all the deal comprehensively to state procedures to be followed after signing the accord. That, article 66 stated “In accordance with rules to interpret legal articles, all articles contained in the agreement and its annexes to be interpreted as a package in order to ensure unity”.

The beginning of the current transitional period

According to article1 of the added provisions, the transitional period covered by the accord is the period following the adoption of the deal and the first session of the legislative authority, under the Libyan constitution. Article 2 of the additional provisions says “following the recognition and adoption of the political accord, the Government of National Accord (GNA) becomes the only executive authority in the country, and any executive decisions issued by any other bodies regarded void and legally invoke”. Hence, the beginning of the transitional period under the accord is that period follows the accord adoption, the GNA won’t become an executive power unless after the recognition and adoption of the deal; the question here is, what is the meaning of the adoption and recognition of the agreement? Does it mean only the signing process? Or there should be followed by another procedure that force the deal into effect? With the absence of clear indication to such important procedure and due to the speedy events that followed like the arrival of the Presidential Council (PC) in the capital Tripoli, and the failure of the HoR to hold full quorum session to endorse the government proposed by the PC, and the meeting of some the GNC members forming the State Council, all previous events exceeded legal requirements and procedures, which created the current procedural constitutional crisis concerning whether the deal will enter into effect or not.

Varied terminology and absent actions

The political accord contained different terminology concerning the implementation phase, it used “adoption”, “signing”, “ratification” and “entry into force”. But it used term “ratification” the most, which increased the ambiguity of the situation and procedure. The accord should have stated special articles for procedures to follow after the signing. What made matters worse, is that annex four, entitled “proposed amendment for the Constitutional Declaration” hadn’t declared the entity authorized to issue such declaration.

The body authorized to “ratify” the accord and force it into effect

Out of the accord articles, I see that the HoR is the body authorized to ratify the agreement and forcing it into effect. But at the same time, based on basic principles of implementing accord specially principle of good faith, the adoption of the agreement by the HoR is not an option but obligation it has to abide to. From this point, though respecting the executive authority is obliged, such authority has the responsibility and duty to respect its commitments arising out of the agreement. What confirms that, is that the HoR hadn’t only signed the agreement, but exceeded that with another important step and adopted decision during its ordinary meeting on 25/1/2016 stated “regarding the first article about discussing the adoption of the political accord, 97 votes from 104 approved the political accord signed on 17th December 2015 with the cancelation of the article 8th from additional annexes”. Which means that the HoR signed and approved the accord.

Surely the next question will arise; such approval wasn’t consistent with the Constitutional Declaration regarding the required quorum to modify it, based on article 36th. The answer is that the accord is not an ordinary Constitutional Declaration aroused from singular will of the HoR, but implementing existing commitments the HoR has to abide to and not a choice. But comes within a frame work that organize reciprocal obligations not to be repudiated on the basis of the failure of the legislative authority or wasted commitments aroused from the agreement. Hence, the HoR members, who failed to perform their duties or attend the sessions, can’t use “lack of quorum” as an excuse not to amend the Constitutional Declaration, as the inner list has to be applied against them. We can’t use abuses to the parliamentary’s commitment as an excuse for bigger violation and evade from responsibility during such severe and historical phase.

Therefore, the next step for the HoR is to get the political accord into effect with the Constitutional Declaration, get out with constitutional unified formula, under the name “Constitutional Declaration”.

The Government of National Accord (GNA)

According to the article one from “GNA” chapter, the GNA is formed from:

  1. 1- The Council of Ministers
  2. 2- The Presidency of the Council of Ministers

The two parts form the executive authority, whereas the HoR adopted the political accord in it’s session held in January 2016, the Presidential Council is formed, especially that the meeting record exceeded the matter by discussing endorsing the proposed ministers. But the record went far more than that when it issued a statement demanding the PC members, who suspended membership, to resume their work, and called the PC to reform the GNA to be consistent with the requirements of the current phase the country is going through. Endorsing the government ministers is one authority of the HoR (article 3/ GNA), which is confirmed through different articles, and can’t be exceeded, otherwise it would be major violation to the accord.

That is first class political action based on consensus and consultations about government formations, like what is known throughout democratic countries, such matter requires consensus between the PC and the HoR given public interest, the accord’s spirit and reconciliation mentioned inside the political deal. It is also a necessity to complete the GNA formation, endorse the government by the HoR, so the government would officially start.

Such thing should be taken seriously, so that the PC won’t expand and exceed the endorsement decision, or work before the official start of it’s legal mandate.

*A Libyan lawyer and writer

Translated By LIBYAPROSPECT: Source