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Executive Authority: Sign of success or failure of PA

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By: Azza Maghur*

INTRODUCTION

There is no doubt that one of the primary purposes of the Political

Azza Maghur
Azza Maghur

Agreement (PA) is to create a new executive authority. However, this authority was too complicated, and through Constitutional Declaration Libya was left with a weak executive branch that could not withstand the dominant legislative power at the time, the non-elected National Transitional Council (NTC) which in 2012 evolved into the General National Congress (GNC).

The ineffectiveness of the executive authority was evident mainly because of the Constitutional Declaration; this leads to the GNC forming a constitutional amendment committee known as the “February Committee.” Its mission was to create a balance between both legislative and executive authorities, however, the GNC, despite adopting most amendments disrupted an entire section relating to the head of the state and handed it over to the House of Representatives (HoR).

The political conflict turned into a war, and Libya was lost in a maze, International intervention was necessary and “Al-Skhirat” was the result of many discussions and dialogues and signed last December.

Nevertheless, the signs indicate that the agreement isn’t as successful as initially hoped, misapplication, constant violations and the absence of good intentions are all apparent. Despite the HoR adopting and ratifying the agreement in January, it still hasn’t passed a constitutional amendment that would grant the agreement legislative power. Also, the HoR is yet to back the proposed government by the Presidential Council (PC), it seems like Libya is heading down another spiral prompted by politics, and may very well result in a new war.

It is important to reflect on the amount of power the executive branch possesses, and the reason why the agreement (AL-Skhirat) granted it so much power, making it the answer to many of the problems facing Libya today. Such as easing the suffering of the public and meeting their needs, promoting institutions and developing security arrangements as well as confidence-building measures, in addition to many more responsibilities and powers that rest on the executive authority’s shoulders, an authority which is known as the Government of National Accord (GNA). Understanding the reality of the situation will provide evidence and indications as to whether or not the agreement was a success.

STRUCTURE OF THE EXECUTIVE BRANCH ACCORDING TO PA

The executive authority consists of three separate components:

1-    The Prime Minister (Head of the Presidential Council).

2-    The Presidential Council of Ministers: Prime Minister + five

Deputy Prime Ministers + three Ministers (Minister of State for

Institutional Reform, Minister of National Reconciliation, Minister of Social Affairs).

3-    Government/Cabinet, this includes 1+2 plus some

Ministers.

While the naming of the first and second components was through a Political Agreement (PA) (Appendix 1), and was approved by the House of Representatives (reservation on Article 8 due to additional provisions), however the issue here was the fact that the House of Representatives appeared to block a vote of confidence towards the Cabinet, therefore the GNA’s structure remains incomplete due to the absence of the third component, the Cabinet/Ministers. The House of Representatives’ confidence related decisions is based on Article 13 of the agreement which states “The House of Representatives and gives confidence to the GNA and withdraws it according to the terms of this agreement.”

Accordingly, the GNA’s structure must consist of the three components stated in the agreement, and since only two are in place, the head of the executive branch is the head of the Presidential Council and not the Government.

DUTIES OF THE EXECUTIVE BRANCH

The duties of the executive branch stated in the terms of the agreement reflecting its complexity, three different levels of power can be found:

1-    Functions of the President of the Presidential Council.

2-    Duties of the Presidential Council.

3-    GNA’s mandate.

The President’s duties appeared to be limited to individual duties, other with his deputies, and duties in the framework of the entire Presidential Council. Deputies do not have any particular privileges and their responsibilities are for the Presidential Council to decide.

Therefore, wherever the GNA has jurisdiction in the Political Agreement, which is intended for the executive branch, consisting of, the Prime Minister, five Deputy Prime Ministers, three Ministers, and the Cabinet, it is not permissible for the duties and responsibilities to be taken on by an individual or a part of the executive authority, when a duty arises under the Political Agreement, the GNA with all of its components must be present and not just a part of it.

Thus, the head of the Presidential Council and the Presidential Council cannot exercise duties assigned to the GNA contained in the agreement. Also, their work is limited to what is stated in the terms of the agreement.

INDICATIONS OF THE SUCCESS/FAILURE OF THE AGREEMENT

There is no doubt that this indicator relies on the extent of forming the GNA, which the agreement describes as “the sole executive authority in the country, and any administrative decisions made elsewhere are void and is not considered law” Article 2/ additional provisions, as well as its efficiency and ability to implement the duties and responsibilities stated in the agreement.

Perhaps the most important of these tasks are those contained in the chapter relating to security arrangements granted by the agreement to the GNA and not for any of its components.

This fact that the GNA’s formation remains incomplete, is in itself a reflection of several other indicators:

1-    The Political Agreement was not implemented correctly, and many of its chapters were dismissed, institutions were formed without careful studies neglecting terms of the accord, which is exactly what happened in regards to the formation of the Presidential Council.

2-    The lack of appropriate alertness from the International Community including the UN delegates whom supervised the agreement, and did not take the necessary precautions to avoid any sudden mishaps, this can be noticed in their treatment of the GNA.

3-    The ineffectiveness of the House of Representatives and their inability to uphold the agreement. After signing it and adopting it, it should have supported the vote of confidence, declared constitutional amendments, perform parliamentary duties, it is the voice of the people and should aim to protect the country from foreign intervention. However, its incompetence could very well lead to one.

4-    The Presidential Council is performing tasks assigned to the GNA, which is what the agreement specified.

5-    The boycotting of some Presidential Council Members, and ignoring Article 8/2 of the agreement which states that decisions should be unanimous and not individual, the purpose of the agreement is to find a solution and reach a decision within the frame of the agreement and not disregarding it.

6-    The manner in which the International Community has dealt with the situation is plain negative. There needs to be more seriousness in their approach as well as more commitment, the fact that they were delighted with the return of the member of the Presidential Council to Tripoli is irrelevant. Equal treatment of various institutions is essential, whether it is in endorsing them or punishing them, there cannot be a division for that will complicate the situation and spark tensions. The International Community’s role started with communication and discussions; it should not divert from that path and continue to create more measure that will secure the implementation of the agreement, individuals, and public relations will be of little help, carefully placed procedures that will uphold the agreement and unite competitors. Maybe the citizen’s struggles and his/her desire for a peaceful living environment could prove to be the catalyst in hurrying up the negotiations and reaching a decision that all parties can approve.

7-    Failure of the International Community to perform their responsibilities under Article 46 of the agreement. Which states that “as the GNA is formed, security measures must be applied according to the terms of the agreement”, security measures are those that fall under Article 34, most notably withdrawing armed forces from the cities, Article 34 specifically detailed that this withdrawal should be overseen by the UN and the International Community. Government authorities should not be left at the mercy of armed militias; this will only see the end of the Political Agreement.

8-    Finally, the contracts and deals, especially those that were formed to end armed struggles must be implemented responsibly with the clearest of intentions, the consequences could have a substantial effect on the struggling civilian who has been longing for peace and bliss. If intentions somehow change, the civilian’s wellbeing is dismissed, and the instruments of the agreement are no longer performing their duties, then these are all indicators of failure of the Political Agreement.

*A Libyan lawyer and writer

Translated By LIBYAPROSPECT: Source