Ghassan Salamé, Head of the UN Support Mission for Libya (UNSMIL) is preparing an amendment to the Libyan Political Agreement (LPA), the internationally-backed roadmap for creating a unified Libyan government., My hope is that this article will help draw the U.N.s attention towards critical legal issues surrounding this process.
The House of Representatives:
The Libyan House of Representatives (HoR), derives its legitimacy and mandate from the general elections held in June, 2014 in accordance with the Libyan Constitutional Declaration and its amendments, and election law no. 10 of 2014, the pillar of the nascent Libyan democratic process. With that election, the HOR took over power from the General National Congress (GNC). The Libyan HOR is not authorized to extend its own mandate: it must either call for a referendum, or to hand over its power to another body.
The election results catalyzed a split between the HOR, and a rival government that was formed by groups that did not recognize the election, forcing the HOR into exile in the country’s east.
By October, 2015 the HOR’s term had expired, in accordance with Libyan constitutional declaration, without a referendum, and without transfer of power to another body. Despite (and because of) this, and in the absence of any other elected body, the HOR retained legitimacy, as the only extant popularly elected body.
Starting in 2015, the United Nations attempted to negotiate a political compromise, called the Libyan Political Agreement (LPA), that would resolve this conflict, as soon as the HOR ratified the agreement, a legal procedure that would inject it to enter into force, and legalize its resulting bodies: the State Council, formed by the remaining members of the previous government (GNC), and a new executive body called the Government of National Accord.
One cannot imagine the transition from one transitional phase to another, or to a period of stability governed by a permanent constitution, without the existence of a legislative authority to issue the necessary laws that enable the country to enter into the next phase.
Thus, is not possible to implement the Libyan Political Agreement (LPA) except through a legislative intervention by the HoR. Nor is it possible to adopt a constitution drafted by the Constitution Drafting Assembly (CDA) except through the HoR, and its issuance of a Referendum Law to govern voting on the draft constitution, as well as a package of other legislations related to the commencement of a stage based on the new constitution — including election laws related to the new legislative and executive (presidential) bodies.
The important point here is that regardless of the existing drawbacks of the HoR, its relative powerlessness, and the expiry of its mandate, it is still of great importance as a pivot and mechanism of democratic transformation.
Unfortunately, and paradoxically, the HoR is handicapped. Its 200 members are at the mercy of its Speaker, unable to hold its meetings, and splintered between supporters and opponents of the Libyan Political Agreement. This is a loss for Libya and for the democratization process. The HOR is supposed to be the last line of defense for democratic principles, the engine of the political process, and a defender of the of the unity of the country. Unfortunately, it is incapacitated by its powerlessness, mismanagement, divisiveness, and neglect of the tasks entrusted to it by its voters.
The Libyan Political Agreement (LPA) and its Institutions.
The Libyan Political Agreement was pushed by the international will to be concluded signed, and after a Libyan Dialogue process, held under the auspices of the United Nations and its mission in Libya (UNSMIL). Official parties to the Libyan dialogue included delegations from both the HoR (the Political Dialogue took place during HoR mandate and was signed after HoR extended it) some members of the General National Congress (a defunct entity with some of its members refusing to recognize the transfer of power), in addition to individuals selected by UNSMIL.
The LPA was expected to:
- Extend the mandate of the HoR, with its elected members through the LPA process, and to resume a democratization process based on the LPA, which would become the new interim Constitution, after the LPA was officially adopted by the HoR, 2. Establish a new Executive Authority, based on a special kind of quota, composed of nine members reflecting geographical and ideological representation, and to the satisfaction of the two institutions (HoR and GNA) that are parties to the LPA and also to the satisfaction of some foreign countries.
- Win the approval of individuals opposing, boycotting, and disputing the HoR, including members of the defunct General National Congress who refused to hand over power to the HoR, and most importantly those who control the Capital, Tripoli. This was to be within the framework of a new body called the High Council of the State (State Council) which was to share some powers with the HoR.
The procedural and legal aspects of the LPA did not go as intended.
Thus, in the light of continued and growing desire to achieve the policy of compromise and satisfaction as well as the need for bodies (even if they were status quo institutions) that foreign governments could deal with, particularly in issues such as illegal migration and terrorism, the rules and legal arrangements stipulated in the LPA have been elided and/or bypassed, culminating in the emergence of bodies that are unable to conduct their assignments or play their intended roles. The LPA has been unable to lift the Libyan citizen from the quagmire of war and provide a minimum of basic services or attempt to curb the economic deterioration in the country, which almost eliminated the entire political process.
The Basic Dilemma:
Let us come to the important question of whether the LPA has entered into force or not. With careful reading of the LPA, it is clear that the United Nations Support Mission in Libya (UNSMIL), which played the technical role in drafting the LPA, apparently did not specify who was responsible for the entry into force of the LPA. This is an issue that we have brought into focus and warned against its consequences right after the conclusion of the LPA in the Moroccan town of Skhirat.
In democratization process, it is fundamental that the legislature is the sole authority responsible for passing laws. Article No.17 of the Constitutional Declaration stipulates that “The Interim Transitional National Council is the supreme power in the State of Libya and shall undertake the works of supreme sovereignty including legislation and laying down the general policy of the State».
In the Governing Principles of the LPA, point No. 10 states “Commitment of that the House of Representatives is the only legislative authority in the country during the transitional period».
Article 12 in LPA/ HoR chapter states “The legislative authority of the State, during the transitional period, shall be undertaken by the House of Representatives, which was elected in June 2014; it shall practice its competencies based on the Constitutional Declaration and its amendment as per this Agreement”.
Also, Article 13 in the same Chapter states “The House of Representatives, elected in June 2014, shall undertake the Legislation Authority for the transitional period, granting the vote of confidence or no confidence to the Government of National Accord as per the items of this Agreement”.
Moreover, Article No. 65 of the LPA stipulates that «the Constitutional Declaration shall be amended in accordance with the stipulations of this Agreement as per the legally stated procedures and according to the proposal in Annex 4 of this Agreement». The LPA also included a proposal for a constitutional amendment within its annexes.
Furthermore, Article No. 12 of the Additional Provisions in the LPA stressed the fundamental importance of the Constitutional Declaration and its amendment annexed to the agreement by adopting the LPA. The same Article affirmed the competence of the Libyan HoR in the issuance of subsequent constitutional amendments after consensus with the State Council. This arbitrarily emphasizes the competence of the HoR to issue constitutional amendments, and the inevitable expectation that the LPA shall turn into a constitutional amendment.
Since the HoR, despite the issue of the end of its mandate, is the Legislative Authority in the country according to the LPA, and, per se, the last legislative authority in the country, the Constitutional Amendment is supposed to be issued by the HoR in order to give viability to the LPA and turn it into an applicable legislation in the Libyan State.
Apart from all the controversy on this issue, there is agreement that the LPA, in order to become a law, must be duly legislated, let alone its aim is to become a modified basic law of the Constitutional Declaration.
If we imagine simply or naively that the HoR, in a public session, had carried out its commitments to the Skhirat Libyan Dialogue according to the LPA and issued the Tenth Constitutional Amendment, the political process could have been given momentum, and the current circumstances could have been changed. However, these assumptions did not materialize. The imbalance may be attributed to the mechanism of communication and work between the delegation representing the HoR in the Skhirat Dialogue and the HoR itself, knowing that a representation issue was raised at that time, or due to other political reasons related to Article No. 8 of the Additional Provisions in light of developments relevant to the military Dignity Operation in the east of the country. Whatever the reasons, the LPA has not changed from mere political agreement among its parties to a “basic legislation” which is supposed to serve as a constitution for the country, governing the new transitional phase. It is important to notice that the LPA’s first source was international sponsorship rather than national sponsorship, which should have led to a presumed of interaction between both international and national process that should have culminated at the end to the ratification of the LPA by the HoR and take the shape of a national legislation.
From a legal standpoint, the LPA did not come into force, and was not issued in the form of a national legislation.
When will the Libyan Political Agreement expire?
As stated above, at this phase the LPA arranges obligations between its signatory parties, whether in their official capacity or in their persons.
It is important to make a distinction between the LPA itself, on the one hand, and the authorities emanating from it or extended by it, on the other.
The LPA whose sponsors and signatories were confident that it shall be passed by the HoR in the form of a legislation, did not specify a validity date for the Agreement, considering that it will end as a political document once it is transformed into a constitutional amendment (through legislation). This did not happen.
In contrast, the term of office of the bodies emanating from the LPA was specified either as a specific tenure for a particular period as in the case of the Government of National Accord, or according to certain procedures (new legislative elections), as in the case of the House of Representatives and the State Council.
Before we elucidate that, we must say that the Government of National Accord (GNA) in its two components, the Presidential Council and the Cabinet, is not a party to the LPA. The GNA emanates from the LPA and not party to it. This means that it is at a level that is different from the level of the parties of the Agreement. The State Council is a mere restructure of part of the GNA. In accordance to the LPA, once the GNA which is in part a party to the LPA, transformed into a State Council, it will be dissolved for good. Consequently, in accordance to the LPA the only body remaining in its condition is the House of Representatives.
On the basis of this difference, the LPA differently dealt with the question of “mandate” between these three bodies, as follows:
1.) The House of Representatives: The term of the House of Representatives, as per Article No. 16, shall continue until convening the first session of the Legislative Authority as per the Libyan Constitution.
2.) The Government of National Accord (GNA): Article No. 1/ 4 of the LPA states that “The term of the Government of National Accord shall be one year as of the date of granting it a vote of confidence by the House of Representatives. In case the Constitution was not finalized during its term, it shall be renewed automatically for one additional year only. In all cases, the term of the Government shall end immediately after the formation of the Executive Authority as per the Libyan Constitution, or the expiry of its specified duration, whichever is earlier”.
Moreover, the LPA predicts two cases in which the GNA term ends before the elapse of the two years mentioned above as follows:
The situation where the GNA presidency post became vacant. In this case Article 4 consequently states that this “will lead to the resignation of the whole GNA” and that both HoR and the State Council shall consult in order to “reach a consensus” on the replacement.
In another case, the LPA allowed the withdrawal of confidence from the GNA before the end of its term. Article 1/5 of the Chapter stipulated the mechanism and procedures of the withdrawal of confidence from the GNA and its requirements, including the approval of 120 HoR members.
3?) The State Council: Article 22/ 2 of the LPA Chapter on the State Council states that the “term of the State Council shall end with the end of the term of the House of Representatives as per the text of this Agreement”. This means that the end of term of office of the State Council are linked to that end of the HoR term of office.
In brief, the end of the term of the GNA in office is linked to a specific period of two years that cannot be exceeded, and may be shorter in the case of the GNA presidency vacancy or the withdrawal of confidence, while the end of the term of the HoR and the State Council is intertwine, and shall be decided via legislative elections and convening of the first session in accordance with the supposedly Libyan Constitution.
- As a political document, the LPA failed to achieve the minimum legal requirements to become active national legislation regulating the new transitional phase that is supposed to lead to stability via a permanent constitution for the country. Therefore, the LPA remained a mere contract between its parties at its initial stage and did not acquire the legislative character that its sponsors believed was a routine procedure. This procedural flaw created a massive legal obstacle. All subsequent arrangements for signing it are not based on any legal foundation and lack two elements of the acknowledged legal rule: obligation and generality.
- The parties to the LPA and its sponsors miscalculated when they did not expect internal procedural failures from preventing the LPA ‘s becoming a viable agreement. It was therefore necessary to bear in mind that the LPA needs to be built on the correct foundations that empower the continuation of the democratization process, that began in 2012 and was wrecked in 2014. The LPA is a document in which international and national procedures are intertwined. The LPA is based on international efforts and support including UNSMIL drafting, however it leans on national basis as it requires national legislation to be a binding document regulating the remaining of he transitional period. This national requirement was supposed to call attention to the importance of the national legal norms vis-à-vis the obstacles that may arise because of the dissonance in mingling the national with the international.
- The LPA is an agreement between signatories. The resulting formations and arrangements, most importantly what is known as the GNA, is not yet complete. The certificate of birth granted to this Government was issued by the LPA, and therefore this Government must abide by its terms and not turn a blind eye to them. The institutions subject to this Agreement (the three institutions) must be distinguished from the LPA itself. The mandate of the institutions subject to the LPA is limited, while the Agreement itself is indefinite, given the expectation that the LPA will be transformed into legislation (Constitutional Amendment). However, the end of the LPA, if adopted as legislation, will inevitably be through a further constitutional amendment that either amends or repeals it, or through the adoption of a Constitution for the country. Nevertheless, the LPA must enter into force first.
- The LPA differentiated between the three institutions it created, with respect to the end of the Government of National Accord’s (GNA) mandate. The LPA decided that the mandate of the GNA would end two years from the date of gaining confidence (which did not happen). Moreover, the LPT stipulated two cases in which the mandate could be terminated before the end of the mentioned tenure. In the case of the HoR, it ends by the election of a new Legislative Authority and holding of its first session, which in turn ends the State Council tenure because its existence is linked to the existence of the House of Representatives.
- It is incorrect to think that the LPA can go forward without an effective and viable HoR, despite all the criticism against it, the disparity, the division, the incompetence, the mismanagement, the neglect of responsibility, and even the suspicion of corruption that has plagued and tainted it. If the LPA fail to be legislation, it is institutions became de facto institutions, would constitute a rupture rather than a boost to the democratization process, endure and enforce the already existing issue of legitimacy, and will lead to endless legal national and international contentions. The LPA can THUS effectively come into existence through a Constitutional Amendment issued by the HoR. Therefore, in order for the LPA to be implemented and enforced, the bitter reality that must be faced is that Libya must have a Legislative Authority that shall work on issuing a package of legislations required for the birth of the institutions emanating from the LPA, including the GNA and the State Council.
- The state of powerlessness and divisiveness that has negatively affected the HoR does not absolve it or its members of their legal and national responsibilities. History will not judge them kindly: the HoR bears a large part of responsibility for the failure of the democratization process. The end of the HoR’s mandate must be a reason enough for the HoR hand over power, rather than to cling to it, or try to renew it. The role and responsibility of the HoR is to hand over power to an interim or a permanent elected legislature.
- The main step is to reform this powerless body through a package of serious and courageous measures, with international assistance, including the change of the presidency of the HoR and re-election, the return of the boycotters, deciding on its temporary headquarters and venue, and all measures that will provide viability to this elected body. This is because the LPA can only exist through legislation: this is an exclusive jurisdiction of the HoR.
- The bodies emanating from the Political Agreement will remain ineffective because of their urgent need for necessary legislations. Furthermore, The State Council itself cannot work except through partnership with the HoR, since its most important assignments can be achieved only in consensus with the HoR, including the constitutional dilemma (Article 23/1). The GNA knows very well that the issue of the mandate of its ministries is uncorroborated and that the Government, in order to be an Executive Authority, needs the vote of confidence of the Legislative Authority. The GNA must be under the control and accountability of the Legislative Authority. Perhaps the best example of this is the inability of the GNA to resolve the issue of the Governor of the Central Bank of Libya (Article 8 of the LPA / Chapter of the House of Representatives) and the drastic impact on the economic conditions of the Libyan citizens. The inability also to appoint an alternative member to the resigned vice-President of the Presidency Council, Mr. Musa al-Kony. Based on Article 1/ 5 of the LPA, this requires that the HoR, in consultation with the State Council, approve the appointment of a replacement within ten days of the vacancy of his office.
The appointment must be adopted by the HoR. The non-replacement of the outgoing vice-President of the Presidential Council renders the issuance of decisions that require unanimity as void in accordance with the terms of the LPA.
- Therefore, it is neither effective to wage a declared war against the HoR, nor feasible to relegate and minimize the HoR in the person of its Speaker, nor to attempt to divide its ranks, nor to appeal to its members, or to underestimate it claiming that the HoR has become an unreliable body. The efficiency is to save, consolidate, and organize the HoR. The effective approach, here, is to cooperate with the HoR to overcome the challenges and obstacles. The characterization of the performance of the HoR as incapacitated and powerless is also applicable to the Presidency Council, which suffers from division among its members, and the inability to convene to issue its decisions unanimously according to the provisions of the LPA that established this Presidential Council. We are all in a single boat, but, unfortunately, we are running backwards.
- The support of the international community should not be directed at an institution alone, nor should it strengthen an institution at another expense. Supporting the LPA is through all the institutions on which it is based. The “divide and rule” approach of some countries of particular interest in the region, which some institutions are dragged into, is a recipe for the demolition of the LPA with Libyan hands.
- As long as the Special Representative of the Secretary-General of the United Nations, and Head of the United Nations Support Mission in Libya, is presenting a new plan for the Libyan crisis, and since the LPA has failed to achieve its objectives and was transformed from a “solution agreement” to a “framework agreement”, and from a final and solid agreement to an amendable agreement, as well as its departure from the embrace of its main sponsor, the United Nations, to sponsors of foreign countries with conflicting interests, it is time to deal seriously with the LPA by taking a package of measures, especially legislative procedures, and put it in its proper framework and relegate its terms and provisions, and deal in the context of reality rather than the framework of the law, or bravely declare its failure.
The Libyan crisis cannot be managed through de facto institutions in violation of the LPA itself. We are in front of a Legislative Council that is helpless, neglected, divided, and reduced to one person, unable to resolve its position on the LPA for two years, and a GNA that plays in a large stadium built by the international community, which is in fact the byproduct of this LPA. If the Agreement is not executed in accordance with its provisions, if it is not valid, the outcome will be like that of Don Quixote and the Windmills because it is not legally mandated. The State Council recorded a precedent breach of the LPA and closed the doors in the face of attempts to correct the procedures of its formation in accordance with the LPA. The role of the State Council is closely linked to the HoR, and therefore has no ability to work without its counterpart.
- The vacuum that exists today is due to the failure of the LPA, its repeated violations, its inability to create properly established institutions, and the continuous violation of its provisions, have exacerbated the suffering of the Libyan people. The Libyan arena has recently witnessed blatant foreign interference in its affairs, lack of respect for its weak institutions, individual demands, and overt rush to power by all means including inciting public opinion and exploiting the economic situation of the Libyan citizen, and utilizing methods outside the Constitutional Declaration and the LPA, which are evident signs of the fragility and weakness of the this Agreement and its institutions.
By and large, if the international intentions are truly aimed at lifting the suffering of the Libyan people and preserving their unity, if there is strong resolve for Libya to be a source of stability and not a source of instability for its neighbors in Africa and the Mediterranean Basin, and if there is a serious desire to put an end to illegal migration and the suffering of the migrants and refugees, and fight terrorism, then it is high time to deal seriously and effectively with the LPA, and find a real mechanism to introduce the necessary amendments that will make it applicable and viable, lift it from the political framework to the legal status, avoid and reject the establishment of status quo institutions, prevent any violation of its terms, adhere to its provisions, and link its legally established institutions to ensure their ability to work and give all of them the momentum needed for getting Libya out of this dark tunnel. Otherwise, to put an end to the suffering of the Libyan people, it is morally and ethically imperative to declare the failure of the LPA and search for other solutions that may include the holding of elections, dissolving the institutions emanating from the LPA and renewing the democratization process that disappeared into thin air at the hands of status quo institutions.
Azza K. Maghur is a Libyan lawyer, human right activist, and novelist. She was member to both the Libyan Human rights institution, and a member to the February Committee that drafted the proposal amendment to the Constitutional Declaration in 2014.
 A version of this article was originally published in Arabic by the Libyan Institute for Advanced Studies (LIAS).