LPDF’s Legal Committee Presents 7 Proposals on the Constitutional Rule and Elections – Al Marsad

AlMarsad received a summary of the minutes of the third meeting of the Legal Committee of the Libyan Political Dialogue Forum (LPDF), which was devoted to presenting proposals submitted in writing by members of the Legal Committee on constitutional rule and elections. They heard a presentation from the head of the UNSMIL’s Electoral Support Team Panto Letic, addressing the current options and their possible implications for the electoral track and implementation.

(Libya, 13 January 2021) – The Legal Committee of the LPDF met last Sunday in a virtual meeting focused on the presentation of proposals by legal committee members on the constitutional constitutional rule, and Panto Letic’s presentation. Panto Letic addressed the most important elements that Libyans needed to decide to ensure elections happened on 24 December 2021

The members of the Committee presented the proposals they had submitted in writing on 1 January 2021, as follows:

1. ABDULQADER HUWEILI

Huweili, who is a member of the advisory State Council, presented two options, the first is to proceed from the draft constitution prepared by the Constituent body, and the second is based on deferring consideration of the same project to some stage after the election of a new legislative authority.

He indicated that in the case of starting from the draft constitution prepared by the Constituent body, the draft constitution approved by the Constituent Assembly will be adopted provisionally for a period of five years, after which it would be reviewed or the draft constitution is provisionally adopted for one parliamentary session, provided that it will be put forward for the referendum before its end; or put the draft constitution directly to a referendum provided that it is approved by a majority of 50 +1% of the voters in the three constituencies.

Regarding the second proposal, which concerns postponing the referendum until the election of a new legislature and the withdrawal of controversial articles in the draft constitution, and the remainder would be included in the Constitutional Declaration on the basis of which legislative and presidential elections would be held for one session. He explained that there are several other options that are like-minded: “Adoption of the draft constitution prepared by the Libyan National Planning Council rather than the draft of the Constituent Body, adoption of the draft constitution prepared by the University of Tripoli, adoption of the draft constitution prepared by Omar Al-Mukhtar Foundation, in addition to amendment and adoption of the 1951 Constitution as revised in 1963 as the basis for a single session legislative and presidential elections.”

2. OMAR ABULEIFA

Abuleifa explained the rationale for his proposal, which offers two options, either to put the draft constitution of the constituent body to a direct referendum, or adopt the same draft for one session, provided that a new legislative authority establishes what is necessary regarding the draft constitution, in consultation with the advisory State Council to enact the Law on Elections of the legislative authority and executive authority’s head.

He also said that the proposal was based on the requirements of the Interim Constitutional Declaration, and in line with the ruling of the Administrative Chamber of the Supreme Court and on international recognition, that in a number of its documents, Security Council resolutions and statements, the United Nations referred to the draft constitution.

Abuleifa added that the advantages of this proposal are that it will not run the risk of legal challenge, as it is a comprehensive solution; the constitution is not only a partial solution to the elections and then the Libyans find themselves in the face of regional and institutional disputes, stressing that no one can object to the referendum because it does not favour anyone, rather leaves the matter to Libyans to decide freely.

3. SALWA EL-DEGHALI AND AMAL BUGAIGHIS

Salwa el-Deghali and Amal Bugaighis explained the rationale and advantages of their proposal, which consisted of adopting basic laws for the preliminary phase that could be promulgated by the House of Representatives (HoR).

They also stressed that the role of the committee was not to accept or reject any of the circulated draft constitutions, and that the idea of a referendum could threaten the security of the country.

They added that the draft constitution completed by the constituent body was drafted by a limited number of people without genuine dialogue and community wide consultation. Libya faces many challenges, including balance between regions, minority rights, conflicts between some cities and tribes, and the situation requires a path of transitional justice and national reconciliation before talking about any constitution.

Bugaighis and el-Deghali pointed out that it is safe to adopt two basic laws to ensure the functioning of institutions during the preliminary phase, provided that the elected authorities should take over the permanent constitution. These basic laws may provide for a two-chamber parliament and balance between the regions in the distribution of government posts.

4. MUHAMMAD ABU AJEILA

Abu Ajeila’s proposal aimed at adopting provisional constitutional provisions for the preliminary stage and adopting a law to elect a head of state. Abu Ajeila explained that he formulated his proposal based on a consensus vision; the draft constitution regardless of the legal opinion is still a controversial issue, as it was inspired by the proposals of the February Committee and Law No. 10 of 2014.

He said his proposal also harmonizes the necessity of taking into account geographical and demographic factors in the election of the Libyan President.

5. ABDURRAZAK AL-ARADI, SAYEDA AL-YAQOUBI, MAJIDA AL-FALAH, ABDULSALAM SHAWHA, ABDULQADER HUWEILI

Al-Aradi, who is a leading Muslim Brotherhood figure and a founding member of the Justice and Construction Party (JCP), and his colleagues’ proposal identified two problems, one related to the draft constitution and proposed to solve it either by referendum or return it to the constituent body, and the second on how to hold the elections on time, and put forward two proposals for the constitutional rule.

They recalled that the return of the draft to the body fortifies the constitutional rule against judicial appeals, pointing out that the constitutions do not end only through its texts or through the coup on them, and that with this step we enter a fourth transition phase, but will be short one, and will turn into a permanent stage once the adoption and promulgation of a national constitution with approval by Libyans.

6. FATIMA ZAHRA LANGHI

Langhi saw in her proposal to return to the 1951 Constitution that was suspended and not canceled in 1969. According to her this proposal would represents a return of sovereignty to the Libyan people, and in practice enable the postponement of the referendum on the draft constitution and the organization of 2021 elections. It would allow then to start organizing a constitutional referendum after a period of stability, on specific issues such as the form of the state and the system of government.

7. ABDULRAHMAN AL-SWEIHLI

Abdulrahman al-Sweihli, the Misratan member of the advisory State Council, considered the focus on resolving the constitutional issue to be a repeat of what happened at the first session of the Constitutional Committee in Cairo and said it would fail in the same way.

He called on the members to focus on what would enable the Libyan people to elect their representatives at he scheduled elections, considering that the constituent body that drafted the constitution was elected in a ballot that had low participation, and that the draft constitution had not been subject to any consultation.

Al-Sweihli stressed that the goal of the legal committee is to ensure that elections are held on 24 December 2021, which does not require the resolution of the constitutional issue as a precondition, and the members of the commission are not authorized to do so.

He also expressed his reservation on the idea of holding presidential elections because, especially in the current context, nothing guarantees that the loser would accept the loss, which could lead to much instability, especially in light of the proliferation of weapons and the deterioration of the security situation in the country.

REMARKS BY PANTO LETIC OF UNSMIL’S ELECTORAL SUPPORT TEAM 

In his presentation to the members of the Legal Committee, the head of the UNSMIL’s Electoral Support Team Panto Letic, addressed the possibility of organizing elections and guarantees of their credibility and the most important decisions that should be taken to ensure that these elections are held on 24 December 2021.

Letic explained that the first element to be taken into account was the time factor. There are important milestones in this regard, the most important of which are the date of the elections, the 60-day period given to consultations between the HoR, the advisory State Council and the work of the Legal Committee.

He also indicated that the 12 months that separate from the date of the election since the day they were announced are theoretically ideal and comfortable, but in the current context  it puts everyone under pressure.

Moreover, he pointed out that elections need an electoral institution, and three of the seven seats of the High Electoral Commission are currently vacant.

Letic noted that the elections need financial resources. The Presidential Council has allocated an  amount of 50 million LYD at the disposal of the High Electoral Commission, which is encouraging but this amount will not be enough.

He said that the elections need a legislative framework so everyone, including the Commission, knows the rules of the game they are preparing for. Add to that, he said, pressure caused by COVID-19 restrictions. For example, he said it takes on average now almost three weeks to import anything which under normal circumstances only required a week. Delays therefore were exacerbated during this phase of the pandemic.

Furthermore, the elections need to be monitored, followed up and a mechanism to resolve disputes that arise. He said the Libyan judicial system now faces challenges that need to be addressed.

He stressed the need to know the implications of the options to be adopted by Libyans regardless of their opinion, and each of them has its valid justifications. If it is decided to go to a referendum, this has implications for the time factor and the possibility of organising a referendum and elections within the required time frame, as it will require the promulgation of a referendum law and constitutional basis for this law. Indeed, there is now an appeal against the 10th Constitutional Amendment, as well as against Law No. 6 of 2018.

“In this case, the Commission will need 90 days before the referendum is organized. This date may coincide with the month of Ramadan and the challenges it poses, as well as those caused by the pandemic. Its initial and appellate phases, and preparations will be required for the organization of elections for three institutions, the President of Libya and two parliamentary chambers. In light of such a scenario elections would end up taking place in mid-2022.”

Regarding the second scenario, which is based on the premise of amending the draft constitution, Letic said: “Although no one is authorized to do so at the moment, but if it is evaluated hypothetically, it takes some time and the law No.10 should be amended. This is another path that requires time and its implementation requires strong judicial oversight, and it is not clear whether the judiciary currently has the necessary capacities for this. In this case, too, it can be difficult to organize elections by December 2021.”

“On the other hand, it is possible to organize elections and postpone the issue of the permanent constitution for consideration by the institutions to be elected. Even in this case, it takes some time to prepare political parties and contestants, register candidates and decide what may be received as candidacies. All of this lead to one conclusion: the High Electoral Commission must start preparing as soon as possible, and the necessary legislation must be fully ready next July, so that elections can be held in December, then you have six months from now to complete this legislation.”

Letic stressed the need for Libyans to take decisions on the electoral base, establish a time frame and sequence for the various electoral stations, and enact legislation on which the High Electoral Commission can operate. It needs to record the fact that each of the three elections that have taken place in Libya since 2012 have been based on a different electoral system. There is also a need to resolve issues of the participation of refugees and displaced persons, the role of security institutions and actors and the role of the international community.

In their interventions, members of the Legal Committee raised a number of questions, mostly in defence of their proposals. Some asked to clarify whether the committee was solely concerned with ensuring that elections could be held on 24 2021, or to resolve the constitutional issue, while some have recorded that three of the proposals made do not provide for presidential elections and the road map.

Some members of the Commission stressed that holding a referendum in a society emerging from conflict was not feasible.

In conclusion, members agreed that a meeting should be devoted to a direct discussion of the various proposals put forward by members. It was agreed that this meeting would be held this coming Sunday.

© ALMARSAD ENGLISH (2021)