EXCLUSIVE | Azza Maghur: The Next Presidential Council and the Powers of the New Regime in Libya – Al Marsad

Leading constitutional lawyer and member of the Libyan Council for Human Rights, Azza Maghur, contributed an exclusive article to AlMarsad on the so-called new interim Government of National Accord that will be announced soon by UNSMIL’s Libyan Political Dialogue Forum (LPDF). 

(LIBYA, 1 February 2021) – Azza Maghur said the new regime is inevitable as it is the anticipated output of an international plan and consensus after having withdrawn the unconditional cover or protection it has given to the current Government of National Accord (GNA).

Libyan lawyer Azza Maghur

In her article, Azza Maghur questions the complexity imposed on the formation of a governing authority that is not meant to stay for more than 10 months before the general elections. She asks if the dream of conducting new elections in Libya will come true to resume the country’s path to democratization and restore legitimacy to the emerging institutions in Libya beyond the interim phase.

AlMarsad English published here the full English translation of Azza Maghur’s article.

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THE NEXT PRESIDENTIAL COUNCIL AND THE POWERS OF THE NEW REGIME IN LIBYA:
A COMPLEX SYSTEM FOR A BRIEF SPAN

By Azza Maghur, Lawyer

Introduction

I intentionally used the word “next” because it is an anticipated output of an international plan and concord. On the one hand it is the result of global input and variables on one hand, and on the other hand it is because the international community has withdrawn its unconditional cover or protection it has given to the so-called Government of National Accord (GNA).

The international community has brought the GNA into existence and provided it with international legitimacy, and turned a blind eye to its mistakes, allowing it even to conclude international agreements and MOUs outside its stipulated mandate, in contravention of constitutional laws and rules of the country. However, the same international community is now reprobating the GNA on suspicions of corruption, warning it against impeding handover of power to the incoming Presidential Council and Government.

Notwithstanding, there is still a long way to go. Since 2012, we have witnessed deep differences and disagreements over who should assume positions (in state institutions) which stalled the pathway to democratization with hurdles and led to wars. The next phase will not be a piece of cake, but, in my view, the most difficult issue is how the forthcoming Presidential Council and other governing authorities will operate given the very short time that remains until elections are held and power is handed over to new institutions.

A question which arises, is whether this international plan is viable. Is it effective? What is the rationale behind all these difficult procedures towards the birth of a “complex” authority/authorities which will be instated for only ten months until the Presidential and Parliamentary general elections are organized? Will the dream of conducting new elections in Libya come true to resume the country’s path to democratization and restore legitimacy to the emerging institutions in Libya beyond the interim phase?

The Forthcoming Authorities

The next phase will be characterized by a surge in the emerging authorities than their predecessors. It is noteworthy of mention that Libya has transformed from an overly simple bipolar system, one of which dominates the other, to a medial system that seeks balance, but has not complied with the February Committee Proposals, and, eventually, to a highly intricate system (the Libyan Political Agreement followed by the current Roadmap), as per the following:

1. The Bipolar System: This system is constituted by the Constitutional Declaration and consists of the National Transitional Council (NTC) and its Executive Council/Transitional Government; succeeded by the General National Congress (GNA) and the Interim Government.

2. A balance-seeking system that has not implemented the February Committee Proposals: An elected Parliament; an elected President; and an appointed government, based on the separation and balance of powers among them.

3. A complex system: The Parliament, High Council of State, Government of National Accord, composed of a multi-headed Presidential Council and presides over a Cabinet.

4. Current (preparatory) phase in accordance with the Roadmap: This phase is based on a roadmap that has been further complicated by the creation of new authorities. In addition to the aforementioned, a government based on national consensus is created separately, parallel to the Presidential Council, as well as a new body: the National Dialogue Forum. Thus, the powers of governance in Libya are to be: the Parliament, the Presidential Council, a Government of National Unity, a High Council of the State, and a National Dialogue Forum. And all this for a period of less than one year.

Consequently, from the two-pole system from which the authority is elected, to a complex one, Libya, with barely seven million people, has five authorities that do not include a single fully-legitimate authority operating within the prescribed time frame.

Too Complex For a Very Short Time Frame

There is a great fear that these multiple authorities will be entangled in competition that will lead to conflict for the following reasons:

1. The legal bases governing them are numerous and unclear: Regardless of the source of these authorities (other than the Constitutional Declaration), they are the result of international consensus without any national ownership or accreditation whatsoever in the ways specified in the Constitutional Declaration, which are numerous and dispersed without being phrased into a single document.

We are faced with: The Constitutional Declaration/The Libyan Political Agreement/ The Roadmap for the Preparatory Phase of a Comprehensive Solution and its annexes. This will create many problems regarding the competencies of these authorities, which will overlap and may contradict one another.

2. Power Imbalance: Although these authorities are equal in terms of the lack of legitimacy (except for the last elected body: the Parliament, which has bypassed its stipulated tenure, and suffers from division and erosion of its legitimacy), the rest of the authorities have come into existence, either through the Libyan Political Agreement at Skhirat, or via the Roadmap issued by the National Dialogue Forum. They are horizontal authorities that do not have ties that bind them together, or a criteria that guarantee their balance in the absence of a single harmonious document whose texts support each other.

3. In the absence of a single constitutional document and as a result of the plurality of authorities, the principle of separation of authorities will not be achieved, which will inevitably lead to chaos and conflict.

4. The main objective of this short era is to establish a constitutional rule, an electoral law, unify institutions, and provide basic services to citizens and a minimum of security in order to achieve these objectives. These are cross-cutting tasks. The constitutional rule will be achieved only with a minimum of security and national reconciliation; issues on which all the authorities referred to have in common.

Furthermore, drafting an electoral law will be shared by the Parliament, the High Council of State, the Government of National Unity and even the National Dialogue Forum. The electoral process will involve all the authorities referred to without any common or clear ground binding them.

5. Article No. 4 of the Roadmap states that the responsibility for the implementation of the Roadmap shall be “a joint responsibility of all state institutions and political actors. Dealing selectively with the texts of legislation to obstruct progress of the Roadmap shall not be permissible.” This is precisely what is expected in the content of the text; a general statement that requires implementation and drafting of the necessary legislation. So, who are the “political actors”? What is meant by “dealing selectively with the texts of legislation”?

In another text, namely Article No. 4, Item No. C. it says: “All state institutions shall work to fulfill their obligations on schedule. They shall be held accountable for their work before the Libyan people, and their work shall be monitored by the Libyan Political Dialogue Forum.” And the question is, how can this text be applied? How are these institutions accountable to the Libyan people? Under what mechanism? How can the National Dialogue Forum follow up the work of all these institutions?

6. The fear is that the Preparatory Phase will turn into a dispute over the administration of sovereign institutions and other senior governmental positions, particularly in the Libyan foreign investment entities. If authorities compete around or over these sovereign posts, which will impede the work of the forthcoming Government of National Unity and lead to polarization or political blackmail by the rest of the authorities, which will obstruct governmental work and provision of services to the Libyan citizens. This is something Libya has known since 2012.

7. As long as the issue of the constitutional basis for the Preparatory Phase of a Comprehensive Solution has not been resolved before the formation of the Presidential Council and the Government, we fear that it will be neglected, and we have a precedent in that with the General National Congress (GNC), which was preoccupied with the conflict over the Interim Government, neglecting the constitutional pathway that was supposed to be upheld as its priority. This has further exacerbated the political conflict and acute polarization, leading to armed conflicts—bringing the democratization track to a halt.

8. Although the powers of these authorities are defined in general, there are sub-specializations that were not provided for, in addition to joint competencies that were not regulated. This requires the establishment of mechanisms by which the authorities act. Libyan law does not define these authorities, and does not regulate them according to laws that precede them; also, it does not establish regulations or rules prior to forming these authorities.

Therefore, the danger is to leave the matter of regulating their work in the hands of the authorities themselves, who will try to extend and expand their powers and acquire as much of them as possible, or the legislative authority, either alone or in association with others, will issue the necessary laws for this, or the Government of National Unity resorting to issuing decisions that violate the laws, or in their absence (as practiced by the Government of National Accord) under the pretext of lack of cooperation from the legislative authority. For example, the most important case history in this context is the appointment of ministers in the government under the category of a delegated minister without acquiring a vote of confidence from the Parliament, and the conclusion of bilateral agreements with foreign countries, or other cases of necessity.

9. The relationship between these authorities and the National Dialogue Forum (NDF) is not adequately regulated, and this will encounter major problems, as the NDF gave itself the powers to issue laws, including the constitutional rule and the election law, in case they were not issued within sixty days from the start of the transitional phase.

It is a matter that may encounter legal, judicial, executive, or on-the-ground roadblocks by the so-called institutions concerned with the constitutional process—or others—without specifying it, and this poses a real dilemma. But if what is meant is the Libyan House of Representatives (HoR) and the High Council of State, based on the Libyan Political Agreement, these two bodies have been constantly competing and disagreeing with each other. Such disagreement still prevail.

The same issue relates to the issue of “appointments in leadership positions in the sovereign institutions” in the event that the Libyan House of Representatives and the High Council of State do not agree within sixty days from the start of the Preparatory Phase, which may be a matter of dispute or meet with objections, as happened in the Bouznika consensus.

10. Considering all the aforementioned issues, there is fear that the judiciary—which is not familiar with all these new authorities, and in the absence of laws and regulations that regulate their work, and in the absence of accumulated jurisprudential opinions—will be entangled in a cobweb of legal disputes over political affairs, leading to judicial rulings that would likely consecrate the existing state of divisiveness.

In addition, it is not possible for the Supreme Court to continue suspending its constitutional jurisdiction after the formation of these authorities, as it will no longer have a solid argument after the establishment of these new authorities. In other words, suspending its jurisdiction will be considered as an assault on the nationally- and internationally-guaranteed litigation right. Therefore, in the absence of political or administrative mechanisms for resolving disputes, the judiciary will not be able to deal with expected crises arising as a result of the multiplicity of powers, a myriad of competencies, and the intricacy of the system itself.

11. Regulating communication with foreign countries is a very important issue. We have seen the chaos that characterized such engagements. It is not sufficient to state that the Chairman of the Presidential Council represents Libya internationally in a protocol capacity. In fact, the term “protocol” here is an ambiguous and loose term that may explain that his attendance does not mean anything, and that the entire Presidential Council is the representative of the State. This requires agreement between the Chairman and the two members of the Council, which in turn requires setting up internal procedures among the three members for this purpose, on the one hand, and on the other hand there is a need to institute a system for dealing with the outside world for the Speakers of both the House of Representatives and the High Council of State, not to mention the need for establishing a mechanism for external engagements between the Presidential Council and the Prime Minister.

12. Rampant corruption: It is a phenomenon that has increasingly exacerbated with the growth of institutions and their branches, especially in the issue of administrative spending, external missions, bonuses, the mobilization of advisers, the expansion of appointments, and other manifestations of corruption and corrupting public officers. This matter requires putting an end to it through good governance, transparency and the adoption of technology. This also requires the establishment of a mechanism to minimize administrative expenditure, taking into account the general situation of the country, the shortages of liquidity, and the citizens’ hardships and suffering.

Conclusion and Recommendations

Libya has transitioned from a simplified system of government that was unable to accommodate successive political and constitutional developments, that forced the dominant governing authority at the time to form the February Committee in an attempt to amend the powers of the governing authority represented in the GNC, and to cede part of its competencies in favor of the Executive Authority consisting of an elected President and a Government in order to bring about the required balance. This did not happen. Since the Skhirat Agreement, the regime and its authorities have turned into a complex system that was not experienced before, and which has proven its failure for several reasons, the most important of which is the failure of these authorities to cooperate with each other, disharmony among them, jurisdictional disputes, and violent conflicts which led to the collapse of the Libyan Political Agreement and the return to the dialogue table with the intention of reaching a new agreement.

All of this has led to a plurality of agreements without establishing them in a single, approved charter document (Constitutional Declaration/ Political Agreement/ Preparatory Roadmap and its annexes).

The purpose of this complex design is to achieve, within less than a year, a constitutional rule and an electoral law, as expressed in the Roadmap for the Preparatory Phase in Article No.1 which stipulates that the overarching objective of the Preparatory Phase is to strengthen political legitimacy through Presidential and Parliamentary elections on a constitutional basis. It also states, the formation of a new Executive Authority to create the necessary conditions and circumstances conducive for holding elections. This objective is hard to reach. These authorities need one year or more to agree on their competencies and working mechanisms within a single system.

It would have been more useful to have these detailed documents in place before assuming positions. It should not have been founded on the basis of dispersed documents that have not been properly merged and coordinated, or have their inconsistencies eliminated; thus, compiling them in a single document that precedes the formation of the forthcoming authorities. The document should serve as a reference to all the emerging authorities; drawing up the mechanisms organizing their work, and binding them through its provisions.

So, while we are of the view that this entire design does not fit into the current crisis due to its complexity, overlapping competences, and the impossibility of its workability in such brief period. By and large, taking into consideration such complexity, these are neither temporary nor transitory authorities. The complex is usually difficult to end.

We Recommend the Following

  1. Seeking legal experts’ assistance to develop a single document for the temporary organization of public authorities, through which the Constitutional Declaration, the Libyan Political Agreement, and the Roadmap are all compiled and combined into a single document and issued in the form of a basic law.
  2. Development of annexes with clear mechanisms for action among these authorities, regulation of their competencies, priorities and procedures, and elimination of inconsistencies (e.g., competence of the Presidential Council and the High Council of State in the case of national reconciliation) and clarification of its ambiguity.
  3. Work to develop internal regulations for all these authorities to regulate their internal work in the light of the regulation document of the public authorities referred to in point no.1 above.
  4. Establishing one or more mechanism to settle disputes that might arise between these authorities. We recall that the Libyan Political Agreement in Article No.13 includes a mechanism for resolving disputes over the interpretation or implementation of the Political Agreement headed by a Chancellor from the Supreme Court (whose Chairman is currently competing for presiding over the next Presidential Council), and membership of a member from both the House of Representatives and the High Council of State. Instead, the unexpected occurred (the conflict between the House of Representatives and the High Council of State), which is the forceful involvement of the Government of National Accord in internal disputes, even among its members. Therefore, it is an unfeasible mechanism that will never be applied, but in all cases it is deficient and must be replaced.
  5. Organization of external work and communications with foreign countries within and between these authorities. This is an imperative requirement, taking into account foreign intervention and presence in the country. The stipulation of the “protocol” representation of the Chairman of the Presidential Council in the Roadmap is not an actual representation and has to be interpreted to prevent disagreement under a specific mechanism among its members and with the Prime Minister.
  6. Determining the competences of the National Dialogue Forum, and the rules organizing its relationship with these authorities, the most important of which is the double presence of the members of the House of Representatives and the High Council of State in both the National Dialogue Forum and their respective bodies, and how to deal with such duplicity.
  7. Establishing technical rules and mechanisms to limit and control public expenditure and reduce the salaries of the members of these authorities in proportion to the general situation in the country, and the adoption of international standards and principles of transparency; discarding the obsolete and outdated mechanism of submitting financial disclosure statements.

In conclusion, we reaffirm the experience of the Libyans with political dialogue since 2015, when the people were optimistic about it at the outset, but later they were disappointed, and they were exposed to the ravages and scourge of war, poverty, lack of services, the spread of the epidemic and corruption.

This bitter experience must not be repeated, whether in form or in substance. Setting general rules, changing people and creating positions have never been a successful policy. On the contrary, this approach has further complicated matters. For this purpose, and as the United Nations Support Mission in Libya (UNSMIL) proceeds in the same way, it must provide its full expertise to develop the necessary draft legal and administrative rules, regulations, protocols, and provide a dispute settlement mechanism, which is an important and necessary package before assuming the new positions—otherwise these authorities will enter a dark tunnel of anarchy and disputes, particularly since they have no legitimacy.

© ALMARSAD ENGLISH (2021)

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