What Are the February Commission Decisions Referred by Kubiš as Basis for December Elections? – Al Marsad

REPORT | The Special Envoy for Libya and Head of the United Nations Support Mission in Libya (UNSMIL) Ján Kubiš said that “there is a broad and strong support in the country, among it increasingly young population for holding inclusive elections on 24 December, which should remain a key focus for the new interim executive authority and state institutions.”

(LIBYA, 25 March 2021) – During his briefing to the UN Security Council on the situation in Libya on Wednesday, Kubiš emphasized that “it is critical to have confirmed, clear legal and constitutional framework for the presidential and parliamentary elections.” He added, “To this end, the Constitutional Committee established by the House of Representatives and the High Council of State reached an agreement, on 12 February, on a proposed constitutional basis for the elections.”

Members of the February Committee

Kubiš also pointed out that “this agreement highlights a referendum on the constitutional proposal adopted in 2017.” He went on to say, “Alternatively if a referendum on the draft permanent constitution is not possible based on a decision of High National Elections Commission (HNEC) and endorsed by the House of Representatives and the High Council of State, presidential and legislative elections would take place on the basis of an amendment to the Constitutional Declaration, emanating from the so called February Committee report of 2014.”

“The latter envisions the election of a House of Representatives by general, free, secret, and direct suffrage according to an electoral law promulgated by the House of Representatives in agreement with the High Council of State; and of Head of State elected by universal, free, and direct suffrage and by absolute majority of the votes casted on the same election date of the House of Representatives in accordance with a law promulgated by the House of Representatives in agreement with the High Council of State,” said Kubiš.

He added: “The agreement has been adopted by the High Council of the State but is yet to be considered by the House of Representatives – an urgently needed task. Additionally, it is imperative to start working- without any further delay on the election laws.”

Moreover, Kubiš mentioned the statements by Emad al-Sayeh, the head of Libya’s High National Elections Commission (HNEC), on the necessary legislation for elections needs to be adopted by 31 July at the latest, for the elections to be possible in December, “in parallel, and in line with the Libyan Political Dialogue Forum’s mandate, the LPDF’s Legal Committee started deliberations and formulated proposals, which would provide a fallback framework.”

Ján Kubiš, Special Envoy for Libya and Head of the United Nations Support Mission in Libya (UNSMIL)

He noted that “in the event that persistent divisions within the House of Representatives prevent it from reaching a timely decision that will enable holding of the elections on 24 December 2021.”

“The continued functioning of the House, building on the current momentum and positive dynamics, will be of utmost importance to complete vital next tasks including the adoption of the budget, the electoral laws and other relevant legislation necessary to conclude this interim phase,” said the UNSMIL chief.

He also indicated that “the Government of National Unity has a distinct role in building a conducive political and security environment for elections, and in facilitating the work of the High National Elections Commission through the various related ministries and governmental institutions. It is important that the government ensures the timely disbursement of sufficient budget for the Commission.”

The Decisions of the February Commission

The following is a complete English translation of the proposals by the Constitutional Committee established by House of Representatives on 12 February, and knows as the February Commission:

SECTION 1: LEGISLATIVE AUTHORITY

Article No. (1)

The House of Representatives (HoR) shall be responsible for the legislative authority. It shall be elected by a public direct secret ballot according to an election law issued by the General National Congress (GNC) within two weeks of adopting this amendment.

The State shall guarantee adequate representation of women in the House of Representatives (HoR).

Article No. (2)

The HoR shall have its first session chaired by the most senior member. The youngest member shall be the rapporteur. It shall be held within 2 weeks of announcing election results upon the invitation of the GNC President.

Members of the HoR shall take the following oath in a public session:

“I swear by Almighty God to preserve the independence and integrity of the State, to respect the Constitutional Declaration and the law, to fully observe the interests of the people and to seek to realize the objectives and principles of 17th February Revolution.”

Article No. (3)

A Speaker of the HoR and two Deputies shall be elected in the first session.

Article No. (4)

The HoR shall establish its rules of procedure within one month from its first session. It shall be decided through absolute majority of its members and shall be published in the Official Gazette.

Article No. (5)

The term of the HoR starts from the date of its first meeting and ends with the enforcement of the Constitution. In all cases, the term shall not exceed 18 months from the date of the first session of the Constitution Drafting Assembly, unless its term was extended through a referendum.

Article No. (6)

The HoR shall assume the legislative authority, by issuing legislations for the transitional period, granting and withdrawing confidence from the Council of Ministers (the Cabinet), adopting the general budget, oversight over the Executive Authority and approving general policies submitted by the Government.

Article No. (7)

Legal proposals shall be submitted by at least 10 members. Draft laws shall be submitted by the Council of Ministers. The Prime Minister shall be responsible for submitting draft laws concerning the ratification of international agreements and draft financial laws.

Priority shall be given to the consideration of draft laws.

Article No. (8)

A member of the HoR represents all the Libyan people. His constituents shall not limit his proxy by any conditions or limits. Voting is a personal right for the member and shall not be delegated.

Article No. (9)

The HoR session shall not be considered valid unless attended by absolute majority of members.

Resolutions shall be issued with the majority of votes of the attending members unless in cases that require specific majority.

Article No. (10)

Sessions of the HoR shall be public. The deliberations shall be recorded in minutes published in accordance with the Rules of Procedure. It shall be possible to hold closed sessions according to the request of the HoR Speaker, the President, the Prime Minister or one third of its members.

Broadcasting the sessions in the media shall be in accordance with the conditions set out in the Rules of Procedure.

Article No. (11)

It shall not be permitted to combine memberships of HoR and Ministry. Moreover, no member of the HoR shall be a member in committees, corporation boards, public or consultant entities or institutions.

Article No. (12)

Without prejudice to the HoR Rules of Procedure, no HoR member shall be held accountable for opinions expressed within the House of Representatives (HoR) or its affiliated committees.

Article No. (13)

Each of the HoR members shall enjoy parliamentary immunity. Unless in flagrante delicto, the HoR member shall not be arrested, nor any criminal proceedings shall be taken against him/her without the permission of the House of Representatives (HoR).

In case of arrest in flagrante delicto, the Speaker of the HoR shall be informed within 48 hours.

Article No. (14)

Parliamentary investigation committees shall be formed upon the request of the Speaker or one third of HoR members. No fact finding committees shall be formed regarding incidents under judicial investigation. The mission of a previously formed fact finding committee shall be terminated as soon as a judicial investigation is open regarding the incident necessitating its formation.

The functions of the investigation committee shall be concluded with the submission of its report to the HoR.

Article No. (15)

 The HoR shall not discuss a draft law or law proposal before being considered by relevant committees in accordance with the Rules of Procedure.

Article No. (16)

 The headquarters for the HoR shall be the city of Benghazi. It may hold sessions outside the official headquarters.

Article No. (17)

If one seat for any of the members becomes vacant, an alternate member shall be chosen through election within one month from the HoR notification to the government of the vacancy. The term of the new member shall end with the end of the HoR term.

Article No. (18)

Any HoR member may submit a question or an inquest to the Prime Minister or any of the Ministers in the manner specified in the Rules of Procedure.

Discussions of a certain inquest shall only be held after 7 days of submission, except in urgent matters.

Article No. (19)

The President may, within 7 days of adopting a law, request that the HoR reconsider it with a memorandum stating reasons. The HoR shall discuss the law within one week. If the HoR adopts it again, it shall be published without issuing.

Article No. (20)

Legislations shall be effective after 15 days following their publication in the official gazette. This duration may be reduced or extended according to a special provision.

Article No. (21)

Any candidate for membership of the HoR must hold the Libyan nationality, enjoying his civil and political rights, no less than 25 years of age on the starting date of candidacy, in addition to any other conditions provided in elections law.

Article No. (22)

The HoR shall be administratively and financially independent within the framework of the State budget. Expenditures of the HoR shall be overseen by an independent external auditor selected in coordination with the Central Bank of Libya for one year. The State shall dedicate all human and financial resources necessary to enable the HoR and its members to perform their functions.

Article No. (23)

The Prime Minister shall present a draft budget law to the HoR at least 60 days before the beginning of the fiscal year for examination and approval. It shall be voted on section by section. The budget shall be issued by a law specifying the fiscal year and provisions regarding budgets of institutions and entities as well as provisions on transfers between approved sections of the budget and provisions on the settlement of any additional or emergency expenditures that were not included in the approved allocations.

Article No. (24)

If there was a delay in issuing Budget Law, spending may be allowed for 1/12 of the proposed budget.

Article No. (25)

The Government shall not be allowed to hold general loan or commitment leading to financial obligations, unless approved by the HoR.

Article No. (26)

No strategic privileges shall be granted to foreign investment, unless approved by two thirds of HoR members.

Article No. (27)

All State income shall belong to the State Treasury, including income from taxes, fees and other funds, in accordance with the provisions of the Constitutional Declaration and laws in force.

Article No. (28)

Membership of the HoR shall conclude with resignation, death, incompetence or inability of the member to perform his duties. It shall also be concluded by removal from HoR in cases of loss of confidence, losing any membership condition for which a member was elected or if the member failed to perform his duties.

The decision to remove a member shall be taken by the absolute majority of HoR members.

Article No. (29)

If HoR decided by majority of members to withdraw confidence from the Government, it is considered to have resigned. It continues to conduct business until the commissioning of a new Government. If the decision concerned one of the ministers he is considered to have resigned.

The House of Representatives (HoR) only considers the no-confidence proposal request, at the request of quarter of its members. This request is only put for discussion after eight days from the day of submission. Views are taken in consideration two days after the completion of the discussion.

Article No. (30)

The House of Representatives (HoR) establishes Rules of Procedure, including:

  1. HoR holding quorum.
  2. Functioning of the HoR and how to set the agenda according to priorities.
  3. How to vote in the HoR.
  4. Powers of the Speaker and his two Deputies.
  5. Submission of proposals or inquest mechanism for the Prime Minister and Ministers.
  6. Formation of the committees of the HoR and definition of its functions.
  7. Decisions related to disorder of sessions, misconduct, attendance and absence.
  8. Procedure for withdrawal of immunity.
  9. Determination of resignation.

Article No. (31)

The HoR shall only be dismissed by a referendum upon the request of the President. If dismissal is refused, the President resigns and a new President is elected within 30 days.

SECTION 2: EXECUTIVE AUTHORITY

Article No. (32)

The Executive Power consists of the President and the Prime Minister.

Article No. (33)

The President is the symbol of the State unity, he fosters the interests of the people and maintains the independence of the country and its territorial integrity and respects the balance between powers. He exercises his competence as set out in this Declaration.

Article No. (34)

The President shall undertake the following jurisdictions:

  1. Represents the State in its external relations.
  2. Chooses the Prime Minister and entrusts him to form a new Government.
  3. Assumes the tasks of the Commander-in-Chief of the Libyan Army.
  4. Appointment and dismissal of the Intelligence Chief after approval by the HoR.
  5. Appoints ambassadors and representatives of Libya to the international organizations at the suggestion of the Minister Foreign Affairs.
  6. Appoints senior officials and exempts them from their duties after consultation with the Prime Minister.
  7. Accreditation of representatives of foreign States and entities in Libya.
  8. Issue of legislations approved by the HoR.
  9. Concludes international conventions and treaties to be ratified by the HoR.
  10. Declares state of emergency, war and peace and takes exceptional measures after approval of the Council of Defense and National Security, so as to be submitted to HoR for approval within 10 days.
  11. Chairs Cabinet meetings when attending those meetings.
  12. Exempts Prime Minister from his tasks after consultation with the Speaker of the HoR. Exempts Ministers after consultation with the Prime Minister.
  13. Any other jurisdictions stated in the Constitutional Declaration and the law.

Article No. (35)

The President shall address the HoR directly or through letters read out on behalf of him and are not subject for discussion.

Article No. (36)

If the President is unable to perform his duties, on temporary basis, he may delegate certain jurisdictions to the Prime Minister for a period not exceeding thirty days, except the jurisdiction regarding paragraph (9) of Article 34. The President shall inform the Speaker of the HoR on that.

Article No. (37)

In the event that the post of the President is vacant due to resignation, death or permanent disability or any other reason, the Prime Minister assumes the powers of the President temporarily, as to elect a new President within 30 days of the announcement of the vacancy by the Speaker of the HoR.

The President presents his resignation in writing to the Speaker of the HoR.

Article No. (38)

The President may be accused of treason, upon a demand signed by, at least the majority of, members of the HoR. The decision of referral to the Prosecutor shall only be issued by a majority of two-thirds of the HoR.

Once the decision is issued, the President shall be suspended, and this is considered as prohibition to exercise his jurisdiction until a verdict is issued.

The President is to be tried before the Supreme Court with all its judicial departments. The Attorney-General shall undertake the prosecution role. The verdicts of the Court shall be final and are not subject to appeal.

If the President is convicted, he shall be relieved of his post, without prejudice to other penalties.

Article No. (39)

The following conditions apply to Presidential Candidates:

  1. Has to be Libyan Muslim with both parents Muslim Libyans.
  2. Does not hold a nationality of another State.
  3. Not married to a non-Libyan.
  4. Not less than 40 years of age on day of nomination.
  5. Provides an affidavit on personal and real estate inside and outside Libya and those of his spouse and minor children.
  6. To be recommended by not less than five thousand citizens in accordance with the law.
  7. Any other conditions stipulated by the law.

Article No. (40)

The law states the financial treatment of the President. He shall not receive any additional salary or bonus, or to engage throughout his term in any other task, or in any commercial, financial or industrial business. He shall not buy or rent State property, or prosecute the State or enter with the State in contracts of supply or contractors. If he receives in person or intermediary any financial or in- kind gifts, it shall be reverted to the public treasury, as regulated by the law.

Article No. (41)

The President shall take the following oath before the Supreme Court in the presence of the Chairman of the General National Congress (GNC) and in a public session: “I swear by God Almighty to preserve the independence and territorial integrity of the country, and respect the Constitutional Declaration and the law, and to safeguard the interests of the people, and seek to achieve the principles and objectives of the 17th of February Revolution”.

Article No. (42)

The President shall enjoy judicial immunity throughout his term, all dates of limitations and lapse of right shall be suspended and proceedings may be resumed after the expiry of his term.

Bearing in mind Article (38), the President shall not be responsible for his work while conducting his functions.

Article No. (43)

The President shall be elected for the transitional period by public direct free secret ballot with absolute majority of the casted votes. This shall be held simultaneously with holding the elections of the HoR, in accordance with a law issued by the General National Congress in two weeks from the date of adopting this amendment

If none of the candidates receives the required majority in the first round, a second round is organized within two weeks of the announcement of the final results of the first round. Two candidates, with the most number of votes, shall participate in this round.

COUNCIL OF MINISTERS 

Article No. (44)

The Council of Ministers {Cabinet} shall consist of the Prime Minister, a deputy or more and ministers. It shall be entrusted with the management of the State’s internal and external affairs. The Prime Minister shall undertake the supervision on the performance of the Cabinet and guidance in its jurisdiction. With regard to the defense and foreign ministries, this shall be done in consultation with the President.

Article No. (45)

With the exception of the tasks assigned to the President, the Council of Ministers shall undertake the executive powers, managing the work of the State, and ensuring the normal functioning of the public institutions and structures of the State, in accordance with the applicable laws. It shall also include the following:

  1. Develop priorities of the Government work in the transitional period.
  2. Propose public policy of the State in consultation with the President and oversee its implementation after approval.
  3. Propose draft laws.
  4. Prepare the draft general budget and final account of the State.
  5. Issuance of regulations, decisions and directives for the implementation of laws.
  6. Negotiating international treaties and conventions.

Article No. (46)

Whosoever is appointed as a Prime Minister or a Minister shall meet the following criteria:

  1. Shall be of Libyan nationality and enjoys civil and political rights.
  2. Shall not be less than 30 years when appointed as Prime Minister, and not less than 25 years of age for a minister.
  3. Shall not hold a citizenship of another country.
  4. Shall not be married to non-Libyan.
  5. Shall provide an acknowledgment of personal and real estate within Libya and abroad, as well as spouse and minor children.

Article No. (47)

The Prime Minister and the Ministers shall take the following oath before the President in a public session:

“I swear by Almighty God to preserve the independence and territorial integrity of the nation, to respect the Constitutional Declaration and the law, to safeguard the interests of the people, and shall endeavor to achieve the principles and goals of the 17th of February Revolution.”

Article No. (48)

The Prime Minister shall mainly undertake the following:

  1. Propose the formation of the Council of Ministers to the President for approval, and then refer it to the HoR for a vote of confidence.
  2. Issuance of decisions taken by the Council of Ministers.
  3. Appointment of Deputy Ministers upon a proposal from the competent Ministers.

Article No. (49)

 The Prime Minister and Ministers shall be accountable to the HoR for the public policy of the State. Each Minister shall be responsible for the work of his Ministry.

Article No. (50)

The Prime Minister shall submit his resignation in writing to the President. The resignation of a Minister shall be submitted to the Prime Minister. The resignation of the Prime Minister entails the resignation of the entire government. The resigned government shall continue its functions until the formation of a new government.

SECTION 3: GENERAL PROVISIONS

Article No. (51)

The financial treatment of the members of the HoR, the President, the Prime Minister, and Ministers, shall be determined by a law based on a draft submitted by the Council of Ministers, and approved by the HoR within a period not exceeding one month of taking the oath, taking into account the responsibilities entrusted to them and average public incomes.

Article No. (52)

The local administrative system shall be on the basis of decentralization within the State unity.

Districts, municipalities, their jurisdictions and financial allocations shall be governed by a law, to ensure decentralization of services, transparency of spending, and sovereignty of State resources, in order to achieve balanced and sustainable development across the country.

Article No. (53)

The State shall have monopoly on the establishment of the Army and Security Institutions, in accordance with the law to serve the public interest. The Army shall be committed not to prejudice the constitutional order. Officers, non-commissioned officers, and soldiers shall be prohibited from assuming political positions.

Any person, entity, body or a group shall be prohibited from creating military or paramilitary formations, groups or factions, outside the legitimacy of the State and this shall be done in accordance with the law.

Article No. (54)

Defense and National Security Council shall be established and chaired by the President. It shall have membership of the Speaker of the HoR, the Prime Minister and the Ministers of Defense, Foreign Affairs, Interior, Finance, and the Army Chief of Staff and the Head of Intelligence. The Council shall undertake the adoption of strategies to achieve security and stability of the country, and any necessary measures to contain various crises and disasters. It shall also examine sources of threats to national security at home and abroad. Its jurisdiction and rules of procedures shall be determined by law.

Article No. (55)

No provisions in this Declaration shall be subject to amendments or nullification except by another decision issued by the HoR and a majority of two-thirds of the members of the House of Representatives (HoR).

Article No. (56)

Any provisions in the Interim Constitutional Declaration contrary to the provisions of this Amendment shall be deemed void.

Article No. (57)

This Amendment shall come into force as of the date of issuance and shall be published in the Official Gazette, in accordance with the applicable procedures, and in various media outlets.

© ALMARSAD ENGLISH 2021

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