A Legal Look into the Libyan Supreme Court Ruling

Shortly after the newly elected Libyan House of Representatives (HoR) convened in the eastern city of Tobruk in August 2014, two constitutional claims were brought before the Libyan Supreme Court (LSC). Two Libyan individuals submitted the first claim (Case No. 17/61) to the court, Mr. Abdul Raouf Al Manaai in person and as an HoR member, and Mr. Khalid al-Mishri in person and as a member of the General National Congress (GNC).[1] Only Mr. Al Manaai submitted the second claim (Case No. 16/61). In the constitutional case No. 17/16, the claimants asked the LSC to judge Paragraph 11 of the Seventh Amendment to the Libyan Constitutional Declaration to be null and void. They argued that this particular paragraph was adopted in violation of the Constitutional Declaration itself and the GNC’s internal rules of procedure.

The LSC declared its judgment on November 6, 2014, upholding the claimant’s argument and ruling Paragraph 11 of the Seventh Amendment—and the consequent effects of this Amendment—null and void. Some members of the GNC, led by Parliamentary President Nuri Busahmain, announced that the ruling not only dissolves the HoR, but also returned the defunct GNC as the legitimate legislative power in Libya. When Islamist-backed Operation Dawn militias took control of Tripoli in late August after weeks of urban warfare, two months prior to the LSC ruling, their first political move was to resurrect the GNC, which in turn appointed a cabinet headed by Mr. Omar al-Hassi as prime minister.

The purpose of this paper will shed light on this Supreme Court ruling[2] and how it intensified the already alarming political and military situation in Libya.

I. Legal and Political Background

The transitional period in Libya, spanning the timeframe from the revolution until the adoption of a new constitution, is regulated by the Constitutional Declaration. The self-proclaimed political steering committee of the revolution known as the Transitional National Council (NTC) adopted the Constitutional Declaration on August 3, 2011. The Constitutional Declaration was subject to eight amendments.[3] Article 30, the largest of the thrity-seven articles of the Constitutional Declaration, outlines the process for the peaceful transfer of power until the adoption of a new constitution. This article was a critical source of contention between rival political groups, facing repeated amendments in the three years since its adoption.[4]

Before the GNC adopted the Sixth and Seventh Amendments, the Constitutional Declaration included three major political bodies: the NTC, the GNC, and the Constituent Assembly (CA). Unlike the NTC, the GNC and CA are elected bodies. The original version of the Constitutional Declaration did not envisage a president during the transitional period. It was only after GNC’s adoption of Amendments Six and Seven that two additional entities came to existence: the HoR and a state president. Libyan voters also directly elected the HoR, which replaced the GNC in 2014.

In accordance with the Constitutional Declaration, the NTC’s term in office ended with a peaceful transfer of power to the newly elected GNC. The transfer of power took place in a ceremonial event on the August 8, 2012. However, Article 30 of the Constitutional Declaration did not clearly mandate the length of the GNC’s term in office. Consequently, the second transfer of power was turbulent and triggered war rather than peace and stability.

Due to the ambiguity surrounding the GNC, Libyans who were dissatisfied with its performance pressured the legislature to end its tenure through lobbying and street demonstrations. The response of the GNC was to appoint a committee known as the February Committee (FC)[5] in February 2014. The February Committee was given two mandates:
1)      draft an amendment to the Constitutional Declaration to allow both presidential and legislative elections;
2)      draft the electoral law for these elections.

The February Committee accomplished its first mandate on in early March, drafting an amendment that was submitted to GNC, which then adopted it as the Seventh Amendment to the Constitutional Declaration on March 11, 2014. Paragraph 11of this Amendment—the subject of the Supreme Court controversy—states:

“The proposal from the February Committee has been adopted, and it is incumbent upon the elected House of Representatives, within 45 days from its first session, to settle the question of whether the temporary president is to be elected directly or indirectly.”

Later in March, the February Committee submitted its draft electoral law to the GNC. The electoral law was subsequently adopted on March 31, 2014 in a separate procedure by the GNC as Law No. 10/2014, related to the election of a new Libyan parliament to be named the Libyan House of Representatives. Pursuant to the adoption of Law No. 10, the HoR elections took place on June 25, 2014 and the High National Election Commission announced the results of the HoR election in July 2014.[6] In accordance with Article 2 of the February Committee Amendment, the newly elected HoR would reside in Benghazi. Despite having assigned and prepared the HoR headquarters, the security situation in Benghazi made holding the first meeting there unfeasible. In its inaugural session on August 4, only 158 out of 188 elected members of HoR convened in the city of Tobruk. Thirty members of the HoR boycotted the meeting.

A number of GNC members, including the GNC’s First Deputy Mr. Ezzedine al-Awami, also attended. Other members of the GNC, led by GNC President Mr. Nuri Busahmain, refused to attend the meeting, claiming that any hand over procedure should only take place upon invitation from Mr. Busahmain and that the handover ceremony should happen in either Tripoli or Benghazi. The GNC President and this group of GNC members adopted the firm position that the whole convening procedure of the HoR was illegal and that no transfer of power had taken place.

HoR boycotting member Mr. Abdul Raouf al-Manaai and GNC member Mr. Khaled al-Mishri, submitted their claims to the Libyan Supreme Court challenging the HoR. In Case No. 17/ 61, they argued that Paragraph 11 of the Seventh Amendment was unconstitutional and asked the court to pronounce it invalid, along with all of its subsequent effects. In the second Case No. 16/61, Mr. al-Mannai argued that the HoR’s convening in Tobruk violated of Article 2 of the February Committee proposal adopted by the GNC through the Seventh Amendment. He asked the court to pronounce the HoR’s first session void, and consequently all other subsequent sessions.

On August 14, 2014 the UN Secretary General appointed Mr. Bernadino Leon as his Special Representative and Head of the United Nations Support Mission in Libya (UNSMIL). The HoR gained wide spread recognition,[7] and the United Nations Security Council (UNSC) issued Resolution No. 2174 on August 27, 2014. In his report to the UNSC on September 15, 2014, Mr. Bernadino Leon stated: “In my discussions with the elected House of Representatives, currently seated in Tobruk, I reiterated the international community’s unequivocal recognition of it as the sole legislative authority in the country.”

Since its inception, the HoR adopted critical legislation affecting the Libya’s political trajectory:

1.    The Eighth Amendment to the Constitutional Declaration temporarily assigning presidential responsibilities and authority to the HoR in the absence of an elected president.

2.    Decision No. 24 of 2014, approving the new ministerial cabinet headed by Prime Minister Abdullah al-Thinni.

3.    Anti-terrorism law No. 3 of 2014.

On the October 6, 2014, the LSC issued its ruling in Case No. 17/61, by which it declared that Paragraph 11 of the Seventh Amendment to the Constitutional Declaration is null and void, as well as all its subsequent effects.

II. Legal reading of LSC ruling in constitutional Case No. 17/2014

It is not useful at this stage to criticize the ruling itself. LSC rulings are final and cannot be appealed. It falls upon the LSC alone to rescind its verdict[8] and issue another ruling in another case.[9] Any opinion issued on the merits of the ruling would not solicit any changes for now. In accordance with Article 31 of LSC Law No. 6 of 1982, LSC legal principles are equivalent to law and binding on all other courts in Libya. The essential question today is whether the LSC ruling in Case No. 17/61, nullifying Paragraph 11 and its subsequent effects, implies the dissolution of the HoR. Is the HoR, as a legislative body, the result of only Paragraph 11 of the Seventh Amendment or also the result of other legislation?

To answer this question, one must bear in mind that the Constitutional Declaration’s Sixth Amendment established the February Committee, whereas the Committee’s proposal was adopted as the Constitutional Declaration’s Seventh Amendment. In between establishing the February Committee and adopting the Committee’s proposals, the GNC president issued a decision[10] appointing the February Committee’s fifteen members and determining the scope and duration of its mission.

This is to say that even if the LSC ruling announced that Paragraph 11 of the Seventh Amendment is null and void, the February Committee mission stands, in accordance with the GNC president’s decision. The February Committee’s work was consultative; it depended on the GNC to adopt its recommendations, amend it, or reject it. The GNC deemed it appropriate to adopt the February Committee proposals, albeit with reservations.[11]

The February Committee submitted its first proposal to the GNC in fifty-seven articles. This set of articles created the post of president, with which a ministerial cabinet would constitute the executive branch, on one hand, and a House of Representatives as the legislative branch on the another hand. It was upon this proposal that the GNC adopted its Seventh Amendment, in particular Paragraph 11. Later, the February Committee accomplished its second mission by submitting an electoral draft law to the GNC. Based on this draft law, the GNC issued electoral Law No. 10/2014, relating to the election of the HoR during the transitional period and according to which the HoR was elected. As long as Law No. 10 remains intact, the HoR continues to be legitimate and untouchable.

Neither of the constitutional cases, or LSC rulings on them, touched on electoral Law No. 10 of 2014, which is the basis of the HoR existence. One might argue that the birth certificate of the HoR is the Seventh Amendment and by nullifying it, the HoR cannot exist any longer and should be dissolved. However, electoral Law No. 10/2014 is in itself sufficient to give birth to the HoR. Article 1 of the electoral Law No. 10 gives a clear definition of the HoR by stating that it “is the state temporary legislative power in the transitional period.” Article 3 determines the number of HoR members as 200 “who are directly elected through free voting.” By virtue of the articles it contains, the electoral law on its own creates the HoR and determines its members. The HoR can at any stage take the necessary measures and issue the required legislation to regulate itself, including the adoption of the February Committee’s recommendations.

The Seventh Amendment was issued by the GNC on the March 3, 2014. Electoral Law No. 10 of 2014, a separate legislation, was issued by the GNC twenty days later on March 31, 2014. Electoral Law No. 10 of 2014 is the basis today of the HoR and constitutes its legal foundation. This law protects the HoR in the face of attempts to halt Libya’s difficult and fragile democratization process in a period of war.

III. Libya’s Political Reality

Today, Libya’s political system comprises three new official bodies: the HoR, the Constituent Assembly, and the cabinet. To dissolve HoR, as the only legitimate legislative body, seems unrealistic, particularly at a time when there is no real executive body. The Constitutional Declaration does not fully define the executive branch.[12] Consequently, there is no true separation of powers between branches or checks and balances. The current political system in the country is a heavy and special sort of parliamentarian system due to the absence of a president, and the parliament has extensive power and control over the cabinet.

After taking office, the HoR adopted the Eighth Amendment to the Constitutional Declaration, temporarily reverting to the GNC model.[13] In order to continue the difficult and complicated transition to democracy, Libya must preserve its HoR, and meanwhile continue to push for reform. It should not in any event lose its elected legislature.

It is wrong to make the GNC the beneficiary of its mistakes and wrong doings. The constitutional case brought before the LSC was based on improper procedures taken by the GNC, highlighting its dysfunction, its disrespect towards the Constitutional Declaration, and its lack of adherence to the its own internal rules of procedure. Tainted by a disappointing history of legal and procedural violations, the GNC cannot now unilaterally choose to dictate Libya’s future.

The ruling of the LSC should be read in the context of the Constitutional Declaration. The Declaration, and Article 30 in particular, meant to pave the way to a democracy. Article 4 of the Constitutional Declaration also mentioned the peaceful transfer of power as one of the pillars of the “civil democratic system” of the state. Libya cannot sustain this transition without a true and genuine peaceful transfer of power—to truly put an end to a forty-two year dictatorship. The pride and joy felt by Libyans when the TNC handed over power to GNC in 2012marked a historic event that established a positive precedent. This democratic rule must prevail, and the GNC should not be permitted to take advantage of its own mistakes.

The HoR has a long way to go before it can function as an ordinary legislative power. As with any new parliament in a nascent, fragile democracy, it needs. The politically charged environment in Libya makes it extremely difficult for a democracy to grow. Regional and international intervention in Libya has further muddied the democratization process. The HoR should avoid the GNC’s mistakes and work to evolve into an efficient, dynamic, and transparent representative body. But without international assistance to that end, the new parliament could fall victim to Libya’s political climate. Any international indication equating the HoR with the departed GNC is alarming. It will only weaken Libya’s sole democratically elected existing legislative body. Sending the wrong messages questioning HoR legitimacy will not only weaken the HoR, but also grant power to the wrong people such as militia groups and former GNC members with strong militia ties.

Libya needs a strong government and a strong parliament. It is essential to preserve the balance of power—as limited as it is today—and protect the elected legislature. Calls for an inclusive unity government should always bear in mind that a strong legislative body must balance such a government in a democratic system to preserve the two basic principles of governance: the separation of powers and checks and balances. If a new round of dialogue is envisaged today, I do not advise including former or current GNC members in an official capacity. Involving GNC members in an official capacity would risk discrediting the HoR. GNC members could still be invited as individuals, politicians, or political party members. NTC members could also contribute their knowledge and experience in their personal capacity; this would send the right message that even figures from the recent past can participate in a dialogue to build Libya’s future.

Libyan women did not participate in acts of violence and the war that is raging in Libya; they are victims among others today. It is therefore essential that Libyan women participate in dialogues and peacemaking. The UN must take Libyan women’s role in peace building into consideration and give them opportunity to participate. The importance of women’s presence should be reflected both quantitatively and qualitatively. Libya needs to consolidate the gains it has achieved on this short road to democratization, an experience full of tears, blood, and revenge. In its three years, Libya has had three fair, transparent, and successful elections. This process must continue, fostered by Libya’s international partners, rather than left to wither in favor of new plans and initiatives.

Azza Al Maghur is a lawyer, human rights activist, and former member of the February Committee tasked by the General National Congress to amend the transitional constitution and prepare the elections law.

[1] The LSC, by accepting the case from both claimants, gravely erred in its approach given the contradictory stances of the plaintiffs. The LSC should have judged that the first claimant had no interest in bringing up this case as he is a current member of HoR, and that the second has no capacity as his membership had been terminated. Moreover, Mr. Al Manaai in Case 17/61 asked the court to nullify Paragraph 11 of the Seventh Amendment, while in his second case (16/61), he insisted in applying literally the same amendment he argued to nullify. This constitutes a contradictory position that the LSC ignored, upon which the court should rejected his claims.

[2] This paper will deal only with the LSC ruling on constitutional Case No. 17/61, and will not deal with constitutional Case No. 16/61. The LSC ruled that litigation in Case No. 16/61 has been terminated based on its ruling in Case No. 17/61.

[3] Three of the eight amendments were adopted by the NTC, four by the GNC, and one recently by the HoR.

[4] Article 30 contains twelve sub paragraphs and was subject to six out of eight amendments.

[5] The fifteen-member February Committee comprised six GNC members and nine independents. It maintained its distance from GNC and adopted its own regulations based on four principles: independence, transparency, respect for internal rules of procedure, and gratis.

[6] HNEC decision No. 107 of 2014, ratifying the results of the HoR election.

[7] Libyan neighboring states meeting in Khartoum on December 4, 2014; EU statement in Brussels dated August 25, 2014; AU 495 meeting at ministerial level in September 2014.

[8] Law No. 6/1982, amended by Law No. 17/1994 on the reorganization of the Supreme Court, Article 23 states: “The Libyan Supreme Court, by convening all of its divisions and in the presence of its president or one who is entitled to preside in his absence, may rescind any of its legal rulings that have been previously adopted by any of its divisions.”

[9] There is an opinion that judgments on constitutional claims cannot be rescinded or altered. See Libyan judge’s organization, https://www.facebook.com/permalink.php?id=504909442859142&story_fbid=940928902590525.

[10] GNC Decree No. 12/ 2014, dated February 12, 2014.

[11] Reservations were related to the post of president and whether the position would be elected directly from the people or appointed by the HoR. This was left to the HoR to decide once in office. 

[12] The work done by the February Committee and subsequent amendments made to the Constitutional Declaration were to rectify these defects and provide a separation of power and a check-and-balance mechanism.

[13] The Eighth Amendment gave all presidential power mentioned in the February Committee proposal temporarily to the HoR until a president is elected.

Image: Judge Kamal Bashir Dahan (C), head of Libya's Supreme Court, meets with members of the Constitutional Chamber in Tripoli November 6, 2014. Libya's Supreme Court declared the country's internationally-recognized parliament as unconstitutional on Thursday, state news agency LANA said, deepening a rift between rival power centres in the oil producer. REUTERS/Ismail Zitouny