By Azza K. Maghur.
UN Special Envoy Bernardino Leon’s announcement on October 8 that Libyan parties had finally reached a political agreement . . .[restrict]in Skhirat on the composition of a new Government of National Accord (GNA) has energized many observers of Libyan politics. Yet, last minute amendments to the final draft of the agreement should raise some concern over its future sustainability should it be ratified by the House of Representatives (HoR) and the remnant General National Congress (GNC). Both entities are in jeopardy today; the HoR’s mandate will expire this month and remnant GNC lacks both legitimacy and international recognition. The political agreement, if adopted, will extend the HoR mandate and will absorb GNC in a new entity labeled the State Council.
At a dialogue meeting in Geneva in August, the GNC delegation submitted nine points to be included in the agreement as preconditions to signing. At a subsequent dialogue session in Skhirat in September, the GNC delegation submitted an additional sixty-nine points. Despite the announcement of the GNA yesterday by Mr. Leon, the GNC has asked for more amendments to the political agreement. The hardline position taken by the GNC delegation pushed the United Nations Support Mission in Libya (UNSMIL) to reopen discussion of the July text, a situation that surprised and angered many of the other participants. UNSMIL published a seventh version of the agreement on September 29 and distributed it to the participants. A new section, located between the initialed agreement and the annexes under the title Additional Provisions. One new article in particular—Article 13 relating to the interpretation and application of the Libyan Political Agreement—could have a profound impact on the sustainability of the agreement moving forward.
Bearing in mind that Article 66 of the agreement stipulates that all “additional provisions and annexes are considered an integral part of the Agreement and have the same legal force and authenticity with regards to their implementation,” consider Article 13:
Any legal dispute over the interpretation or implementation of the Libyan Political Agreement and its annexes shall be referred to a committee comprising the chairmanship of a judge from the Supreme Court who shall be nominated by the Court’s general assembly and agreed by the two parties, and the membership of two members from each of the House of Representatives and State Council, who shall be selected by their respective authorities. The United Nations Support Mission in Libya shall participate in this committee as an advisor. The committee shall take its decisions with the majority of its members within a period that does not exceed fourteen (14) days of the date on which the request was submitted to it. The decisions of this committee shall be final, binding and public.
The composition of the Dispute Committee creates an imbalance between the judicial, legislative, and executive branches of the government. A Supreme Court judge would lead the five-member Dispute Committee, with four other members (two from the HoR and the State Council each) comprising the rest. While the Supreme Court General Assembly would nominate the head of the dispute committee, both the HoR and the State Council must approve the appointment, giving the final say to the two political entities as opposed to the Supreme Court General Assembly. Article 13 also assigns greater representation to the legislative and consultative powers over the judicial power. As such, all five members must receive the approval of the two political institutions, effectively politicizing the body.
The committee’s composition also presents problems on a technical level. The interpretation and implementation of such a complex agreement requires sufficient legal knowledge and expertise. Article 13 only requires the committee chair—a Supreme Court judge—to have that level of knowledge while the selection of the other four members requires no specific legal qualifications. Given the importance of this agreement as the foundation for building state institutions and restoring peace in Libya, strict conditions determining how to fill these important posts are needed. At minimum, a new annex could be added to the agreement outlining the representatives’ basic required qualifications or an article to that defers the decision to the legislature.
The irony of Article 13 is that it goes against the spirit of the agreement itself. UNSMIL had tried to help shape an inclusive political agreement that could create a power sharing mechanism in a difficult transitional period. Limiting the parties of the Dispute Committee to the HoR and State Council excludes other parties to the dialogue and the judiciary, further entrenching the current political divisions. Even if both bodies ratify the final deal, Article 13 extends the HoR-GNC competition into a new transitional phase.
Article 13 effectively creates a mechanism parallel to the Libyan judicial system to resolve disputes over Libyan legislation. Although a Supreme Court judge heads the proposed committee, the parties who approve the committee chair are not from the judiciary. Moreover, the majority of members of the dispute committee are not required to be from the judiciary or have a legal background. The parallel dispute committees Libya has known in the past (such as those used to resolve local disputes) never produced favorable or durable outcomes. In a war-torn country, this new and parallel experiment may create unnecessary institutional tensions.
There is a serious risk that Article 13 could impede the implementation of the political agreement to the extent that it paralyzes the GNA. As the body responsible for the agreement’s implementation, the GNA acts as the highest transitional executive authority. Yet Article 13 allows both the HoR and State Council to challenge continuously its interpretation and application of the provisions. Having no representation in the Dispute Committee, the GNA cannot defend its interpretation of an agreement designed to create a strong centralized government. As with the controversial Supreme Court judgment of November 2014, legal claims of a political nature submitted to Libyan courts during the transitional period have hindered the nascent democratic process in Libya. Article 13 has the potential to create a similar crisis.
The narrow time frame allocated to dispute resolution as defined in Article 13 could also lead to confusion and additional delays. The article allows the Dispute Committee fourteen days to announce its decision after a claim is submitted. In a previous legal opinion submitted to the GNC on the timetable of the Libyan Constitutional Declaration, however, UNSMIL considered the deadlines regulatory and nonbinding. The Dispute Committee could apply the same logic and easily extend its cases without affecting the legitimacy of its final decisions—decisions that are not subject to any form of review. One would expect the dispute claims to take longer to resolve, undermining the efficiency necessary to implement the agreement.
Article 13 also excludes Libyan courts from overseeing Dispute Committee decisions by declaring them “final, binding, and public.” Given the agreement’s importance, the power of review by a more experienced and higher court would ensure fair, apolitical implementation of its provisions. Excluding Libyan courts from this process can only reinforce the political nature of the committee.
Article 13 may not have a direct and urgent impact on the ratification of the political agreement by the HoR and GNC. Yet Article 13 may have a strong negative impact further down the road. The GNA embodies the foundation of this agreement, representing Libya’s interlocutor with the international community and the driver of the coming transitional period. Placing the interpretation and implementation of the agreement at the mercy of the rival political parties—the primary actors who will shape the Dispute Committee—places the GNA and the transition at the mercy of both parties.
Azza K. Maghur is a lawyer, human rights activist, and former member of the February Committee. This article was first published by the Atlantic Council. It is reproduced with permission.
The views expressed in Op-Ed articles are not necessarily those of the Libya Herald. [/restrict]
