Libyan court declares draft constitution illegal

The Administrative Department of Al-Bayda Appeals Court ruled that the amendment to the voting quorum of the Constitution Drafting Assembly (CDA) was illegal.

The verdict renders the latest draft of the constitution sent to the Tobruk-based House of Representatives illegal as well. There had been several meetings of the CDA in Oman. However, many who are boycotting the CDA were absent along with others who did not go because they thought the meeting should have been held in Libya. When the group returned to Al-Bayda, it met and amended the voting quorum to render the votes taken in Oman as legal. The same court had ruled on February 15 that the former head of the CDA, Ali Al-Tarhouni, was ineligible for the position because he was an American citizen.

The CDA sent its final draft of the constitution to the HoR on April 26. The CDA reportedly did not follow the terms of the Libyan Political Agreement (LPA):It has been reported that the CDA did not abide by the Libyan Political Agreement (LPA) Article 51 which requires that it take the opinion of the HoR and the Supreme State Council (SSC) on the draft constitution upon the completion of the final draft and before it is sent for referendum. Sources online have also reported that the SSC has called on the CDA to respect its obligations in the LPA and formally send them a copy of the draft constitution.

The feedback of both bodies must be sent back to the CDA within a month of receiving the draft. The State Council (SSC) did not receive a copy of the draft.

The LPA also says in Article 52 that if the work of the CDA is not completed before March 26, a committee must be set up consisting of five members each of the State Council and the HoR together with participation of the Presidency Council of the Council of Ministers which within two weeks of March 26 to deliberate the matter. The CDA process has managed to violate the LPA as well as illegally changing quorum requirements. As I noted also in a recent article there were reports that the constitution might be adopted without the required referendum.

What did Martin Kobler, Special Representative of the Secretary-General (SRSG) think of all this? He had much praise:“I applaud the diligent effort, courage and commitment of all members of the Constitution Drafting Assembly in trying to forge agreement on a draft constitution that can serve as the basis moving Libya beyond the transition period, and building a new modern Libyan state, anchored in the principles of democracy and separation of powers, rule of law, and respect for human rights, including equality for all, and guaranteeing the rights of women and all components of the Libyan national identity,” he stated.

He even said that boycotting was not an option. This was because the CDA meeting in Bayda illegally changed the quorum requirements for votes.

The original quorum requirements for a vote were two-thirds plus one of total elected members, to just fifty percent plus one of those attending the session. There were 41 votes required in the Oman sessions but only 33 members attended. Kobler is always appreciative of rule-breaking he thinks will help advance his aims. The draft constitution text can be found here.

Libyan constitution could be adopted with no referendum

The Libya Observer reports on leaks from a source in the Libyan Constitutional Drafting Assembly indicating that members who favor the draft intend to send a letter to the Tobruk-based House of Representatives (HoR) to cancel polls for the draft.

 

Press Solidarity reported the leaks were confirmed. The news outlet was told that the referendum on the constitution was not needed since the Constitutional Drafting Assembly (CDA) was elected by the people. If their proposal was approved by the HoR and the constitutional declaration of 2011 was amended, then the draft approved by the CDA could be considered the permanent Libyan constitution. If this suggestion is adopted, there will be even more conflict and division within Libya as the present draft is rejected by many residents in the western region where the majority of Libyans live. There are a number of western representatives of the CDA who have boycotted meetings and reject this draft, complaining that the whole process of approval is illegal. The boycotters also say the draft ignores general principles of citizenship and enshrines regionalism in the constitution.

There were a number of meetings of the CDA in Oman. There were 11 members of the CDA not present at the meetings. They object to the division of jobs and positions on the basis of the three traditional divisions of Libya with Tripolitania in the west, Cyrenaica in the east, and Fezzan in the south. Tripolitani contains two thirds of the Libyan population. Members of the judiciary have also objected to the draft, complaining that the independence of the judiciary is not in the draft as they had recommended. I noted in an article on the meetings; Articles to be included in the draft constitution must be approved by a vote of two-thirds plus one or 41 votes. There are only 33 members in the sessions in Oman according to the Libya Herald. There are not enough to pass any articles. There are only 41 members altogether taking part in CDA proceedings. In other words they need all to be present and all vote in favor of any article for it to be adopted. A number of members of the CDA refused to travel to Oman. They said the discussions could have taken place in Libya just as easily.

After the CDA returned they met again in Bayda. Martin Kobler issued a press release praising their work. In the release he says that boycotting is not an alternative. What he meant is it would not make any difference. The CDA had just rewritten its own rules for a quorum: An article in the Libya Observer reports that a number of the boycotting members claim all the CDA meetings held in Oman and in Bayda "are illegal and a sheer violation of the constitutional declaration as well as the internal regulations of the CDA." A statement by the group said: “The CDA does not have the right or the authority to amend the quorum whatsoever because the amendment is one of the jobs of the legislative authority.”When the CDA returned from Oman it held a meeting in Bayda at which it decided it would amend the quorum required for the passage of any item in the draft. I presume it made the rule retroactive, thus legitimizing the motions made in Oman. The strategy appears to be this: if the rules are inconvenient, then ignore them or rewrite them. Deciding not to have a vote on the constitution is just another example of the same strategy. It is probably a strategy copied from and approved by the UN.

American head of Libyan Constitutional Drafting Assembly dismissed

Libya's troubles aren't not only with the formation of the Government of National Accord (GNA), which now faces a vote of confidence next Tuesday in the internationally recognized House of Representatives (HoR).

There are also issues with the Constitutional Drafting Assembly (CDA). The CDA is charged with presenting a new Libyan constitution, which will form the basis for new elections and then an elected government to replace the Government of National Accord. The Al-Bayda Appeals Court, the administrative judiciary department, just delivered a verdict on Monday that will dismiss the chair of the CDA, Ali Al-Tarhouni.

The decision was stated as follows:First: It is urgent that the High National Election Commission (HNEC) decision (No. 29), which approves Ali Al-Tarhouni a member in the Constitution Drafting Assembly, is partially annulled.

Second: It is urgent that the Constitution Drafting Assembly's decision that approved Ali Al-Tarhouni as the head of the CDA is overruled.The problem is that Al-Tarhouni is a dual Libyan and American citizen. Two members of the CDA, Daw Aun, and Hamdi Yacoub, filed a lawsuit to dismiss Al-Tarhouni because he has dual citizenship. According to Libyan law, a citizen who takes another citizenship invalidates his or her Libyan citizenship. As a result, Al-Tarhouni is not qualified to serve as head of the CDA.

At the end of January, 11 members of the CDA boycotted assembly sessions as a protest and said they would not recognize its outcomes. The members complained of attempts to impose regionalism as a basis for the constitution. Some members even insisted that there be three regions and three capitals within Libya, as there had been formerly. The members were scathing in their criticism of Al-Tarhouni. One of the boycotters, Daou Al-Mansouri, said Al-Tarhouni addressed international organizations without the knowledge or permission of the group. The group accused him of obstructing the work of the CDA. The two members who filed suit against Al-Tarhouni were among the boycotters.

The CDA results so far have been rejected by outsiders as well. There was a recent protest by some Libyan judiciary. The group complained that the CDA paid no attention to their suggestions for the constitution and the necessity for an independent judiciary. The members said: “We suspend our communication with the Constitution Drafting Assembly after they violated the independency of the Libyan judiciary in the forthcoming constitution, not to mention that they also ignored all the recommendations in favor of the greater good of the country.”

They also said they would make a constitutional appeal against the CDA results in the Supreme Constitutional Court since the CDA had ignored their demands.

Finally, a number of municipalities in the west of Libya, rejected the outcomes of the CDA and demanded that the CDA stress the unity of Libya and renounce division and separation. The municipalities issued a statement which said that they all support the members who boycotted sessions at the end of January. The CDA's work committee put out a draft that referred to Libya as the Libyan Republic with three capitals. Tripoli would be the political capital, Benghazi the economic capital, and Sabha in the south, the touristic and cultural capital. The group rejected the regionalism implicit in the draft. Libya has no new government yet and even if it does finally get one, there will be no new elections until a new constitution is agreed upon.