Legal disputes put Libya on the brink of a new political division

The controversy is escalating in Libya over the continued closure of the Constitutional Chamber of the Supreme Court, in light of the crises arising due to differences over laws and constitutional amendments that are likely to lead the country to a new political division.

For some time, the country has been witnessing a disagreement over the election laws issued by the House of Representatives in Tobruk, without consensus on them with the Supreme Council of State (a consultative parliament), as stipulated in the political agreement, and that was one of the reasons for the failure of the presidential elections last December 24.

Another controversy is added to this after the House of Representatives in Tobruk announced, about a month ago, the amendment of Paragraph 12 of the Constitutional Declaration, related to the formation of a committee to amend controversial articles in the draft constitution.

After the State Council voted to reject this amendment, UN Chancellor Stephanie Williams launched an initiative on the fourth of this March, to form a joint committee of the House of Representatives and the State, to establish a “consensual” constitutional basis and to hold elections as soon as possible.

With the State Council, the Presidential Council, and the Unity and Stability governments accepting the initiative, and the House of Representatives adherence to the laws issued by it, demands increased to reopen the constitutional department, which among its original competencies is to settle the dispute over the constitutionality of laws.

fortify the laws

Lawyer and human rights activist Khattab Al-Misrati says that the need now to activate the constitutional department is more than ever, because the dispute currently taking place in its entirety is purely constitutional and legal, and is no longer an ideological dispute between Islamists and the military as it was before.

Al-Misrati added that the department currently has several urgent issues that need to be settled, including the amendments made by the House of Representatives to the constitutional declaration, the latest of which is the amendment of paragraph 12.

He pointed out that this amendment sparked controversy, although the House of Representatives said that it had approved it according to a previous committee in which the State Council was a party.

He explained that activating the constitutional department and adjudicating all constitutional appeals would make the measures taken to resolve the crisis legally inviolable, including electoral laws, which are considered the last resort for holding elections that end the conflict.

He pointed out that the closure of the constitutional department has deepened the crisis, as the rights of many, including Berbers, Tebu and Tuareg, who oppose provisions in the draft constitution, have been lost.

Al-Misrati referred to the request of the Constitutional Drafting Assembly to activate the constitutional department to consider not submitting the draft constitution, which it has been drafting since 2017, to a popular referendum.

deepening the crisis

In a different opinion, Libyan constitutional expert Adnan Bouras believes that activating the constitutional department at this time will deepen the crisis rather than solve it, despite his recognition of "the need to adjust the legislative rhythm."

In his conversation with Anadolu Agency, Bouras made it clear that any ruling by the Constitutional Chamber in the controversial issues that will be brought before it will make it a party to the conflict, at least with respect to the party against whom the ruling will be, which will lose confidence in the judiciary because it will be considered biased against one party against another.

He added that the ruling of the Constitutional Chamber, which will naturally be rejected by the losing party in the dispute, will have serious security repercussions in light of the presence of armed entities and armed supporters on each side.

Boras considered that any court ruling that may decide the current political conflict will definitely be unacceptable to one of the parties to the conflict, and therefore the judiciary will have contributed for the second time to another institutional fragmentation, as happened in 2014 after the same circuit ruled to invalidate the election of the House of Representatives.

On November 6, 2014, the Constitutional Chamber of the Supreme Court in Tripoli issued a ruling invalidating the House of Representatives elections that took place in the same year, which the latter rejected and considered that it was issued under pressure from armed groups in the capital.

At that time, the legislative institution was divided into two parliaments.

The General National Congress, which refused to hand over power and acted from Tripoli, especially after the ruling of the constitutional circuit in his favour, and the House of Representatives, which refused to recognize the ruling of the constitutional circuit and settled in Tobruk, and each of them has its own government.

The constitutional expert believes that the solution is not to activate the constitutional department and involve the judiciary, which is still impartial, but to work on consensus, as nothing else will solve the crisis.

denial of justice

On the sixth of this March, the head of the Supreme Council of State, Khaled Al-Mashri, announced his categorical rejection of the continuation of the closure of the constitutional department in conjunction with the escalation of the controversy over the continuation of this closure.

This came in a statement by the Supreme Council of State published on its official website after an emergency session, in which it considered the continued closure of the constitutional department a denial of justice.

The constitutional circuit is competent to decide on constitutional challenges submitted to it by determining the extent to which the challenged legal text matches the constitutional text.

In a statement a few days ago, the Prime Minister of the National Unity Government, Abdel Hamid al-Dabaiba, considered the continued closure of the constitutional department at this crucial time as a "direct contribution to the continuation of chaos."

In his statement, Dabaiba called on the Presidential Council and the President of the Supreme Court, in his capacity as head of the Supreme Judicial Council, to assume their historical responsibilities and expedite the reopening of the constitutional department to finally adjudicate all problems that threaten the stability of the country.

A number of civil society activists and union institutions, during a demonstration in Tripoli on March 6, called on the General Assembly of the Supreme Court to respect and enforce the ruling issued by the Administrative Department of the Tripoli Appeals Court, which rescinds the decision to suspend the constitutional department.

The demonstrators, who gathered in front of the headquarters of the Supreme Court in Tripoli, threatened to file a complaint against the members of the General Assembly with their personalities and attributes.

Prior to that, the Bar Association issued a statement demanding the reopening of the constitutional department to stop what it described as the legislative tampering that is being imposed on the country's political scene.

Internationally, Human Rights Watch said, in a statement a month ago, that the closure of the constitutional department in the Supreme Court in Libya has deepened the constitutional crisis in the country, and hindered it from its role in reviewing and repealing legislation considered unconstitutional, including legislation related to elections.

On May 5, 2016, the General Assembly of the Supreme Court issued its decision No. 7, which decided to postpone the consideration of cases before the Constitutional Chamber until further notice to be determined by the General Assembly.