A ruling by the Supreme Court in Tripoli puts in question the legitimacy of
the parliament meeting in Tobruk as the political crisis in Libya deepens,
writes Kamel Abdallah
Saturday,15 November, 2014
The Libyan Supreme Court ruling overturning paragraph 11 of Article 30 of
the Constitutional Declaration of August 2011 has further complicated the
political crisis in Libya, pushing the country closer to the abyss.
On 6 November, the Supreme Court in Tripoli announced that it had accepted
the appeal filed by Abdul-Raouf Al-Manai, one of the MPs who has been
boycotting the parliament's sessions in Tobruk, and that it ruled to
overturn the amendments introduced by the February Committee to the
Constitutional Declaration, and all proposals and measures emanating from
them. The February Committee had been created this year by the General
National Congress (GNC), the post-revolutionary legislative assembly whose
term officially lapsed in August but which has resumed functioning in
Tripoli, with the purpose of studying and amending the August 2011
Constitutional Declaration, Libya's roadmap for its interim phase.
Paragraph 11 of Article 30 was the product of an amendment introduced by
this committee and modified the Constitutional Declaration to provide that
"the elected parliament will resolve the question of whether the interim
president will be elected by direct or indirect ballot within a period not
to exceed 45 days from its opening session." The effect of the ruling
declaring this paragraph unconstitutional is to nullify the parliamentary
elections that were held on 25 June creating the successor to the GNC and,
hence, to dissolve the parliament and nullify all laws and decisions it has
taken since it began to convene in the eastern city of Tobruk on 4 August.
The court's ruling triggered widespread anger, confusion and anxiety in
Libya and abroad. The resuscitated GNC in Tripoli announced that it
supported the Supreme Court's verdict that upheld Al-Manai's appeal while
the members of the elected parliament who have meeting in Tobruk, most of
whom come from eastern Libya, rejected the ruling out of hand. They charge
that the court's ruling is invalid because it was issued from a city that
fell outside of the control of the state by a body (the court) that was
being held at gunpoint by the "terrorist" Libya Dawn militias that have
seized control of the capital. Accordingly, a statement by the parliament
sitting in Tobruk declared that it refused to recognise the decisions of the
court because "its will has been usurped". The statement did not specify
what actions the parliament intended to take now amid the difficult position
of its members.
An indication of the lengths to which some MPs in Tobruk and their
supporters might go in reaction was given by the MP from Benghazi Abu Baker
Buera, the eldest representative in the house and a leader of the Cyrenaica
federalist drive. "We will not bow to the court's ruling, even if we have to
partition the country," he said. His remarks reflect the federalists' fears
of the negative repercussions the court ruling could have on their drive and
on the advantages they had gained since entering parliament.
However, in spite of the parliament's announcement of its rejection of the
court ruling, a considerable degree of confusion prevails among its MPs.
Official parliamentary spokesman Faraj Bu Hashem Al-Obeidi said that the MPs
would not contest the ruling, but then mentioned that they would file a suit
against the Supreme Court with African Court of Justice, after which the
parliament's spokesman Aqila Saleh Eissa Quweider said that they would bring
the matter to the International Court of Justice.
The MPs who have been boycotting the parliament in Tobruk, who hail from
Tripoli, Misrata, Gharyan and other cities in the northwest, immediately
announced their acceptance of the court verdict and called on their
colleagues in Tripoli to comply with the judicial ruling.
The court ruling and its repercussions are ironic in many ways. Those
voicing objections today are the same one who praised the court for its
integrity only a few months ago when it upheld the appeal contesting the
constitutionality of the GNC's appointment of business magnate Ahmed Maetig
as prime minister to succeed Abdullah Al-Thinni who is currently serving as
interim prime minister. Now these critics are questioning the integrity of
the court and calling for it to be restructured. Some have claimed that two
members of the court had stepped down on the evening before the ruling was
issued, a charge denied by supporters of the ruling who countered that the
judges in question were not members of the constitutional branch of the
Supreme Court and had no connection with the case at hand.
More curious is that the parties that reject the ruling do not want to read
the court's justification which states that the adopted proposals of the
February Committee are null and void because the GNC, at the time, did not
have the legal quorum to vote them into law.
The members of the GNC's February Committee, themselves, say that the
Supreme Court ruling does not diminish the legitimacy of the parliament but
only the legislative committee of the GNC. The Libyan legal scholar and
Tripoli University professor Al-Koni Abouda, who served as the chairman of
the February Committee, said that the Supreme Court ruling was only a "slap
in the face" to the GNC legislative committee. He added: "In the form it has
been issued, that verdict that Libyans and perhaps the world had been
waiting for has not and will not resolve the disputes between the
conflicting parties, contrary to what is being declared here and there."
Abouda also criticised the court for failing in the justification of its
verdict to specify the effects and implications of the annulment of the
paragraph it had declared unconstitutional.
Another lawyer, Azza Al-Maqhur, rapporteur for the February Committee,
agreed that the court ruling did not affect the legitimacy of the elected
parliament, a conclusion that she too based on the court's reasoning that
did not explicitly state anything to that effect.
The Libyan Supreme Court ruling has stirred alarm regionally and
internationally. The UN Support Mission in Libya (UNSMIL) released a
statement to the press, a copy of which was obtained by Al-Ahram Weekly,
saying that had been informed of the verdict and that it was currently
studying it and monitoring the situation closely. It noted that UN Envoy to
Libya Bernadino Leon was consulting closely with Libyan stakeholders across
the political spectrum in the hope of reaching a solution that would lead
them out of the crisis, which has become more severe.
The governments of the US, UK, France, Italy, Germany, Spain, Canada and
Malta released a joint statement expressing their concern over the sharp
polarisation in Libya and urging all concerned parties to halt the violence
and all military operations in the country.
The eight countries, in their statement released Friday, noted that they
were also studying the Libyan Supreme Court ruling and engaging in
consultations concerning it in order to determine the best possible solution
to the crisis. This is unlikely to be these countries' final stance on the
matter. Prior to the joint statement, the Italian foreign minister remarked
that the Libyan court's ruling was "not encouraging". Also, European sources
were cited by the Libyan Al-Wasat newspaper as saying that the EU had urged
the countries neighbouring Libya to express reservations to the ruling.
In fact, informed sources who spoke to the Weekly on condition of anonymity
offered information indicating that regional powers have begun to assert
pressure on the Arab League to issue a statement expressing reservations on
the court ruling or refusing to recognise it. The sources said that Algeria
rejected this pressure.
As the political situation deteriorates, warring militias continue to battle
it out. In Benghazi, the forces of Operation Dignity launched by retired
General Khalifa Haftar are wrestling for control over the city with the
Shura Council of Benghazi Revolutionaries (SCBR). The city is reported to be
suffering severe humanitarian conditions as a result of the protracted
fighting as Operation Dignity sustains its drive to release the city from
the grip of Islamist militias that seized control in July.
In the west, the forces of Libya Dawn have succeeded in breaking the siege
against the city of Kikla by forces from Zintan and Bedouin areas. The death
toll from the battles is continually rising.