Saleh proposes alternative 30-member constitutional drafting committee to resolve constitutional stalemate – report and analysis

By Sami Zaptia.

Ageela Saleh (Photo: HoR).

Tripoli, 18 January 2022:

The speaker of Libya’s parliament (the House of Representatives – HoR), Ageela Saleh, has called for the formation of a new committee to draft the country’s constitution. Saleh was speaking during his presidency of yesterday’s opening HoR session in Tobruk.

Saleh returns to his role as HoR President

It was the first time that President Saleh had chaired a HoR session since September 2021. Saleh had temporarily stepped down from his role as president last September in order to stand as a candidate in the country’s now postponed presidential elections. The electoral law provided that candidates had to temporarily resign their positions three months before the elections scheduled for December 24.

Committee of 30 specialists to report in 30 days

Salah proposed that the drafting committee of the new constitution be made up of 30 intellectuals, writers, thinkers and academics specializing in constitutional law, representing the three historical regions of Libya. The committee must report within 30 days of the start of its work.

He said the committee will be supported by Arab and international expertise to formulate a modern consensual constitution that meets the wishes of all Libyans and is capable of establishing a democratic state. He added that it is no longer acceptable to impose a draft constitution rejected by the Libyans. .

Speaking at yesterday’s session of the House of Representatives designated to hear HNEC leader Emad Sayeh) on the postponed December 24, 2021 elections, Saleh stressed that his proposed new constitutional drafting process will not affect the conduct of the ongoing electoral process.

Analysis:

Saleh’s new constitutional reform proposal opens a Pandora’s box

HoR President Saleh’s new constitutional reform proposal opens a Pandora’s box. There are good reasons why the issue of Libya’s permanent constitution has not been resolved since the overthrow of Gaddafi’s regime in 2011. It is a political and ethnic minefield.

Saleh knows that the current draft constitution was drafted by the Constitutional Drafting Assembly (CDA). The CDA is an elected body. It will not be easy for Saleh and the elected HoR to undo it overnight. This will open up even more legal contestability in the realm of Libyan politics.

Draft constitution vexed – rejection by Tebu and Amazigh

It will be recalled that the Constitutional Drafting Assembly Elect (CDA) originally presented the HoR with its latest draft constitution in July 2017, but a ruling by a (lower) court in the eastern town of Beida in August of the same year had prevented the HoR from discussing/approving the project.

However, the Supreme Court later overturned that decision in February 2018, clearing the way for the House of Representatives to debate and vote on the draft constitution.

However, it should also be borne in mind that the Amazighs boycotted the CDA elections in February 2014 and that the two ethnic Tebou members of the CDA did not vote in favor of the “approved” draft constitution.

Under current voting rules, the constitution must be accepted by at least one of two CDA members from each of Libya’s three ethnic communities – the Amazigh, Tebu and Tuareg. In theory, their inability to vote for the draft constitution invalidates the vote on the draft constitution. Nevertheless, the HoR chose to ignore this anomaly and proceeded to adopt it. But despite this, the HoR, led by Ageela Saleh, could not force Libya’s Tripoli-based governments or HNEC to hold a referendum on the disputed draft constitution. Libya’s current political roadmap/provisional constitution stipulates that the draft constitution must be approved by popular referendum.

Libya remains in a constitutional vacuum

Thus, Libya remains in a constitutional vacuum operating under the Transitional Constitutional Declaration (TCD) of 2011 and its subsequent policy amendments and roadmaps (Skhirat and the Libyan Political Dialogue Forum).

Weak and unconstitutionally selected governments unable to move Libya forward

The TCD does not produce a strong and fully mandated legitimate government that can implement sweeping reforms of the system inherited from Gaddafi. Libya needs a strong government 11 years after the overthrow of the Gaddafi regime to reform the old system and provide essential public services such as security, stability, health, cash, gasoline, gas kitchen, electricity, infrastructure, etc. elections, preferably based on the constitution, can offer hope and opportunity for reform, development and progress.

Hiding behind a semblance of constitutionality, the HSC continues to indirectly resist the holding of elections | (libyaherald.com)

The High Council of State proposes an alternative constitutional basis, parliamentary and presidential rules for the holding of the elections of December 24 – Another movement of obstruction? | (libyaherald.com)

presidential election law ”approved” by HoR and sent to HNEC and UNSMIL-HSC rejects it | (libyaherald.com)

While acting as a technical adviser to the HoR-HNEC meeting in Rome, UNSMIL urges HoR and HSC to work together on a constitutional basis for the elections | (libyaherald.com)

Next face-to-face LPDF meeting to make final decision on constitutional basis for elections: UNSMIL’s Zenenga | (libyaherald.com)

Libyan Presidency Council May Issue Decree on Constitutional Basis to Overcome Political Deadlock – Koni | (libyaherald.com)

Libyans must have the right to vote on the draft constitution by referendum: CDA | (libyaherald.com)

Saleh insists that the HoR has a constitutional basis and the necessary laws to organize the December 24 elections in time | (libyaherald.com)

The Amazighs throw the key in the consensual and constitutional elections of December 24 | (libyaherald.com)

Ninety-one HSC members call for temporary adoption of draft constitution to expedite December 24, 2021 elections | (libyaherald.com)

Fifty-one members of the HoR call for the adoption of a draft constitution as a provisional constitution for the elections of December 24 – postponement of the referendum due to lack of time | (libyaherald.com)

HSC insists on the referendum on the constitution before the elections of December 24 and on Bouznika as the basis for the choice of sovereign positions | (libyaherald.com)

The UN Security Council adopts two resolutions on Libya: reiterates the need for constitutional elections on December 24, a ceasefire on October 23 and the withdrawal of all foreign and mercenary forces | (libyaherald.com)

The holding of a referendum on the draft constitution could delay the date of the elections beyond December 24, 2021 | (libyaherald.com)

Amazigh Supreme Council boycotts planned referendum on draft constitution | (libyaherald.com)

HoR begins discussion of the draft constitution and its referendum | (libyaherald.com)

Supreme Court rules that it is not for Beida court to decide constitutional cases – clears way for HoR to legislate for referendum | (libyaherald.com)

CDA votes on the draft constitution declared invalid by the Beida court | (libyaherald.com)

LFJL sees contradictions in draft constitution, says it must protect rights and freedoms of all Libyans | (libyaherald.com)

New draft constitution ‘gives everyone something and no one everything’ | (libyaherald.com)

Draft Constitution of Libya – Overview | (libyaherald.com)

The CDA asks the electoral commission to prepare a referendum on the draft constitution while the Tebu representatives reject it | (libyaherald.com)

Activists call on HoR to reject draft constitution as Amazighs consider legal action against it | (libyaherald.com)

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