A Note from the Authors: This legal opinion is dropped within the political events of UN Envoy Martin Kobler’s 2 March 2016 report to the UN Security Council. As such, the political situation is evolving such as the Kobler threat to reconvene of the Libyan Political Dialogue with presumably revisions to the LPA. If so, we hope this review will add to the LPA dialogue.
Some political observers will say the Libyan Political Agreement-LPA is dead due to the elapsed time-markers written within the LPA agreement. ALL markers mentioned have expired. Thus, in their opinion, any further discussion of the agreement is rather like BEATING A DEAD HORSE.
Still other political observers will say that the time-marker is a subordinate issue as critical for Libyans is the establishment of the Libyan political structure – a government. A government, a sovereign entity that governs, oversees and administers or simply takes care of the people’s needs. Therefore, setting aside the expired time-markers OR the lack of democratic procedures at the LPA’s birth ( John Kerry-“15 Libyans” & “The new unity government has been affirmed by a minority of members…acting as individuals, not as official representatives….”) OR the “Inexplicably” late public release of the LPA’s final draft OR the egregious Bernardino León “scandal” that gave the final draft signed in December 2015 OR that the subsequent LIBYAN-LIBYAN dialogue dismissed Internationally as the LPA “was the only way forward” OR the fact that UN Envoy Kobler finally admitted the UN “peace deal had been cobbled together hastily under Western pressure, and that it suffered from a “legitimacy problem” – in order to give credibly to that entity – that GOVERNment (GNA) which will govern the people – these political observers still believe that the LPA is still a viable option. It is neither the ONLY (LIBYAN-LIBYAN) nor necessarily the BEST, but if this is the intended political structure; it MUST be implemented in accordance to its own terms and rules. Therefore, we will examine the recent developments of political events in accordance with the LPA.
We chose to examine what Almukhtar Alarabi “newspaper has reported“ which “quoted a well-informed Libyan source.” Setting aside the ambiguity of “the source”, it gives us an opportunity to explain the amendment process as written in the LPA agreement. The Libya Observer noted:
“The Presidency Council of UN-imposed government might be reduced to 3 ministers instead of 9, Almukhtar Alarabi newspaper has reported.
During a meeting in Cairo between Tobruk Parliament speaker Aqailah Saleh and Prime Minister of UN government Fayaz Sirraj, both sides agreed to amend the constitutional declaration in the forthcoming parliament meeting as a first step, and then discuss approval of the government after reducing the Presidency Council ministers to 3, a prime minister and 2 deputies.”
…Both sides (Agailah Saleh & Fayez Sirraj) agreed to amend the constitutional declaration in the forthcoming parliament meeting as a first step, and then discuss approval of the government after reducing the Presidency Council ministers to 3…
Simply stated, according to the LPA’s article 12 of the Additional Provisions, (Page 21), this political initiative is NOT legal. Article (12) of the Additional Provisions (Page 21) states:
“All institutions stipulated in the Libyan Political Agreement shall derive their legitimacy from the Constitutional Declaration and its amendment as annexed to this Agreement after its endorsement and adoption in its entirety, signing and entry into force. Should it be necessary to introduce subsequent amendment to the Constitutional Declaration that affects, whether directly or indirectly, the Agreement or any of the institutions that emanate from it, the House of Representatives and State Council shall commit to achieve consensus among themselves to agree on the format of such amendment. The final endorsement of this amendment shall be given by the House of Representatives, without amendment, based on the mechanism stipulated in the Constitutional Declaration.”
With reference to the aforementioned news-report: “Both sides (Agailah Saleh & Fayez Sirraj) agreed to amend the constitutional declaration in the forthcoming parliament meeting as a first step, and then discuss approval of the government after reducing the Presidency Council ministers to 3″ – that this statement is an obvious violation of Article 12 is both CLEAR and UNEQUIVOCAL for 4 reasons:
ONE: The LPA and its institutions mentioned in the LPA (such as the Government of National Accord, Presidency Council for the Council of Ministers, the House of Representatives and the High Council of State “the State Council”) MUST be endorsed ENDORSED and ADOPTED IN ITS ENTIRELY, SIGNED AND ENTERED INTO FORCE – FIRST.
TWO: The nominees of the Presidency Council of Ministers are FINAL. (Annex 1, page 23).
THREE: If there is a need for amendment, it occurs ONLY AFTER the HoR voted to endorse the LPA – without reservations. ONLY then may the HoR raise its intention to amend. According to Article 12, any amendment is an exercise done ONLY by the State Council and HoR. Head of the Presidency Council’s Faiz Serraj is NOT involved in the amendment process.
FOUR: The State Council and the HoR are JOINTLY responsible for amending the Constitutional Declaration on issues related to the LPA and its institutions. To amend the Constitutional Declaration in a way that will have an impact on the LPA, the HOR must reach an agreement (a consensus) with the State Council in that regard. “…the House of Representatives and State Council shall commit to achieve consensus among themselves.”
Prior to the LPA’s endorsement, the HOR was the SOLE body authorized to amend the Constitutional Declaration. After the endorsement of the LPA, the HoR is no longer the sole authority – any amendment must be approved jointly (a consensus) by the HoR and the State Council.
So what is the State Council? the High Council of State aka. The State Council… or Tripoli’s GNC: Annex 3 “Basic Rules for the Functioning of State Council” (page 26):
Article 1. “The State Council shall comprise one hundred and forty five (145) members who were elected during the General National Congress elections on 7 July 2012…”
As the GNC did NOT sign off on the final agreement it makes it impossible LEGALLY to adopt an amendment within the framework of the LPA. You cannot just skip the consensus step and move straight to HoR vote.
Therefore, there are two options for Mr. Kobler, Mr. Serraj, and/or Mr. Saleh: (1) bypass the GNC (which is a violation of the LPA) OR (2) negotiate and sign a NEW agreement.
Worthy of note: according to Annex 4, Article 2. Proposal on the Amendment of the Constitutional Declaration (page 28) “Any provision or article in the Constitutional Declaration and its amendments that contravenes the Libyan Political Agreement shall be cancelled.”
In other words, according to Annex 4, Article 1 & 2 (page 28) the Constitutional Declaration shall be amended to include the LPA and what contradicts the LPA in the Constitutional Declaration will be eliminated. Therefore, what is in the UN-drafted LPA SUPERSEDES the Libyan-drafted Constitutional Declaration and is MEANT TO CHANGE the Constitutional Declaration.
Politically, what has occurred since 25 January 2016
As reported, the HoR has tried to amend the LPA (Article 8 and the Presidency Council) BEFORE they even adopt it into Libyan Law. Again, this is not legal via the LPA’s article 12, the HoR must vote to endorse the LPA without reservations – FIRST – then, the HOR & the State Council may raise its intention to amend the LPA. Yet, while the HoR violates the LPA themselves…
…On 8 March 2016, it is ironic and hypocritical – that HoR WARNS about”A Clear Violation of The LPA And Constitutional Declaration” & warns about “Adherence to what is written in the LPA and Constitutional Declaration” as reported in Alwasat.
A Sand-Storm of Confusion
There seems to be a sand-storm of confusion about the 26 January news reports of the “endorsement in principal” of the LPA vote by the HoR. Which to date seems to be the only vote. When wadding through to the legal points, we noticed that most news reports were not based on the vote’s legality in relationship to the LPA’s articles. Rather, some just relied on political spin to give a positive edge the vote. So, with these 5 examples, let’s start with the best authorities.
- First, technically cautious UN Envoy Martin Kobler: on 25 January 2016, “Martin Kobler, welcomes the endorsement in principle of the Libyan Political Agreement (LPA) by the House of Representatives. “I take note of the reservation of the House of Representatives on article (8) and remind all parties that any amendment to the LPA must be in line with the mechanism of the Libyan Political Agreement.” SRSG Kobler said. Again, on 2 March 2016 to the UNSC Mr. Kobler’s report Point 3 (page 1) noted: “On 25 January, the House of Representatives voted to endorse the Libyan Political Agreement, with the exception of article 8 of its additional provisions.” BUT, in Point 88 (page 15) Mr. Kobler’s report stated: “88. I am encouraged by the decision of the House of Representatives to endorse in principle the Libyan Political Agreement and the Presidency Council emanating from it.”
Well, “Endorse in Principal” is a political statement and NOT a legal process. Therefore, in so-many-political– spin-words, Mr. Kobler said the LPA was NOT passed into law. Mr. Kolber knows that any reservation of the LPA – even if there is enough votes for adoption – means it will NOT pass into law via the LPA mechanisms.
- Second, via the HoR FACEBOOK posting, on 26 January 2016, the HoR “endorsed” the LPA.
- Third, Azza Kamel Maghur in her article noted: “The Libyan Political Agreement is now officially part of Libyan legislation. After it was signed in Skhirat in December, the Libyan parliament or House of Representatives (HoR) adopted it in January with one reservation related to Article 8 of the Agreement’s additional provisions. By taking this pivotal step, the HoR made the overdue United Nations-backed Political Agreement part and parcel of the Libyan Constitutional Declaration…”
Well, no. “With one reservation” means it did not pass into law via LPA mechanisms. It MUST pass “its entirety” WITHOUT reservations.
- Four, a Libya’s Channel report: “In Monday’s session the HoR also held a second vote on December’s UN-backed Libyan Political Agreement – which was also effectively rejected in its current form. 97 lawmakers voted in favor of the peace deal on the provision that Article 8 of the additional provisions – a recent addition to the text – was removed…”
Yes. It was effectively rejected as it MUST pass in its entirety or its current form. And no. The 97 lawmakers CANNOT vote in favor of the peace deal on the provision that Article 8…was removed.
- Five, The Libya Herald report noted what seems to be the most legally logical – as it based on the agreement’s wording – not the whims of politicians:
“The deal was given tentative approval by 97 out of 104 members this afternoon in an initial vote on it. However, they called for the clause (8) transferring the powers of the senior military, civil and security posts to the Presidency Council of the Council of Ministers and for it to decide who hold such posts within 20 days of being appointed to be dropped…
“I take note of the reservation of the House of Representatives on article (8) and remind all parties that any amendment to the LPA must be in line with the mechanism of the Libyan Political Agreement.” Kobler said.
However, it is unclear in the LPA what that mechanism is at this stage. The text suggests that the deal cannot be amended and has to be accepted or rejected in its entirety. Once accepted, though, amendments can be made providing there is consensus between both the HoR and the State Council.”
Note that Mr. Kobler made reference to Article 12: “that any amendment to the LPA must be in line with the mechanism of the Libyan Political Agreement.” Secondly, this Libyan Herald reporter is exactly correct via Article 12 in the last paragraph. Legally, the LPA MUST first be accepted in “its entirety”, and then to make amendments, it must be based on a consensus between the State Council and the HoR. Simply stated, “endorsement in principal” adopted with “reservations” indicates that the vote is not-in-line via Article 12.
Therefore, the HoR’s 25 January 2016 “Endorsement” is misleading. As the HoR proposed an amendment to the LPA PRIOR to its endorsement, the HoR declaration of a 25 January endorsement is misleading at the minimum. Again, as per the LPA, the HoR must have voted to endorse the LPA without reservations – FIRST – then it may raise its intention to amend the LPA. Again, via Article 12, any amendment must be approved jointly by the State Council and HoR.
In other words, the HoR put the cart before the horse. Secondly, contrary to the views of the HoR – it has no exclusive authority to amend.
Another consideration, The Faulty Platform on which the LPA Rests. That platform – the LPA’s legitimacy – will be the source of its downfall. The LPA didn’t receive initial legitimacy (a vote) from either side. Besides the HoR’s endorsement in principal” debacle, the LPA’s final draft was not approved by Tripoli’s GNC as it contained segments not previously negotiated – including the nominees of the Presidency Council. Mr. Salem Al Ganaydi, a member of Tobruk’s HoR, said on “Dialogue…” an analysis program broadcasted on Libya Al Ahrar (2 March 2016), “that the HoR and GNC signed with initials the fourth draft of the LPA. However, the people who signed the final copy of the LPA were not authorized by both parties. The HoR representatives in Sukhayrat were required to obtain the HoR authorization on what was agreed upon in Sukhayrat – before signatures.”
As a result of the unauthorized additions sparking rejection by both HoR & GNC, UNSMIL sidestepped their regulations in December. Knowing either parliament would not agree to the LPA, UNSMIL arbitrarily decided that it didn’t need of vote by either parliament and endorsed the agreement based on the signature of 19 Libyans. A Libyan pundit noted the lack of democratic process when he characterized it as “The new unity government has been affirmed by a minority of members of both the GNC and the HOR, acting as individuals, not as official representatives of their respective governments. This, apparently, is good enough for the international community and the U.N…”
The UN Security Council voted to endorsed this agreement based on the less-than-democratic signing of 19 private citizens for 6.5 million people!
The Distinction between what is Legal and what is Political: The technicality of the law. A political decision is act or a decision made within the law. In other words, a political decision MUST be based on the existing laws. Note the old adage – NOBODY is above the law, so it goes NO political decision is above the law. So is the function of the Supreme Court, the High Courts within every country, to interpret political decisions within the framework of existing laws.
Therefore, as reported, IF Faiz Serraj, Judge Agila, the HoR and “monitored by UN chief in Libya Martin Kobler” attempt this maneuver – and they may – it would be an arbitrary POLITICAL decision based on THEIR political whims and what THEY think THEY can sell to the Libyan People. It is merely fallacy to say it is legal based upon the mechanisms within the LPA.
Rather, if they wish to proceed with this charade of a false amendment, stop calling it implementation of the LPA – Libyan Political Agreement. To call it Libyan any longer, would be a stretch. If the UN continues to “monitor” OR dictate OR cherry-pick – in HIS document – which articles not to follow (8 & 12) and which Libyan institutions (State Council) to bypass as mentioned in the LPA, please end the charade. Refer to it as it has been from inception, a UN-dictated mandate starting when Bernardino León – with the knowledge of UN Chief Ban and his #2, Jeffrey Feltman – submitted it to the Libyans based on the whims of non-Libyan STATE actors as they amuse themselves in a “GULF ARAB RIVALRY” manifesting as a Proxy War on Libyan territory – with Libyan blood.
Post Script: As we assembled this, there seems to be new political proposals floating all around, 2016 version of Bevin-Sforza Plan & the reinstatement of the Monarchy or even the possibility of a new Libyan Political Dialogue via Mr. Kobler:
We note that Mr. Kobler has chastised BOTH the HoR and the GNC on Page 1 of his 2 March 2016 report to the UNSC: “At the same time, the institutional crisis resulting from competing claims of legislative legitimacy from the General National Congress and the House of Representatives continues to undermine progress in the political process”.
We see it as a well-deserved reprimand to both sets of political entities on behalf of the Libyan people. Our PDf copy: UN Envoy Kobler’s report to UNSC 2 March 2016
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