On Dec 6th, Libya ‘s HoR adopted a law establishing a constitutional court to be based in Benghazi & transforming the Tripoli-based Supreme Court into a Cassation Court.
In legal terms, the origin of Libya’s current crisis goes back to a ruling by the supreme court’s constitutional chamber issued in Nov. 2014 and annulling HoR election.
From a legal standpoint: the current The House of Representatives (HoR) is not the elected house parliament of Libya, but a body revived by The Libyan Political Agreement (LPA) as a party to a conflict and partner in a process together with The High Council of the State (HCS) also revived by the same Agreement.
Since then, many constitutional challenges were launched before the same constitutional chamber against measures and acts taken by the HoR and its Speaker. But the chamber remained closed.
Last August, as chief justice Hafi entered and arm-wrestling with HoR Speaker, he re-opened the constitutional chamber thus making the risk for HoR very concrete. In retaliation, he was removed. HoR speaker continued his offensive against the judiciary.
This had resulted in appointing a new head of the High Judicial Council based on a law that was never passed; appointing a new General Prosecutor. Establishing a constitutional court is only the logical culmination of that strategy.
HoR Speaker’s strategy is consistent & effective: induce, every now and then, a new destabilizing element, fact, act, & gradually bring all institutions under his authority. With a constitutional court he would have designed & selected, his exercise of power will remain unfettered.
The too many procedural flaws put aside, the Supreme Court, including its constitutional chamber, was established by a constitutional provision and could be altered only by a constitutional amendment, not an ordinary law.
Quick explanation: The current supreme court was established by the 1951 constitution, and organized by a 1953 law. Those provisions were not annulled by 1969 Constitution Declaration. This is why the 1982 law did only re-organize the court, based on the same constitution framework.
Assuming it could be established by ordinary law, it is obvious that this court will address acts & “legislations necessary for the transitional period”. Accordingly, such a law would fall under LPA article 23-1 & would therefore be a shared competence between the HoR and HCS.
By establishing a constitutional court, the HoR tries to evade the many constitutional challenges launched against it before the Supreme Court. It does so by selecting its own judges.
A well-established principle of law states: no one should be a judge in his own cause.
HoR Speaker’s single argument is ludicrous: this is implementing the CDA draft as agreed between HoR and HCS committee. On this issue, “nothing is agreed until everything is agreed”, & those talks had famously failed. Further, HCS itself rejected the move & suspended contacts with HoR.
HoR has established chaos at the apex of the judiciary, the only branch that resisted the dynamic of institutional splits so far. It has thus killed constitutional review in Libya, one of the most important tools to protect people’s constitutional rights.
This is also another step in politicizing the judiciary, a development that will have long-term and devastating effects on Libyans, ordinary Libyans who rely on courts to protect their fundamental rights.
It has been a dramatic mistake for international actors to engage the Supreme Court and the High Judicial Council in political talks.
This court is a guardian of the constitution. Its very jurisdiction and power run counter to the quid pro quo political logic.
Further, the law governing the Libyan political process consists of 3 docs: the ICD, LPA, and LPDF Roadmap. A closer look at them, and analysis of their interaction, would reveal that the keyword is mutual consent, not legal validity.
This is a reminder that involving the judiciary will not only be damaging but also pointless.
Looking at comparative practice, nowhere in conflict-affected countries, was the conflict sorted out by a court ruling. Instrumentalizing and politicizing the judiciary will only have.
International community, and the mediation, in particular, should help preserve the unity, integrity, and dignity of the judicial function in Libya for the sake of the Rule of Law in this country.
Omar Hammady – Advisor to UN Envoys for Libya, Syria and Yemen.