Libya's Constitutional Crisis

By Naeem Al-Gheriany
On November 6, 2014, in an unexpected decision, and against a backdrop of
continuing political and military polarization, the Constitutional Chamber of Libya's
Supreme Court struck down the 7th Amendment to the Constitutional Declaration,
the current supreme law of Libya. This amendment, passed by Libyas transitional
legislative body, the General National Congress (GNC), in March 2014, had
provided the basis for the election of a House of Representatives in June 2014. The
Supreme Court's ruling has been interpreted by many, including the rump GNC and
its Salvation Government in Tripoli, as signaling the dissolution of the House of
Representatives. This interpretation, along with the rump House's rejection of it, has
thrown the country into a dangerous constitutional crisis, one which threatens to
further intensify the seemingly intractable political and military conflict that has
plagued Libya over the past three years.
In the wake of the Court's ruling, a number of Libyan lawyers and legal scholars
have expressed dissenting opinions about the decision, with some arguing that it
does not necessarily entail dissolution of the House. These opinions will remain
purely academic, however, unless the Court provides clarification as to the
implications of its ruling. Should the Court do so, it would enable the resumption of
the Ghadames dialogue that was first launched in September 2014, at the invitation of
the United Nations Support Mission in Libya (UNSMIL), and which sought to bring
together opposing factions from the divided House of Representatives with a view
toward ending the current political stalemate. However, short of a clear statement
from the Court that its decision does not imply dissolution of the House, a viable
political solution to the crisis remains elusive.
Four scenarios are possible if the Courts decision is interpreted to signal dissolution
of the House of Representatives. First, competing sides could accept the Court's
decision and recognize the rump GNC as the sole legitimate legislative body until
the next elections--either early elections or elections following the ratification of the
constitution. This option is, however, unlikely to be chosen given that many
members of the House, as well as some members of the GNC, will reject the GNCs
return.

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A second option would be to ignore the Court's decision and continue to recognize
the House of Representatives as the sole legitimate legislative body in Libya. This
option is unsatisfactory insofar as it poses similar risks to the first, with the added
negative ramifications of undermining the Court and the independence of the
judiciary in a state that can ill afford to erode one of its few functioning institutions.
A third scenario would be to call on the Constitution Drafting Assembly (CDA), the
special body elected in February 2014 to draft a new constitution for Libya, to fill the
legislative void, limiting its role to appointing a unity government and preparing for
new elections. However, distracting the CDA could delay completion of its principal
task. In addition, this option could also face strong opposition from many parties
(including the House and the GNC), with no guarantee that the constitutionality of
the action will not be challenged in the courts.
Since the reinstatement of the GNC would be viewed as unacceptable to the rump
House of Representatives, as well as to most of the forces in eastern Libya, the first
scenario is not a viable option. However, it would be impossible for the House to
continue with business as usual in the wake of the Supreme Court's decision. This
necessitates the prorogation of the House until a political settlement can be reached
or until a new legislative body is elected. The prorogation of the House would,
however, result in a risky period of legislative vacuum in the country. The
responsibility of navigating this difficult period is primarily Libyan; however, given
the current and increasingly intractable political polarization in the country, this
option necessitates direct involvement and clear leadership from the United Nations.
Dialogue mediated by a neutral third party is the only option that stands any chance
of success, given that none of the other three scenarios is constitutionally robust and
each would face strong opposition from the disadvantaged party. This option would
entail a resumption of the dialogue process, first initiated by the UN, but with an
expanded scope, i.e., Ghadames 2. The dialogue should be inclusive, transparent,
and in accordance with the principles of national ownership, and the effort should
begin by designating members of the dialogue team and developing a clear action
plan. The dialogue team should include representatives from the GNC, the House,
city councils, leaders of the armed groups, political parties, religious leaders, and
representatives of civil society. The UN should ensure that the interlocutors reach
an agreement on a comprehensive and verifiable ceasefire and the formation of an
interim unity government. The new interim government should only manage dayto-day affairs and should not undertake any major policy initiatives. Other issues to
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be negotiated include the withdrawal of armed groups from major cities, control of
airports by government authorities, handover of state buildings and facilities to the
government, and interim security arrangements.
The role of the UN in mediating a political solution is indispensable; however, its
effectiveness is contingent on the strong support of the United States and the
European Union, and on putting an end to disruptive outside interference. This
requires holding all countries to commitments made during the September 2014
New York meeting on Libya convened by U.S. Secretary of State John Kerry and
attended by a dozen foreign ministers, as well as the October 2014 Paris meeting
which brought together Special Envoys of the African Union, Arab League,
European Union and a number of western governments, with the Special
Representative of the UN Secretary-General, Bernardino Leon. It also requires
taking deterrent measures, as stipulated by UN Security Council Resolution 2174
(2014), against individuals and entities that threaten Libyas stability, security, or
obstruct or undermine its peaceful political transitionthis must include the
renegade General Khalifa Haftar among others.
A country that stands at a geopolitical crossroads between Africa, Europe and the
Middle East, Libya is too important to fail. The risk of it falling into a full-blown and
prolonged civil war, if abandoned at this critical moment, is real, but there is still
time for Libyans, and for the international community, to put the country back on
track. Unfortunately, if the political process fails, the present window of opportunity
may close permanently, and the breakup of the country could become the de facto
scenario.
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Dr. Naeem Al-Gheriany is a Professor of Nuclear Engineering at the University of Tripoli
and a member of the Libyan House of Representatives. He previously served as the Minister
of Higher Education and Scientific Research in the first Transitional Government in postQaddafi Libya.

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