Libyan court declares draft constitution illegal

The Administrative Department of Al-Bayda Appeals Court ruled that the amendment to the voting quorum of the Constitution Drafting Assembly (CDA) was illegal.

The verdict renders the latest draft of the constitution sent to the Tobruk-based House of Representatives illegal as well. There had been several meetings of the CDA in Oman. However, many who are boycotting the CDA were absent along with others who did not go because they thought the meeting should have been held in Libya. When the group returned to Al-Bayda, it met and amended the voting quorum to render the votes taken in Oman as legal. The same court had ruled on February 15 that the former head of the CDA, Ali Al-Tarhouni, was ineligible for the position because he was an American citizen.

The CDA sent its final draft of the constitution to the HoR on April 26. The CDA reportedly did not follow the terms of the Libyan Political Agreement (LPA):It has been reported that the CDA did not abide by the Libyan Political Agreement (LPA) Article 51 which requires that it take the opinion of the HoR and the Supreme State Council (SSC) on the draft constitution upon the completion of the final draft and before it is sent for referendum. Sources online have also reported that the SSC has called on the CDA to respect its obligations in the LPA and formally send them a copy of the draft constitution.

The feedback of both bodies must be sent back to the CDA within a month of receiving the draft. The State Council (SSC) did not receive a copy of the draft.

The LPA also says in Article 52 that if the work of the CDA is not completed before March 26, a committee must be set up consisting of five members each of the State Council and the HoR together with participation of the Presidency Council of the Council of Ministers which within two weeks of March 26 to deliberate the matter. The CDA process has managed to violate the LPA as well as illegally changing quorum requirements. As I noted also in a recent article there were reports that the constitution might be adopted without the required referendum.

What did Martin Kobler, Special Representative of the Secretary-General (SRSG) think of all this? He had much praise:“I applaud the diligent effort, courage and commitment of all members of the Constitution Drafting Assembly in trying to forge agreement on a draft constitution that can serve as the basis moving Libya beyond the transition period, and building a new modern Libyan state, anchored in the principles of democracy and separation of powers, rule of law, and respect for human rights, including equality for all, and guaranteeing the rights of women and all components of the Libyan national identity,” he stated.

He even said that boycotting was not an option. This was because the CDA meeting in Bayda illegally changed the quorum requirements for votes.

The original quorum requirements for a vote were two-thirds plus one of total elected members, to just fifty percent plus one of those attending the session. There were 41 votes required in the Oman sessions but only 33 members attended. Kobler is always appreciative of rule-breaking he thinks will help advance his aims. The draft constitution text can be found here.