In relationship to each other, why is it legally significant? Simply, the Libyan Political Agreement-LPA is not endorsed via the LPA mechanisms & Libyan law – and couple in that the House of Representatives -HoR’s mandate has expired – technically we argue, the HoR is out of a job. That is, both the HoR and the State Council.
About our post, "Libya’s House of Representatives' Political Mandate has expired", we realized that further explanation needs to be given to the significance of the elapsed mandate of the HoR. We have argued since January through three articles, with respect to the LPA - the HoR has NOT ENDORSED IT in its ENTIRETY, NOR SIGNED & PUBLISHED IT in the Official Gazette. Without these satisfied, via the legal mechanisms of the LPA and Libyan law - the LPA is NOT technically part of Libyan Law. And what’s more, UN Envoy Martin Kobler agrees!
Since that 25 January 2016 HoR’s “endorsement with a reservation” Martin Kobler has mentioned that the any changes to the LPA must be via the LPA mechanisms. We refer to our 3 March 2016 article “The Libyan Political Agreement: A Legal and Political Review of its Adoption & Amendment Mechanisms” where we discussed this in detail. Our article:
“There seems to be a sand-storm of confusion about the 26 January news reports of the “endorsement with reservations" or “endorsement in principal” of the HoR vote on the LPA. Which we note, seems to date 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 pundits just relied on political spin to give a positive edge the vote. Mr. Kobler among others, put his spin on the HoR’s “endorsement with reservations”.
Kobler: “Endorsement in Principal”
Technically cautious UN Envoy Martin Kobler: on 25 January 2016 noted, “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.”
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.”
Mr. Kobler’s “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 actually passed into law. Mr. Kobler knows that any reservation of the LPA – even if there are enough votes for adoption – means it will NOT pass into law via the LPA mechanisms.”
The Contentious but Unequivocal 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.”
Endorsed in its Entirety –via article 12
“After its endorsement and adoption in its entirety, signing and entry into force” none of these prerequisites have actually taken place. Either the HoR and Mr. Kobler mention “endorsement in principal” endorsement with one reservation” - YET neither is “endorsed in its entirety’ via article 12.
Simply stated, “endorsement in principal” or "endorsement with “reservations” indicates that the HoR's 26 January vote is not-in-line via Article 12. Nor via Libyan Law has a signed copy of the LPA been published in the Official Gazette – therefore, the LPA has not passed within Libyan Law.
Further, the LPA supersedes the Constitutional Declaration. 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. But, 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 actually MEANT TO CHANGE the Constitutional Declaration.
So the LPA is rigid and unequivocal and IF there is going to be amendments it will NOT be to the LPA as it is FINAL as is. IF there is amendments, it will be only to the Constitution Declaration. BUT no matter what is amended – if it contravenes the LPA… it shall be cancelled.
See - rigid and unequivocal. The LPA supersedes the CD, is FINAL as is & CANNOT be amended and therefore, Article 8 stays. Further, Article 8 - "with reservation" - is why the Government of National Accord has not been adopted.
The significance of Article 8: Where does Mr Heftar report.
The HoR hopes to eliminate the article 8 PRIOR to the LPA's adoption, signing and publishing. WITHOUT Article 8 HoR president Agila Saleh remains the head of the military and Mr. Heftar’s job is secured. But, WITH Article 8 Mr. Serraj is the Commander-in-Chief. Neither Mr. Heftar or Mr. Saleh want Mr. Heftar's job security to become tenuous.
The contention of article 8 was best described by the Libya Herald in their 21 April 2016 article, "Majority of HoR members declare approval of national unity government but want Article 8 deleted":
"However, they also said they wanted the controversial Article No. 8 of the LPA’s additional provisions to be deleted. Under it, the Presidency Council is supposed to appoint or reappoint heads of major military, security and civilian posts within 20 days of the LPA being signed.
Many see the article as an anti-Hafter move."
“Many see the article as an anti-Hafter move". Thus, the reason for the stalemate - the HoR cannot change Article 8 and by not voting they preserve Mr. Heftar's position while gain political power by postponing a vote which undermines the UN-backed GNA.
In Conclusion
The HoR’s 25 January “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, the HoR must vote to endorse the LPA without reservations. Without reservations including Article 8..
“Endorsed in Principal” or “Endorsed with Reservations” or “Endorsed in its Entirety”
We can conclude that the LPA has not been “endorsed in its entirety” via article 12 - but ONLY “endorsed in principal” or “endorsed with reservations”. As such the LPA has not been signed or published in the Official Gazette as per Libyan Law. Therefore, we argue the LPA is not part of Libyan Law.
Couple this with the mandate of the HoR has expired on the 20 April 2016, we argue that the HoR is no longer is an entity - via mandate or LPA - with a legal right to make ANY decisions for Libya.
Thus, Libya is open to new interpretations of what road to pursue including an emergency government under a UN Mandate with neither a non-functioning parliament or a state council.
And taking in consideration that NEW legislation a parliament provides is not currently needed, we ask the same question again, for the moment does Libya need a parliament? Or only a caretaker government?
Applicable links:
Our Post: "Libya’s House of Representatives' Political Mandate has expired."
UNSMIL’s Libyan Political Agreement (English)
25 January 2016 Martin Kobler’s comment on LPA:
9 March 2016 UNSC Report on Libya: ” Letter dated 4 March 2016 from the Panel of Experts on Libya established pursuant to resolution 1973 (2011) addressed to the President of the Security Council
The HoR FACEBOOK posting, on 26 January 2016, the HoR “endorsed with reservation” the LPA
The Libyan Herald explains article 8: "Majority of HoR members declare approval of national unity government but want Article 8 deleted"
Our three articles on the Libyan Political Agreement:
3 March 2016: “The Libyan Political Agreement: A Legal and Political Review of its Adoption & Amendment Mechanisms”
22 April 2016: “Wholesale Violations of the Libyan Political Agreement”
مخالفات الإتفاق السياسي الليبي…بالجملة
28 January 2016: Article 8 and 12 in the LPA
كوبلر: على مين يا طبرق
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