Thread by @o_hammady

1. #Libya’s #constitutional basis (not) agreed upon btw #HoR-HCS was released cutt.ly/LZhfoMJ. “Embarrassing” doc: creates more prb than CDA draft & reveals hasty drafting. Instead of bringing 2 houses together, it is now dividing each of them. Observations on this doc:

2. Note: The text was supposed to be an amended version of the CDA’s draft constitution. Unless explicitly mentioned, the below observations deal only with amendments inserted during the two houses' Cairo-Geneva talks.

3. Art 2 on minority languages makes them official “in areas where they are spoken”. Not acceptable to minority groups who want them official languages of the State. CDA original text remained constructively vague and envisioned a parliamentary session to deal w the matter.

4. Art 5 constitutionalizes the independence flag. Unacceptable to the Greens. After consultations, CDA had decided to leave the matter to subsequent law to: 1. Leave space for consensus-building; 2- avoid giving explicit ground for important constituencies to resist the draft.

5. Art 6. Problematic and surprising: 1)- those who used to criticize the draft for being ‘islamist’ redrafted the relevant art making it more radically grounded in Islamic Shari’a by adding “Any law or legislation contravening to Sharia’s rulings shall be deemed null and void”.

6. 2) the art asserts “islamic Shari’a" as the main source of legislation” but annuls only laws & legislations contravening to its ‘rulings’: which of the two different concepts is the main source: Shari’a or a7kam Shari’a? Not mentioning the redundant “law AND legislation”

7. Parliament: Chapter III maintained the CDA idea of two chambers each elected directly by the ppl. One chamber is to be located in Benghazi, but not clear whether the second is in Tripoli or Sirte (the draft says Tripoli but HoR stated it is Sirte).

8. In the current context, two chambers, having the same democratic legitimacy -direct universal suffrage- one located in the east and the other in the west is just paving the way for an institutional division at the first difference.

9. Art 68. On HoR composition reinstates a 1951 provision that produced a parliament with 127 seats for the west; 54 East and only 19 South..There is almost no chance that this to fly in the east and south..southern members of both houses are already speaking strongly against it

10. Art 88. Elected MPs and senators can be removed by their pairs (also maintained from the CDA draft)..meaning that the political majority in one house can: a) overrule the universal suffrage through a mere disciplinary procedure; b) get rid of its own opposition!

11. Art. 81, laws can be delayed permanently: in case the two houses do not reach an agreement, the matter is postponed to the subsequent session endlessly. Standard practice is that one of them should have the final say, generally the lower chamber, the one with law-making power

12. Art. 118 establishes a new Administrative Courts’ system. CDA did opt or this following a series of consultations including assessing the impact of establishing such a system…negotiators in Cairo-Geneva did certainly not have time to conduct impact assessment studies

13. Local governance: some criticized the CDA draft for not providing for enough decentralization. The HoR-HCS version goes back to string central state: Art. 147 to be read together with art 150: crates 13 provinces based on no clear criteria but 1 of 3 electoral laws.

14. The established provinces are hardly viable for many reasons and raise serious issues of social peace in the current context.

15. Only provincial councils’ competencies are announced in general terms, some powers are closer to those usually granted to municipal councils, and in any case, they are tasked with ‘’implementing (central) State general policies’’.

16. No more clarity on the delineation of powers btw the three levels of gov. CDA draft was also brief on this but bc it opted for establishing criteria rather than enumerating powers. By way of comparison, delineating powers is the subject of 62 art in the south African const.

17. Art 186 is the big elephant in the room over which the entire negotiation has allegedly faltered:

oIt envisages simultaneous presidential AND parliamentary elections; allows military and dual citizenship holders to run for election under very light conditions.

18.
oMost importantly: in case the presidential election was not completed for any reason, all electoral operations, i.e. any results of parliamentary elections, shall be deemed non-existent.
oAs is well known, bc of eligibility conditions, there was no agreement.

19. Final remark: The HoR-HCS process engaged on matters not necessary to deal with if the objective is only to facilitate elections. It accordingly created additional problems making elections even harder than before their negotiations.

20. As a result, instead of bringing the two houses together, the end result divided each of them as one can observe in the public debate.

21. The UN mediation rested on the key assumption that the two houses will never facilitate elections and, on the contrary, will always resist them. How come it ended up considering them the only game in town? cutt.ly/PZhzagt

22. Talks about elections were doomed the day the UN suggested that the two houses can establish a new government provided they respect certain procedures. This shifted the focus from elections to competing for state and assets' control. cutt.ly/cZhzAiI

23. Presidential elections remain the key point of contention. Developments have shown that deep existential fears make each constituency resist it unless shaped in its own interest. Eligibility controversies r only a procedural reflection of that.

24. While elections are the only way out, the only way for a presidential election to take place might consist in shaping the presidential office as a collective body. This is the only way key parties will not feel left out, defeated, or excluded. END

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