Analysis of Legislation No. 13 2013
Photo Credit Foreign Policy
Structure, Criteria and Committee
Political isolation has been an emotionally charged topic for its supporters and the ‘revolutionary’ faction of the new Libya who view it as a necessary, final step of cleansing the political, administrative and economic corruption rotting the country over the 42 year reign of Qaddafi.
This law’s advocacy is founded on the belief that a revolution which changes the face, but neither the brains nor the heart of a state’s apparatus, is merely a violent transferral of authority and puts the power, possibility, and political will to change course in jeopardy. However, this has been a law long in the making and since its first advocates demonstrated in the days of the National Transitional Council (NTC), it is a law that has transformed countless times and always under the shadow of warnings from international NGO’s such as Human Rights Watch (HRW).
These warnings marked gradual distortions in the nature of this law, from embodying the aforementioned principles, to being characterised by the political opportunism which typified its debates and drafts. Indeed HRW’s key warnings of it being “too sweeping and too vague”, breaching “the country’s international human rights obligations” and diminishing “Libya’s long-term prospects for peace and security” all found echoes amongst the concerns of a growing amount of Libyans.
STRUCTURE AND CRITERIA
Analysing this law’s structure is helpful to us in understanding its character and its intended application by those who drafted it. It is interesting to note that whilst this law’s application starts – unsurprisingly – on 1st September 1969 (the date of Qaddafi’s coup d’état), it ends not on the 17th February 2011 (the revolution’s start), but on 23rd October 2011 (liberation day). This detail denotes a subtle shift in the theoretical nature of the law from targeting those who, through their position or actions, propagated corruption and abused the rights of Libyans; to removing all those opposed to the revolution by allowing adjudicators to take into account actions taken, statements spoken, or positions held against the revolution by those who were still working within the Qaddafi regime.
Article 1 is designed to distinguish grounds for isolation within two categories. The first involves isolation based upon roles, and the second deals more generally with “behavioural patterns” which “led to the corruption of political, economic and administrative life in the country…” It is in this article that the spirit of this law becomes readily apparent, as it consistently focuses upon positions of leadership whilst descending through Qaddafi’s control structures. Suggesting, in definitive terms, that this law is targeted at the leaders, the organisers, and the integral components of the mechanisms through which Qaddafi ruled. This is embellished in the second category which strides thematically through the different cultural, social, and criminal components that created the coercive element of Qaddafi’s regime. When both categories of this article are joined, the logical processes of the law’s drafters crystallises; showing that this law is intended to remove those who led and guided the institutions which tyrannically controlled Libyans’ existence, as well as those whose deeds suggest they are either opportunistic, or played an integral role in drafting, propagating, and maintaining Qaddafi’s ideology. This delineation is derived under the logic that those who led the old infamously corrupt institutions, could strive to maintain the system that enriches them against the national interest; whilst incorporating the internationally normalised notion of dismissing from government those who are immorally inclined.
Despite encapsulating the desires of Libyans within the spirit of the law; article 1 sets the tone for the letter of this law in a foreboding manner. The sub-articles of category 1, whilst outlining leadership positions in great detail, repeatedly delve into general terms, such as ‘representative’ or ‘organization of any type’, which will provide heavy interpretational discretion to those adjudicating. These vagaries are heavily repeated in category 2, to a dangerous level, whereby all of its sub-articles have key terms – such as “anyone who unlawfully…” in sub-article 5 or “anyone known for…” in sub-article 2 – which depending on interpretation, can waver wildly in the breadth of their application. This is compounded by a failure to clearly denote a requirement, within either article’s or category’s definition, as to whether a defendant must meet criteria from both categories.
Article 2 completes the categorisation process by listing posts which those who have filled any of article 1’s requirements will be barred from holding. This article inherits the positives and the shortcomings of its predecessor. Seeming to target high level or influential positions, whilst, through flaws in its wording, allowing for a completely legal generalised application.
It is notable that these requirements are problematically lacking any mention of mitigating circumstance; for example many of those who could be isolated spent long periods holding the dangerous position of being publically opposed to Qaddafi. This implies that these issues’ relevance will be subject to the implementer’s discretion. Furthermore it’s worth noting that implementers will have to be wary of possible clashes between article 1’s regulations and Libya’s obligations under international treaties. For example the International Covenant on Civil and Political Rights (ICCPR) provides Freedom of Speech protections in article 19, and prohibits “unreasonable” restrictions on taking “part in the conduct of public affairs” in article 25(a).
THE ADJUDICATING COMMITTEE
Articles 3 through 7 outline the structure of “The Supreme Commission of Applying the Required Standards for Holding Public Positions” (hereinafter referred to as the commission) that will apply this law; and does so in a model similar to inquiry committees. Article 3, names it, bases the commission in the capital – whilst providing for sub-branches in other cities – and ensures it budgetary independence.
Article 4 – acting on precedent from NTC decision No.16 of 2012, which created this body’s predecessor, the integrity commission – moves members to the new body, whilst mandating the Supreme Judiciary Council to vet them through this law, and nominate any replacements for approval to the GNC. This continues in article 5, which lists membership requirements. Here we can see that the drafters envisaged an experienced technocratic body, through its minimum age and mandatory legal degree. Moreover sub-article 6, banning politically affiliated nominees, is crucial in protecting the commission from succumbing to Libya’s fractious political scene. Sub-articles 2, 3, and 5 depict the drafters’ desire to ensure its members integrity, and thereby the legitimacy of the commission and its decisions, through requirements which discriminate against those who have been involved in integrity, or honour-based crimes (1). Sub-article 5 merits special comment, by necessitating that the candidate can only have been fired from previous positions due to “political reasons”. This is characteristic of this law’s clumsy clauses, as whilst it is intended to be harmonic with the aforementioned sub-articles on the nominee’s integrity and protect those previously expelled by Qaddafi; ‘political reasons’ are something contextual, hard to define and overly restrictive by ignoring the numerous cases for dismissal which are simultaneously apolitical and undamaging to the persons integrity. Article 7 outlines the commission’s hierarchy, providing for a chairman and deputy, and also a spokesman; also provide the regulatory framework for the commission to devise its budget under, and gives accountability – via approval powers – to the GNC.
MANDATING THE COMMISSION
Articles 8 through 13 provide the commission’s mandate in terms of procedural mechanisms and, in article 8 itself, contingency for the chairman’s absence. Article 9 regulates the commission’s members, “in respect of disciplinary, investigation and the filing of criminal law suits”, under the same law governing the judiciary (law No.6 of 2006). However the following clause provides commission member’s immunity from interrogation or having lawsuit’s filed against them, once again giving exception to the GNC as the accountable body. Whilst this is standard practice, used to preserve the independence of judges, the un-detailed clause and highly-charged political nature of this body means it could prove destructive in two ways:
It could allow corruption within the commission, remaining unchecked, as civilians are unable to initiate proceedings against commission members, and there is no mechanism for them to push the GNC to do so.
Powerful parties within the GNC that are likely to lose members or allies through the commission’s work, could use constant interpellation’s and dismissals as a tool both for intimidating members of the commission, as well as stalling their work.
Article 10 provides the commission freedom to: “investigate any candidate applying for a position”, collate information, summon individuals for cross-examination, and – rather ominously – use “all necessary means and methods to verify the authenticity of the given information” as well as “the right also to use the help of whom ever” it deems necessary to help with its investigations. This article is dangerous as its unchecked power provisions and the amendment preventing constitutional challenges against the law; effectively grants the commission powers over policing services to a possibly detrimental degree, as well as an ability to potentially commit any kind of human right’s abuses with impunity. Abuses of this clause, if unchecked, could also intimidate prospective candidates from participating in their nations’ government; which is unconstitutional. Furthermore there is a worrying lack of internationally recognised safeguards for the defendant, notably the rights of: the assumption of innocence, access to legal counsel, access to information against you, and the right to argue your case – as seen in article 14 of the ICCPR and article 7 of the Universal Declaration of Human Rights (UDHR). With its accountability limited solely to the national legislature, this is a clause which raises the spectre of Qaddafi era legislation for committees executing arbitrary justice (specifically for his revolutionary, and purification committees).
Article 11 provides the commission’s procedural framework, limiting it to: applying the contents of Article 1, implementing the ‘50% plus one’ voting system for reaching decisions, and giving a timeline of 21 days to reach a decision. Article 12 provides regulation for a hierarchical appeals process at the Administrative Justice Department’s Appeal Court, and then the Supreme Court. This is a seemingly fair system, and if exercised appropriately could allow the Judiciary to act as another body which the commission is mindfully accountable to, thereby mitigating chances of it wielding its powers unjustly. However, the preparatory amendments to the constitutional declaration will blunt the effectiveness of this mechanism, through limiting appeals to technicalities. Article 13 obligates the commission to write a general “work charter” incorporating “rules and procedures” which must be approved by the GNC. This could be a useful check against any potential power abuses by the commission, if the document’s approval and enforcement is done diligently by the GNC. However, a notable absence from this article is a clause to make this ‘work charter’ public; this weakens the transparency of the commission and could potentially give controversial decisions a lack of legitimacy in the public eye.
APPLYING POLITICAL ISOLATION
The final articles (14-20) provide a regulatory framework for the law’s application. Article 14 crucially protects defendants from having their privacy publically violated by ensuring “classified information” is not made public. The committee is also mandated to make “all its decisions and reasons for making such decisions public” ensuring the transparency of the decision-making process; with an enforcement mechanism of dismissal applicable to non-compliance with this article. However, the to define what constitutes classified information, or metrics for determining whether the reasoning applied is sufficient or valid; could potentially cause legal difficulties in implementing this enforcement mechanism. Article 15 provides procedure for beginning the vetting process through a “special application prepared by the commission” along with guarantees for the authenticity of the information given. This could be useful for public observers – in lieu of a publicised ‘work charter’ – as the criteria on the application, as well as the public reasoning attached to decisions; can allow those interested to deduce the procedure used by the commission.
Article 16, ensures judicial members are scrutinised by the Supreme Judiciary Council in place of the commission. This provision is an attempt at ensuring judicial independence in the face of the unique political situation encircling this law. However it does provide a logical quandary, and contradicts the principle of fairness. This law was drafted under the assumption that Qaddafi-era officials are entrenched in positions across government, to the extent that it is unfeasible for self-regulation to rectify this effectively. Thereby this law and an independent commission were created to objectively remove these characters from their positions regardless of their standing and influence. This article creates an exception whereby the legislative and executive arms of governance are beholden to this law, but the judiciary are exempt from its equal application. In the case of a judiciary whose level of corruption has been questioned (most notably by al-Ummah newspaper editor Amara al-Khattabi) this may be a clause detrimental to the law’s success. Moreover if the Supreme Judiciary Council’s rulings are seen to be more lenient it could result in complaints by other branches of government, or contrarily cause the judiciary to complain if their rulings are too harsh, thereby threatening the legitimacy of the law’s application due to inequality.
Article 17 provides the law its proverbial teeth by making perjury towards the commission and non-compliance with its requests or rulings a criminal offence with a minimum jail-term of 1 year. The lack of a maximum sentence requires the sentencing judge to employ his discretion wisely and ensure this omission is not abused. Article 18 provides a timeline of 10 years for the legislation to be in force, with an assumption that its decisions will be enforceable for the same length. Article 19 formalises the integrity commission’s termination by repealing Legislation no.12 of 2012 which created and empowered it. Article 20, finishes the law through providing a 30 day window – from the date of issue – for the law to come into force, and provides for its publication in the official gazette.
CONCLUSION:
The overall success of the political isolation law in rooting out those who wish to use the state for their own corrupt ends, whilst mitigating negative effects on the government’s ability to function during this time, requires a tricky balancing act to be performed by a commission whose members will be highly empowered to define the law’s character and legacy on Libya. The key battle here will be in attempting to uphold the spirit of the law, which has strong popular sentiment; instead of slavishly applying the over-generalised letter of the law, breaking the current balance of political power and empowering one party over the rest in a move that could also impoverish and ultimately endanger most Libyans through isolating them – or those they are dependent on – from their sole source of income. The commission, due to its unique set of powers and their need to heavily interpret this law, will need to be mindful of the principles of fairness, doing the least harm, and supporting the public good.
(1) Such classification is common in Arab legal-systems and pertains to allegations or convictions in fields such as slander and perjury which will damage the man’s social standing and credibility.