Analysis of Legislation No. 13 2013
Photo Credit Daily Sabah
Impact on Libya’s Political Sphere
The Political Isolation Law is one characterised by vagaries and the considerable discretion afforded to commission members. Whilst a substantial amount of high-level staff across the public sector will undoubtedly be isolated for their actions under the previous regime, it is still unclear to what extent this law will impact on other segments of the political and public sphere.
It would not be ‘technically’ unlawful for the commission to extend its rulings, to a large proportion of the public sector. For example, within article 2’s definition of roles which those found guilty will be excluded from, sub-article 1 effectively prevents membership to all areas of government and civil service. The malleability of article 1’s criteria given the lack of definitions applied to general terms would make finding a reason merely a formality for anyone who worked within the previous regime. This is an incredibly dangerous path to take, in a country where 60-70% of the population work for the public sector, and each having multiple dependents. Not only would it be a travesty of justice to forcefully un-employ such a large amount of people, as Qaddafi’s quasi-Communist system provided little option but the public sector for employment; it would also be incredibly destructive to the country’s stability and ability to function, through setting off multiple crises. It would be an ironic, but foolish action, for the new Libyan government to repeat the mistakes of Iraq’s de-baathification process in the year of its tenth anniversary.
KEY POLITICAL FIGURES
Political Isolation’s immediate effects will be most keenly felt through many high-level politicians’ clear susceptibility, and the likely political jostling for positions which will accompany their dismissal.
Article 1, sub-article 6 isolates GNC President Mohammed Magarief for serving as ambassador to India in the early 1980s, prior to his defection and assumption of his role in opposition to Qaddafi. Prime Minister Ali Zeidan is also susceptible to this ruling, as after Magarief’s defection he took up the role for 3 days. Although his remarkably short tenure could provide mitigating circumstances, a further clause in the sub-article which extends isolation to “Anyone who… held the position of a permanent representative of Libya” could seal his fate, depending on the interpretation of the term ‘representative’. Nevertheless it is widely supposed that if Zeidan escapes isolation, the Muslim Brotherhood (MB) – the second largest political faction – will use Magarief’s removal to exert further influence over the GNC and the government. Furthermore the susceptibility of many of the National Forces Alliance – the largest political faction – to this law, and the last-minute removal of a clause isolating “anyone who reconciled with the regime” which would have isolated the MB as an organisation; suggests that the MB will become the dominant movement in Libyan politics after this law’s application. Ultimately, the power vacuum formed through weakening the country’s largest political block, and removing other high profile politicians, will likely create short term instability and stalled progress; as the remaining parties and factions scramble to fill the void left by those isolated.
Minister of Interior, Ashour Shuweil will also be isolated under either sub-articles 8 or 13 of Article 1; dealing with the military and security establishment of which he was a member. Whilst he is currently coming under heavy criticism for his perceived lack of action in preventing the militia’s two week domination over the Government’s ministries; his current role overseeing the Benghazi hospital bombing investigation, his re-structuring of the security services, and the limited success of his plan to remove illegal militias could be put in jeopardy by this instability, unless a replacement is decisively appointed and appropriately empowered.
Article 1, sub-article 10 isolating “Anyone who held a leading position of any institute connected with any of Qaddafi’s family members or was a partner with them in any type of business” may well have the largest ramifications given the abundance of characters that allied themselves with Saif al-Islam Qaddafi during his ‘liberalising’ phase at the turn of the century. The most notable of these will be head of the National Forces Alliance (NFA), and NTC figurehead Mahmoud Jibril who will be removed from his party, and GNC Vice-President Jumaa Ateiga.
THE GOVERNMENT
The Ministry of Foreign Affairs is likely to be the hardest hit of any of the government ministries, with Article 1, sub-article 6 devoted specifically to them. The generalised term employed in this sub-article, whereby any “permanent representative of Libya at any international or regional organisation” is isolatable; could be un-controversially interpreted as anyone abroad in an official capacity. However this could have serious consequences for Libya’s international relations as if the law is applied to its full extent, it will necessitate almost a wholesale re-employment of the country’s embassies.
The full effects that the government feels from this will depend on how deep the commission perceives its mandate as extending. Whilst any ministers who had involvement with the past regime will undoubtedly be isolated, whether the commission chooses to go further and apply the law to upper management, middle management, or all ministry staff; will have a corresponding effect on the government’s ability to function in the short term, and directly impact any of its transitional-period initiatives.
THE GNC
The full extent of this law’s applicability to the GNC will not be clear until we can analyse how the commission interprets various articles. However, Article 1, sub-article 10 (which already isolates Ateiga) will likely affect the NFA with a key part of its membership present amongst the ‘reformers’ who returned to the country post-2003 to work with Saif al-Islam and other Qaddafi children. Union and Homeland party leader Abdul-Rahman Swehli will most likely be isolated under this sub-article, or for his role as a student union representative.
Article 1, sub-article 14 is a curious clause, which (depending on its definition) could be spectacular in its devastation. By stating “Anyone who belonged to an international organisation that posed a threat to the territorial integrity of Libya and adopted violence as a strategy” it is the perfect example of the difficulties in attempting to maintain the spirit of the law in the face of such generalised legislation. For example, it is not unreasonable to suggest under this clause that the organisers of the February 17th revolution, which liberated Libya from Qaddafi, be isolated under this law. It falls under the appropriate timeline, the inclusion of NATO, the UN and the Arab league makes it undoubtedly international, the territorial integrity of the country would have been at risk if the war dragged on, and it indisputably (albeit understandably) adopted violence as a strategy. However, more realistic interpretations could also isolate the traditional opposition (dubbed ‘the muarada’) to Qaddafi, given their attempt at an armed coup; or even Islamist groups such as the Libyan Islamic Fighting Group, who waged war on Qaddafi from the 90s almost exclusively in Cyrenaica. Both of these interpretations would isolate several MB and Salafist independents from the house, and prevent prominent political characters such as Abdul-Hakim Belhaj and Ali Salabi from official involvement in administering the nation’s affairs; with the former interpretation also applicable to Magarief’s National Front Party (re-formed from the aforementioned muarada).
Article 1, sub-article 8 (in category 2) describes a Salafist religio-political position of rejecting revolution as being party to conspiracy which will provoke instability and “being in disobedience to an official ruler”. This clause’s inclusion, and the vague classification of giving “credibility” to Qaddafi through it, suggests that a large amount of Salafist members (mainly independents) could be isolated under this sub-article; for belonging to mosques that preached this point of view, or going so far as to espouse it themselves. The latter point raises further legal quandaries with regard to Libya’s international obligations, as both the ICCPR and UDHR clearly prohibit discriminations on the basis of religious or political belief.
THE JUDICIARY
Whilst the Judiciary’s susceptibility will depend on how the Supreme Judicial Council interprets the regulations, Article 1, sub-article 4 (category 2) is directly relevant to them. By putting “Anyone… who helped in any way” with Qaddafi’s killings, political imprisonments, and torture regiments in this law; it is clear that many members of the judiciary who presided over such cases will be targeted for isolation.
The wide-ranging sub-article 7 of the same category as the example above could also be reasonably applied across the judiciary. The judiciary is a key part of any regime, and although Qaddafi often employed extraordinary courts with arbitrary procedures, the official courts still helped to propagate “his regime [and]… reform project Libya alghad” through drafting, publishing, and applying the laws which legitimised, enriched and protected his regime throughout its existence.
With the targeting of the judiciary under these articles, the benefits of having a separate judicial commission to apply the law to the judiciary becomes clearer. Such regulations could see a vast majority of the judges isolated, as they were employed in their positions during Qaddafi’s regime. Such an immediate sweep of the Judiciary would have massive ramifications for the transitional operation and reform of the legal system, which already suffers from a large backlog of cases. Furthermore it could have long-term effects, given the hefty resources and time needed to provide judges with the required training and experience. Therefore this decision which will hopefully allow judges to regulate the damage done to their department by ensuring only the worst offenders are removed; will yield some positives to counteract the aforementioned dangers it poses.
PUBLIC COMPANIES
Article 2, sub-article 4’s provision for the law’s applicability to: “membership…in management bodies, institutions, banks, and public investment companies, that are solely or partly owned by the Libyan State”; allows for a level of isolation on staff of public companies, and even partly private ones, wholly dependent on the commission’s interpretations and zealousness in applying their mandate.
Article 1, sub-article 2’s targeting of media personalities who glorified Qaddafi, and sub-article 12’s inclusion of “anyone who held a leading role in one of the media institutes” ensures that Suleiman Dhoga’s (Head of Libya’s state-owned TV) disbarment by the integrity commission will be upheld, and dismissals could be extended further throughout the network. However it is sub-article 6, which will provide the clearest grounds for public sector company purges by generally delineating “anyone involved in stealing the Libyan people’s wealth or became rich on Libyan people’s account” as worthy of isolation; a charge easily applicable to all public companies during Qaddafi’s time, and the loose terminology “anyone involved” makes this easily malleable to all employees of such companies. However this sub-article, when allied with the aforementioned sub-article 10 on business associates of the Qaddafi’s, should provide clear grounds for removing Libya’s economic titans and predatory entrepreneurs a, from many of their position’s and prevent them from securing future government contracts; as they were initially enriched and empowered, through their work with Qaddafi’s regime. This could inadvertently yield economic dividends, due to the demand for the services provided by these characters, whose large resources created a significant barrier of entry to other Libyans from markets they’re involved in.
THE SECURITY SERVICES
Whilst the standard caveats apply here, about the level of isolation depending on the discretion of commission members, the security services as a whole are relatively well protected. With Article 1, sub-article 8 limited specifically to ‘heads’ of various bodies, rather than the more loosely defined ‘leading positions’ used in article 2 for this sector, the rank-and-file of the army and interior ministry should be safe from isolation. This is encouraging as Iraq’s de-baathification process taught painful lessons about the vulnerabilities of a nascent state whose security has been isolated.
However article 1, sub-article 11 which isolates the members of Qaddafi’s ‘revolutionary guards’, suffers from not providing clear protection for those members who defected during the revolution. This is potentially damaging, as many of these ex-revolutionary guards, now form the best trained members and brigades of the current army, such as Benghazi’s ‘Sa’iqa’ (thunderbolt) brigade, or Tripoli’s Mohammed Magarief brigade.
LOCAL REPRESENTATION
This is the general category of government likely to suffer most from the political isolation law; most notably in areas where Qaddafi held support. This is due to the two general terms of categorising the laws under the positions held within Qaddafi’s state structures, and the behaviour of those within his system, most notably to the 17th February revolution; with the two categories affecting local government in different ways.
The first category’s application is legally limited to heads of the various municipal structures, however many of those heads continued into the newer system of local government. It is poignant that local government elections are due shortly which should dampen the impact of this law’s application on the provision of government services locally. However the vague definitions in category two could, depending on the commission, be a precursor for a more structured isolation and replacement of local government members instead of just the heads.
The latter category however, could provoke serious and deepened discrimination within the country, especially due to the removal of constitutional challenges to the law. A few dispersed towns, cities and communities nationwide were allied with Qaddafi and lavished upon because of it (notably within Sirte, and Tawergha). Therefore it is only natural that their affection towards the man, who despite being distinctly tyrannical to the country as whole, always provided for them; was embedded within their ‘behavioural attitudes’ which they had to show to continue gaining his favours. Whilst it is wholly within the spirit of the law to now isolate these people from government, it is notable that this will encompass a majority of these populations, who have already suffered acutely during the war because of their relationship. If the new Libya, and its political system, is supposed to be nationally representative; its credibility will be seriously weakened through a thorough application of this law, in this instance. As not only will the local governments of these regions be deprived of personnel, but also their representatives to the national government will be consistently isolated. This removal of these regions from the state apparatus will only serve to entrench divisions, and breed opposition at a time when national unity is desperately needed, and all Libyans need caring for by their state.
CONCLUSION:
In order to protect the legitimacy of their decisions and maintain the acceptance of their authority as a body which enjoys a considerable amount of support, from a population which can be fickle and intolerant of failure, the commission will need to utilise the loose regulations over their transparency to maximum affect. Using the spokesman to open up channels of effective, two-way communication with the population who their decisions are impacting; and openly publishing the reasoning and procedure undertaken to reach their decisions, will be crucial in maintaining their public support. Overall, given the nation-wide impact of their role, and the defining legacy which they could have on Libya’s short and medium term future, the old proverb “An eye for an eye, and the whole world goes blind” is extremely apt in cautioning the effects of a zealous application, and the need to remain true to the law’s spirit, which aims at removing corruption and making the government of the people more effective.