When Libya’s Supreme Constitutional Court ruled on November 6 that its internationally-recognized parliament was invalid, the decision polarized the nation even more, with some factions welcoming the ruling and others arguing that the ruling is invalid.

Parliament representatives said they would continue to hold sessions and perform their tasks together with the interim government in Tobruk and insisted that the Constitutional Court’s ruling “has no value at all.” 

When Libya’s Supreme Constitutional Court ruled on November 6 that its internationally-recognized parliament was invalid, the decision polarized the nation even more, with some factions welcoming the ruling and others arguing that the ruling is invalid.

Parliament representatives said they would continue to hold sessions and perform their tasks together with the interim government in Tobruk and insisted that the Constitutional Court’s ruling “has no value at all.” 

Even Libyan law experts couldn’t agree on one interpretation of the court’s decision leading every political party to interpret the ruling to its own advantage.

Correspondents spoke Saad Bashir al-Rafadi, a university professor, author and a veteran lawyer authorized to plead before the Supreme Court under the Libyan attorney’s law.

Professor al-Rafadi, could you brief us on the history of the Libyan Supreme Constitutional Court?

Libya’s Supreme Constitutional Court, which was formed in 1953, is the highest court in the country. It was presided over by a number of presidents, some of whom were English as well as Egyptian. The first president of this court was Muhammad Saber al-Aqari.

The court does not have any fixed headquarters and its previous building was destroyed after the 1969 coup. 

As a legal expert, what was your reaction to the latest ruling by the Supreme Constitutional Court regarding the parliament?

I personally believe that the ruling of the court was appalling and it lacked clarity. The ruling was on paragraph 11 of Article 30 of the 7^th amendment of the constitutional declaration, which was put forward by the February Committee. Here, we are dealing with suggestions rather than with a constitutional text or a constitutional amendment. These were mere suggestions included in article 30 of the constitutional declaration.

Does this mean that the inclusion had given these suggestions a legislative and a legal form and they have become a Constitution?

This is a dangerous fabrication, and it seems that this fabrication has been able to deceive the General National Congress. At that time, I criticized this and I said: “Who are you, you members of the February Committee!”  I also said that they passed the Constitution in the presence of a General National Congress – the only legislative body at that time – which is one of the three authorities in the country. It was not reasonable or legal to deal with the committee’s suggestions as if they are the Constitution.

As you know, the February Committee was formed to come up with suggestions that may bring the congress out of the crisis that resulted from the continuous popular pressure in the streets and yards demanding its departure and the transition towards a new phase!

Yes, this is obvious. But there have been pre-existing intentions of stalling and escaping forward by blocs or partisan groups within the congress. These intensions appeared when the February Committee announced that the president of the state is to be elected directly by the popular base—this was rejected by the members of the congress.  For this reason, the congress decided to refer the matter to the elected parliament, which in its first session in Tobruk decided that the head of the state should be directly elected by the popular base.

In addition, some of the opportunistic groups did not get enough seats in the elected parliament which has replaced the national congress.  In my opinion, all this has led to the putting of spokes in the parliament’s wheels through appeals and lawsuits before the Constitutional Court.

Let us return to the ruling of the Constitutional Court. Why do you believe it is not valid?

The ruling hasn’t been a successful one because it does not fall under the jurisdiction of the Supreme Court but rather the administrative department. The ruling should have been formulated in a way that could be appealed in terms of its form and rejected in terms of its subject, because the court does not have the “state” jurisdiction. The ruling of the court is a constitutional amendment and not a judicial ruling and this is contrary to its jurisdiction and because the appeal was submitted by defecting MPs, who intentionally absented themselves and did not attend the parliamentary sessions.

We knew from media and other sources close to the parliament that there were three judges from the Constitutional Department who escaped from Tripoli to Tobruk.  Isn’t this considered as something suspicious?

If this is true, the advisors who escaped should give statements to the media or to the parliament in Tobruk to clarify the circumstances of the ruling and the reason for their escape. They should say if they were put under pressure or if they were threatened. If we assume, for the sake of argument, that the judges were put under pressure, then the ruling issued under duress.

There is also a very important issue which the Supreme Court did not take into consideration; the absence of three judges from the session during which time the ruling was read. According to the law, this makes the ruling null and void because the general assembly of the Supreme Court replaces the absent or withdrawing judges by others.

What supports our suspicions about the circumstances surrounding the holding of the session is that when the judge read the ruling, there were persons outside the court celebrating this ruling. This means that the ruling was leaked before its announcement by the judge.

What is the legal mechanism through which parliamentary elections can be contested?

Contesting elections has already been done in the law organizing these elections and this is law number 10 of 2014.  The person who did so is lawyer Abdul-Majid al-Mayet, but he withdrew his appeal. Thus, it is not possible to contest elections, regardless of the reasons, because of the elapse of the legal appeals period of 60 from the day of the issuance of the law.

In your opinion, what should the Libyan parliament do after this ruling?

I believe that the parliament is a legitimate and internationally recognized body. The Libyan people should have confidence in it. Regarding the ruling, the constitutional department should be asked to correct and interpret the ruling according to the text of article 290 of the Code of Procedure and the correction of rulings and their interpretations.  

The ruling was flawed and led to a false interpretation and understanding. Every citizen now can explain it the way he wants. Even some of the media outlets have started to use the term “the dissolution” of the parliament, which hasn’t been clear in the ruling. It should be a complete, final, clear and well-explained ruling. When this happens, the parliament has the right to file a new lawsuit at one of the international courts and at the African Court.