New Government Must Prioritise Security and Transition to a Democratic and Representative Government

November 23, 2011

Lawyers for Justice in Libya (LFJL) welcomes the formation of the new Libyan interim government.  The formation of the interim government, led by the NTC elected Dr Abdulraheem El-Keeb, marks the first ministerial government to accede to executive power in Libya since 1977.  Whilst the formation of the interim government is an important milestone in Libya’s transition from autocracy to democracy, the new interim government must be mindful of its limited remit as it has not been democratically elected and is therefore not a representative government.  The role of the interim government is to facilitate a peaceful and lawful transition to a popular election, democratic in process and representative in nature.  In doing so, the interim government must prioritise national security and develop the institutional capacity of the Libyan state to hold free, democratic and transparent elections.

Over the course of its 42 years, the Gaddafi regime destroyed all state structures by conflating legislative, executive and judicial power, suppressing the freedom of expression and prohibiting genuine political participation.  LFJL reminds the interim government of the importance of deriving legitimacy from the rule of law and of ensuring the separation of power between the legislative, executive and judiciary branches of government.  “From 15 February to this day, legitimacy in Libya has been derived largely from the 17 February Revolution,” said LFJL Director Elham Saudi, “it is important that from now on legitimacy is derived from the rule of law.  After the many special procedures utilised by the previous regime to suppress the Libyan people, we deserve a system free of extraordinary measures and one which relies on lawful institutions and governmental transparency. The interim government must not rely on exceptionalism in legitimising its actions.” 

The interim government’s response to the challenges of transitional justice must be based on the existing Libyan judicial system, rather than through the creation of special parallel mechanisms which would create an environment where the judiciary is marginalised and abused as it was under the previous regime.  Irregular courts and tribunals, which circumvent due process, must no longer have a place in Libya.  The interim government must focus on building and developing the capacity of the Libyan judiciary such that it can respond to the challenges of transitional justice and establish itself as a functioning institution of the Libyan state. 

LFJL calls on the interim government to guarantee the independence of the Libyan judiciary, which must be treated as a separate and independent arm of government, free from political interference and far from the reach and influence of the security services. This is essential to strengthening the rule of law, to guaranteeing human rights and basic freedoms and to preventing injustice and tyranny. 

LFJL calls on the NTC to approach the passing and reform of Libyan legislation carefully and cautiously.   The interim government’s remit and constitutional capacity limits its ability to pass legislation to those laws which are a fundamental and integral part of the transitional process. 

Political parties, civil society organisations and professional associations and unions have a critical role to play during the transitional period, as well as in relation to transitional justice and post-conflict recovery, and the interim government must enable and facilitate their creation through the promulgation of appropriate legislation.  In this context, LFJL notes the announcement by the NTC of a transitional justice and national reconciliation law and calls for a transparent and inclusive consultative process to ensure that the law is one which addresses the grievances of the Libyan people and successfully facilitates a reconciliatory and rehabilitative transitional process.   LFJL reminds the NTC of its undertaking to hold elections within eight months of the declaration of the liberation of all Libyan lands.  To achieve fair and democratic elections, the NTC must legally enable political parties and formalise the electoral process, including by publishing the announced elections law. 

LFJL further calls on the interim government to prioritise the security of the state, through a systematic process of disarmament.  The interim government must prioritise the rehabilitation of the Libyan security services, through a process of vetting and capacity building.  This is an integral part of the transitional period, without which the transition from autocracy to democracy, the stability of the state and respect for human rights and fundamental freedoms will be severely jeopardised.  

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