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XII. Libyan Law and Human Rights

On December 11, 1969, post-monarchy Libya adopted a Constitutional Proclamation, intended as a provisional measure until a permanent constitution could be adopted.¹⁷⁸  At this writing, Libya still had no unified constitution, but was governed by the proclamation and a series of fundamental laws deemed to have constitutional weight.  Taken together, they guarantee many basic human rights, although with notable exceptions, particularly regarding freedom of expression and association.  In some cases, moreover, even ostensibly protected rights have been undermined by Libyan legislation criminalizing free association and speech.

Some Libyan lawyers criticized the lack of a unified constitution and told Human Rights Watch that a single document would enhance clarity and consistency in the law.  According to one lawyer, there is “ideological resistance to this,” although he did not specify from whom.¹⁷⁹

The Constitutional Proclamation provides for freedom of religion (article 2), the right to work (article 4), the inviolability of homes (article 12), the right to education (article 14), and the right to health care (article 15).  Regarding the judiciary, article 27 says the aim of judicial decisions is “the protection of the principles of the community and the rights, dignity and freedom of individuals.”  Article 28 guarantees the independence of judges.  Article 31 states that individuals are innocent until proven guilty and provides them with a fair defense, as well as freedom from “mental or physical harm.”  The right to free expression is more circumscribed.  According to article 13, “Freedom of opinion is guaranteed within the limits of public interest and the principles of the Revolution.”

The other fundamental laws with constitutional weight are:¹⁸⁰

• The Declaration of the People’s Authority, adopted March 2, 1977
• The Green Charter for Human Rights of the Jamahiriyan Era, adopted June 1988
• Law 20, On Enhancing Freedom, adopted 1991

According to Libyan lawyers and law professors, judicial processes must respect these laws, and citizens have the right to appeal if the government violates the rights they enshrine.¹⁸¹

The Declaration of the People’s Authority established the system of people’s congresses that forms the basis of Libya’s “direct democracy.”  It does not directly address human rights.

More relevant to human rights is the Great Green Charter, which according to the Libyan government provides a guideline for any review of legislation. Law No. 5 of 1991, On Implementation of the Principles of the Great Green Charter for Human Rights in the Jamahiriya Era, states that all legislation in force prior to the promulgation of the Great Green Charter must be amended to become consistent with the principles set forth in the charter, and all new legislation must also be compatible with the charter.¹⁸²  According to the government, The Great Green Charter therefore “has legal force in regard to legislation promulgated subsequent or prior to Act No. 5 of 1991.”¹⁸³  In addition, “any individual can challenge the legality of a legislative enactment that is inconsistent with the principles set forth in the document, whose provisions prevail over those of other legislation.”¹⁸⁴

The Great Green Charter prohibits any punishment that “would violate the dignity and the integrity of a human being.”  Article 9 guarantees the independence of the judiciary, article 19 guarantees freedom of thought, and article 21 guarantees equality between men and women.  As explained above, the Charter also declares the abolition of capital punishment as a societal goal (article 8).

At the same time, some articles of the Great Green Charter contain broadly defined exceptions that may restrict some rights.  Libyans are free in their private acts and their personal relationships, article 7 says, unless “the act or the relationship are harmful or prejudicial to society or are conflicting with its values.”

As in the Constitutional Proclamation, the Great Green Charter limits freedom of expression and association.  Article 6 says Libyans are free to form “associations, trade unions and leagues in order to defend their professional interests,” but it does not address associations that deal with social or political themes.¹⁸⁵  No article of the Charter guarantees freedom of expression outside the system of People’s Congresses.

Law 20, On Enhancing Freedom, says defendants are innocent until proven guilty (article 17) and guarantees the independence of judges (article 31).  Article 30 of the law states that, “everyone has the right to petition a court, in accordance with the law” and that “the court shall provide him with all the necessary safeguards.”¹⁸⁶

Law 20, however, also qualifies the right to free expression.  According to article 8, “Every citizen has the right to express and publicly proclaim his opinions and ideas to the people’s congresses and the information media of the Jamahiriya.  No citizen shall be answerable for his exercise of this right unless he exploits it with a view to detracting from the people’s authority or for personal ends.”  The article continues: “It is prohibited to advocate ideas or opinions clandestinely or to attempt to disseminate or impose them on others through enticement, force, intimidation, or fraud.”

Libya’s code of criminal procedure is largely up to international standards; violations mostly result from poor implementation of the law.  The code guarantees the right to a lawyer.  The police must have a warrant to make an arrest or to search a home.  The police can hold a person for up to forty-eight hours, and the prosecution has up to six days to file charges, although a judge can extend this period for up to thirty days.  Defendants have the right to be informed of the charges against them and to have access to a lawyer from the moment of arrest.  They can hire a private attorney or get one appointed at no cost by the state.

In practice, the authorities do not always allow access to a lawyer.  Of the thirty-two prisoners and pre-trial detainees interviewed by Human Rights Watch, more than a dozen said they did not have access to a lawyer during their interrogation.  For some, the first time they saw their lawyer was at their trial, and even then they were not allowed to discuss their case in private.

Libya’s penal code is more problematic.  As discussed in the chapter of this report about the code, some articles impose severe punishments, including death, for acts and expression that should be protected under the rights to free association and speech.  The penal code is currently under revision but those parts of the draft made public in 2004 suggest that the changes do not go far enough to bring the code up to the international human rights standards Libya has pledged to uphold.