International media attention is currently focused on the hunt for Muammar Ghadaffi; the resulting questions concerning his trial in a domestic or international tribunal; and on the constitutional framework which will underpin the new Libya. However in the longer term, the laws which have most impact on the lives of the Libyan people are those relating to contracts, property, crime, elections, family and inheritance law. An opportunity has arisen for law reform which can assist the future development of Libya.
Reform must come from within Libya rather than be imposed from outside. Rory Stewart MP, a former Coalition Provisional Authority official in 2003/2004 in Maysan and Dhi Qar in southern Iraq, is reported in the Huffington Post on 4 September 2011 as stating that “I think the most important thing that [the Libyan people] need is to be able to determine their own destiny. I think the biggest danger is that the international community will panic and over-react, and start forcing its support and its advisors, its money.”
There is however a place for experienced specialist international assistance where demanded by the new Libyan authorities. One recurring and fundamental mistake made by those working in the Rule of Law business is to fail to take sufficient time to understand the existing legal systems in countries in which they are providing advice and assistance. This post aims to guide those coming to the law of Libya for the first time.
The original Constitution of Libya upon independence in 1951 was cancelled by the revolutionary Constitutional Declaration (al-i’lan addusturi) issued on 12 December 1969. The subsequent declarations of the Ghaddafi regime would appear to have lost popular legitimacy but have not yet been replaced by a new constitutional settlement which is promised by the National Transitional Council.
Personal Status is governed by the shari’a (predominantly Maliki school) with a small element of codification. Otherwise the essential quality of the Libyan legal system is a civil law type common in the Arab world.
The cornerstones of the Libyan legal system are:
1. The 1953 Penal Code (qanun al-‘uqubat)
2. The 1954 Sanhuri Civil Code (al-qanun al-madani) based on the Egyptian model.
3. The 1954 Commercial Code (al-qanun al-tijari)
4. The 1954 Code of Civil and Commercial Procedure (qanun al murafa’at al-madaniyya wat-tijariyya)
There have been a number of legislative amendments to these Codes since their initial implementation.
The Supreme Council for Judicial Authority is the administrative authority of the judiciary which appoints, transfers and disciplines judges.
Libya has ratified the usual international treaties including: The International Covenant on Civil and Political Rights (ICCPR) (15 May 1970). Libya is one of two Arab states (Algeria is the other) to have signed the first Optional Protocol to the ICCPR, which allows individuals to communicate directly to the committee overseeing the ICCPR regarding alleged breaches of the convention. It has not signed the second Optional Protocol, which pledges signatories to abolish the death penalty; International Covenant on Economic, Social and Cultural Rights (CESCR): (15 May 1970); The Convention on the Elimination of All Forms of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT): (16 May 1989). It has not signed the Optional Protocol to CAT, which allows visits to places of detention by the Committee against Torture; The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (3 July 1968); The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (16 May 1989). When Libya acceded to CEDAW, it entered reservations stating that that the convention must be implemented in accordance with sharia. In July 1995, Libya submitted a new general reservation that the treaty’s implementation cannot conflict with personal status laws derived from sharia; The Convention on the Rights of the Child (CRC) (15 April 1993); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (18 June 2004).
- The Yearbook of Islamic and Middle Eastern Law is an excellent and overpriced resource published by Brill for the Centre of Islamic and Middle Eastern Law at the University of London. Dating back to the early 1990s and now in its 15th volume, YIMEL contains an annual update of legal developments in each state in the region and national and international legal materials. Initially edited by His Honour Professor Judge Eugene Cotran and Professor Chibli Mallat, it is now edited by HHPJ Cotran and Dr Martin Lau of SOAS Law Department and Essex Court Chambers.
- Family law is covered in detail on the Libyan page of the Emory University Law School’s Islamic Family Law Project (this project does not appear to have been updated since the 1990s)
- The Carnegie Endowment for International Peace produced a document in 2006 entitled Arab Political Systems: Baseline Information and Reforms – Libya which contains some information about the administrative and legal framework in Libya at that time.