Lawyers for Justice in Libya Condemns the GNC’s Amendments to Libya’s Constitutional Declaration

On 9 April 2013, the General National Congress (GNC) made several critical amendments to Libya’s interim Constitutional Declaration that affect the law making and law reviewing processes of prospective laws intended to isolate persons from holding positions in government.  Lawyers for Justice in Libya (LFJL) strongly condemns these amendments as violations to Libya’s Constitutional Declaration, international treaties, and the fundamental principles of both human rights and the rule of law.

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Review of political isolation laws

The GNC amended Article 6 of the Constitutional Declaration to include a provision that eliminates judicial review of the constitutionality of laws that isolate some persons from taking positions in government. This amendment states,  

"It will not be considered a breach of this Constitutional Declaration to pass a law that isolates some persons from taking sovereign, leadership or senior administrative positions in government for a temporary period and such law will not breach the principles of human rights of those concerned to litigate."

This amendment violates citizens’ rights and the separation of powers in several ways. 

This amendment attempts to limit Article 6 protections which provide that all “Libyans shall be equal before the law. They shall enjoy equal civil and political rights […] without discrimination due to religion, doctrine, language, wealth, race, kinship, political opinions, and social status, tribal or eminent or familial loyalty.”[1]   A political isolation law which aims to restrict certain citizens’ civil and political rights to participate in government, without due process before the courts, would be at odds with these Article 6 protections.  The amendment not only unlawfully aims to prevent Article 6 protections from applying to an isolation law, but also prevents any challenge to the constitutionality of such a law.

By preempting constitutional challenges to the law, this amendment also violates the fundamental and constitutional human right to judicial review as protected in the Constitutional Declaration at Article 33. Article 33 specifically safeguards the right to litigate stating the “right of resorting to judiciary shall be preserved and guaranteed for all people. Each and every citizen shall have the right to resort to a [natural] judge.” The amendment limits any legal action to only “those concerned”, and, presumably, only to decisions made pursuant to the law.  Without allowing the ability to challenge the law on constitutional grounds, even “concerned” individuals will not have a meaningful basis to defend themselves from decisions made pursuant to the political isolation law.  It is likely to limit their claims to technical claims and not to ones on principles of human rights guarantees.

“The rights of citizens to question and challenge the authority of any branch of government by resorting to other branches of government as a check and balance on the authority of that branch lies at the foundation of any constitutional democracy,” said LFJL Director Elham Saudi. “Of these rights, the access to courts, as enshrined in Article 33 of the Constitutional Declaration, deserves the highest privilege. Without providing genuine means to check or appeal this law, in content and application, this amendment blocks access to justice and is itself a violation of human rights principles and of the core fundamentals of the rule of law.”

The amendment is also in breach of the fundamental principle of the separation of powers embodied in Articles 32 and 33 of the Constitutional Declaration. This amendment removes the jurisdiction and independence of the judiciary and the Supreme Court to review future political isolation laws, before such laws have even passed, in essence undermining the judiciary’s role as a check on the actions of the legislature.

The GNC drafting committee stated clearly that the purpose of this amendment was specifically to limit judicial review. According to the head of the GNC drafting committee, Omar AbuLifa, the GNC, as an elected body, has supremacy over the judiciary. He was referenced in an article on Libya Al-Mostakbal, which states him saying:

"There is no right to judicial review of this amendment.  There is nothing unconstitutional about this amendment. It is entirely within the GNC’s electoral legitimacy, as the supreme legislative authority in Libya, to make this amendment.  The judiciary has no right to change provisions of the Constitutional Declaration." The article further states, "he further emphasized that if the GNC had left a future political isolation law without this protection, then it would be possible to seek judicial review as happened with the law on the Criminalisation of the Glorification of the Dictator and Law 52 adopted by the National Transitional Council prohibiting ambassadors under the previous regime of working in the new era.  He further highlighted that this protection against judicial review is not to be considered a violation of freedoms but a purely legal action necessary in this time of transition."[2]

The Constitutional Declaration does not grant the GNC the right to remove judicial powers through legislation. The independent powers of the judiciary are explicitly protected in Article 32 of the Constitutional Declaration, which states, “The Judiciary Authority shall be independent. It shall be exercised by courts of justice of different sorts and competences. They shall issue their judgments in accordance with the law. Judges shall be independent, subject to no other authority but the law and conscience.”  This highlights the clear separation of the judiciary from the influence of any other authority, including the GNC. Article 33 of the Constitutional Declaration is a further indication that the judiciary has the right to review other branches of government. It states, “Laws shall not provide for the prohibition of judicial authority to [control] any administrative decree.”

Not only does this amendment violate provisions of Libya’s own Constitutional Declaration, it also breaches international treaties to which Libya is a party. Libya is bound by the Universal Declaration of Human Rights [3] and the International Covenant on Civil and Political Rights[4], which both guarantee the right of access justice.

"This amendment to the Constitutional Declaration is the GNC’s most alarming infringement on the fundamentals of the rule of law and democratic processes to date,” said Saudi. “The GNC has tampered with citizens’ fundamental rights and stripped the judiciary of its jurisdiction, while dressing this disenfranchisement up as a monumental decision in democracy, when in fact it erodes the basic foundations and principles on which democracy is based. Due to the intrusiveness of political isolation laws on citizens’ rights, heightened scrutiny and protections should be required. We have previously expressed our concern that the political isolation law would be used to circumvent proper accountability processes through the due process of law. These amendments prove that concern to be disappointingly true.” 

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Voting threshold for political isolation law

The GNC also passed an amendment which reduces the number of GNC member votes needed to pass a political isolation law from a two-thirds majority of GNC members to a simple majority of 50% of GNC members plus one GNC member, or 101 GNC members. 

This particular amendment has been justified by some GNC members as a technical solution to ease the legislative process due to the regular absence of GNC members. However, given the particularity of the law for which the voting requirement has been reduced, it appears that this amendment was a solution to the failure of members to ascertain the necessary support for the current draft of the political isolation law, and to ensure its passage without the ordinarily required votes. 

“This amendment sets a worrisome precedent for future lawmaking whereby GNC members can amend the required threshold to pass unpopular laws where there is little consensus,” said Saudi. “This is a disturbing practice, in particular, for a law that so fundamentally impacts on human rights, the threshold for which, if anything, should be higher. By requiring fewer than the requisite votes to pass any other law, this change undermines the legitimacy of the enactment of any political isolation law entirely and undermines the Constitutional Declaration and the democratic principles it guarantees,” she added.  

LFJL strongly condemns this amendment and calls on the GNC to revoke this amendment and reinstate the two-thirds majority voting rules required for all decisions.“Taken holistically, these two amendments point to an intention to circumvent the rule of law, the judiciary, and the Libyan people’s constitutional protections in order to avoid accountability and achieve political agendas. The rights of the people and the sanctity of the judiciary must be preserved from political meddling as intended in the Constitutional Declaration, and as required by Libya’s international obligations. With these amendments, the GNC has undeniably overstepped its powers and placed its own interests before those of the Libyan people, ” express Saudi.

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End notes:

[1] An unofficial translation of the Constitutional Declaration can be viewed at http://www.wipo.int/wipolex/en/text.jsp?file_id=246953

[2]  Libya Al-Mostakbal, “Immunity for Isolation Law Restricts the Libyan Judiciary”, http://www.libya-al-mostakbal.org/news/clicked/33100

[3] Universal Declaration of Human Rights, Article 8 states, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” http://www.un.org/en/documents/udhr/index.shtml

[4] International Covenant on Civil and Political Rights states at Article 2 section 3 countries have a duty, “To ensure that any person claiming such a remedy shall have his right there to determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.” http://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf