Libya4ever                 ليبيا أبدا

THE LEGAL VALUE OF

THE GREAT GREEN DOCUMENT OF HUMAN IGHTS

AND THE WAYS OF GUARANTEEING ITS RESPECT

The Legal Value of

the Great Green Document of Human Rights

and the Ways of Guaranteeing its Respect

The legal value of legislative provisions differs according to the status it has in the legislative hierarchy of the country. In constitution-based countries, constitutions stand on top of this hierarchy, especially those countries that adopt inflexible constitutions. Argument was raised in constitutional writings about the legal value of declarations and juristic charters which are always mentioned or stipulated in the preambles of constitutions. An example of this is the French constitutions that successively appeared since the outbreak of the French Revolution in 1789 until the establishment of the Fifth Republic [constitutions of 1791, 1946 and 1958]. Some argue that they have a legal value, even more than the constitutional rules, while others maintain that they have no legal value, considering them to be mere ideological rules lacking the property of compulsion.  A third opinion argues that they have a legal value that is equal to constitutional rules. Now the question is:

What is the legal value of the Great Green Document of Human Rights in the Jamahiriyan Era?

In other words, can we consider the principles mentioned in the Document to be constitutional rules, even if they have not been phrased yet in a constitutional document formally? In fact, the Green Document could not be legitimized constitutionally, though it contains constitutional juristic principles related to human rights and the basic human freedoms, but it is considered a philosophical “creedal” document that contains a number of the basic principles that should be considered when forming political, economic, social, and cultural systems, and also when dealing with relations between a country and other countries. According to this description, it cannot be applied unless it is written in the form of legal rules, or it may be said, in the form of laws that are ready to be applied. That was exactly what the Libyan legislator did when he issued law no. 20, in 1991 A.C. (after Christ), which was related to enhancing freedom, and law no. 5, in 1427 A.H. (after Hijrah; Prophet Muhammad’s emigration to Medina), which was related to protecting childhood. We believe that the Document of Woman’s Rights and Responsibilities in the

Jamahiriyan Society, issued on 29/12/1424 A.H., is considered to be a completion to the principles mentioned in the Green Document. Therefore, it has the same position, and thus the same description could be applied to it. As we have already mentioned, we can say that searching for the legal value of the Great Green Document of Human Rights comes through laws that make it applicable, especially law no. 20, 1991 A.C., which was related to enhancing freedom.

Therefore, what is the legal value of the rules related to this law, and what is its position as to the effective legislations in Libya?

1- Ranks of legislation in the Libyan legal system:

Legal experts used to categorize legislations into ranks that would be classified in terms of position according to the rate of the supremacy of each one of them. Basic legislations, i.e., constitutions, stand on top of the legislative hierarchy, followed by ordinary legislations, i.e., laws, which come in the second rank, and on the bottom of the hierarchy there are the sub-legislations, i.e., bylaws. This hierarchy, as we know, relies on two criteria; one of them is represented in the difference of the authority responsible for issuing legislations [i.e., a constituent assembly, a consultation committee, a parliament, or a ministry). It is also represented in the difference of the importance of the subjects that are under regulation or phrasing. In short, we can say that Libya has deserted the tripartite classification of legislations since the declaration of the “Authority of the People” on March 2, 1977 A.C. The interim constitutional declaration, issued on 11/12/1969 A.C, did not have any jurisdiction power, as all the powers returned to Popular Conferences, People’s Committees, syndicates, unions, and professional associations that meet together in the General People’s Conference. Laws were issued according to a decree issued from General People’s Conference, and accordingly the decrees of the Basic Popular Conferences would be phrased. Thus, legislation was categorized organically in two ranks: laws and bylaws. The “interim constitution” disappeared from the top of the legislative hierarchy.^[1]

According to objective criteria, some of the Libyan legislations - though the Constitutional Document vanished - are considered a constitutional law, according to the subject it regulates. For example, we may cite the law of enhancing freedom, no. 20, 1991 A.C., and the law no. 1, 1369, which was related to Popular Conferences and People’s Committees. We may also refer to many of the constitutional rules scattered in the provisions of the Law of Penalties, the Law of Criminal Proceedings, the regulatory laws of real estates ownership and economic activities, and other laws that cannot be counted here.

In the light of this analysis, we can say that the prevailing legal provisions in Libya are not equal in their legal value; as there are Basic Laws, Non-basic laws and Bylaws. No doubt, this requires guaranteeing supremacy for the higher ranked, according to their order. Thus, the bylaws and decisions issued by the authorities responsible for applying them may not contradict these laws, and the latter may not contradict the basic principles mentioned in the declaration of the Authority of the People and other juristic documents, because of their high and lofty ranks. This, of course, requires that Basic Popular Conferences should not issue legislations that contradict - in their text or meanings - what is written in these documents; and if they do, it means that they will have exceeded the scope of legitimacy. The same applies to the judicial authorities that should oversee the validity of laws – in form and in subject – so as to fulfill the formal requirements of issuing them, and not to contradict – in text or sense – the higher ranked provisions according to the aforementioned order. But, what is the suitable way for guaranteeing respect for the basic legislations, particularly the law of enhancing freedom, as it is considered the executive law of the principles of the Great Green Document of Human Rights in the Jamahiriyan Era?

This is the subject of: judicial supervision on the constitutionality of laws

2- The role of the Libyan judiciary in guaranteeing respect for the Great Green Document of Human Rights in the Jamahiriyan Era

If we are to regard this Document as a basic reference to which the legislator would refer for seeking guidance and enlightenment when forming the regulatory rules of the method of governance as well as of the economic, social and cultural relations, and also issues related to human rights and man’s basic freedoms that have earned much attention among the principles it includes, then we may ask about the possibility of relying on this Document when demanding illegality of a certain legislation or a certain procedure that was issued in violation of the principles of the Document. In other words, the basic principles affirmed by the Document include the right to life, the right to be liberated from all kinds of torture, the right to safe body and mind, the right to expression through the popular mass media, the right to movement, the right to working, engaging in activities, possessing things, and benefiting from lands, the right to education, and the right to taking legal actions. Therefore, does the citizen have the right to take a legal action against the legality of a legislation that contradicts the principles of this Document or contradicts the rules of the law of enhancing freedom?

In fact, Article no. 26 in the Document has made it sufficient for us not to resort to personal reasoning, as it ordains that members of the Jamahiriyan society are committed to this the texts of this Document and are not allowed to revolt against it, and they are not allowed to do any act that contradicts the principles and rights contained in it. It also ordains that any citizen has the right to resort to the judiciary seeking for equality if his aforementioned rights and liberties are violated. In the same way, in order to guarantee the application of this principle, the legislator has stipulated - in Article no. 35 of the law of enhancing freedom - that the rules of this law are considered constitutional or basic and it is not legal to issue any legislations that contradict or violate it.

The Libyan legislator, according to these two provisions, has affirmed that the judiciary authority has the right to supervise the validity of legislations, but how can this be done, or, in other words, how can this be achieved practically?

Before answering this question, we should point out in brief that in constitution-based countries, constitutional documents are usually responsible for showing the followed methods in supervising the constitutionality of laws, either by the preemptive manner that is being practiced before issuing the law [political supervision], or by the judicial supervision subsequent to issuing the law. France witnessed the birth of the first kind of such supervision, and other nations knew it as well. This was stipulated in the two French constitutions issued in 1946 and 1791, and it still exists in the constitution of the Fifth Republic [issued in 1958]. However, the method of political supervision did not achieve success in practice. So, many countries abandoned it endorsing the method of judicial supervision. This form of supervision supervises the constitutionality of laws, either via the original lawsuit or by refuting the case in question by showing weather it is suitable to introduce the issue before the judiciary or not. The constitutional jurisprudence agrees unanimously that the provision in the first aggressive way should be clear and explicit in the body of the constitution, because of the dangerous results that would be brought about by that. This is because the connection of the court responsible for trying the appeal may lead to canceling the legislation accused of being unconstitutional, and thus its effect will be totally abolished. No doubt, that is an aggressive intervention by the judiciary in the function of the legislature that is not to be interpreted or subjected to personal reasoning.

Since the Libyan state is still in the process of preparation for the project of its legal reference, it is not imagined that this way be endorsed by appealing – in the Supreme Court – against the validity of a legislation that was issued while being in contradiction with the principles of the Document or with the rules of the law of enhancing freedom.

We say that, although the Supreme Court has been given this specialty according to Article no. 23 of Law no. 6, issued in 1982 A.C. and amended by Law no. 17 issued in 1423 A.H., whereas the supervision of denial does not require a determinant provision. Jurisprudence justifies that by saying that the judge’s refusal to apply a legislation that contradicts a higher ranked legislation is considered the core of the judge’s job; rather, it is one of the requirements of the judicial process. The judge, when adjudging a lawsuit, is required to apply the provision which is suitable for the case in question. If a litigant is to appeal - before the judge - against the validity of the legislation in dispute, the judge must face that appeal by extending his supervision to the legislation both in “form” and in “content”. By “form” we mean the necessity of making sure that the legislation was issued according to the followed mechanism when issuing laws on one hand side, and publishing it in the official newspaper on the other hand. And by “content” we mean making sure that the provision, against whose validity the appeal has been presented, was issued while being in conformity with the higher ranked provisions. If the judges finds any contradiction, he must refuse applying it, and by doing that, he will be practicing an original function, which is preferring a higher legislation to a lower ranked one, i.e., applying “the higher one” and neglecting “the lower one”.

Actually, this activity is just practicing the role of the judge, which is understanding provisions and explaining them through what is called “the process of removing the contradiction between contradictory legislations”. Still, the confirmation of the right of the litigants to practicing (or enjoying) this kind of supervision is found in a juristic principle stating that the citizen has the right to seek protection with the judiciary to get a fair judgment concerning his rights and liberties. And, a suspect remains guiltless until he is convicted by a sentence.

There is no doubt that this requires providing all the necessary guarantees, especially the right of the litigant to declare his self-defense. Appealing against the validity or illegality of some legislation is a way of practicing this right, and denying this means denying all these guarantees.

How can this kind of supervision be effectuated practically?

The answer to this question requires determining first the essence of the higher ranked provisions as well as the points of violation or contradiction.

Determining the higher ranked provisions:

We have pointed out earlier that the principles mentioned in the Document cannot be applied except through the laws through which they can be executed. Therefore, the Libyan legislator issued the law of enhancing freedom whose rules were categorized as being “basic rules” which are not to be violated by Popular Conferences or by the administrative authorities in the form of decisions, proceedings, or measurements. Rather, the legislator ordained that the authorities responsible for issuing legislations should review the effective legislations to remove any contradiction that may be between them and this law. Thus, the legislator raised the status of the law of enhancing freedom over all the effective legislations, making it the highest ranked law among them. This position of this law, whose article no. 35 describes its rules as “constitutional,” relies on the principles of the Document; rather, it is considered a “phrasing” of this Document.

What are the consequences of placing this law in this rank?

In fact, considering the law of enhancing freedom to be a constitutional “basic” law leads to three important conclusions:

First: restricting the authority of the legislator [Basic Popular Conferences] by ordaining that they should not issue any legislation or decision that contradicts the rules stipulated in the law of enhancing freedom both textually and spiritually.

Second: the necessity of revising effective legislations to be consistent with the rules of this law.

Third: confirming the citizen’s right to appeal before courts against the application of any ordinary or subsidiary legislation that violates the rules of the law of enhancing freedom.

It can be imagined that there can be a law that harms or decreases the citizens’ basic rights and freedoms which are stipulated in the law of enhancing freedom, such as putting restrictions on their movement and practicing economic activities, or permitting a husband to marry another woman without his first wife’s acceptance or without having a permission from the court. It may also happen that an authority expropriates any property without compensation. In all these cases, the citizen has the right to appeal before the judiciary against the legality of that legislation or decision because it violates the law of enhancing freedom.

Courts in Libya have witnessed that kind of appeals - during the last years - since the law of enhancing freedom was issued, especially in the lawsuits that are related to real estates. The People’s Court[2] is the only body that judges the lawsuits of paying items of property back - “whether movable or immovable” - which were seized in opposition to Law no. 4 issued in 1978 A.C. and its amendments. This also applies to the lawsuits of compensation for such items of property on the basis of the rules of Law no. 5 issued in 1988 A.C. and its amendments. The twelfth article of the law of enhancing freedom stipulates that “private property is considered inviolable and never to be harmed as long as it was obtained legally without exploitation…”

It was demanded that there should not be any application of Law no. 10 issued in 1423 A.H. which was related to the events that happened before issuing it, because applying this law to cases of illicit gain is considered a violation of a rights-rated principle which requires that criminal laws are not to be applied retroactively except when this is better for the suspect.

Perhaps the clearest of these appeals is demanding the declaration of the illegality of Law no. 7 issued in 1427 A.H. as relating to preventing special lawyers from pleading before the divisions of the People’s Court, or - to be exact - restricting the suspect’s freedom to choose a lawyer to defend him from among the members of the Popular Legal Profession Administration. This is because this law contradicts the 30^th article in the law of enhancing freedom which granted the suspect a full right to choose his own lawyer and pay his expenses. As a result of that appeal, the legislator issued Law no. 3 issued in 1427 A.H. which canceled this provision and removed the restriction pertaining to the suspect’s freedom of choosing his lawyer. And finally, Law no. 7, issued in 1373 A.M. (i.e., After Prophet Muhammad’s death) for canceling the People’s Court. Yet this provoked many complexes, but it may be sufficient to refer here to the issues related to supervision on the constitutionality of laws, as this law has “form-related” drawbacks as regards its issuance and publishing and other “content-related” drawbacks because of the returning of the responsibilities and exceptional authorities - which were connected to the People’s Court and the Popular Prosecution Office, according to Law no. 5 issued in 1988 A.C. and its amendments - to courts and specialized prosecutions. When revising these responsibilities and specialties in the aforementioned law and its amendments, it becomes clear that the will of the legislator was directed only to canceling the People’s Court and the Popular Prosecution Office as two juridical authorities, but the specialties and exceptional responsibilities of these two authorities were transferred to courts and specialized prosecutions. As a result, the prosecutions and courts acted according to two procedural systems: one of them is ordinary and subjected to general rules stipulated in the procedural law, and the other system is exceptional and subjected to the rules stipulated according Law no. 5 issued in 1988 A.C - which was related to the establishment of the People’s Court - and the amendments of this law.

One of most prominent differences between the two systems is that a specialized prosecution is not to be restricted by the restrictions of suing a criminal lawsuit and extending provisional detention as well as by any of the authorities attached to the accusation chamber. That is considered a violation of the principle of equality in the criminal procedures between suspects, because there is no objective criterion according to which lawsuits are categorized and qualitative specializations can be distributed among prosecutions and courts after canceling the People’s Court and the Popular Prosecution Office. Yet still, this is not to be affected by saying that transferring (a case) to a specialized prosecution then to a division of a specialized court is done according to the second article of Law no. 7 issued in 1373 A.M. This is because this provision was issued when there were prosecutions and courts subjecting to the general procedural law. Moreover, they were not specialized qualitatively in certain cases, but they were established according to resolutions issued from the Supreme Council of Judicial Authorities. According to Article no 3 of the law of judicial system no. 51, issued in 1976 A.C. and amended by Law no. 10 issued in 1425 A.H. and relating to establishing appeal courts to be specialized in a certain kind of lawsuits, it is stipulated that for establishing these courts a resolution is to be issued from the Supreme Council Of Judicial Authorities according to a proposal presented by its president. The resolution is to decide the locations of these courts, their fields of specialization, their formation, and the type of cases which are to be tried in them. Article no 6 of the law endorses the same authority for the Council as regards establishing courts of first instance.

If the existence of these courts is considered legitimate according to the law, transferring (cases) to them - especially as far as crimes are concerned - directly by the General Attorney or any person whom he authorizes without this being through the accusation chamber, by relying on the exceptional authorities decided by Law no. 5 issued in 1988 A.C. and its amendments, is considered a violation of the principles of legitimacy and equality, with consideration of the fact that when these prosecutions and courts were established the legislator did not take into consideration the qualitative specification as in the agricultural, economic, traffic, utilities, or juveniles prosecutions. The same this applies to the specialized court that tries all the lawsuits transferred from the General Attorney and his prosecutors without any commitment to the principle of qualitative specialization - as it is not existent - but according to the exceptional authorities that stayed with the General Attorney from the canceled Popular Prosecution Office.

Thus, we can regard the procedural mechanism applied to the lawsuits transferred to the specialized courts as corrupted by being unconstitutional [illegitimate], because it violates the principle of equality of procedures among suspects and thus it makes room for appealing against the legitimacy of orders of transferring by appealing before the court that should face such appeals, as they are considered substantial issues on which the validity or invalidity of the lawsuit depends. And, if this (violation) is evident, it must stop the lawsuit and define a fixed time for the litigant in question to offer his appeal to the related constitutional division in the Supreme Court. It is obvious that the court’s accepting such a kind of appeals is not considered an intervention in the work of the legislature, but it is a form of practicing the jobs attributed to it according to the law. In the same connection, the judge is not obliged to confirm the validity of the legislation that he applies to the lawsuit in question. Also, the court’s refusal to apply it to another lawsuit is not considered a precedent that restricts a lower ranked court (to applying it accordingly), except if the litigation in question reaches the Supreme Court and it also determines the illegality of that legislation, because in that case its rule becomes an obligating principle for all the lower ranked courts. Still, the Supreme Court previously disclaimed its role as a supervisor on the validity of legislations relying on the basis that it contradicts the principles of the Great Green Document of Human Rights in the Jamahiriyan Era, and also relying on the pretext that its principles are inapplicable unless they are drawn in the form of laws that have an obligating authority. Thus, the effective legislations will continue to have the authorities attached to them until laws that cancel or amend them are issued according to the principles of the Great Green Document.

Actually, the words included in Law no. 5, issued in 1991 A.C. concerning the application of the Document’s principles, were directed to the legislator so that he could avoid what legislations would contain of any contradiction to the Document, and they were not directed to the judge.[3] While we agree with the Supreme Court as regards its attitude, due to its “adaptation” that it applied to the principles of the Great Green Documents of Human Rights in the Jamahiriyan Era, we believe that the Supreme Court - since it was established according to Law no. 17, issued in 1423 A.H., and the amendment applied to its formation according to Law no. 8, issued in 1372, A.M., and also after issuing the rules of the Supreme Court[4] - can deal with these constitutional appeals presented by any one who has a direct personal interest with respect to any legislation that violates the higher ranked legal rules. The most prominent illustration in this regard is that the legislator issues a law that violates the rules of the law of enhancing freedom, as in Law no. 7, issued in 1373 A.M., because it violates the principle of equability in the criminal procedures.

Actually, this legislative activity – which started with issuing Law no. 17, in 1423 A.H. – 1994 A.C., which amended Law no. 6, issued in 1982, A.C. – to the birth of the first verdict of unconstitutionality. This verdict was issued from “all the divisions of the Supreme Court,” and it is recorded in the General Record with the number 44/2L. This verdict states the unconstitutionality of Law no. 13, issued in 1425  A.H., concerning the execution of the legal penalties of theft and harabah[5] [not published]. Its wording reads:

“The Court, in all its divisions, has decided refusing any appeal that calls for the unconstitutionality of Law no. 13, issued in 1425 A.H., concerning the application of the legal penalties of theft and harabah, relying on the nonexistence of the condition of “interest” in the appeal of contesting in question. The lawyer of the accused persons “…..” appealed before the criminal court of Sert at court of appeal in Masratah with the unconstitutionality of Law no. 13, issued in 1425 A.H., concerning the application of the legal penalties of theft and harabah. Accordingly, the judicial division responsible for trying this appeal [concerning the two crimes whose perpetrators can be punished through hadd (prescribed legal punishment) and ta`zîr (discretionary punishment)[6]] decided stopping the appeal on 12/6/1997 A.C. and transferred the papers to the Supreme Court to judge the appeal claiming the unconstitutionality of the aforementioned law.

This was accompanied by a statement to the effect that, the law whose constitutionality is contested has allowed that the two punishable crimes of theft and harabah can be proved through the confession of the perpetrator or through any other way of proving which is stated in the law of criminal procedures. This violates the rulings of Islamic Law which ordains that “confession” or “evidence” should be (expressed or presented) before the judge, and that this confession or evidence becomes ineffective (or is canceled) when the perpetrator changes his mind, because there is a “doubt” then (that he may be innocent). Moreover, the law in question has exceeded some of the legal conditions of punishment.

Thus, the Supreme Court has judged - in all its divisions - that this appeal of unconstitutionality is unacceptable because of the aforementioned reasons, as there is no “interest” of those who appeal with not issuing the law no. 10, year 1369 A.M., for amending the law no. 13, year 1425 A.H. Therefore, the case attributed to the suspects subjected to the law of penalties.

Actually, the mere connection of the court to this appeal and issuing a judgment concerning it is considered not only a “brave start” but also a “turning point” in the methods of supervising constitutionality of laws, after this way has been closed for a long time. Yet still, the question that should be raised at the end of this research is: What kind of supervision does the Supreme Court practice regarding the constitutionality of law? Is it a supervision of cancellation or just a supervision of refusal?

In the beginning of the research, we referred to the two types of supervision and concluded that the supervision of cancellation is considered a form of overt and aggressive intervention in the work of the Legislature. Hence, this method must be stipulated explicitly in the body of the constitutional document, as it violates the principle of separation between authorities which prevails in the traditional regimes. Whereas, in the Jamahiriyan Regime – where Basic Popular Conferences are responsible for enacting laws, as they have sovereignty and authority – no other authority is permitted to cancel any legislation that violates a higher ranked legislation. Therefore, the impact of supervision is limited to refusing the “application” of the legislation in question until the legislator willingly intervenes to reconsider this legislation, either by canceling or by amending it so that it can be in conformity with the higher ranked law.

Prof. `Abdur-Rahman Muhammad Abu Tutah

Professor of Criminal Law, Faculty of Law, Al-Fatih University

President of Supreme Court