Interview on the right to defense in Libya
Saad Said
A lawyer and academic researcher, who practiced law during the Jamahiriya regime and continue to practice law to this day.
1. Did the Constitutional Declaration of 2011, especially Article 7 on human rights, constitute a milestone in the history of the right to defense in Libya? Is there any addition at the level of laws and judicial practice in relying on international conventions and treaties to strengthen guarantees of the right to defense?
Yes, the Constitutional Declaration of 2011 represented a milestone in strengthening the right to defense, as it enshrined that right in the form of basic texts that represent a supreme reference that can be relied upon in the face of any legislative or administrative actions aimed at violating or diminishing it.
2. What is the impact of Articles 31, 32, and 33 of the Constitutional Declaration of 2011 in strengthening the right to defense as one of the fair trial guarantees in Libya at the level of texts and application?
These articles, with their fair trial guarantees, have had a positive impact on the right to defense in theory. The most important impact is the prohibition of the establishment of exceptional courts and the prohibition of immunizing any decision from judicial oversight. However, practical reality may lead to different outcomes, as the Libyan legislature did not adhere to these guarantees in some criminal legislation, creating crimes with vague or ambiguous general terms. Law No. 5 of 2022 violates the constitutional provision “There shall be no crime or penalty except by virtue of the text of the law,” which requires accuracy and clarity of any criminalization text, focused on clear facts and behavior.
The legislature’s repeal of Law No. 11 of 2013, which abolished the trial of civilians before military courts, is a setback and a violation of defendants’ rights to a fair trial before their natural judge. The legislature further restored the trial of civilians before military courts for certain offenses under Law No. 4 of 2017. Practical reality indicates that the Libyan legislature failed to adhere to the provisions of these articles.
3. How do you explain the phenomenon of returning to pre-revolutionary texts in violation of the Constitutional Declaration by the government and the judiciary?
In fact, there is no sincere or serious political will to change the legislative system to align with the provisions of the Constitutional Declaration. Authorities today are not much different than prior to 2011, regarding their desire for authoritarianism and their concern for anything related to human rights. Unfortunately, the judiciary shares the same position by deliberately delaying the adjudication of many of the texts in violation with the Constitutional Declaration that have been challenged as unconstitutional. In my opinion, this situation will continue, as the legislative authority fails to consider or prioritize adapting legislative texts issued before 2011 to today’s constitutional realities. Instead, the priorities of the House of Representatives are completely reversed, with interest in law on witchcraft and sorcery.
4. Do you have any ideas or suggestions for constitutional articles that guarantee the right of defense in the upcoming constitution?
Perhaps strengthening this right by constitutionalizing the legal profession and regulating its general framework as a single entity undertaking the right to defense without competition from other government entities (People’s Legal Defense). In addition to establishing the right to legal aid before all police and judicial authorities, the right of the defendant to request legal aid, and the validity of the procedures taken, depending on the response to this request, will effectively contribute to the promotion of the right of defense in practice.
5. To what extent do bar associations contribute to the promotion of the right to defense?
In general, trade union work in Libya, including the bar association, has been weakened due to limited experience, lack of accumulation, and political harassment over the past decades. Today, the bar association is an entity only concerned with organizing the affairs of its members and has no clear role in either human rights or political affairs. In fact, we have yet to see a single report from the bar association on the human rights situation in Libya, especially in regard to the rights concerning the legal profession, including the right of defense. Thus, there is no current clear role for the bar association in promoting this right.
6. Is the constitutionalizing of the legal profession and the strengthening of lawyer guarantees sufficient today to guarantee the rights of the defense?
This is important, as we noted earlier. The legal profession was denied for so long under the previous regime until it was abolished. The restoration and establishment of the profession as a single entity (without governmental competition), independent and free, concerned with the right to defense, will reflect positively on the right to defense and will develop and improve its application and reduce violations.
The investigative authorities pose numerous obstacles, including the lack of qualification of members of the investigation of the suspect, their lack of understanding of the rights of the suspect, in particular the role of the defense before these authorities, and the defense rights to communicate with their clients and attend the investigation with them
7. What are the main obstacles facing lawyers in the pre-trial proceedings? How to overcome them?
The investigative authorities pose numerous obstacles, including the lack of qualification of members of the investigation of the suspect, their lack of understanding of the rights of the suspect, in particular the role of the defense before these authorities, and the defense rights to communicate with their clients and attend the investigation with them. These procedures are almost non-existent or difficult to achieve in most cases, due to the lack of qualifications of investigation members in charge and the lack of interest of key officials in the Ministry of Interior in upholding human rights standards.
Detainees are often prevented from communicating with their defense. Their presence may not even be announced, and the duration of their detention may exceed the legally prescribed period.
8. Do detainees in Libya have an optimal right to defense?
No. As mentioned, detainees are often prevented from communicating with their defense. Their presence may not even be announced, and the duration of their detention may exceed the legally prescribed period. In addition, detainees further face other violations, including torture and interrogations conducted in unsuitable conditions for the suspect, and these practices are repeated frequently and publicly.
9. Is it procedurally possible to exercise the right of defense today in Libya before the public prosecution?
The Libyan Code of Criminal Procedure guarantees the right of the suspect to be present with his/her defense and is legally mandatory in criminal cases when the suspect insists on it. The role of the defense before these authorities is limited to monitoring the progress of investigations and submitting requests that the defense may consider important and useful for the suspect. Despite the defense’s limited role, it further met with great restrictions in practice, including the prosecution not setting a specific time to conduct the investigation, notifying the defense of its date, or preventing lawyers from entering the prosecution headquarters except on certain days, as happens in the Attorney General’s Office. The aforementioned conduct restricts the exercise of the right of defense before these authorities.
10. How to strengthen the right of defense before the investigating judge?
This requires legislative intervention to strengthen this role in relation to all charges, regardless of their classification. In addition, the judicial authorities (Judicial Inspection Department) must support this right by issuing circulars to promote this right, monitoring their application, and holding violators accountable. The role of defense before the investigative authorities can be strengthened through the aforementioned mechanisms.
Irregular migrants face extremely difficult conditions, as they often do not receive any legal aid and are detained in official or semi-official facilities and subjected to ill-treatment, according to human rights reports over the past years.
11. What about the defense rights of irregular migrants?
Irregular migrants face extremely difficult conditions, as they often do not receive any legal aid and are detained in official or semi-official facilities and subjected to ill-treatment, according to human rights reports over the past years. The situation has worsened by legislation concerning that issue, which only examines the criminal aspects and neglects many of the rights of this segment of the population.
to improve defense rights at the criminal trial stage?
To improve the defense rights, we need a radical reform of the entire judicial system, with improving the right of defense as part of that reform. The issue lies in the inadequacy of the legislative aspects and in the practice and application, and the violation of this right.
12. How do you propose to improve defense rights at the criminal trial stage?
This requires a radical reform of the entire judicial system, with improving the right of defense as part of that reform. The issue lies in the inadequacy of the legislative aspects and in the practice and application, and the violation of this right. For example, today the oral pleading procedure, which is a condition for the validity of the criminal ruling, is only a formality, as most judges ask to reduce it to a (theatrical) scene to say that there is an oral pleading, without achieving the purpose intended by the legislator. This issue can only be solved through reforming the judicial system and applying strict and determined oversight mechanisms on its work.
13. How do you see the relationship between the legal profession and the judiciary?
The relationship between them is poor, and for a long time there has been conflict between the two parties. This is due to the previous regime’s fight against the legal profession and the establishment of the People’s Legal Defense as an alternative, where the distinction between lawyers affiliated with the bar association and lawyers affiliated with the People’s Legal Defense was established. The Libyan courts witness this distinction on a daily basis, and there is no doubt that this has greatly harmed justice and the rights of litigants.
Regarding the reforms to strengthen the right to defense, perhaps the first priority is to end the state of illegal and unjustified competition between lawyers and people’s lawyers by abolishing the latter and restoring the status quo, so that the legal profession in Libya can be truly free and independent.
14. How do you assess ten years of implementation of Law No. 03 of 2014? Do you propose amendments to strengthen the right of defense?
Law No. 3 of 2014 introduced many reforms to the right of defense. The law stipulated allowing lawyers to appear with their clients before all bodies where any person needs an expert in the field of law to preserve their rights, including investigative bodies, disciplinary boards, and courts. The law further stipulated the judicial immunity of lawyers, granting lawyers reassurance in performing their work, and legal protection that allows performing their duties freely and optimally.
Regarding the reforms to strengthen the right to defense, perhaps the first priority is to end the state of illegal and unjustified competition between lawyers and people’s lawyers by abolishing the latter and restoring the status quo, so that the legal profession in Libya can be truly free and independent.
The introduction of legal specialization will create competent and knowledgeable lawyers, which will reflect positively on the rights of litigants. However, this may be difficult to achieve in Libya in the near future due to several factors, the most important of which is the economic environm
15. Will the introduction of specialization in the legal profession improve the rights of the defense and the legal standard in general?
Certainly, the introduction of legal specialization will create competent and knowledgeable lawyers, which will reflect positively on the rights of litigants. However, this may be difficult to achieve in Libya in the near future due to several factors, the most important of which is the economic environment and its reflection on the nature of disputes, and the nature of the Libyan rentier economy at the present time, which will not allow for the creation of specialized lawyers today.
16. Is it necessary for lawyers to practice law before joining the judiciary or creating the possibility of using lawyers to strengthen the judiciary, similar to other legal systems?
Both cases are beneficial to the judiciary and have an impact on the realization of justice. The practice of law allows for the formation of a judge who is knowledgeable and aware not only of the legislative and jurisprudential aspects, but also of the legal aspects and the conditions of litigation, which has a positive impact on judicial work.
The current legislation does not allow lawyers to work in the judiciary, as the legislation governing the judiciary does not consider lawyering an equivalent job. The legal profession legislation does not recognize the duration of a judge’s work in the judiciary in regard to registration in the bar association if he wishes to work as a lawyer. This intransigence on both sides deprives the judiciary of a competent judge and the legal profession of a distinguished lawyer.
17. How do you perceive the Libyan legal profession between the new Anglo-Saxon perception as an economic activity in the service sector, and the classical perception as a humanitarian mission and a guarantee of the state of law, institutions and human rights?
The two concepts combined are not an anomaly. The legal profession, as an economic activity generating profit for its practitioners, is not incompatible with being a humanitarian mission. The nature of the profession and its relationship to human rights raises all its members to respect and defend those human values. It can be said with slight reservations that in the conscience of every lawyer is a human rights defender.