Interview: The status of international agreements in Libyan law and judiciary and the principles of the rule of law
With Judge Abdul Karim Bouzid
Abdul karim Bouzid is a judge at the Primary Court of South Benghazi. Mr Bouzid holds a PhD in Public International Law, from Faculty of Law, Ain Shams University in Egypt.
1. Theoretically, what is the status of international agreements ratified by the Libyan state as a source of law?
On the status of international agreements in the Libyan legal system, neither the constitutional nor the ordinary legislator provided a general rule governing this topic. The ordinary legislation includes several scattered articles granting priority in application to international agreements, if the legislative texts conflict with the agreements, but within a limited framework. This framework includes the case of extradition in the Criminal Procedure Code and the case of the rules of conflict of laws in Civil Code.
2. What is your opinion on the development of the jurisprudence of the Libyan Supreme Court regarding the principle of the supremacy of ratified international agreements?
Due to the absence of a legal text, the Supreme Court attempted to address the supremacy of international agreements until the Constitutional Chamber established an important principle to emphasize that international agreements in Libya have a higher rank than national laws after their ratification by the competent authority. This is consistent with the prevailing opinion in international law, considering it with a higher rank than national laws.
3. In practice, implementing the principle of the supremacy of ratified international agreements in judicial dispute and the ruling in civil matter. Should the disputing parties adhere to the inconsistency of the ordinary law with the international agreement, and the application of the principle, given that the procedures are allegations in the civil matter? Or is the rule of concern to public order and the court can raise it? What about the penal article, where procedures can be inductive, and the margin of the court’s jurisprudence is broader, with the existence of numerous laws such as the Libyan Penal Code that bluntly contradicts these agreements?
On applying the principle of supremacy of international agreements, whether in the field of civil or criminal matters, the judge is required to implement it without requiring that the litigants adhere to it. Ratified international agreement becomes an enforceable law for the judge to apply the law and not for the litigants. Despite this, the opponents’ role remains in drawing attention to these agreements.
On the conflict between articles of the penal code and international conventions, a distinction must be made between criminalization articles and other articles. International conventions stipulate the obligation of the state parties to criminalize a certain behavior, requiring the intervention of the legislative authority to criminalize that behavior and impose a penalty for it. Ratification of international agreements further require the intervention of the legislator first, in order for the judge to apply these agreements.
Otherwise, international conventions are expected to be applied without hindrance, in case of international convention allowing behavior criminalized by national criminal law, or narrowing the scope of criminalization, provided that it does not conflict with public order in Libya.
4. How do you assess the percentage of Libyan courts implementing the principle of supremacy of ratified international agreements and the development direction of jurisprudence in that area?
Libyan courts lack experience in the international field, due the lack of interest and special importance in such topics by the competent authorities contributing to the making of judges, lawyers, and members of the prosecution. We find many cases applying the national law instead of international agreements, despite the national law contradiction with those agreements and in many fields, including cases of international air transport.
5. What are the obstacles preventing a proper and normal consecration of the principle of supremacy of ratified international agreements? Are they related to the legal culture, the making of lawyers, or the making of judges? Is it the dominant conservative tendency or other problems?
Numerous obstacles prevent implementing the principle of supremacy of international agreements, including the making of justice workers and lack of familiarity with that, and the lack of interest of the authorities supervising justice affairs in preparing courses and seminars on the topic, in addition to the failure of distributing international agreements ratified by Libya to courts and judicial bodies.
6. What is the extent of utilizing Articles of the Constitutional Declaration of 2011, articles 7 and 31 (concerning the principles of a fair trial), and the first paragraph of article 35: “All provisions established in the existing legislation shall remain in force insofar as they are not inconsistent with the provisions of this Declaration until they are amended or repealed”? And the extent of Transitional Justice Law to bypass the rules and legal articles contradicting the ratified international agreements, including these related to human rights?
Article 7 of the Constitutional Declaration obligated the state to safeguard human rights and basic freedoms. Article 31 and following articles of Chapter Four of the Constitutional Declaration stipulated judicial guarantees, derived from international conventions. These constitutional articles of international origin support the constitutional judiciary to rule of the unconstitutionality of certain legislations contradicting its provisions. However, these articles and the transitional justice law for the ordinary and administrative judiciary are not sufficient for excluding the legislation contradicting them.
7. Regarding laws enacted by previous regimes in historical and political contexts with no relation to the desired paradigm shift following the Libyan revolution, what about the laws issued after the Constitutional Declaration and in violation of it and international agreements? Can all courts bypass them in accordance with the principle of the supremacy of ratified international agreements? Or should the theory of the screen law (loi-écran) be adopted, where the courts of origin should refrain from ruling on the law, and only resort to appeal of unconstitutionality?
The principle of the supremacy of international agreements over national legislation, confirmed by the Supreme Court, requires the application of international agreements in case of conflict with national legislation, whether those laws precede or follow the ratification of international agreements. The Supreme Court decided to implement the labor agreements ratified by the Libyan state, which contradicts the Labor Relations Law, which was subsequently passed in 2010. Therefore, the implementation of this principle does not require resorting to an appeal for unconstitutionality.
8. Is there any difference in the margin of independence of the Libyan judiciary before and after 2011?
Perhaps, the margin of independence of the judiciary is not much different before and after 2011. Although after 2011, there were many attempts for the independence of the judiciary, the successive political crises cast a negative impact on the work of the judiciary.
9. How do you assess the reforms of the Libyan judicial system since 2011? What difficulties continue to threaten the independence and effectiveness of the judiciary?
There were no significant reforms in the judicial system, since 2011, except for the re-formation of the Supreme Judicial Council, the removal of the executive authority (the Minister of Justice and the Deputy of the Ministry of Justice) from its formation, and the approval of the principle of electing members of the Supreme Judicial Council.
However, according to the latest amendment, the head of the Supreme Judicial Council is chosen by Parliament from among those who have the rank of head of the Court of Appeal. Thus, the Parliament is considered to blatantly interfere in judicial matter. The head of the Supreme Judicial Council requires the approval of the elected members of the Supreme Judicial Council, and for a specific period, which is not as stated in the latest amendment.
10. Which reforms are necessary for the structure and the functionality of the Libyan judiciary?
The judiciary needs to carry out numerous reforms, starting with amending the jurisdiction of the courts with clear standards that follow the international development, and in a way that eliminates the circulation of cases for many years to address the issue of jurisdiction only, through the establishment of specialized courts such as the Constitutional Court, administrative courts, family courts, and commercial courts.
Supreme Judicial Council needs restructuring and limiting its competencies to drawing up general policies, with delegating some important issues, such as disciplining members of judicial bodies, to a disciplinary council, whose members are selected from advisors for a specified period at least every three years. The prevention of transferring judges to other judicial bodies, as is the case now, undoubtedly constitutes isolation of judges.
11. What recommendations can Judge Abdul Karim Bouzid share with young judges or university graduates who seek to join the judiciary in Libya?
My recommendation to new judges and to those interested in joining the judiciary is to recognize that their strongest tool is knowledge and increased awareness of recent developments, with a focus on a specific specialization; to enroll in postgraduate programs and develop their abilities on their own; and to work independently and not be affected by any other means that may affect their integrity and impartiality.
