Libya : Legislative frameworks and practices hindering freedom of expression
Professor Diya Shaqqura
Researcher in public law, particularly interested in issues related to civil and political rights. He is currently engaged in writing his doctoral thesis, which examines constitutionalism in countries following the 'Arab Spring'.
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This is how the Venice Commission expressed the importance of freedom of expression, opinion, and information for democracies, even if the subject matter is fundamentally anti-democratic. Freedom of expression constitutes “the cornerstone of every free and democratic society,” because of its importance and relevance in promoting the principles of transparency and accountability and as the fundamental basis for the full enjoyment of a wide range of human rights such as freedom of assembly, association and electoral rights.”[2]
In Libya, the context is slightly different. During the forty-two years of Muammar Gaddafi’s rule, Libya suffered from a complete absence of democracy, which in turn reflected on freedom of opinion and expression as the state monopolized everything and “drew boundaries that could not be crossed.”[3] Despite the existence and constitutionalization of some relevant rights in the 1951 Constitution,[4] the Constitutional Declaration of 1969 came absent and limited to a single article: “Freedom of opinion is guaranteed within the limits of the interest of the people and the principles of the revolution.”[5] This indicates a clear and concise picture of the policy followed at the time and the freedom of opinion and expression throughout those years.
The 2011 Libyan revolution came with great hopes for political change in the country’s system and institutions, offering a chance to change the reality of rights in Libya and a tool to remove restrictions on freedoms in general and freedom of expression in particular. The Constitutional Declaration of 2011 was in line with the revolution’s demands, as its preamble stated that this declaration is “In response to the desire of the Libyan people and their aspirations for achieving democracy and promoting the principles of political pluralism and statehood based on institutions.”[6] This declaration emphasized that the state guarantees, among other freedoms “freedom of opinion and freedom of individual and collective expression, in accordance with the law.”[7]
Freedom of expression can be defined as the freedom to seek, receive, and impart information and ideas of all kinds, including the expression of ideas, attitudes, and perceptions to others by all possible means. This freedom includes not only information or ideas that are positively received or considered inoffensive but also those that cause shock or discomfort to the state.[8] However, freedom of expression is not absolute, as its exercise entails “special duties and responsibilities.”[9] Thus, it can be subject to restrictions, provided they are necessary and specified by law.[10]
Today, the topic of freedom of expression raises many questions in Libya. Despite the constitutional declaration issued more than thirteen years ago, it still faces a legacy of restrictions, a worrying present. and an uncertain future.[11] What are the challenges of realizing, respecting, and protecting freedom of expression? Despite the aspirations of the revolution and the guarantees provided in the new constitutional text, the exceptional situation in Libya complicated the democratic transition, as protests turned into violence, armed conflict, and political division, failing to bring about change and further affecting freedom of expression. In this article, we will attempt to discuss the legal framework for freedom of expression (first) and judicial guarantees for freedom of expression (second).
First: A restrictive legal framework for freedom of expression
Freedom of expression is not absolute, and states can, under certain necessities, restrict this freedom with conditions. Although Libya ratified the International Covenant on Civil and Political Rights (ICCPR) in 1970, which obligates the state party and all its executive, legislative, and judicial bodies to respect, protect and fulfill freedom of opinion and expression,[12] numerous arbitrary restrictive laws to freedom of expression enacted before the revolution remain in force to this day, constituting a legal legacy that shackles freedom of expression (A).
In addition, legislations enacted in the post-revolutionary period, which are also restrictive to press freedom, emptied the constitutional guarantee in the 2011 Constitutional Declaration of its content, posing a worrying legal present (B).
A. More than fifty years of shackling legal legacy on freedom of expression
Article 14 of the Constitutional Declaration clearly stipulated that freedom of opinion and expression is a guaranteed right, provided it does not contradict the law. However, most of restrictive laws to freedom of expression date back more than fifty years and are still in force and used by relevant authorities during the last decade. Some of these legislations include the Publications Law No. 76 of 1972,[13] placing many obstacles to the exercise of freedom of expression, press, and publication. The Human Rights Committee has considered the Publications Law on more than one occasion to be restrictive of freedom of expression and imposing severe limitations on freedom of opinion and expression. The Committee has encouraged for the law to be reviewed, to bring it into general conformity with the articles of the International Covenant on Civil and Political Rights.[14]
This law includes numerous issues, the most important of which is the idea of licensing the work of media outlets, allowing unrestricted discretion to grant and deny such licenses.[15]
Although the law states, “newspapers may not be censored before publication,”[16] the law further contains articles that contradict this principle. Article 28 requires “every foreign publication to be submitted to the Publications Department before distribution.”[17] Article 5 adds that the owner of a periodical or semi-periodical publication must be “a believer in the Arab Revolution and committed to its goals and the goals and principles of the Arab Socialist Union.”[18] This indicates an arbitrary restriction on freedom of expression.
The continued application of the Penal Code, including Articles 178, 195, 205, 208, 245, 438, and 439,[19] represents one of the main challenges to protecting freedom of expression. The aforementioned articles include crimes of insulting public officials, the Libyan nation, the Libyan flag,[20] or constitutional or popular authorities.[21] The law further criminalizes any act aimed at provoking a civil war or breaking up national unity.[22] Article 207 of the Penal Code criminalizes the promotion in any way of theories or principles that aim to change the basic principles of the constitution or the basic systems of the social body.[23]
The aforementioned articles pose numerous legal issues and challenge the respect of the Constitutional Declaration of 2011 and the fulfillment of Libya’s obligations, including those related to the International Covenant on Civil and Political Rights. The law uses broad and uncontrolled terms, including “insulting or disrespecting,” which could easily be interpreted in a way that completely eliminates freedom of expression.
The Human Rights Committee, in its Comment No. 34 on Article 19, attaches great importance to restrictions on freedom of expression and the press and considers that deeming forms of expression offensive to a public figure insufficient to justify the imposition of penalties. The criminalization of certain practices such as criticism of officialdom and disrespect for flags and symbols should not constitute restrictions on freedom of expression and the press. Criticism of official institutions should not be prohibited.[24]
These legal rules are more than fifty years old and remain a heavy and restrictive legacy for freedom of expression in a complex democratic transition. Libyan authorities continue to use them to prosecute and stifle freedom of expression. For example, a criminal court in Libya sentenced Amara al-Khatabi, editor of al-Ummah daily, to five years in prison for allegedly defaming public officials in connection with the publication of the “judiciary blacklist,” which named eighty-seven judges and prosecutors and accused them of accepting bribes and other forms of graft. The Court based its verdict on Article 195 of the Penal Code among other laws.[25]
B. Troubling legal present: Post February Revolution legislation
The arbitrary restrictions imposed on freedom of expression during the difficult period of democratic transition were not limited to those contained in the legislation adopted during the pre-revolutionary period, but the post February Revolution legislation came with numerous legal texts that placed restrictions on the legitimate exercise of freedom of expression. Of the more than sixty-two pieces of legislation issued by the post-revolution House of Representatives, two laws pose several issues for the protection, respect, and realization of human rights.
● Law No. 3 of 2014 on Combating Terrorism
The first law is Law No. 3 of 2014 on Combating Terrorism. Terrorism laws, in general, pose a fundamental issue, amid absence of a clear international legal definition of terrorism, which is reflected in national definitions that are often vague and have the potential to commit unintentional human rights violations or to be used at times to target a specific group.
The Libyan law on combating terrorism is no different, as its definition of a terrorist crime can only be described as vague and ambiguous. The aforementioned law defines a terrorist act as “serious disruption of public order, or endangering the safety, interests, or security of society with the intention of harming or terrorizing people.”[26] This definition may be interpreted for many acts that are usually considered exercise of legitimate rights, including freedom of expression.”[27]
The law further criminalizes “anyone who spreads propaganda, promotes or misleads to carry out a terrorist act,[28] by any means, and the penalty is increased if this act is done in places of worship or within the armed forces.” The use of these terms in terrorism laws raises the fundamental issue of criminalizing an act that may not constitute a violent act aimed at provoking and spreading terror among citizens, or related to incitement to commit a terrorist act, which poses a clear risk of unjustified restrictions on individuals and groups in the legitimate exercise of freedom of expression.[29]
● Law No. 5 of 2022 on Combating Cybercrime
The second law, Law No. 5 of 2022 on Combating Cybercrime,[30] is also broadly worded and undefined. The law stipulates that it is legal to use modern technology as long as it does not violate “public order or public safety.”[31] The law further establishes financial and custodial penalties for spreading rumors that threaten “public security and safety.”[32] The legislator left the interpretation of these terms to law enforcement agencies, including the National Authority for Cyber Security, established by Cabinet Decision No. 28 of 2013. The law further granted the National Authority broad powers to monitor what is published through the World Wide Web, and gave it wide discretionary authority to block anything that could undermine the security and stability of society.”[33]
The general use of these terms, whether in laws issued before or after the revolution, does not meet the requirements of sufficient precision with which a legal rule must be formulated, giving it a broad scope that could encompass the legitimate exercise of freedom of opinion and expression. A legal rule must be drafted with sufficient precision and must be made available to the general public. The law may not give persons responsible for its implementation unbridled discretion to restrict freedom of expression.[34]
Second: The relative role of the judiciary in protecting freedom of expression
The role of the judiciary and judicial guarantees for the protection of freedom of expression cannot be discussed only through the legal framework guaranteeing this freedom, but must further address the role of the judiciary and the judicial guarantees in protecting it. The Constitutional Chamber has played a relative role (A), but it seems that the Constitutional Chamber and constitutional oversight are now in the crosshairs of political conflict (B).
A. The relative role of the Libyan judiciary in protecting rights and freedoms
The rule of law requires all state agencies to abide by the laws issued by the competent authority, as the basis for the legitimacy of the actions of this authority, and this cannot be done without oversight exercised by the judiciary and courts, of various types and degrees, on the extent to which legislation is consistent with the constitution and treaties, and the extent to which authorities’ actions are consistent with the legislation itself, in relation to human rights.[35] National courts play an essential and important role in protecting human rights by applying human rights guarantees stipulated in international or local laws.[36]
The Libyan judiciary has played this role, through the Constitutional Chamber of the Supreme Court, authorized by Law No. 6 of 1982 on the reorganization of the Supreme Court in its Article 23 on the jurisdiction of the Supreme Court in its combined chambers in appeals against legislation that violates the Constitution and for any fundamental legal issue related to the Constitution or its interpretation raised in a case before any court.[37] The analysis includes two occasions of the Constitutional Chamber exercising its role as a protector of human rights and freedom of expression in particular.
The first occasion relates to the status of international conventions ratified by Libya in the national legislation, as the Constitutional Declaration does not stipulate this. The Supreme Court established an important principle, emphasizing that international conventions ratified by Libya have a higher rank than national laws after their ratification, a trend consistent with the prevailing view in international law that international conventions have a higher rank than national laws.
The Supreme Court (Constitutional Chamber) stated, “It is established that international conventions to which the Libyan state is bound are directly enforceable as soon as the ratification procedures are completed by the legislative authority in the state, and have precedence over domestic legislation, and if there is a conflict between their provisions and the provisions of domestic legislation, the provisions of the convention are the first to be applied.” Consequently, workers in Libya have the right to benefit from the rights that may be established by these conventions as soon as the Libyan state ratifies them without the need to amend any domestic legislation that may conflict with them.”[38] Even if this constitutional challenge is not primarily about freedom of expression, it allows for the judiciary to use international legal standards that guarantee freedom of expression.
The second occasion relates to freedom of expression and the use of broad terms. The Supreme Court (Constitutional Chamber) ruled in Appeal No. 5 issued on 14 June 2012 that Law No. 37 of 2012, which uses broad terms to criminalize “glorifying a tyrant,” is unconstitutional. The court emphasized several constitutional principles, the most important of which are the principle of legislative progression, the legitimacy of criminalization, and freedom of opinion and expression. The court further emphasized that violating the provisions of the constitution has several aspects, namely opposing its ruling, restricting its absolutes, or specializing its generalities. This applies to the various problematic articles mentioned in the first part of this article, whether those stipulated in the Penal Code or in laws issued after the revolution, including the Combating Terrorism Law and Cybercrime Law.
B. The political divide affecting the judiciary
Despite the importance of the judiciary’s decisions and its role as a protector of rights and freedoms in general, it was not spared from the political conflict and division that Libya has witnessed since 2014, which greatly impacted its role. The political conflict impacted the form and unity of the state, reflected in the division of the legislative authority between east and west and the subsequent duplication of institutions and administrative bodies, the military and security establishment, and others.[39] However, the judiciary remained far from the conflict and division, as we did not witness the formation of a parallel Supreme Judicial Council or a supreme court other than the court based in the capital Tripoli, as the parties in the conflict did not compromise the independence and prestige of the judiciary.
When the Constitutional Chamber found itself at the center of this division, it froze itself and refused to rule on appeals during the years 2016 to 2022. This disruption came as part of the repercussions of the Constitutional Chamber’s ruling that the House of Representatives’ session was unconstitutional because it was based on the constitutional amendment that was ruled unconstitutional.[40] This order was rejected and not recognized by the House of Representatives, which considered it issued by force of arms.[41]
The absence of a constitutional chamber contributed to the absence of constitutional oversight of the legislature’s actions, including laws related to freedoms. The basic meaning of constitutional justice lies in guaranteeing the “basic structural aspects” of the modern state, including its form, the distribution of powers, the normative primacy of the constitution, the freedoms granted to citizens and individuals, and the democratic representation that is required in any period of democratic transition.[42]
The Supreme Court of Libya decided to reactivate the Constitutional Chamber, which has been frozen since 2016,[43] a move that some considered commendable and emphasized the need for constitutional oversight, while others considered it dangerous, perpetuating the division and putting the judiciary at the center of the conflict.
This decision comes days after the parliament voted unanimously on a law establishing a supreme constitutional court in Benghazi to hear all appeals and abolish the Supreme Court in Tripoli and change its name to the Court of Cassation, a law that the Constitutional Chamber deemed unconstitutional.[44]
This new law took jurisdiction away from the Constitutional Chamber and the Supreme Court refrained from applying it. This law creates a real issue in resorting to the constitutional judiciary in Libya, reducing the scope of the constitutional judiciary to only litigants, and only the Speaker of the House of Representatives, at least ten deputies, the Prime Minister, or ten ministers can directly challenge a law for unconstitutionality, rendering the constitutional judiciary to a formality and limited.”[45]
[1] European commission for democracy through law (Venice commission), Compilation of Venice commission opinions and reports concerning freedom of expression and media, 2016, p6. Available here.
[2] Human Rights Committee, General Comment No. 34, CCPR/C/GC/34, paragraphs 2-4.
[3] Osama Salim, “Freedom of Expression in Libya: The Morning comes,” Rosa Luxemburg Stiftung, 2023. Available here.
[4] Libya’s first constitution came into force shortly before the declaration of independence. This constitution stipulated that Libya was a constitutional monarchy with King Idris I as king. This constitution did not last more than 12 years, and was repealed by the Constitutional Declaration of 1969.
[5] Article 13 of Constitutional Declaration of 1969 issued by the Revolution Command Council.
[6] Preamble to the Libyan Constitutional Declaration of 2011 and its amendments.
[7] Article 14 of Libyan Constitutional Declaration of 2011 and its amendments.
[8] Moeckli, D., Shah, S., & Sivakumaran, S. (Eds.). International human rights law (3rd ed.). Oxford University Press, 2017, p. 225.
[9] Article 19(3) of International Covenant on Civil and Political Rights.
[10] On the possible restrictions on freedom of expression, see 2 Human Rights Committee, General Comment No. 34, paragraphs 21-49.
[11] Marwan Tashani, Freedom of Expression, Thought and Creativity in Libya: A Legacy of Restrictions, an Anxious Present and an Uncertain Future, Legal Agenda, 2017. Available here.
[12] Human Rights Committee, General Comment No. 34, op. cit., paragraphs 7 and 8.
[13] Adala for All Observatory article, “Libya: There is no freedom of press and expression under Law No. 76 of 1972” Published 18 July 2024. Available here.
[14] Human Rights Committee, CCPR/C/LBY/CO/4. 15 November 2007.
[15] International Standards: Regulation of Print Media, Article 19. 5 April 2012. Available here.
[16] Article 2 of Law No. 76 of 1972 on Publications.
[17] Article 28 of the same law.
[18] Article 5 of the same law.
[19] Adala for All Observatory article, “Article 178 of the Penal Code: Gaddafi-era repressive legal arsenal continues”. Published 16 April 2024.Available here.
[20] Article 205 of the Penal Code.
[21] Article 195 of the Penal Code.
[22] Article 203 of the Penal Code.
[23] Article 207 of the Penal Code.
[24] Human Rights Committee, General Comment No. 34, op. cit. para. 37.
[25] Human Rights Watch, “Libya: Editor’s Harsh Conviction Blow to Free Speech,” 21 November 2014. Available here.
[26] Article 2 of Law No. 3 of 2014 on Combating Terrorism.
[27] Although there is no international legal definition of terrorism, there are standards that can be based on, including those mentioned by the Special Rapporteur on the protection of human rights while countering terrorism. Any definition of a terrorist offense must meet the following elements: (a) it is committed against members of the general population, or segments thereof, with the intent to cause death or serious bodily injury, or to take hostages; (b) its purpose is to provoke a state of terror, to intimidate a population, or to compel a government or an organized international organization to do or abstain from doing any act; and (c) it complies with all the elements of a serious crime as defined by law; and (d) it meets all the elements of a serious crime as defined by law. See here: report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin - Ten areas of best practices in countering terrorism. A/HRC/16/51, para. 26-28
[28] Article 15 of Law No. 3 of 2014 on Combating Terrorism.
[29] Shaqqura (D), “les libertés à l'épreuve de lutte contre le terrorisme, éditions universitaires européenne,” 2020. pp. 33-34.
[30] Adala for All, “Libya: Constitutional rights under the Anti-Cybercrime Law,” Published 30 August 2023. Available here.
[31] Article 4 of Law No. 5 of 2022 on Combating Cybercrime.
[32] Article 37 of the same law.
[33] Articles 7 and 8 of Law No. 5 of 2022 on combating cybercrime.
[34] Human Rights Committee, General Comment No. 34, op. cit., para. 25.
[35] Ahmad al-Ashqar, “Arab Jurisprudence in the Application of International Human Rights Conventions,” Raoul Wallenberg Institute for Human Rights. 2016, p. 14.
[36] Byrnes (A), Renshaw (C), Within the state, in Moeckli (D), Shah (S), & Sivakumaran (S) (Eds.). International human rights law (3rd ed.). Oxford University Press, 2017, p. 469.
[37] Article 23 of Law No. 6 of 1982 as amended by Law No. 17 of 1994 amending Law No. 6 of 1982 on the reorganization of the Supreme Court.
[38] Constitutional Appeal No. 57/01, session of 23 December 2013.
[39] Marwan Tashani, “Can the Libyan judiciary withstand quotas and power-sharing?” Legal Agenda, 2021. Available here.
[40] Decision No. 16 of 2014 regarding the unconstitutionality of the session of the House of Representatives held in Tobruk on 4 August 2014 and onwards. Available here.
[41] “Libya: Disputes over the activation of the Constitutional Chamber after 7 years of inactivity,” Al-Araby Al-Jadeed, 2022. Available here.
[42] The cost of the absence of the Constitutional Court in comparative experiences, Marsad Ruqaba, “The Absence of the Constitutional Court: The Fragility of the Legal and Political System,” 2024. Available here.
[43] Decision No. 12 of 2022 regarding the continuation of the Constitutional Chamber in the exercise of its jurisdiction.
[44] Constitutional Appeal 70/5 regarding the law on the establishment of a constitutional court. Available here.
[45] Sarra Ben Sedrine, “The right to access to justice in Libya,” Mawazin Mag, Issue 3. 14 June 2024. Available here.