Libya: Protecting an association from Law 19/2001 and its restrictions
Local and international associations in Libya have been raising concerns about the infamous Law No. 19 of 2001 and the attempt to implement its restrictions. The government persists in turning back to Gaddafi-era legislation with the repressive Law 19/2001, which contradicts the constitutional text, and the spirit of the Constitutional Declaration and the revolution.
Numerous governmental bodies have attempted to restore the aforementioned law, similar to Resolution no. 286 of 2019 issued by the Presidential Council of the Government of National Unity, which regulates the work of the Civil Society Commission. On 18 July 2022, the Urgent Matters Department of the South Benghazi Court suspended resolution 286/2019, after the appeal of Libya Platform organizations against the resolution. The most recent attempt dated 21 March 2023, where the government of Abdul Hamid Dbeibeh issued Decree No. 7 of 2023, allowing local and international civil society organizations in Libya to continue working temporarily until they conform with Law 19/2001 on regulating associations.
Adala for All (AFA) has compiled the legal means through which associations in Libya can be protected before the judiciary from Law 19/2001 , which classifies associations as illegal, and from Article 206 of the Penal Code, which may apply to members of associations if classified as illegal by the executive authority. Article 206 stipulates, “A penalty that may reach the death penalty for members of associations classified as illegal by the executive authority.”
On 24 May 2008, the Public Prosecutor of the State Security Court ordered Libyan Shokry Sahl to attend a hearing on 17 June 2008 before the State Security Court; he was accused of attempting to establish an organization against the principles of Al-Fateh Revolution. On 16 June 2008, Sahl fled Libya without attending the hearing, and was informed later by his relatives that he had been convicted and sentenced to death on 18 November 2008. Sahl’s relatives were unable to obtain a copy of the court verdict. Amnesty International’s request for the Libyan authorities to provide Shokry Sahl’s family with a copy of the court ruling was not answered.
In 2008, a group of lawyers, journalists and writers further attempted to register a new non-governmental organization “The Center for Democracy,” to work on spreading democratic values, human rights, and the rule of law in Libya. The Libyan authorities intercepted the twelve founder-members of the group, among whom was Daw al-Mansoori, who was kidnapped and assaulted in June 2008 by three unknown assailants, who warned him against setting up an NGO.
The only registered organization was the Gaddafi Organization for Human Rights, founded by Saif al-Islam Gaddafi. In a speech delivered in Cairo in May 2010, Saif al-Islam Gaddafi acknowledged the great difficulties in forming associations in Libya, due to the difficulties in obtaining registration.
In the event that the government applies Law 19/2001, an association can plea the illegality of the law and request that the trial court apply the guarantees of Article (22) of the International Covenant on Civil and Political Rights in accordance with the principle of the supremacy of international agreements over local laws, (1. Illegality of Law 19/2001). The association can take a preemptive step and challenge the unconstitutionality of Law 19/2001, before the Constitutional Chamber of the Supreme Court, (2. The unconstitutionality of Law 19/2001).
1. The illegality of Law 19/2001
In 1969, the president at the time Muammar Gaddafi issued the Constitutional Declaration, which excluded any reference to the right to form associations, and against the 1951 constitution, which recognized this right in Article (26). In 1970, General People’s Congress under Gaddafi issued Law No. 111, which abolished the articles of the Libyan Civil Code issued in 1953, regulating the work of associations (Articles 64-68). The new law (No. 111) only recognized associations established by the Libyan Revolutionary Command Council or the Minister of Social Affairs and Social Security. Gaddafi’s regime succeeded in erasing any constitutional right and legal framework regulating the right to form associations.
In 2001, the Gaddafi regime issued Law No. 19. Although the law seemingly reinstated the legal framework for associations, it in effect domesticated associations by exercising control over the their formation and activity.
In 2013, Law No. 29 on transitional justice was issued, stipulating in Article (6) the nullity and illegality of all unjust legislation issued before 2011.
This aforementioned article fully applies to Law (No. 19 of 2001) regarding freedom of association, considering it a law issued under a totalitarian regime aiming to restrict the work of civil society institutions and allow the government and security services to interfere in their work. Law 19/2001 is against public freedoms, and raises conflicts with other legal texts that are higher in rank, more recent in time and more inclusive to the concepts of citizenship, the rule of law, and the institutions to which Libyan society aspires, especially since the law regulating political parties that was enacted responds to constitutional and international standards, and it was a matter of priority for the Libyan state to follow the same path respecting Article (15) of the Constitutional Declaration of 2011.
The principle of the supremacy of international treaties over national legislation
In accordance with the principle of the supremacy of international treaties over national legislation, the Vienna Convention on the Law of International Treaties (known as the Treaty of Treaties) was adopted by the United Nations General Assembly by United Nations General Assembly Resolutions (No. 2166 of 5 December 1966), and (No. 2287 of 6 December 1967) and entered into force on 27 January 1980. The Libyan state ratified the convention on 28 December 2008. Article (26), “agreements must be kept,” states: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Article (27) of the same treaty “Internal law and observance of treaties” states:
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article (46).”
On 2 May 2021, the judiciary enshrined the principle in jurisprudence with distinction in its initial decision in the Criminal Appeal Case (No. 512/67), which stated: “…since the aforementioned agreement stipulates a clear legal principle, according to which the crime is a crime against humanity, to which the statute of limitations does not apply, and since the implementation of this principle does not require subsequent legislation to put it into practice, what is sufficient for its actions is what was decided by this court with its convening circuits. In its ruling, the Supreme Court affirmed, with its assembled circuits, several important legal rules by which the Libyan authorities, legislative, executive, and judicial, must abide, including: “That the international conventions, ratified by the Libyan state, are effective as soon as the ratification procedures are completed, and shall have precedence of application in the event that their articles contradict with Libyan legislation in force.”
The International Covenant on Civil and Political Rights has been ratified by the Libyan state since 15 May 1970, and it stipulates in Article (22).
Libya also ratified the African Charter on Human and Peoples’ Rights on 19 July 1986, which states in Article (10.1): “Every individual shall have the right to free association provided that he abides by the law.”
The association must push, before the judiciary, for the implementation of Article (22) of the International Covenant on Civil and Political Rights, which was interpreted in a 2012 report by the United Nations Special Rapporteur on freedom of association, as follows:
Civil society organizations be able to register with the competent administrative body through the process of notification and not licensing
If an association commits a violation, executive authorities, including security agencies, must challenge registration before an impartial judicial authority and cannot refuse registration without judicial oversight
Civil society organizations must have the right to open a bank account without permission from the executive authority, and this bank account cannot be frozen except by a ruling from the judicial authority
The authorities must not request civil society organizations to re-register once registered. The obligation to renew registration is a violation of freedom of association
The authorities must allow civil society organizations to meet with local and international communities without prior approval
The authorities cannot suspend or dissolve an association without a court ruling that respects fair trial principles.
2. The unconstitutionality of Law 19/2001
The 2011 Constitutional Declaration in Libya cut all ties with the former regime in form and substance, whether by declaring in Article (1) the democracy of the state, or affirming in Article (7) that the maintenance and development of human rights is the duty of the state, or what was stated in Article (15) of guaranteeing the right to freedom of forming political parties, societies and other civil society organizations, and a law shall be promulgated to regulate the same, and Article (34), which abolishes any documents and laws of a constitutional nature in force before the implementation of this declaration.
The law violates Article (34) of the Constitutional Declaration: “Constitutional documents and laws which were applicable before this Declaration entered into force shall be repealed.” Whereas, the preamble to Law (No. 19 of 2001) regarding associations, clearly indicates that it was issued by the legislative authority based on documents of a constitutional nature, which are the Great Green Charter of Human Rights, and Law (No. 20 of 1991) regarding the promotion of freedom, which have both been abolished by the text of Article (34) of the Libyan Constitutional Declaration approved on 3 August 2011, due to their violation of the constitutional principles and rights recognized. The aforementioned charter and law do not recognize democratic regimes, the peaceful transfer of power, nor the basic rights of individuals to enjoy within a democratic state, including the right to participate in political parties, the formation of political parties, and freedom of opinion and expression. Such rights are cannot be enjoyed without guaranteeing the right to join and form independent civil society organizations and institutions.
The law violates Article (4) of the Constitutional Declaration: “The State shall seek to establish a democratic political regime to be based upon political pluralism and the multi-party system in the aim of achieving peaceful and democratic alternation of power,” with the previous regime issuing Law (No. 19 of 2001) on the reorganization of civil associations, approved by the previous regime with the aim of restricting the right to form associations and monitoring their activities and controlling them, and to give the illusion of the existence of civil activity and civil society from the perception of the precedent ruling regime (Jamahiriya).
The law violates Article (7) of the Constitutional Declaration: “Human rights and basic freedoms shall be respected by the State. The State shall commit itself to joining international and regional declarations and charters which protect such rights and freedoms. The State shall endeavor to promulgate new charters which shall honor the human being as God’s creation on Earth.” The law contradicts the text of Article (22), only recognizing associations of social, cultural, sports, charitable, or humanitarian services, and placing these associations under the strict supervision of the General People’s Congress.
According to Law 19, the executive authorities are not to allow any association to be established unless they are convinced of the type of activity in which the association is engaged and have agreed to the association’s regulations and membership. The executive authorities further have the right to annul the decisions and procedures of the association, without judicial authorization, to appoint a temporary administration for the association, and to close, dissolve, or merge it with another association. The law stipulates the right of associations to obtain funding, to be active, or to hold a meeting of the General Assembly, only under the supervision, attendance, and blessing of the General People’s Congress.
The aforementioned law violates Article (15) of the Constitutional Declaration: “The State shall guarantee the freedom to form political parties, societies and other civil society organizations, and a law shall be promulgated to regulate the same. The establishment of clandestine or armed groups, or groups in violation of public order or of public morals and others which may be detrimental to the State or the unity of national territory shall be prohibited.”
Article (15) of the Constitutional Declaration is related to the right to freely form political parties and associations, which holds political parties as a reference for measurement. A law for parties has been enacted, unlike a law for associations, which is Law (No. 29 of 2011). It adopts a notification system for the establishment of a political party (Article 8) with an accurate regulation of the powers of the supervising authority (Article 10). The law further adopts criteria for accepting or rejecting the notification within a specific deadline, and regulating access to the court for disputes within appropriate deadlines (articles 11 to 15). Article (15) of the Constitutional Declaration equates the freedom to form political parties with the freedom to form associations. There is no legal basis for respecting what was stated in the article in regards to the organization of parties, while the article is violated by subjecting the formation of associations to a law that does not respect the principle of free association and rather than adopting the notification system, it grants unrestricted powers to the supervisory authority in accepting an organization’s establishment or not.
The legal framework under which associations and their activities are established may reflect a fluctuating legislative and political situation affected by the significant challenges posed by the Libyan revolution, summarized in Article (1) of the Constitution Declaration and enshrined in Article (15) of the Constitutional Declaration of 2011. This framework is further affected by the delinquency of governmental and executive agencies to the ease in which the deep state’s repressive and legislative legacy is deployed in its various manifestations and levels, in complete disregard of the concept of human rights, the texts enshrined in the constitutional declaration, and international agreements in a state of rights, institutions, and citizenship.
Despite the attempts by different government agencies to revive Law 19/2001, Libyan civil society, represented by Adala for All Association (AFA), stands steadfast in its rejection of this law in time with its strategic litigation initiative represented in the constitutional appeal. The Supreme Court retains the responsibility to determine whether this draconian law, reminiscent of the dictatorship of the old regime, will be placed in the service of the arsenal of repressive legislation in contravention of the constitution or whether it will remain on the shelves of museums or libraries in honor of human rights and the embodiment of guarantees that systematic violations of these rights will not reoccur.
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Adala for All Observatory relied in this article on the legal commentary of the Cairo Institute for Human Rights Studies, issued on 25 March 2023.
