Libya: There is no freedom of press and expression under Law No. 76 of 1972

The arsenal of laws in Libya reveals their dissonance, especially the laws of the Libyan Jamahiriya regime, which is no longer in power. Those laws remain not as ruins and deserted texts of a bygone legal system and structure, but rather as a barrier and threat to the new concept of the state, and an obstacle to the establishment of that perception based on noble goals of the Libyan revolution, clearly expressed in the Constitutional Declaration of 2011.

The Constitutional Declaration addresses these laws in regard to human rights.   Article 7 was devoted as a general text that adopts a comprehensive and integrated concept of human rights with an inherent Libyan specificity, stipulating, “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.”

This article heads the second chapter of the Declaration “Rights and Public Freedoms” before addressing some of them specifically, including Article 14, which states “Freedom of opinion for individuals and groups, freedom of scientific research, freedom of communication, liberty of the press, printing, publication and mass media, freedom of movement, freedom of assembly, freedom of demonstration and freedom of peaceful sit-in shall be guaranteed by the State in accordance with the law.”

The most important international conventions ratified by the Libyan state, making it part of its legal arsenal, related to freedom of opinion, expression, press, publications, and publishing.

Article 19 of the International Covenant on Civil and Political Rights, states:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 9 of the African Charter on Human and Peoples’ Rights requires:

1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

After the legal theoretical review of what should be, we address the topic of the article, which is the Publications Law according to its latest amendment, Law No. 76 of 1972, published 24 July 1972 in the Official Gazette for the year 1972 issue 35 of its tenth year, and in accordance to the issuance of the Constitutional Declaration issued on 11 December 1969, originally Royal Law No. 11 of 1959 dated 25 July 1959.

The extent to which Law 67 of 1972 corresponds or conflicts with the Constitutional Declaration regarding freedom of the press, publishing, publications, and freedom of opinion and expression, we discuss the characteristics of those rights, even if their concept does not require much inference.

These rights are characterized by overlapping, interdependence, and availability. It is difficult for one to be available without the other. Focus on the origin is freedom of opinion and thinking, as a freedom and a human right that matters to the content or subject. Freedom of expression matters to the form, or rather the forms, and methods of expressing that opinion, whatever the media and the development of those media contributed to the emergence of sub-categories of human rights, such as the right to freedom of the press and the right to freedom of publishing and publications regarding professionals or practitioners of those activities from the general public, and the right to information for individuals.

The overlapping of the aforementioned rights does not negate their close relationship with other human rights, such as the right to peaceful assembly, the right to contribute to the public affairs of the country, and what is required for the optimal exercise of those rights in a state of law, such as the principles of transparency and accountability.

The law recognizes human rights and other subjective rights in positive law by declaration. The law implements human rights as a general principle. The law defines these rights as an exceptional obligation to protecting the rights of others or a public interest of a democratic state, with the possibility of achieving by supporting this right, and without undermining the origin of those rights. This principle of appropriateness or proportionality represents a standard for the compatibility and seriousness of respect for legal systems, and the application of constitutions and international covenants and the obligations of a state to guarantee their implementation.

Article 1 of Law No. 76 of 1972 indicates a process of a text that harmonizes in principle at least with the constitutional rights to freedom of the press, printing, and publishing, stipulating, “Contradiction, if any, will be partial and detailed, and does not affect the mentioned rights.”

This positive impression dissipates when the text is further studied, and a clear fundamental contradiction emerges between the first article and its impact. This does not extend beyond the declaration and the rest of the text, and in fact perpetuates a number of systematic violations of the subject rights of this article. We discuss in two parts the contradiction and obligation of declaring the unconstitutionality of the aforementioned law.

The first part: Contradiction of the Publications Law of 1972 with the Constitutional Declaration:

The scope of this article addresses a limited review of the articles of Law No. 76 of 1972 that conflict with the Constitutional Declaration in freedom of the press, printing, and publishing. The article discusses the most prominent aspects of the conflict through summary of a number of legislative alternatives, such as administrative oversight and the broad powers of the administration (1), the inappropriateness of the penalty aspect (2), and the outright assault on the right to freedom of opinion and expression (3).

1. Administrative oversight:

Any previous or subsequent administrative oversight of the press, printing, and publications poses vast powers granted to the administration and does not correspond to the Constitutional Declaration, which addresses the logic of oversight, and the legislator’s caution against those aspects, considering oversight as a looming danger to be thwarted to reach a more democratic and civilized concept of those aspects, and as requirements of the state of law, institutions and citizenship.

Administrative oversight is manifested in the Publications Law through the adoption of prior licensing and authorization, which is a restriction contradicting the principle of freedom and normalizing the principle of restriction over the freedom of the press, printing, and publishing, in which the administrative authority has absolute control and cannot be exercised without its approval.

The approval of the license is characterized by exaggeration, if in the field of printing periodicals, for example, a license is required for printing a periodical or semi-periodical, a license to specify its field of competence, a license in the periodical issue, a license to amend the content of the license, a license to merge, a license to join, a license for correspondents, a license for editors, and a license for photographers, and a license for newspaper correspondents and foreign media agencies, indicating that the law is about besieging the press rather than organizing it.

As an alternative system to licensing, some institutions in countries that recognize freedom of the press resort to an accreditation system, without acceptance or rejection of journalists. The freedom of press recorded a development in its concept and is not considered limited to professional or paper press, but the development and spread of digital uses made it available to everyone. The right to journalistic work has become an activity and is no longer confined to professionals, as indicated by the United Nations Human Rights Committee General Comment No. 34 in its 102nd session in Geneva from 11 to 19 July 2011, paragraph 12, page 4, considering journalism one of the forms of the right to expression.

An exaggeration of administrative oversight is evident in subsequent oversight, in the obligation to review publications for the approval of the authorities before distributing them, or oversight of the internal administrative matters of the press institution that do not concern public order, such as informing the administration of changes to the board of directors or oversight of the change of ownership of the institution and accounting and tax data of the administration, which neglects any other law over the futile oversight of the 1972 law.

Law No. 76 of 1972 grants the administration those pivotal roles of monitoring and licensing, and furthermore surpasses them to broader powers than in the constitutional declaration regarding competence to the judiciary. The administration combines in an offensive way the principles of impartiality and judicial oversight between the powers of oversight, which is an aggression on freedoms, and between the powers to directly limit those freedoms, including decisions of stopping and canceling licenses, and the powers of the administration to oblige the institution to publish a denial or correction, or the power to prevent the publication of a foreign periodical, or to stop the publication of a periodical that published news on a prohibited subject to be published according to the interpretation of that article in the law.

In these cases of restricting freedoms and human rights, granting the administration that oversight jurisdiction is a serious imbalance in the principle of independence between powers, and an overlap of the executive authority in the field of jurisdiction of the judiciary. This poses further danger of granting the executive authority, or rather the existing authority, tools to suppress, compromise, and restrict freedoms and human rights to employ interests away from public order, public interest, and interest and protection of individuals.

2. Inappropriateness of the penalty aspect

From a conceptual aspect, the existence of penal sanctions in a law related to the recognition of freedoms and human rights assumes that penal aspect is an exception, and those exceptions relate to the protection of those rights or the protection of public order or a legitimate, justified, and necessary public interest. Modern legislation and international standards related to the right to freedom of press tend to limit criminalization, and in the case of criminalization without freedom depriving or custodial penalties.

Law No. 76 of 1972 is far from respecting those rights and standards due to its inaccuracy, and the large number of crimes and harsh prison sentences, which contradicts the state of law, institutions, and human rights, and is an example of a repressive police state.

The law establishes a penalty for deprivation of freedom against publishing prohibited content. The law in Article (29) is loosely worded and not suitable for criminalization and punishment. The penal text must clearly define the elements of the crime, whether material or moral. Among the prohibited content, we find terms such as questioning the goals of the revolution and its principles and calling for the rule of the class or the individual, and the opposition to any subject or issue, while ignoring the positive side with the intention of misleading the masses and provoking sectarian strife or revenge or advocating ignorance, all of which are terms with broad and loose concepts that contradict the specifics of the penal text and even the principle of the legitimacy of crimes and penalties, and their contradiction with the right to freedom of opinion. The Public Prosecution, which has the authority to refer, and the administration, which has the authority to stop the publication, interpret these texts in a way that opens the door to employing them politically to threaten or abuse journalists, once the referral is made and the judiciary declares there is no a crime.

Numerous prison sentences in the law are characterized by severity and incompatibility between the crime and the punishment. Modern legislative trends avoid approving prison sentences for journalists and others in the context of respecting freedom of press and expression. The Libyan Publications Law of 1972 relies mainly on the deterrent aspect. Even for the most minor offenses the penalty may be a month’s imprisonment  for not informing the administration of updating the board of directors or providing financial statements. In Article (14), the penalty is at least six months and a fine for not complying with the administration’s instructions in publishing a correction or denial. Article (18) increases the punishment to at least a full year and a fine for publishing false news with bad intention, and a prison sentence is inevitable in case of conviction.

The law fails to respect some administrative obligations, such as obtaining a press card for editors, photographers, and correspondents, considering it a crime punishable by imprisonment of no less than six months and a fine, according to Article (25). Article (26) stipulates the same punishment for unauthorized foreign correspondents. Article (28) increases the prescribed imprisonment period to at least two years and a fine for publishing or distributing a foreign publication confiscated or banned from entering Libya. Article (29) does not specify a maximum period of imprisonment for publishing prohibited content, in an explicit confiscation of the right to freedom of opinion with actions proposing more severe penalties in other texts, according to that article.

Article (36) poses a unique example of arbitrariness in criminalization and punishment, stipulating a penalty of six months’ imprisonment and a fine for anyone selling periodicals or semi-periodicals without a license. These criminalized incidents, assuming their illegality, despite being an exercise of freedom of publication stipulated in the Constitutional Declaration, are nothing more than an administrative violation, requiring punishment within administrative law, and not penal law.

The regulation of printing and publishing includes those penal provisions and negative penalties of freedom, which is entirely contrary to the Constitutional Declaration and its provisions, especially in its Article (14), in terms of approving the right to freedom of press, printing, and publishing.

3. The explicit assault on the right to freedom of opinion and expression

The restrictions on constitutional rights in Law No. 76 of 1972 do not stop at procedures, formalities, criminalization, and punishment. They further turned them into an explicit confiscation of freedom of opinion and expression, making it impossible to coexist with that restrictive and repressive law and the Constitutional Declaration of 2011.

The legislators of Law No. 76 of 1972 did not hesitate to confiscate freedom of opinion and endorse it as a standard for depriving a group of citizens of it. For a periodic or semi-periodic ownership, a person must believe in the Arab revolution and commit to its goals and the goals and principles of work in the Arab Socialist Union, according to Article (5.a.2) of the Publications Law. This aforementioned condition continues to exist in light of the Constitutional Declaration, which is hard to imagine, as it contains a violation and explicit acknowledgment of denying a group of Libyans their right to own periodicals or semi-periodicals and distinguishing them on the basis of their opinion or political affiliations. The same conditions and analysis further apply to editors-in-chief and editors, according to Article (6).

The prohibition takes a more explicit form in Article (29) of the Publications Law, which clearly and explicitly prohibits some restrictive articles that could be accepted in their regard to the right of freedom of the press for a purpose that serves the public interest in a democratic system. However, some of the articles represent nothing but explicit suppression for contradicting the right to work as a journalist and even the role of the press in society.

Numerous examples of the aforementioned Article (29) include the deliberations and decisions of the Revolutionary Command Council and the Council of Ministers that cannot be published except with permission from the competent authorities and the customs tariff, or the decision of the supply committees related to pricing, import fees, or decisions related to the currency, before authorizing their publication. The core role of the press is to cover government and administrative activity, without permission except for documents classified as confidential for purposes related to public order. The 1972 law ignores the citizen’s right to information and right to democracy stipulated in Chapter 1 of the Constitutional Declaration. The press has a role to enrich public opinion on what governments may hide regarding failure or breach of the law, which is inconsistent with the legitimate goals of restricting freedom of the press, expression, and publication.

Article (29) further prohibits questioning the goals and principles of the revolution, [E1] and calling for the rule of the class or the individual. The revolution concerned within the law ended in a tyrannical regime, against which the Libyan people revolted. The 2011 Constitutional Declaration is an embodiment of the break with that revolution protected by the Publications Law of 1972. The Constitutional Declaration and rights contained in force cannot accept a ban on publication for questioning any revolution or political or historical event, unless it is, of course, related to respect for religious beliefs.

Article (29) prohibits materials from publication, and further interferes with the way topics are addressed in the press, stipulating that the negative side of any topic or issue, ignoring the positive side with the intention of misleading the masses is prohibited from publishing. The article criminalizes and punishes with imprisonment for violation, negates the possibility of the press practicing its most important role of criticism in a democratic context, and represents an assault on freedom of opinion and expression, as the law obliges the journalist to only raise positive aspects and employ them in favor of the existing regimes, thereby making them devoid any meaning from journalistic work, even intellectual work.

Article (29) of the Publications Law criminalizes the work of journalists, according to its results and effects, meaning that any journalist before any publication has to review the effects of the opinion or handling of the topic. Prohibited and criminal materials include provoking sectarian strife, revenge, or calling for ignorance and news that would devalue the national currency, government loan bonds, or a breach of trust inside the country or abroad. These requirements legitimize the violation of human rights in a systematic and automatic manner and are not related to freedom of the press, opinion, expression, or the democratic system, and are only appropriate for any repressive and totalitarian regime.

The second part: The necessity of acknowledging the unconstitutionality of the Publications Law

After reviewing some aspects of the inconsistency of the Publications Law of 1972 and the Constitutional Declaration of 2011 and what it entails of observing the international conventions ratified by the Libyan state, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, which eliminate further inference about the inconsistency of the aforementioned law and he Constitutional Declaration, a question is raised on the effects of the incompatibility between the two texts, law (1), and status quo (2).

1. Effects of legal conflict between the Publications Law and the Constitutional Declaration

The Constitutional Declaration occupies a higher rank than ordinary laws, obliging the text be followed in the event of contradiction in application of the principle of supremacy of the constitutional rule. The law violates international agreements ratified by the Libyan state, which are texts  superior to ordinary laws in status, even if they are below the constitution. Any contradiction between international agreements and an ordinary law is only resolved in the international agreements’ favor because the lower text does not contradict the higher text, in accordance with the general rule of hierarchy of legal texts.

The constitutional adoption of the right of the press, the right to freedom of printing and publishing, and in general the right to opinion and expression necessitates in theory that the minimum texts be considered abrogated by assimilation or implication.

This constitutional adoption of those rights did not represent an implicit abrogation of those old, outdated laws and called to override them with new texts that establish the concept of a democratic state in accordance with Article (1) of the Declaration on respecting rights and freedoms.

The second paragraph of Article (35) of the Constitutional Declaration constitutes the applicable legal system in that transitional period, stipulating, “All provisions of existing legislation shall continue to be applied insofar as they do not conflict with the provisions of this declaration, until other provisions are issued that abolishes or amends them.”

The Declaration approves in its transitional provisions a classification of the existing previous legislation based on a distinction between two categories:

• First class of legislation that does not contradict the Constitutional Declaration and its rule, continues to be enforceable until an amendment or cancellation is issued contradicting it.

• Second class of legislation that contradicts the Constitutional Declaration and its rule is considered suspended and not enforceable, according to concept of violation and does not continue because of conflicts with the declaration.

The legal system established by Article (35) second paragraph is simple, uncomplicated and based on sorting between legislation according to conformity and contradiction with the Constitutional Declaration.

Without further reviewing the legal arguments that the publications law should be considered void, we further discuss the status quo.

2. Conflict in status quo

Libya witnessed two phases following the revolution and the issuance of the Constitutional Declaration, regarding freedom of opinion and expression, press, printing, and publishing.

The first phase was characterized by an abundance of freedoms. The media scene, citizens, and associations witnessed a parallel revolution in this field, as the means and media of traditional written, audio, read, and visual journalism multiplied. Journalism further became similar to activity, with many citizens, journalists, and media outlets practicing their available freedom of opinion, expression, press, and media publishing, whether paper or digital, without any real censorship due to the weakness and absence of central authority.

The majority of the rights and freedoms adopted in the Constitutional Declaration of 2011 as a reform that Libyans enjoyed in reality did not exceed the limit of declaring intentions or constitutional adoption, even if practiced in reality. This reform of rules guaranteeing human rights was not implemented for various reasons and did not affect ordinary laws by amending or abolishing them. These laws remain as relatively obsolete texts, despite the explicit duty contained in Article (35.2) of the Constitutional Declaration on the legislative authority to amend old legislation that is inconsistent with it.

The necessity for new laws was reinforced by the issuance of the Transitional Justice Law in 2013. Law No. 29 relates to transitional justice was issued, stipulating in Article (6[5]), the nullity and illegality of all unjust legislation issued before 2011. However, the Transitional Justice Law neglects to change the failure of the legislative authority in responding to the obligations of the Constitutional Declaration.

It was expected that the legislative authority would open a legal fold due to the large number of laws that needed to be changed or amended, including the Publications Law. However, the legislative stagnancy in this field considered the constitutional human rights in Libya enshrined in reality, not institutionally, weakening the respect for those rights after the revolutionary momentum the country witnessed, which characterizes the second phase.

Governments and administrations after a period of revolutionary tide, and with the establishment of relative security and stability for government work, rapidly resorted to returning to the arsenal of ancient laws, which represent the most effective and easiest solution, given the fewer duties it provides to administration and governments in the field of human rights and the margin of decision and wide powers in this field. This can be considered a regression in the human rights aspect and a renunciation of the duties of the Libyan state in the field.

The concept of regression is visible with the Publications Law No. 76 of 1972, considering that the Libyan state has previously confirmed the contradiction of that law with constitutional rules and international agreements ratified by the Libyan state. The Universal Periodic Report on human rights for the Libyan state before the United Nations Human Rights Committee, in its 22 session from 4 March to 15 May 2015, stated when the Libyan state submitted its national report, a recommendation for the Libyan state related to freedom of expression, according to Article (35) of the Constitutional Declaration, and that Law No. 76 of 1972 was repealed.

However, the reality in Libya confirms the opposite, where governments and the administration continue adhering to contradictory law with the constitutional rights guaranteed by the Constitutional Declaration of 2011. Although, the adherence of the administration and governments to that law is condemned, it further expresses their lack of commitment to the principles of the revolution embodied in the constitutional rules. This may be understood for the executive authority, as it provides techniques, monitoring mechanisms, and a margin of powers that can be utilized politically in the direction of suppressing disturbing opinions and unwanted journalistic work.

The judiciary engages in the worst and most dangerous act of ignoring constitutionally guaranteed human rights, and further adopts Law No. 76 of 1972 as a basis for referral by the Public Prosecution and for conviction by criminal courts in a steady return to consecrate the judiciary and employ it as an apparatus of the established authorities, not as an independent and existing authority, as required by Article (1) of the Constitutional Declaration of a democracy for the state.

The issuance of custodial sentences by Libyan courts on the basis of the Publications Law is a serious indication of the deterioration of respect for constitutional rules by the courts of origin in Libya and respect for international agreements ratified by the Libyan state. The Libyan state and its three authorities, legislative, executive, or judicial, are committed to respect these agreements as a respect for the Libyan constitutional rules according to Articles (1), (7) and (19).

It is necessary to preserve freedom of opinion and expression in Libya by stopping the violation of the requirements of those constitutional articles, including Article (35.2), on the right to freedom of the press, printing, and publishing. It is not possible to achieve or establish a democratic state according to Article (1) of the Constitutional Declaration with the provisions of a totalitarian and repressive state, similar to Law No. 76 of 2011. The general rule of legislation hierarchy was flipped, so that repressive law became higher than the constitutional declaration itself, which represents systematic and wholesale violations of human rights and a threat to the goals of the Libyan revolution and coexistence.

The task of the Supreme Court on the aforementioned situation is crucial to the right of opinion and expression, freedom of the press, printing, and publishing, and the strategic planning to push before it the unconstitutionality of adopting Law No. 76 of 1972. Despite the clarity of the Constitutional Declaration in form and content, the position of the Supreme Court goes beyond adjudicating a constitutional dispute to further represent a re-amendment of the legal system in Libya to serve the requirements of a democratic state according to Article (1) of the Constitutional Declaration of 2011, and at the level of the aspirations of the Libyan people for a state of law and institutions that respect its constitution and the rights and freedoms it guarantees and break with the authoritarian legacy of a totalitarian state.

 [E1]The 1969 revolution?