Libya : The Supreme Court and the Principle of Legality

By Dr. Koni Ali Abuda

Professor at Faculty of Law, University of Tripoli, holds a PhD in Private Law from
the University of Poitiers in France, and a diploma in advanced studies in development policy and law.
from the same university.

The principle of legality is one of the main foundations for judicial oversight over the Constitution in modern legal systems. It determines the work of the authority according to the powers granted to it by the laws in force depending on its hierarchy, with priority to constitutional articles and principles. The principle of legality contributes to guaranteeing the principle of separation of powers and preventing authoritarian abuses. It further enables the Judiciary to monitor the decisions of the legislative and executive authority, and to investigate their compatibility with the Constitution and its basic principles. Thus, the principle of legality prevents abuses and violations of rights and freedoms and guarantees fair legal procedures and a fair trial for litigants.

According to the jurisprudence of law and the jurisprudence of politics, there is a distinction between ‘légitimité-legitimacy,’ and ‘légalité-legality.’ The first principle of ‘legitimacy’ is related to the authority and how it is exercised, while the second ‘legality’ relates to the extent to which the authority in its practices abides by the law.

The Libyan Supreme Court has applied these two principles in its decisions since the 1970s, shortly after Independence. However, the distinction between the two principles does not appear in its administrative and constitutional jurisprudence. The study of the Supreme Court position on the principle of legality requires defining the nature of legality in a first paragraph before addressing the results of its dedication to the principle of legality in a second paragraph.

First: What is legality in the jurisprudence of the Supreme Court?

1. The concept of “the principle of legality” in the jurisprudence of the Supreme Court

In an administrative appeal case filed by Plaintiff (Bosclod Domenico Silviolizito) versus Defendant (Head of the Executive Council of the State of West Tripoli) in 1957, the plaintiff filed the case to object on the certificate issued by the defendant to vacate the apartment and hand it over to the property authority due to the administration’s need for it. The court supported the plaintiff as this certificate violated the laws and was considered tainted by deviation or abuse of power. The court explained in its verdict that “An administrative decision must adhere to the Constitution, laws, regulations, and principles of public law such as equality, public freedoms, the right to defense, and the non-retroactivity of administrative decisions. The decision must be in accordance with the administrative custom that the administration follows in facing a specific case, and it must not contradict a judicial ruling issued by the ordinary or Administrative Judiciary that has the authority of convicting in the matter of the case…” The court identified aspects of the administrative decision in violation of the law: the violation of the law may be in violation of a text “from the texts of laws or regulations or their application when the dispute is often regarding the existence of the legal rule.” The violation may be “in the misinterpretation or application of laws and regulations, when the legal rule is not clear and subject to interpretation.”

In the aforementioned ruling, the court also defined the difference between the defect of breaking the law and the defect of deviation or abuse of the power of the administration, where both share the objective nature of the defect, but they differ in characteristics and nature. “The administrative decision tainted by the defect of deviation is sound in its other elements and conforms to the law in terms of its place, and its danger appears in that the administration is trying to achieve all its illegal purposes in protection from legality…” The defect of abuse of power is related to the objectives of the decision and is related only to the discretionary authority, “If the administration uses the decision to achieve purposes other than the purposes that the decision may be used to achieve, then it is null and void due to its defect of deviation, even if related to the public interest.”

The sources of the principle of legality in the jurisprudence of the Supreme Court are multiple, and exceed the legislative rules, disregarding their rank in the legislative hierarchy, and include general principles of law, including equality, public freedoms, the right of defense, and the non-retroactivity of administrative decisions. They further include administrative custom and not violating the argument of rulings that have the force of a final verdict. This approach is consistent with the jurisprudence of the Egyptian Supreme Administrative Court, which grants the court the right during monitoring the legality of an individual administrative decision to “apply the rule of law to the decision, whether this law is represented in ordinary, subsidiary or basic legislation (the Constitution). The administrative decision should be considered not only within the framework of ordinary legislation or individual legislation, but also, if necessary, within the framework of the governing principles and guiding principles guaranteed by the Constitution. This is how the rule of the Constitution is achieved, with its true status and true value.”

The Supreme Court applied its jurisprudence of legality in Appeal Case No. 1 of Year 1, when it ruled the invalidity of the royal order to dissolve the Legislative Council of the State of West Tripoli. The court considered that the order was not issued in the form regulated by the State Constitution and the basic law of the State of Tripoli, “a decree signed by the Prime Minister next to the signature of the King after consulting the Executive Council of the State.” Legality or (the principle of the administration subjected to the rule of law), means to the Supreme Court “that all management actions must be legal actions that do not violate the law,” and the law discussed in a broad sense, through the existence of a general legal principle or legal rule, whether this rule is written or unwritten.”

2. Sources of the principle of legality in the jurisprudence of the Supreme Court

The jurisprudence of the Supreme Court shows that the sources of legality are either written or unwritten:

2.1 Written sources

The written sources include the Constitution and lower legislations (laws and regulations). Libya has witnessed development since September 1969 until now, where it affected these sources, where temporary constitutional declarations and basic laws replaced the Royal Constitution. (This includes the Constitutional Declaration of 1969, and the current Constitutional Declaration issued on 3 August 2011). The court applied the concept of legality within the framework of the gradation between legislation: (The legislation in the State has three degrees represented in basic legislation as the Constitution has the highest supremacy, followed by the ordinary or main legislation such as laws, and followed by the subsidiary legislation, known as the regulations ranging between executive, organizational, and control regulations. This gradation of legislation in power requires the subordination of the lower ones to the higher ones). Further to the legislation issued by the national legislator according to the previous concept, the treaties ratified by Libya are among the sources of legality and come in a lower rank than the constitutional rules and higher than the law.

2.2 Unwritten sources

The Supreme Court established what is recognized in jurisprudence to oblige the administration to the general principles of law and administrative custom. The general principles of law align, because the Supreme Court law grants the principles set by the Supreme Court in its rulings, a binding power for all courts and parties, including administration (Article 31). The most prominent of these applied principles include, the principle of equality before the law, the principle of public freedoms, the principle of the independence of the Judiciary, the principle of the right of defense, the principle of the right to resort to the Judiciary, and the principle of the non-retroactivity of laws and administrative decisions. The administrative custom is the regularity of the administration’s behavior in a certain way, regarding a specific case, and becoming a frequent and observed habit that rises to the rank of an abstract rule. The first article of the Civil Code, entitled “The Fundamentals of Law”, considers legislation as the first official source, and the rest of the sources are backup sources, including custom, which occupies the third degree following the principles of Sharia, where the role of custom in establishing the legality block remains limited to and in need of evidence for its existence.

3. The Scope of the principle of legality in the jurisprudence of the Supreme Court

The principle of legality is a manifestation of the rule of law, and its scope exceeds the administration’s submission to the law, which is the usual domain of Administrative Judiciary, and the Supreme Court applied the principle in many fields.

3.1 The function of enacting laws is not absolute, whether exercised by the legislative authority or the executive authority. On 14 June 1970, the Supreme Court issued a notable ruling in Constitutional Appeal Case No. 1 of Year 14: “It is illegal for the legislative authority to issue a law or for the executive authority to issue a decree of a law that undermines or detracts the independence of the Judiciary and the immunities of the members of the Judiciary, orJudiciary or submit the judge under a non-judicial authority other than the Supreme Judicial Council. Numerous countries support this opinion, by naming the laws regulating these cases as the laws of the judicial system, not the laws of the independence of the Judiciary. The independence of the Judiciary and the immunity of its members are undisputable and decided by constitutions, and what is intended is to organize this independence, not to create or eliminate it.” Accordingly, the court ruled out the constitutionality of Article 4 of the contested decree, which prohibits judges from challenging the decisions of the Committee for the Re-appointment and Transfer of Judicial Persons and violates the principle of the independence of the Judiciary.

The Supreme Court further ruled the unconstitutionality of Article 40 of Decree-Law No. 6 of 1964 related to elections, for its content of stationing of security persons inside the voting chambers, for aggressing the freedom of elections, revealing its secrecy, contrary to the constitutional principles in force when the law was issued.

The Constitutional Circuit of the Supreme Court confirmed that the legislator is bound by the principle of legality, in another ruling issued in an appeal against the unconstitutionality of Article 65 of University Law No. 20 of 1965, which prevents resorting to the Judiciary. The ruling stated, “The Constitution alone has the power to restrict the jurisdiction of the Judiciary as one of the State authorities, and the legislator concerned with arranging the judicial authorities and defining their competences, has no right in preventing some disputes from the jurisdiction of the Judiciary, when in a violation of the right of individuals, whether the prevention is total or in partial.” The court further stated, “If the law deviates from this constitutional right and does not comply with it, the legislation is considered unconstitutional.” The power of the legislator is restricted to preserving the rights guaranteed in the constitution.

3.2 One of the important applications of the concept of legality in the field of gradation of legislation in the criminal field is the court decision in Criminal Appeal Case No. 45/31, Session of 4 February 1986. The court issued in its ruling, “… the right of the Public Prosecution to file and initiate a criminal case and the right of the civil plaintiff to raising it in the cases authorized by the law, is an absolute right with source and basis in the law, and could only be restricted by a special provision of the law…” Thus, including this restriction in the internal regulations of the Central Agency for Public Administrative Control requires permission from the observer to file a lawsuit, and should not be relied upon or eliminated. “The legal logic requires the equality of the two agents of determining the original and the exception, and that the restriction, even if mentioned in similar legislation, must be estimated by its measure and status to avoid expansion of interpretation or measurement of what was stated in it.”

3.3 The Supreme Court faced on many occasions the problem of the authority’s reliance on acts of sovereignty, which are outside the jurisdiction of the Judiciary, including the hypothesis of putting the appellant’s money under custody. The court considered that the decision issued disregarded the Judiciary. The procedure of custody is “an exceptional procedure that can only be resorted to by legal means, and when the danger is clear and imminent, and that is through the Judiciary.” At an earlier date, the Supreme Court ruled to annul a decision issued to deport a foreigner, due to the deviation in the use of power, and refused considering it an act of supreme sovereignty of the State and the procedures implemented by the Government with its supreme authority to preserve the sovereignty of the State and its entity at home and abroad. The decisions issued by the Government in implementation of the laws and regulations are not considered of this sovereignty nature, because such decisions fall within the scope of ordinary governmental acts, and do not hold such serious importance to elevate them to the rank of acts related to the supreme sovereignty of the state. Furthermore, measures relating to the nationalization of the property of some persons were considered acts of sovereignty, while guaranteeing the right to compensation.

As a conclusion, the Supreme Court surpassed administrative legality, despite its importance due to the prevalence of administrative decisions, but rather established constitutional legality, considering that the exercise of the legislative function can affect rights and freedoms, through monitoring the constitutionality of laws and regulations. However, political circumstances limited the ability of the Supreme Court in achieving the expected protection, announced clearly in a number of its rulings. The court further issued a decision regarding Law No. 36 of 2012 related to managing the finances and properties of some people. The court confirmed that custody, according to Law No. 36 of 2012 and its amending law, is not considered a penalty of confiscation or seizure of finances or properties from its owner or deprivation of it but considered as a temporary measure related to a necessity that called for it and ends with its conclusion.” Therefore, the appeal was unfounded and must be rejected. However, this law in terms of psychological, social and economic effects is closer to penalty without trial, and differs from the law of isolation only in degree, since the custodian responsible for observing the custody remains functional. The alleged purpose of the aforementioned law is to guarantee the legality of the properties of those concerned; however, this can be properly accessed through the judicial custody system in accordance with the Civil Law.

See more examples on the impact of political conditions in the next paragraph.

Second: Results of the consecration of the principle of legality in the jurisprudence of the Supreme Court

Following up on the Supreme Court’s jurisprudence in relation to legality, the court attempted to advocate (1) the supremacy of the rule of law and (2) the protection of rights and freedoms, but the court’s positions varied in strength, whether under the previous regime, or after the February 2011 uprising.

  1. Supremacy of the rule of law

The Supreme Court ruling in the aforementioned Constitutional Appeal Case No. 1 of Year 19 affirmed that the oversight of annulment derives from constitutional principles on the principle of legality, the supremacy of the Constitution and the rule of law. The principle of legitimacy submission to effective judicial oversight limits altering such oversight with establishing or abolishing a law. Every system, including exceptional systems, based on the Constitution and the rule of law is subjected by default to the principle of the rule of law and therefore to the oversight of the Judiciary, which is the only way to protect all rights and freedoms.

However, the court refused arguing that a law was unconstitutional, in which the legislator authorized the Supreme Leader to issue military laws and amend them, while the document declaring the authority of the people states in its Article 3 that “the power belongs to the people and there is no authority for anyone else.” “Even if the legislative authority in Libya belongs to the People’s Congresses that decide on the laws after discussion, and then the General People’s Congress formulates, recites and issues them, but it is not permissible according to the jurisprudence of constitutional law, and only permissible in exceptional cases such as the case of necessity and the case of legislative mandate that the People’s Congresses authorize the executive committees to enact specific laws.” The court considers that this authorization does not transfer the entire legislative mandate or its important aspects to the executive committees. It is strange that the court considered the Supreme Leader at that time an executive committee, while deciding in public that the Leader does not rule.

The court failed to defend the principle of the rule of law and therefore the rule of law under which a law that criminalizes retroactively was challenged. The court stated, “Since the legislator has defined the jurisdiction of the Supreme Court in Law No. 6 of 1982, and this jurisdiction has not been transferred to another court and did not establish a new court with jurisdiction to decide on the constitutionality or legality of laws, the court rules that it has no jurisdiction to consider the case.”

The court also decided that the argument of “partners not employees” was unconstitutional, and the subsequent encroachment of producers on private funds, because “according to the Green Book, it came as a final solution to the problem of producers imposed by the natural rule of equality between the elements of production that are based on production materials, means and products. Politics and circumstances after the February 2011 uprising had an impact evident in Constitutional Appeal Case No. 17 of Year 61, where it ruled that Paragraph 11 of Article 30 of the Constitutional Declaration, amended by the Seventh Constitutional Amendment issued on 11 March 2014, and all its implications, were unconstitutional. This ruling forced the country into a dark tunnel from which it has not emerged to this day, and did not abide by the principle of legality even though the court issued it, which is the guardian of legality. The court violated its own law, which grants State jurisdiction to hear appeals and constitutional matters. The court ruled earlier after reviewing Article 23 (2.1) of Law No. 6 of 1982, related to reorganizing the Supreme Court, amended by Law No. 17 of 1994 that “the competence of the Supreme Court circuits collectively in constitutional appeals is limited to adjudicating the constitutionality of laws and fundamental issues related to the Constitution or its interpretation, if it is raised in a pending case before the courts. This competence does not extend to oversight of the Constitution itself, whether in terms of approval or validity to implement it.” The court justified its decision, “The provisions of the Constitution represent the rules and principles on which the system of government in the State is based occupy the forefront among the rules of public order that must be respected, restrict the three legislative, executive and judicial authorities in their functions and powers, set the limits and restrictions that control their activity, and support each authority to adhere to its limits and to return it to its precise controls set by the Constitution, otherwise its work will be in violation of the provisions of the Constitution.” The constitutional Judiciary during transitional stages, must observe the rules of appropriateness, but the court’s ruling disregarded the public interest and ignored the possible consequences, despite the fact that the surrounding circumstances that the court’s judges know necessarily govern expertise in public affairs. The court had the ability to apply the concept of “appropriateness” and rule out the validity of House of Representatives session held in Tobruk outside of its declared headquarters in Benghazi. This raisesThis raise concerns that the court has sacrificed legality in an indefensible manner within the framework of the legality that the court devoted itself to in defending rights and freedoms on many occasions.

  1. Legality and protection of rights and freedoms

Lawpersons in Libya recall the famous ruling issued by the court headed by the Egyptian councilor Ali Ali Mansour, in Constitutional Appeal Case No. 1 of Year 14. The court decided in favor of the right of the judge to resort to the Judiciary, and said, “The legislator has reached the pinnacle in violating the Constitution in form and content, and in assaulting the independence of the Judiciary and the immunities of judges, when the fourth article of the decree-law subject to appeal issued on 27 July 1967 was enacted.” In this ruling, the court defended the right to litigation and stated, “Obstructing any citizen from resorting to litigation contradicts with all the constitutions of the world in their written and unwritten texts in their content and form, provided that if any written constitution is devoid of stipulating the right of every citizen to resort to the Judiciary with the rights of defense, as this rule is derived from the orders of divinity and from the natural rights of humankind since existence.”

In the session of 10 June 1972, Constitutional Appeal Case No. 1 of Year 19 related to the right to education, confirmed that stripping constitutional rights from judicial protection over regulations renders them void. The court ruled in favor of the principle of equality between citizens in resorting to the Judiciary and considered Article 6 of the Judicial System Law of 2006 “unconstitutional,” which deprives judges of the right to challenge decisions of the Supreme Judicial Council related to their national affairs. “Judges, among other segments of society, have the right, like other individuals, to resort to courts for any infringement of their rights. It is not justified to say otherwise, as this entails a breach of the principle of equality, and a violation of the function of the judge responsible of ruling between people with truth and justice, andjustice and knowing that he is deprived of this right if his rights are violated.”

The Supreme Court considers that the principle of equality before the law and non-discrimination between citizens is not limited to its application to the general rights and freedoms stipulated in the Constitution, but rather extends to the rights established by ordinary law, and is a source of inspiration, and therefore the law may not establish unjustified discrimination, where similar legal bodies disagree over it. Thus, the court ruled out the constitutionality of Article 6, the Paragraph 1 of Law No. 28 of 1971, which distinguishes between passengers according to the type of car transporting them. “The contested article created a form of discrimination between two segments of car passengers, one of which is the segment of private car passengers, and the other is the segment of passengers of other cars, by specializing the last segment with a distinct insurance treatment embodied in the inclusion of insurance coverage for passengers of this type, while withholding this feature from private car passengers, despite the fact that all these passengers are regulated by an identical legal position among them, and the same description of passengers applies to them.”

In another ruling on Constitutional Appeal No. 2 of Year 53 related to the unconstitutionality of Article 8 of Law No. 1 of 1986 on the regulation of the participation of Libyans in public companies, the court ruled that it is unconstitutional because “this contribution is not optional and is not a public burden stipulated by the law, or in return for a service provided by the community.” The aforementioned article contradicts with the constitutional principle of “any human has the right to their effort, and their production is safeguarded,” and only this person is able to estimate the extent of their need for it, ability to do it, role in it, and right to choose a partner. The article further violates the principle stated in the Freedom Promotion Law No. 20 of 1991, which addresses the invalidity to deduct from a Libyan’s work production, except in cases that the law imposes to contribute to public burdens or in return for the services provided by society.

Equality is protected by the Constitution and guaranteed by legality, andlegality and is not arithmetic equality. The Supreme Court rejected an appeal related to a provision in Law No. 4 of 2012, regarding the election of the General National Congress. The provision stated that members of military bodies are not eligible to exercise the right to vote, because “the principle of equal rights among citizens before the law does not mean that their groups, regardless of their legal positions, should be treated equally, nor is it a rigid principle contrary to practical necessity, and is not based on opposing the whole form of discrimination, since some are based on objective grounds, without violating Article 6 of the Constitutional Declaration. Article 6 states that the violation of the principle of equality is achieved when discrimination occurs between the members of the same group, whose positions and capabilities are similar, where some of them have rights and privileges that others do not, or carries some of the obligations without imposing them on the rest.”

In conclusion, a reference to the ruling of the Supreme Court with its circuits in the constitutional appeal No. 2 of Year 42 dated on 23 December 201335, regarding the plaintiff filing against Law No. 25 of 1993 on amending the provisions of Law No. 11 of 1992 on the determination of some provisions related to real estate ownership in violation of the constitutional provisions in force at the time and the protection of ownership. The court considered the law as “unconstitutional” after reviewing the relevant texts and concluded that, “the legislator, under the provisions of the contested law as ‘unconstitutional’, has restrained the courts from considering and adjudicating the return of real estate allocated under the provisions of Law No. 4 of 1978 to their legal owners, despite the reasons, even if they were owned or allocated to others in violation of the provisions of the law. The court decided to obligatorily halt all lawsuits related to the law since its enactment, which the court considered as a flagrant assault confiscation on the right of ownership, without the consent of its owner, and the owner has the right to resort to the Judiciary to protect his right, and that the law is in contrary to all constitutional texts and charters. The law subject to appeal is marred by the defect of constitutional violation and must be ruled unconstitutional. 

3. Establishment of legality corroborations 

The Supreme Court demonstrated the manifestations of illegality in Administrative Appeal Case No. 6 of Year 3, filed by the Italian national (Bosclod Domenico Silviolizito) against the Head of the Executive Council of the State of Western Tripoli on 26 June 1957. Illegality may be represented in the usurpation of power or failure to respect the procedural rules established to guarantee the required form, or violation of laws and regulations in the broadest sense, including constitutional rules and common law principles, and respecting final verdicts.

Deviation or abuse of power is defined as denying the absolute capacity of any of the authorities in the State, and it is a manifestation of the rule of law. Accordingly, the court built sanctions to support legality, and ensure that each authority adheres to its limits and considers the restrictions imposed in this regard in order to develop confidence between the people and the authority.

3.1 The administrative decision marred by the defect of lack of jurisdiction is considered a null decision that does not limit the filing of a lawsuit to cancel it by a specific date. The court ruled out the validity of the order, a royal decree by law to dissolve the Legislative Council of  West Tripoli State and its consequences. The court applied the same sanction on Article 40 of Decree-Law No. 6 of 1969 regarding the election law. The court ruled out the validity of Article 40 of Decree-Law No. 6 of 1964 for its unconstitutionality and considered this text null and void. A ruling that a law, legal text, or decision is unconstitutional without stating that it is null or void does not change the sanction.

3.2 The combined circuits of the Supreme Court stated, “The oversight on the constitutionality of laws aims to protect and preserve the Constitution by ending the implementation of a contradicting law to the Constitution. This constitutional case is a valid case against the legislation itself, the implication of the ruling issued on the unconstitutionality of a text or law abolishes the implementation of the text or law and renders it legally null.” The court adds, “Since this effect is indivisible by nature, the authority of the ruling issued on the unconstitutionality of a legislative text is not limited to the parties to the dispute in the case in which it was decided, but rather its effect applies to all, and it is an argument against them, and all State authorities are committed to it.” However, according to the same ruling, the binding force of a decision is relative, and limited to the parties to the dispute if the ruling rejects the constitutional case. The court justified this distinction in effect by saying that the ruling of refusal “does not affect the challenged legislation for unconstitutionality, as this legislation remains in place after the issuance of the ruling and possesses only relative binding force of a decision between its parties and within the limits of the reasons presented, and therefore, it is permissible to respond to the unconstitutionality appeal against this legislation if new reasons are raised.” This distinction is not acceptable in principle. The court attempted to follow a different procedure in its ruling issued in Constitutional Appeal No. 1 of Year 60, Session of 23 December 2013: ”The rulings issued by the Supreme Court in the constitutional appeals have an absolute binding force. They are the rulings that determine the constitutionality or unconstitutionality of a particular legislative text. If the ruling is limited to refusing to challenge a constitutional matter without disclosing constitutionality, then it does not have this authority and does not prevent the dispute from being raised again by other opponents or on other grounds.” The common conduct of the combined circuits was not adhered to by one of the court’s circuits, which ruled, “The rulings issued in constitutional appeals, which by their nature are valid lawsuits in which the litigation is directed to the contested legislative texts with a constitutional defect have an absolute binding force, and their impact is not limited to the litigants in the concerned lawsuits, but rather this effect extends to everyone, and all state authorities are committed to it.”

3.3 The Supreme Court also adopted the idea of nullity in judicial rulings, even though it was not stated in the implemented legislation, which supported the protection of legality by claiming invalidity contrary to the established principle. The means of objecting to judicial rulings is to challenge them by one of the established methods of appeal.44

The aforementioned cases of the Supreme Court enshrining the principle of legality based on constitutional documents and legislations implemented at every stage of the development of political life in Libya, since the Constitution of Independence in 1951, through the Constitutional Declaration issued by the Gaddafi regime in 1969, and the current Constitutional Declaration issued on 3 August 2011. The most prominent findings of the researcher in this field are as follows:

1- The court did not adopt the principle of dualism that is familiar to jurisprudence and Judiciary in many countries: legitimacy and legality. Legitimacy is one of the components of legality: An action or decision must be issued by a person or entity that has access to authority in accordance with the Constitution to be legal.

2- The court’s positions regarding legality ranged between strength and weakness, depending on the political stage or circumstances at the time of adjudication of appeals. When the court’s jurisdiction was withdrawn by Law No. 6 of 1982 on reorganizing the Supreme Court, the court recognized the law without an attempt to challenge it. The court regained its jurisdiction in 1994; however, its General Assembly contributed to disrupting oversight by refraining from issuing internal regulations for nearly a decade until 2004. The General Assembly further attempted to freeze the work of the Constitutional Circuit, until a ruling was issued by the Tripoli Court of Appeal annulling the decision.

3- The court’s initiation of legality control often strayed away from the rule of appropriateness, imposed by the nature of this control, considering it a legal and political oversight at the same time. The court’s ruling on the session of the House of Representatives is an example to witness that.

Accordingly, the allocation of judges is an urgent necessity, whether in the Supreme Court or an independent court, and training them on specific qualifications, while adopting the principle of diversity, so that they acquire multiple specializations, to avoid the same route of the court throughout its history since its establishment in 1954. The specialization that we defended here and was enshrined in a draft law on the judicial system in 2010 constitutes a pillar of the quality of justice and the independence of the Judiciary and contributes to protecting the principle of legality.

[1] Supreme Court ruling. Administrative and Constitutional Judiciary. Appeal No. 6 of Year 3. 26 June 1957. p. 79.

[2] Constitutional Appeal No. 47 of 5329 and 5344. Session of 27 August 2001, Principle No. 83, Group One 2000-2001/2, a set of legal principles decided by the Supreme Administrative Court in a quarter of a century 1991-2016, p. 2378, and about the link between the defect of abuse of power and the purpose of the decision that the administration has succumbed to the public interest or issued the decision for a motive that does not belong to that interest: the same court, 32- 3252. 23 April 1995, ibid, p. 2290 No. 3.

2 bis Administrative Appeal Case No. 14 of 9. Session of 9 May 1964. Supreme Court Journal. First Year. Issue 3, p. 9.

[3] Supreme Court Judiciary. Session of 5 April 1954. Administrative and Constitutional Judiciary. Part One, 2nd edition. 1967, p. 9.

[4] Ruling of the Supreme Court in Appeal Case no. 6 of 3. ibid. Benghazi University Publications. 1974. p. 17. Administrative Appeal no. 14 of 9. Session 9 May 1964. Supreme Court Journal. First Year. Issue 3. p. 9.

[5] The content of current Constitutional Declaration and its amendments as a source of legality. Khalifa al-Jehmi. Provisions and Principles of the Libyan Administrative Judiciary. 2013, p.20.
Constitutional Declaration of 1969. Sebih Meskoni. Administrative Judiciary in the Libyan Arab Republic 1974

[6] Supreme Court. Criminal Appeal No. 45 of Year 31, Session of 4 February 1986. Supreme Court Journal 24, Issue 1, 2, p. 198

[7] Ruling of the Constitutional Court.

[8] Khalifa al-Jehmi. Ibid. p. 28. Mahmoud Omar Maatouk. The role of the administrative judge in protecting human rights through the general principles of law. Case Management Journal. Year 9. Issue 18. 2010. p. 42 et seq. p. 52 et seq.

[9] The court said, “the administrative custom is that the administration proceeds in a certain way in the face of a specific case, so that the rule chosen adheres to become binding as the law.” Appeal No. 6 of Year 3. Session of 26 June 1957. ibid. [10] Administrative Appeal No. 14 of Year 12. Supreme Court Journal, April 1966. Referred to in Sabih Ecumenical, previous reference, p. 45.

[11] Sebih Meskoni. Aforementioned book. Administrative Court mentioned, “all actions issued by public bodies and individuals are governed and regulated by legal rules decided in advance on these actions.” p. 5, 11. Confirming research is limited to administrative legality.

[12] Rulings of the Supreme Court and their combined effect. Court publications. 2nd edition. p. 113. Constitutional Appeal Case No. 1 of 1. Session of 5 April 1954. The court nullified the royal decree dissolving the Legislative Council for not meeting the required conditions. Rulings of the Supreme Court with all its circuits. p. 59.

[13] Constitutional Appeal No. 1 of 12. 11 January 1970. Rulings of Supreme Court with all its circuits. ibid. p. 102.

[14] Constitutional Appeal No. 1 of 19. Session of 10 June 1972. Rulings of Supreme Court with all its circuits. ibid. p. 131. [15] Ibid. Ruling. Supreme Court Journal. Year 24. Issue 1, 2. p. 198.

[16] Supreme Court, Administrative Appeal No. 1 of 3. Session of 8 March 1970. Supreme Court Journal. Year 6. Issue 1,2,3. p. 64.

[17] Appeal Case No. 1 of Year 2. Session of 21 March 1956. Administrative and Constitutional Judiciary. Part One. 2nd Edition. 1967. p. 36.

[18] Constitutional Appeal no. 3 of 19. Session of 20 March 1976. Rulings of the Supreme Court with all its circuits. p. 141.

[19] Constitutional Appeal No. 1 of Year 19. Session of 10 March 1972. Rulings of the Supreme Court with all its circuits. p. 131. Stripping constitutional rights from legal protection under the pretext of regulating education or regulating litigation makes them a burden, and it is not permissible for the legislator’s authority to regulate them to waste and confiscate them. [20] Constitutional Appeal No. 24 of Year 59. Session of 23 December 2013.Rulings of Supreme Court with all its circuits. Constitutional Court. Court publications. p. 367.

[21] AFA article on Custody Law.

[22] Session of 10 June 1972. Rulings of the court with all its circuits. P. 131, 136.

[23] Constitutional Appeal No. 1 of 55. Session of 11 November 2009. Constitutional Court. Supreme Court Publications. Part One. p. 316. Criticism of the Authorization Law. Koni Abuda. Fundamentals of Libyan Positive Law No. 1.

[24] Constitutional Appeal No. 3 of Year 28. Session of 30 October 1982. Constitutional Court. ibid. p. 138. Ruling Commentary.

[25] Constitutional Appeal No. 2 of Year 27. Session of 6 December 1980. Constitutional Court. ibid. p. 130

[26] Session of 6 November 2014. Constitutional Court. ibid. p. 461.

[27] Evaluation of this ruling in our article on our page on Facebook.

[28] Constitutional Appeal No. 12 of Year 60. Session of 24 March 2014. Constitutional Court. ibid. pp. 441, 443. Constitutional Appeal No. 12 of Year 60. Session of 24 March 2014. Constitutional Court. p. 441.

[29] ibid. Constitutional Court. p. 73.

[30] ibid. Constitutional Court. p. 96. Constitutional Appeal No. 1 of Year 18. Session of 9 April 1982. Constitutional Court. p. 136. One of the constitutional rights guaranteed to all citizens is the right to litigation, when exercised, the litigate has the right to waive it by dropping the litigation, and it is accepted, provided that the opponent has no interest in continuing the lawsuit.

[31] Constitutional Appeal No. 2 of Year 55. Session of 11 November 2009. Former Constitutional Judiciary. p. 325.

[32] Constitutional Appeal No. 2 of Year 52. Session of 12 November 2008. Constitutional Court. ibid. pp. 148, 152, 153. [33] Session of 12 November 2008. Constitutional Court. ibid. pp. 155, 159.

[34] Enshrines the principle of equality and the principle of non-discrimination.

[35] Constitutional Appeal No. 6 of Year 59. Session of 5 February 2013. Constitutional Court. ibid. pp. 271, 273.

[35] bis Constitutional Appeal No. 2 of Year 42. Session of 23 December 2013. Constitutional Court. ibid. p. 338.

[36] ibid.  Administrative and Constitutional Judiciary. Part One. p. 79.

[37] “The defect of lack of jurisdiction varies, sometimes it is objective, such as an employee or an authority issues a decision within the competence of another authority, and at other times the defect in jurisdiction is spatial, as the management issued a decision that effect extends beyond the regional borders established to practice its competence. The defect of lack of jurisdiction is temporal, as if a person exercises competence management after losing capacity to practice public business). Appeal No. 6 of Year 3. ibid.

[38] Constitutional Appeal No. 1 of Year 1. 5 April 1954. ibid.

[39] Constitutional Appeal No. 1 of Year 12. Session of 11 January 1970. Constitutional Court. p. 60. Constitutional Appeal No. 1 of Year 14. Session of 14 June 1970. ibid. Declaration pf the unconstitutionality of the contested text and the same argument in Appeal No. 1 of Year 19. ibid. ‘the unconstitutionality of Article 6 of Law No. 28 of 1971 on compulsory insurance.’

[40] Constitutional Appeal No. 1 of Year 59. Session of 19 February 2013. Constitutional Court. ibid. p. 275.

[41] Evaluation of the court’s conduct. Khalifa Al-Jehmi. Monitoring the Constitutional Laws in Libya, Egypt, Kuwait and Bahrain. 2018. p. 476.

[42] A published ruling in the constitutional court. ibid. p. 385.

[43] Civil Appeal No. 56 of 2012. Session of 24 April 2013. Khalifa al-Jehmi. ibid. p. 478.

[44] Administrative Appeal No. 12 of 20. Session of 9 May 1974. Administrative Appeal No. 7 of Year 18. Session of 10 January 1974. Indexed edition. Part One. Rule No. 107. p. 132. Rule No. 110. p. 135.