Author : Diaa Shaquoura
PHD in public law, and is interested in his research in issues related to civil and political rights. currently, dr. shaqura is preparing a phd thesis on constitutionalism in post-arab spring countrie
One of the foundations of the state of the rule of law is respect and protection of human rights, including the separation of powers, and the rule of law by all individuals and public and private institutions. The constitutional framework plays a pivotal role by regulating the relationship of state institutions, powers, and mutual functions among each other, and further between the latter and individuals in society. The effective protection of human rights requires a constitutional framework guaranteeing the protection, respect, and implementation of human rights, adopted through a representative body following a participatory process at the national level.
The process of drafting a new constitution, or amending an existing constitutional framework, represents an important event for the state and society and poses an opportunity to strengthen constitutional guarantees for the protection of human rights. The implementation of the rule of law and respect for human rights begins with drafting a new constitution and the method of designing the drafting this constitution because of its impact on the final draft of the constitution, whether in terms of content or legitimacy and effectiveness.
Libya’s Constitution Drafting Assembly (CDA) for drafting the constitutional draft, amid political division, adopted the draft constitution with the approval of more than two-thirds of its members, after 74 plenary sessions of the CDA in July 2017. The adoption of this draft can be described as a participatory process. The CDA included representatives from all parts of Libya and communicated with political and social parties throughout the process of drafting the constitution, whether through official or unofficial channels. Its deliberations were public and relatively transparent. The CDA planned to present a referendum for approval, according to the constitutional declaration and its amendments. However, more than five years have passed since the completion of the draft, and it has not been presented.
There were numerous debates on the necessity of activating the draft Libyan constitution of 2017 and holding elections according to its jurisprudence after a referendum, following the faltering of holding the presidential and legislative elections scheduled for December 2021, as required by the international road map for a political solution. In addition, debates on the draft constitution raised the question about the extent to which it contains guarantees for human rights, or, whether there is a text in the draft devoted to these rights and freedoms, and further the procedures and institutions to guarantee respect for the text enshrined? This paper discusses, in general, each of the rights and their guarantees, including the standard aspect of guaranteeing human rights and the institutions guaranteeing respect for human rights (first). It also discusses the procedures for defining rights and freedoms (second).
Rights and guarantees:
- Enshrining rights and freedoms in the draft constitution:
Constitutions are usually preceded by an introduction called a preamble, but it is not necessary. Some constitutions do not include an introduction. However, the tendency of various constitutions is to adopt a brief introduction, including a reaction to the past and an aspiration for the future. Numerous constitutions have references in the introduction to values, including respect for human rights, human dignity, the rule of law, social justice, democracy, or other religious principles and values. The preamble plays an important role in interpreting the articles of the constitution and the rights contained therein. Contrary to previous draft constitutions, the draft constitution of 2017 had no preamble and merely stated, “We, the people of Libya, Libyan men and women. Herby adopt this Constitution.”
The draft constitution devotes an entire chapter to rights and freedoms, through Articles 31 to 66.Similar to many constitutions, it stipulates a list of rights and freedoms as legal standards, rules, and principles. Articles related to rights and freedoms in the draft constitution are not limited to those in the chapter on rights and freedoms. Others are distributed among the legal articles in all its chapters. The first chapter contains the right to a healthy environment (Article 18), and some cultural rights, including the right to identity and language (Article 2), citizenship rights, equality and non-discrimination (Article 7), and equal opportunities (Article 16). Chapter four on the judicial authority enshrines rights related to the right to a fair trial, such as the right to a natural judge and the prohibition of exceptional judiciary (Article 123), and the right to litigation on two levels (Article 122).
Other chapters include constitutional provisions stipulating the method of activating a right mentioned in another article of the draft constitution. Article 185 includes in terms of transitional provisions related to guaranteeing a quota for women of 25 percent of the total seats in the House of Representatives and local councils for two electoral terms, which is stated in Article 49 related to the support of women’s rights, and to guarantee the activation of women’s right to representation in general elections. The right to participate in political life (Article 42) includes citizens and civil society submitting legislative proposals and is confirmed in Article 72 related to draft laws and their proposals, and referred the regulation of this right to law.
The draft constitution represents progress in enshrining rights and freedoms at the level of Libyan national law. However, several articles included in the constitution may raise a number of problems. The draft constitution recognizes the right to equality and non-discrimination for male and female citizens only, without taking into account the rights of individuals subject to Libyan legal jurisdiction (Article 7). The draft constitution recognizes the right to nationality, as a relative and not absolute right, and the possibility of withdrawing nationality from Libyans based on considerations of public interest (Article 10).
The draft constitution enshrines, in the rights and freedoms chapter, various political and civil rights, including rights to human dignity (Articles 31, 32, and 34), the right to safety (Article 32), freedoms of the press, media, expression, and publication (Articles 37 and 38), and electoral rights, such as the right to vote and to be elected. (Article 39). It includes rights on participation in political life, formation of political parties, civil society, demonstration, assembly, transparency, and the right to information (Articles 40-43 and 46). It includes rights related to a fair trial, which appear progressive and detailed on most of the elements of a fair trial, supporting alternative punishments for penalties of deprivation of freedom (Articles 62-64).
The rights and freedoms chapter further includes a group of economic, social, and cultural rights, right to water and food (Article 47), right to health (Article 48), right to a decent life, right to social security (Article 50), right to education (Article 52), and right to work (Article 56). The Libyan draft constitution addresses the issue of access to the right, and further the quality of services provided for the realization of the right. Article 45 of the draft constitution stipulates, “The right to comprehensive and quality healthcare for all citizens.” The article does not limit the right to only access to health services, but to quality health services.
These articles related to rights and freedoms, whether distributed over different chapters of the draft constitution or included in the list of rights and freedoms, raised some observations and questions, the most important of which are:
The first observation relates to whether the list of rights and freedoms in the draft constitution is exclusive to these rights or inclusive to other rights. The draft constitution does not present a clear answer to this question. However, we can deduce that the list is non-exclusive and open, from other constitutional articles, including Article 66 on legislative and executive policies, stating, “All legislative and executive policies shall be based on the protection and promotion of human rights.” However, the case of the draft constitution explicitly stipulating that the list of rights and freedoms is open is more useful and worthy, similar to other countries’ constitutions.
The second observation relates to the enforceability and justiciability of rights and freedoms. Despite the number of rights the constitution includes, the constitutional texts must be enforceable and litigated, and the courts have the authority to enforce these texts. Civil and political rights are subject to judicial review, and thus do not pose any problem, but when it comes to economic, social, and cultural rights, the debates continue. The usual argument presented is that such rights often express political aspirations or goals and depend on the resources availability to achieve them, and that litigation in these rights means interfering in political choices amid scarce resources. The Libyan draft constitution lacks mechanisms for the implementation of economic and social rights, which could facilitate the work of the judiciary and facilitate litigation of these rights. These mechanisms include stipulating a specific percentage of the state’s general budget to allocate for health, education, scientific research, or other mechanisms for the realization of rights, to avoid being mere aspirations or a dead text.
The third observation relates to the contradictions of exercising some rights and freedoms. Article 7 enshrines the equality of male and female citizens in and before the law and prohibits discrimination for any reason. However, other articles enshrine the “Islamic Sharia” as a source of legislation, which proposes contradictions, including those related to equality between women and men.
- Institutions guaranteeing rights and freedoms in the draft constitution:
We cannot avoid discussing the mechanisms and institutions effectively guaranteeing respect for the constitutional legal text and its implementation. Setting controls and regulations on restricting any rights is not sufficient to guarantee effective exercise of these rights. Institutions that protect rights and freedoms against the arbitrariness of the executive authority and the legislator must exist. The Libyan draft constitution provides the necessary institutional guarantees for this, including the ordinary judiciary, the constitutional judiciary, independent bodies, and the National Institution for Human Rights.
- Ordinary Judiciary:
Chapter four of the draft on the judicial authority defines the basic functions of the judicial authority in administering justice, guaranteeing the rule of law, and protecting rights and freedoms. Judicial oversight represents an essential guarantee related to defining rights in all democratic systems, and its independence is a crucial condition for the effectiveness of this oversight.
The draft constitution provides a coherent constitutional framework regarding the independence of the judiciary. The constitution states, “Judges shall be independent in performing their functions, shall only be subject to the law, and adhere to the principles of integrity and impartiality. Interference with the work of the judiciary shall be a crime that is not subject to the statute of limitation.” The draft constitution provides a set of guarantees on the appointment and dismissal of members of the judiciary, stating that the Supreme Judicial Council is the only authority empowered to make decisions affecting judges. The draft constitution refers the formation of the Supreme Council to the law, in Article 126 and stipulates the necessity of respecting its independence when formed. However, this referral opens a source of great weakness and allows the Council to be easily exploited by the political majority in the Shura Council in the future. This may render the independence of the Supreme Judicial Council void and negatively affect the independence of the judiciary in general.
Chapter four of the draft constitution provides other guarantees related to the judiciary, including the prohibition of exceptional courts, and the exclusive jurisdiction of military courts over military crimes committed by soldiers. This enhances the independence and impartiality of the oversight role of the ordinary judiciary over the arbitrariness of the state regarding the exercise of rights and freedoms.
- Constitutional Judiciary:
Chapter five of the draft constitution includes the establishment of an independent constitutional court consisting of 12 members, of whom the Supreme Judicial Council shall choose six, and the President of the Republic and the legislative authority each shall choose three (Article 136). The court is responsible for monitoring the constitutionality of laws and regulations for the work of the executive and legislative bodies. The Constitutional Court further looks into the constitutionality of constitutional amendment procedures and cases related to the legislative authority not fulfilling its constitutional obligations (Article 139).
The constitutional judiciary plays a pivotal role in guaranteeing rights and freedoms in the draft constitution, through the subsequent oversight on the constitutionality of laws, and in reviewing and amending the constitution. Article 19 stipulates that any amendment to the constitution must not prejudice the principles of political pluralism and the peaceful transfer of power, nor the guarantees related to rights and freedoms, except for the purpose of strengthening them. The upcoming Constitutional Court plays an essential role in guaranteeing this.
- Independent Bodies:
In numerous contemporary constitutional systems, independent bodies play a fundamental role in promoting societal accountability of public authorities in the state, including promoting transparency, pluralism, combating corruption, and promoting and respecting human rights. Chapter seven of the draft constitution includes a group of independent constitutional bodies, stipulating their administrative and financial independence necessary to carry out their duties effectively.
The National Council for Human Rights is one the most important of these institutions, working to promote and protect human rights in Libya. The draft constitution sets general principles relating to independent bodies and the National Council for Human Rights. Guaranteeing the independence of the Council and equipping it with a broad and strong mandate, in accordance with the Paris Principles, enhances the institution’s ability to protect and promote human rights at the national level.
The limits of rights and freedoms in the draft constitution:
- Restrictions on rights and freedoms:
Similarly to being completely silent about restrictions, the United States Constitution of 1787 left the control of freedoms to law and the judiciary. Constitutions follow two methods of setting and controlling restrictions on rights and freedoms. The first method is special limitation, placing restrictions on each of the rights guaranteed by the constitution with a set of special controls. The second method is based on including an inclusive article within the constitution that guarantees the controls applicable to all rights and freedoms. It is also possible to combine the two previous methods, which some call the method of double defining rights and freedoms.
The Libyan draft constitution adopts a double definition of rights and freedoms. Some articles on rights and freedoms stipulate some limits. The legal articles vary regarding the controls of these restrictions, sometimes clear and accurate. Others are unclear and completely inaccurate. Some articles refer the regulation of this right or its limits to law at other times.
Article 34 relates to human dignity and stipulates, “Forced labor shall be prohibited unless it is out of a necessity or to carry out a penalty in accordance with a court ruling.” This article of the draft constitution fails to specify the conditions of authorizing forced labor. Article 37 guarantees freedom of expression and publication, attributing this right to specifying that the state must “take the necessary measures to protect private life and prohibit incitement to hatred, violence, and racism based on ethnicity, color, language, gender, birth, political opinion, disability, origin, geographic affiliation, or any other reason whatsoever. Accusations of unbelief (takfir) and imposition of opinions by force shall also be prohibited.”
More articles came with other conditions related to placing restrictions and limits on the exercise of freedoms, including freedom of the press and the media. Article 38 focuses on guaranteeing the freedom of the press and the media, pluralism, and independence of the press and media outlets, and prohibits their suspension except through a judicial order, and their dissolution except through a judicial ruling. The draft adopted these controls regarding some other articles, such as Article 41 on civil society.
The draft constitution established in Article 65 an inclusive article to define rights and freedoms, stipulating conditions necessary to place restrictions on rights and freedoms. Article 65 includes a set of overlapping and sequential guarantees that accompany the process of limiting rights.
The article mentions that any restriction on the exercise of rights and freedoms must be “necessary, clear and specific,” which establishes that any infringement of rights must be justified by some necessity and that this infringement be clear and specific. However, this article of the draft constitution does not specify the cases of necessity, leaving that to the whim of the legislator at a later stage. The Tunisian constitution of 2014, for example, contains in Article 49 cases of necessity in which infringement of rights and freedoms is permitted.
Article 65 sets the condition of proportionality with the interest in protection, by measuring the appropriateness of the restriction imposed with its purpose and weighing whether the restriction poses a threat to the interests of the right holder, compared to the importance of the factors justifying it.
Article 65 further sets a condition for any limitation of rights, which is the non-return of the guarantees established by the law. This means that any legal texts restricting rights and freedoms should not limit rights to a greater extent than in existing laws. The article contains conditions of non-conflict between limitations and the provisions of the constitution, which enshrine the principle of the supremacy of the constitution and its provisions. However, there are concerns to justify adding this aforementioned sentence, considering it a clear reference to a previous condition that Islamic Sharia is the source of legislation (Article 6), which could conflict with international standards of rights and freedoms in issues related to inheritance.
The article remains vague on who can place restrictions on rights and freedoms or their regulation, whether this is within the exclusive jurisdiction of the law, or is there possibility for the administration’s will to interfere. Some constitutions assign exclusive competence in the field of rights and freedoms to law and choose to have laws on rights and freedoms laws that are adopted by an enhanced majority.
- Exceptional cases, rights, and freedoms in the draft constitution:
Most constitutions provide for the regulation of the state of emergency, for its importance to the rule of law, respect for rights and freedoms, the stability of the political system, and the separation of powers. The stipulation of the procedures for declaring a state of emergency or other exceptional cases in the constitution clearly and precisely is a guarantee that such procedures will not be abused. These constitutional exceptions enable the partial or total suspension of the rights and freedoms contained therein.
The Libyan draft constitution of 2017 addresses these cases in chapter 12 on general provisions in Articles 187 and 188, mentioning two exceptional cases. The first is the state of emergency and the second is the state of martial law. Articles 187 and 188 explain the procedures and reasons for declaring each of the two states.
This suspension is considered a threat to the exercise of rights and freedoms. Therefore, many constitutions establish a set of guarantees to effectively protect rights and freedoms in states of emergency and other cases of exception, including the procedures for declaring the state of exception, its reasons, and method of practice.
According to recognized international standards, the declaration of a state of emergency must be subject to a set of conditions, including the state of emergency must be time-bound or temporary, and to achieve goals related to the public interest, and the possibility of reviewing the decision to declare a state of emergency.
The powers accompanying the state of emergency must be limited as much as possible, the measures taken must be proportionate to the intended purpose, and effective remedies must be made available to persons. The stipulation must include a set of unlimited rights, including the right to life and freedom from torture, slavery, and servitude, etc.
The Libyan draft constitution establishes a set of procedural controls for declaring both state of emergency and a state of martial law. The state of emergency is declared by the President of the Republic in specific cases exposing the country to catastrophe, siege, or danger threatening its safety. The president declares the state of emergency in consultation with the Prime Minister and the President of the Shura Council, with the latter approving or revoking it three days after announcing it in the event that the Shura Council is convened or seven days in the event that it is not convened. Article 187 of the draft constitution specifies 60 days as a period of time for a state of emergency based on the approval of the majority of the Shura Council members, renewable for another 120 days based on a two-thirds majority of the council.
In the second case, the President of the Republic can declare the state of martial law in cases of war and serious threat to the security of the country, based on a request submitted to the Shura Council, provided that the Council decides on the request by an absolute majority within three days. Article 188 stipulates that the state of martial law cannot be imposed on the entire country, limiting its geographical scope. However, the article does not address the issue of the duration of the state of martial law, and refers that to the law regulating its provisions. The article only contains raising this case within the competence of the Shura Council, based on the request of the President of the Republic. In addition, the President of the Republic must submit a monthly report to the council.
Article 189 adds a set of controls and restrictions to both states of emergency and martial law and refers to the law some organizational and procedural matters for both states. This includes the reasons for declaring the state, time period, scope of each of the two states, and the rights that may be restricted. The draft constitution should have specified these matters, given their importance to the effective protection of human rights, and the guarantees that this entails of non-arbitrariness, and not leaving these matters to the legislator’s whim.
The draft places in the second and fourth paragraphs of Article 189 a set of restrictions on the exercise of rights and freedoms. The article requires that no restrictions be placed on rights and freedoms during states of emergency and martial law and can only be placed to the extent necessary to maintain public security and public safety of the country, considering Articles 31, 32, and 34. However, this does not explicitly indicate whether these rights are part of the list of rights that cannot be restricted. The fourth paragraph of the same article adds, clearly and explicitly, that the right to a natural judge and the prohibition of trying civilians before military courts are among the rights that cannot be violated.
Article 189 further adds a set of restrictions on the practice of both the state of emergency and the state of martial law. These restrictions include the submission of all decisions and actions taken during the two states to the oversight of the judiciary, respect for the principle of legality, and the inability to amend the constitution, suspend its provisions, or dissolve elected councils.
The legal framework proposed in the draft constitution regulating both states of emergency and martial law provides a set of procedural and practical guarantees related to taking the decision of the declaration of the two states and controlling and restricting practices and powers during the two states. However, the draft constitution referral to the law to organize procedural issues and measures, such as the time period for both states and the rights that can be restricted, may render these guarantees void.
Three years following its foundation, Libya’s Constitution Drafting Assembly (CDA) adopted the Libyan Draft Constitution of 2017. The draft constitution contains many human rights guarantees, including its dedication to a wide range of civil, political, economic, social, cultural, and sports rights, distributed among most of its chapters. The draft constitution comes with a set of procedures constituting immunity for the rights and freedoms enshrined in the draft constitution, including the procedures for limitations and restrictions on rights and freedoms and according to Article 65 of the draft.
Despite all these guarantees, the draft constitution remains incomplete in its current form. Some articles provide vast scope for the authority of the legislator and political authorities at a later stage. This case may void the guarantees of the draft constitution and needs to be addressed.