The Future of Justice in Libya: An Appraisal


2016-08-31    |   


The 2011 uprising against Libyan ousted ruler Muammar Gadhafi was primarily motivated by a desire for justice, human rights and the rule of law. Making these aims a reality requires an independent and accountable judiciary that is capable of ensuring access to justice and combating impunity through fair trials. The early days of Libya’s transition to democracy saw significant progress on this front. A Constitutional Declaration was promulgated enshrining an independent judiciary, legislation was revised to limit the Minister of Justice’s influence over the judiciary, and the legacy of Gadhafi’s exceptional courts was reversed, in particular when the ‘People’s Court’ procedures were found to be unconstitutional in 2012.[1]

However, the continuing political instability and the lack of security in Libya has not only significantly weakened the rule of law, but also stalled the legal reforms necessary to ensure an independent, accountable and representative judiciary.

In a new report, entitled “Challenges for the Libyan Judiciary: ensuring independence, accountability and gender equality”, the International Commission of Jurists (ICJ) looks ahead to a stable governance framework and calls on the Libyan authorities to revise the legal framework governing the organization of the judiciary, the Supreme Judicial Council (SJC), the prosecutor’s office and the use of military tribunals in line with international law and standards on the independence and accountability of the judiciary and on gender equality. The ICJ also calls on the Constitution Drafting Assembly to revise the latest draft of the Constitution to ensure that it fully accords with international law and standards.

The report, in part, reflects discussions at a high level conference the ICJ organised in May 2016, which brought together senior judges, former ministers, members of the Constitution Drafting Assembly, lawyers, prosecutors and legal academics from across Libya. Many participants recognised the need for reforms and expressed their commitment to strengthening the independence of the judiciary and consolidating the rule of law in Libya.

Underlining the importance of an independent judiciary, the report emphasizes the need for the Supreme Judicial Council of Libya (SJC) to be institutionally, financially and administratively independent from the executive. It highlights the requirement that its membership should be pluralistic and gender-representative, with a majority of judges elected by their peers. The Statute on the Judiciary, Law No. 6 of 2006 (as amended) is analysed in detail and revisions that are needed to provide for fair and transparent procedures for the selection, appointment, promotion, transfer and discipline of all judges are identified, as well as the need for the Statute to provide for specific measures aimed at increased representation of women in the judiciary, in particular in senior positions.

Regarding the accountability of the judiciary, the report recommends that disciplinary proceedings are revised to afford judges the right to a fair hearing before an independent and impartial body, and that a judge may only be disciplined on the basis of breaching established conduct as outlined in the Code of Ethics and Conduct. The ICJ recommends that a fair and comprehensive vetting procedure is undertaken given that restoring trust in judicial institutions in Libya is necessary to address the legacy of decades of the executive’s control and influence over the judiciary. This includes influence through politicized trials. Consistent with international standards on due process, such a process should aim to hold to account those judges who were responsible for perpetrating or being complicit in violations of international human rights law or in acts of corruption.

Further, the ICJ calls on the Libyan authorities to ensure the functional independence of the prosecutor’s office from both the executive and the rest of the judiciary. Such independence is important to ensure that past and ongoing gross human rights violations in Libya are impartially and thoroughly investigated and prosecuted and that all those responsible for such violations are criminally held to account.

Additionally, the report underlines that the jurisdiction of military tribunals must be restricted only to cases involving members of the military for alleged breaches of military discipline and that alleged violations of human rights committed by the military or armed forces must be investigated and prosecuted by civilian authorities.

Finally, the report recommends that immediate measures be taken to end arbitrary detention across Libya and to ensure to all detainees the right to a fair trial.

Doireann Ansbro:
Associate Legal Adviser, International Commission of Jurists

For a full version of the report in English, see

https://www.icj.org/wp-content/uploads/2016/07/Libya-Challenges-the-Judiciary-Publications-Reports-Thematic-report-2016-ENG.pdf

For a full version of the report in Arabic, see

http://www.icj.org/wp-content/uploads/2016/07/Libya-Challenges-the-Judiciary-Publications-Reports-Thematic-report-2016-ARA.pdf

[1] The ‘People’s Court’ was abolished in 2006 but its procedures remained in place and were, at times, used in ordinary courts until 2012.

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