By Lawyers for Justice in Libya
A Guide to Freedom of Expression in Libya has been authored by Lawyers for Justice in Libya thanks to the assistance of International Media Support.
It is intended to provide support for media stakeholders and identify human rights recommendations for the Libyan State. It is available to download here.
Libya’s legal framework is, at present, inconsistent and at times contradictory. This ambiguity has led to confusion as to the exact status of current freedom of expression rights and restrictions.
Thomas Ebbs, Director of Research noted: “This confusion regarding the state of the law is dangerous. Libyan State authorities have repeatedly relied on laws to repress expression that they previously announced were repealed for being unconstitutional.”
The Guide is as an effort to remove some of the uncertainty regarding the status of freedom of expression rights and restrictions. It looks at the protections available in Libya’s domestic law, which laws can be used to restrict expression, the actions of those regulating the media, and possible future constitutional developments.
Ebbs said: “For media practitioners and civil society, the Guide provides a tool to use against repressive activities and identifies what we collectively need to rally against. For the Libyan State, it is a blueprint for how to live up to human rights standards and the promises made in the Constitutional Declaration. It spells out the laws that need to change.”
LFJL wishes to use this opportunity to call upon the Libyan State to take action to restart its effort to ensure human rights are protected by national legislation.
Further, LFJL urges the Constitutional Drafting Assembly to remove the many weaknesses, identified by the Guide, that make the current draft inconsistent with Libya’s human rights obligations. Key stakeholders of freedom of expression, particularly the media, are strongly encouraged to resist repressive laws whenever possible.
Libya’s legal framework is, at present, inconsistent and at times contradictory, reflecting the rapid changes in Libyan society’s relationship with its state.
This ambiguity has led to confusion as to the exact status of current freedom of expression rights and restrictions.
This guide examines the legal framework in an attempt to provide greater clarity on this topic. It looks at the protections available in Libya’s domestic law, which laws can be used to restrict expression, the actions of those regulating the media and possible future constitutional developments.
It finds that the supremacy of the Constitutional Declaration, the direct domestic applicability of international human rights treaties, and several Libyan Supreme Court decisions point towards a legal foundation to the right to freedom of expression. However, this foundation is highly at risk and regularly undermined.
Representatives of the government have failed to repeal or amend restrictive provisions, instead passing new restrictive laws.
Regulatory bodies have sought to introduce paternalistic and unpopular registration requirements for the media without the sufficient legal authority to do so.
In addition, the limited functioning of the judicial system means many unlawful practices are able to continue unchallenged.
In the future, the prospect of a new Libyan constitution offers an opportunity for consolidated, clear and robust legal protections for freedom of expression. However, the current Constitutional Draft 2 contains significant legal loopholes and establishes institutions of uncertain power.
The failure of the Constitutional Draft to adhere to international minimum standards, let alone seek to ensure best practices, means that it may ultimately further weaken human rights, including freedom of expression.
The Current Constitutional Draft Contains Significant Legal Loopholes And Establishes Institutions Of Uncertain Power.
PROTECTIONS AND GUARANTEES OF FREEDOM OF EXPRESSION
International and Regional Treaties
The right to freedom of expression is guaranteed by a number of international and regional human rights treaties.
The strongest protections, to which Libya is a party, are included in the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights (ACHPR).
The Libyan legal system makes international treaties that are ratified by the Libyan State (the State) and published in the Official Gazette directly binding and enforceable by the domestic judiciary.
Any interested party may invoke their rights and petition the judiciary to implement the provisions of such international treaties and conventions.
However, due to the current incapacity of the Libyan judiciary, the ability of individuals to secure accountability for violations of freedom of expression is principally limited to the complaints mechanisms established by human rights treaties.
Most of these mechanisms are overburdened with communications or inadequately staffed, which leads to extremely long waiting periods (several years) for decisions.
The Constitutional Declaration (2011)
The Constitutional Declaration asserts itself as the supreme law of Libya, meaning that in the event that other laws, regulations or policies exist which are in contradiction to its provisions, those laws, regulations and policies are abrogated by it.
Article 14 of the Constitutional Declaration offers protection to various freedoms, including “Freedom of opinion for individuals and groups, freedom of scientific research, freedom of communication, liberty of the press, printing, publication and mass media…”
Citing these protections, Libya’s Supreme Court has ruled that certain laws and decrees passed by transitional governments are unconstitutional for undermining freedom of expression.
The Libyan State, in its international communications, has also supported the notion that “laws restricting freedom of the press and the media” were abrogated with immediate effect by the Constitutional Declaration.
The protections of Article 14 for freedom of press and the media are identical to those it provides for other forms of expression, suggesting that all laws which restrict free expression have also been abrogated by the Constitutional Declaration.
The Promotion of Freedom Act (Law 20 of 1991)
The Promotion of Freedom Act was enacted, ostensibly, to provide a domestic interpretation of Libya’s civil and political human rights obligations under international law.
In Article 8, it codifies the right of only Libyan citizens to express opinions and ideas with people’s congresses and through the media.
As such, it is a limited recognition of a right to expression, empowering a particular class of individuals (citizens) within a limited number spaces (people’s congresses/media).
This limited conception conflicts with the character of freedom of expression, which is defined as an inalienable entitlement of all humans to impart and receive information of all kinds, regardless of frontier or form.
In addition, as noted in the section below, the restrictions the Promotion of Freedom Act includes are wide ranging and ambiguous, making it unlikely to offer any real form of legal protection to expression.
The Libyan Legal System Makes International Treaties That Are Ratified By The Libyan State And Published In The Official Gazette Directly Binding And Enforceable By The Domestic Judiciary.
To be continued …