Libya Tribune

Many Libyans and non-Libyans alike were surprised by the speech that Mustafa Abdul Jalil, president of the National Transitional Council that led the February 2011 revolution, improvised at the celebration of Libya’s liberation from Gaddafi’s regime held on October 23 the same year.

Abdul Jalil declared that “any law contravening Islamic law [Sharia] … is immediately suspended, including the law restricting polygyny”. The speech was particularly shocking to women who participated in the February revolution in hopes of strengthening their rights.

Abdul Jalil’s declaration was a sign that they might lose the rights they already enjoyed. Later, in a series of apologies that Abdul Jalil gave during the period of the National Transitional Council’s rule, he stated that the aforementioned declaration was the fulfillment of a pledge he made to Islamists in exchange for them laying down their arms, but they reneged.

But was Libya really disconnected from Islamic law before the February revolution, as Abdul Jalil’s declaration suggests? In reality, there was no disconnect. Rather, for decades preceding the revolution, the role of Islamic law in the legal system was being strengthened. Several laws were revised to comply with Islamic law, and other laws were passed based on it.

In fact, Islamic law came to play a larger role during the Gaddafi era than during the previous, monarchical era. However, the problem primarily concerned the understanding of Islamic law adopted and who is vested with defining and applying that understanding.

Islamic Law in the Gaddafi Era

During the monarchical era (1951-1969), the Constitution did not mention Islamic law. It merely stated that Islam is a religion of the state, a provision never interpreted as granting Islamic law a role in the legal system. On the other hand, Islamic law had an important role in the regulation of personal status matters and an extremely limited role in other matters.

Regarding the Gaddafi era (1969-2011), it is possible to distinguish between two periods based on the understanding of Islamic law adopted and who was vested with defining and applying that understanding.

During the first period, which lasted until 1977, the understanding of Islamic law adopted was largely traditional: the Maliki school of Islamic jurisprudence remained a primary reference, though other schools were added to it. Similarly, religious scholars retained a significant role in defining this understanding, as evidenced by the revision committees.

These committees were composed of religious and legal scholars, and their function was to review criminal, civil, commercial, and maritime law, isolate the infringements on Islamic law in them, and recommend alternatives to the infringing texts.

The committees performed their tasks, and on the basis of their recommendations, laws derived from Sharia were issued. These laws included those imposing the fixed Islamic punishments [hudud] for theft and banditry (Law no. 148 of 1972), unlawful sexual relations (Law no. 70 of 1973), unsubstantiated accusations of unlawful sexual relations (Law no. 52 of 1974), and drinking alcohol (Law no. 89 of 1974).

The revisions did not encompass the rules governing personal status matters because they were still subject to the uncodified precepts of the Maliki school. However, a significant change occurred regarding the judges vested with examining personal status cases.

The Sharia courts were incorporated into the civil courts, and it became possible for graduates of law facilities to handle such cases. Subsequently, these graduates, with their limited training in Islamic law, came to constitute the majority of those handling these cases. This was a mark of a new approach by Gaddafi’s regime to the Islamization of laws.

This new approach was characterized by the “curtailment” of traditional interpretations, on one hand, and the amplification of different interpretations that Gaddafi played a key role in calling for and, occasionally, in imposing, on the other.

The curtailment of traditional interpretations was achieved by several means, the most important being drying up their springs by closing Mohamed Bin Ali Al Sunosi University – the only university specialized in Islamic law – and then closing the religious institutes and abolishing the position of mufti.

The amplification of different interpretations was achieved by claiming that every Muslim is qualified to interpret Islamic law using independent reasoning [ijtihad], even if the person does not fulfill the strict qualification conditions found in traditional Islamic jurisprudence [fiqh], and [that it is possible to rely] exclusively on the Quran to deduce precepts, putting aside the detailed precepts contained in the Sunnah.

According to the Declaration on the Establishment of the Authority of the People issued in 1977, the Quran is the law of Libyan society.

The new approach left its mark on the role of Islamic law in the legal system. For the first time, the rules governing personal status matters – which were previously subject to the precepts of the Maliki school – began to be codified.

The new rules were derived not only from the Maliki school but also from other schools. A prominent example is Law no. 10 of 1984 on Marriage and Divorce. Its non-traditional rules included those that restricted polygyny, making it contingent on the existence of serious grounds and on the first wife consenting before the competent court or the competent court issuing a ruling approving the marriage in a case involving the [first] wife as a party.

The penalty for failing to meet these conditions was annulment of the second marriage. Gaddafi played a key role in the instatement of these restrictions, a role best exemplified by his intervention via a televised conference to prevent a law annulling these restrictions from being issued.

The restriction of polygyny is one of several examples of rules in the law that strengthen women’s rights. In fact, strengthening women’s position was a trait of many laws enacted during the Gaddafi era. For example, women could become judges before their counterparts could in other Arab states. However, the new approach, with its violations of traditional interpretations, helped render the new laws a target for the post-February 2011 revisions.

Islamic Law after the February Revolution

The February revolution was not an Islamists’ revolution, though they did play a significant role in it. Yet somehow, Islam and the demand for the rule of Islamic law became a distinctive feature of the revolution and the revisions targeting the legal system.

The revolution was dubbed “the Takbir Revolution” [in reference to the Arabic phrase “God is greatest”], and its success was followed by a strengthening of the role of Islamic law. This might be explained by the fact that claims that Gaddafi’s regime had deserted Islam were key to justifying the revolution against it; hence, the revolution’s success meant strengthening Islam’s role.

Signs of this include the aforementioned liberation speech, the August 2011 Constitutional Declaration’s stipulation that Islamic law is the main source of legislation, the revival of the Dar al-Ifta with a law that bans public debate of its fatwas and obliges everyone to respect them, and the fact that implementing Sharia became a public demand espoused not only by Islamists.

The latter was exemplified by the National Forces Alliance’s inclusion of a promise to make Islamic law a source of legislation in its program for the 2012 legislative elections.

Strengthening the role of Islamic law was also a tool for appeasing the extremists among those demanding rule of Islamic law, namely groups that took a violent approach to erecting a system that follows Islamic law.

Of course, Islamists are not a single community. Some were content with a democratic process. They participated, as parties and individuals, in the legislative authority in 2012 and won seats in the first elected legislative assembly, the General National Congress (GNC).

They played a key role in enacting laws derived from Islamic law, a prominent example being Law no. 1 of 2013, which banned interest in all transactions, including those conducted by commercial banks. The Dar al-Ifta, presided over by Sadiq al-Ghariani, played a large role in the push for this law. He severely criticized the postponement of its implementation until 2015, considering it evidence that the GNC was not serious about combatting interest [riba].

Islamic Law After the Institutional and Legislative Split in 2014

In the years following the February Revolution, the efforts to Islamize laws did not maintain the same pace. The political split that began in August 2014 was an important turning point in this regard.

On one hand, the GNC maintained that it had legislative authority throughout the country, though its actual authority was limited to the region under the control of the military operation supporting it (Libya Dawn) in the country’s west.

On the other hand, the House of Representatives, based in Tobruk in the far east, maintained that it was the sole legitimate legislative assembly. One of the distinctions between the two assemblies was that the former was described as being controlled by Islamists, whereas the Islamists failed to win seats in the latter.

This description may be based on the two assemblies’ behaviors. On one hand, the GNC amended the Constitutional Declaration, making Islamic law “the source of every legislation” and nullifying “any legislation, act, or article contravening its precepts or aims”.

The GNC considered this stipulation “the best constitutional text in all the constitutions of Islamic countries without exception”.

It also formed a committee of Islamic law scholars to review legislations – or “sift through” them, in its own words – to identify violations of Islamic law and propose remedies. The GNC adopted the committee’s recommendations and enacted a number of legislations, most importantly Law no. 14 of 2015, which amended Law no. 10 of 1984 on Marriage and Divorce by repealing, among other things, the restrictions on polygyny.

Another example is Law no. 6 of 2016, which amended 40 articles and repealed 16 more in the Civil Code, including Article 1, which listed the sources of law in the following order: legislation, then Islamic law principles, then custom, then the principles of justice and natural law.

Under the amended article, the sources of law are limited to legislation – provided that it does not contravene Islamic law – and its precepts. There is also Law no. 20 of 2016, which amended the Penal Code by repealing the provisions contravening Islamic law and adding new provisions, including one stipulating the death penalty for apostasy.

Similarly, Law no. 22 of 2016 amended Law no. 70 of 1973 on Instating the Hadd Punishment for fornication [zina] by introducing death by stoning for married offenders.

On its part, the House of Representatives enacted legislations undermining the aforementioned Islamization efforts, as shown by several clear examples. One is the suspension of Law no. 1 of 2013, which bans interest-based transactions, until 2020.

Another is the enactment of Law no. 8 of 2014 abolishing the Dar al-Ifta and transferring its powers and procedures to the Ministry of Awqaf [religious endowments]. This law was clearly a reaction to the role of the Dar al-Ifta, especially its president Sadiq al-Ghariani, in the division.

The above narrative should not be understood to mean that Islamization efforts were absent from the region under the House of Representatives’ influence. On the contrary, there were efforts that were based on a certain understanding of Islamic law and raised many questions.

One example is the decision by the region’s military governor to ban women from traveling without a male relative. It was alleged that Salafists were behind the decision, a claim corroborated by the fact that they welcomed it and urged the military governor to fulfil another promise, namely to ban women from driving.

They also criticized the draft constitution. Another example is an incident in which a group of them seized books at a checkpoint near the city of Marj on the grounds that they violate Islamic law.[18]

Islamic Law in the Draft of the New Constitution

Responses to the constitution-drafting body’s announcement of the draft constitution in July 2017 varied from welcoming to oppositional. The draft’s stance on Islamic law played a role in the mixed response.

It stipulated that Islamic law is the source of legislation, which was widely understood to mean that it is the only source. Consequently, many criticized it for opening the door – so it was said – for restricting rights and freedoms.

For others, including the aforementioned Islamists, this stipulation was not enough. They felt the draft contained Islamic law violations necessitating its rejection, including – in their opinion – its stipulation of freedom of thought and expression without any Islamic law-based restriction, the unrestricted freedom to form civil society organizations, equality between men and women before the law, and the freedom to protest.

Although the draft constitution’s stipulation that Islamic law is the source of legislation is considered a significant step in strengthening its role, its actual impact on the legal system hinges on how Islamic law is defined and the source of this definition.

There are understandings of Islamic law that greatly limit this impact. For example, Egypt’s Constitutional Court understood Islamic law as only those precepts which are universally uncontested, an understanding that restricts it and its impact.

The best evidence is that the amendment of the Egyptian Constitution in 1980 to make the principles of Islamic law the main source of legislation did not entail any change to existing legislations.

Islamic law can also be understood in a manner that maximizes its impact. For example, Libya’s Supreme Court ruled the text limiting polygyny unconstitutional on the basis that it contravenes Islamic law.

In this regard, the draft constitution provides no answer about what it means by Islamic law or who determines it.

Firstly, a text restricting Islamic law to the schools and legal interpretations considered legitimate without mandating a specific jurisprudential view appeared in earlier drafts by the drafting body but was omitted from the final version.

Secondly, despite the draft’s inclusion of a council for Islamic law studies among the independent constitutional bodies that it establishes, it did not make consulting this council compulsory, nor did it make the council’s opinion, when requested, binding.

Thirdly, and perhaps most importantly, the draft did not require that the Constitutional Court – which will decide whether a given legislation violates Islamic law and is therefore unconstitutional – include Islamic law experts.

It is conceivable that this court will be composed only of legal experts, which could increase the chances that an understanding of Islamic law more accommodating of existing legislations will be adopted.

In this manner, the court might adopt an understanding that denies that the legislations enacted under the previous regime violate Islamic law and therefore retains them.

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