Nothing can be gained by turning back to Gaddafi-era law
Legal Commentary
The right to free association in Libya is at a critical juncture. On 21 March 2023, the Government of National Unity headed by Abdul Hamid Dbeibeh issued a Decree (No. 7/2023) that allows local and international civil society organizations (CSOs) in Libya to continue working temporarily while recognizing their (temporary) legality until they can conform to Law 19/2001 to regulate civil society organizations.
Law 19/2001, issued under the previous Gaddafi regime, is annulled and invalid according to the 2011 Constitutional Declaration.
That same day 21 March, members from the House of Representatives proposed amendments to Law 19/2001. The decision to return to this Gaddafi-era law represents the executive authority’s exploitation of the political vacuum in Libya; since 2011, there has been no legal framework regulating civil society and protecting the right to free association.
The amendment of Law 19 is just the latest in a series of encroachments by the executive authorities upon the jurisdiction of the legislative authorities. From 2016 to March 2023, governing authorities in east and west issued four decisions and administrative regulations that flout the freedom to form local and international associations, especially targeting and restricting human rights organizations that expose violations.
In this legal commentary, CIHRS examines the evolution of the legal framework regulating civil work in Libya, and the extent of the constitutionality and legitimacy of its legislation, decisions and executive regulations and their compatibility with Libya’s international obligations. We underscore the danger represented by the absence of national legislation affirming the right to association in accordance with internationaland constitutional standards.
We re-introduce the draft law on civil society proposed by Libyan human rights organizations and submitted to the House of Representatives in June 2021 as an alternative to the current Law 19 of 2001.The memorandum further examines the criteria in both international and national law for exceptional cases or circumstances under which the fundamental right to freedom of association can be restricted, including the judicial precedents in Libya’s legal system that guarantee the protection of this right even in times of exception; under the following headings:
- Law 19 of 2001: Repressive Gaddafi-era legislation
- Legislative vacuum since 2011 as executive authorities encroach upon jurisdiction of House of Representatives
- Nothing can be gained by amending Gaddafi-era legislation: Formal amendments to a void Law
- New law urgently required to protect freedom of association in Libya
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I- Law 19 of 2001: Repressive Gaddafi-era legislation
Freedom of association was historically a constitutionally protected right in Libya, under Article 26 of its 1951 constitution. Yet by the time the country’s authoritarian leader Muammar Gaddafi was assassinated in 2011, his dictatorial regime had essentially eliminated freedom of association as a right enshrined in the nation’s constitution and laws.
The 1969 Constitutional Declaration issued by Gaddafi omitted reference to the right to freedom of association, thus erasing the recognition afforded to this right in the preceding constitution. Shortly thereafter, the legal framework regulating freedom of association was upended by the General People’s Congress under Gaddafi, which issued Law No. 111 in 1970. The law abolished the articles (64-68) regulating free association in the 1953 Civil Code.
Then in 2001, Gaddafi’s General People’s Congress issued Law No. 19, which only recognizes civil society organizations that provide social, cultural, sports, charitable, or humanitarian services and placed these organizations under its own strict supervision.
According to this law, the establishment of associations is contingent upon executive approval; executive authorities must approve the organization’s activities, its statutes or regulations, and its membership.
The Executive can annul the decisions and policies of the organization, and it has the right to close, dissolve, or merge the organization with another; or assign a temporary management committee to run the organization – all of this without judicial authorization. Any and all of the organization’s fundamental operations – whether it be obtaining funding, engaging in an activity, or holding a meeting – is subject to the supervision, attendance, and approval of the General People’s Congress.
In addition to Law No. 19, the Gaddafi regime used Law No. 80 of 1975 amending and repealing provisions of the Penal Code to facilitate the repression of free association through the use of vague wording defining types of behavior punishable by law, and which can bear penalties up to capital punishment (article 206), for instance, acts that seek to “change the basic rules of the social structure by illegal means”.
These “rules” and “means” are not specified or precisely defined by the law and are thus vulnerable to broad interpretation and overreach. Law No. 80 contravenes international agreements ratified by Libya, especially articles 6, 7, 15, 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights.
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II- Legislative vacuum since 2011 as executive authorities encroach upon jurisdiction of House of Representatives
In 2011, the right of individuals to freely form an association was guaranteed by Libya’s newly issued constitutional declaration: its Article 15 guaranteed the right of individuals to form civil society organizations under the regulation of a law to be issued by the nation’s legislative authority. Thus, the Constitutional Declaration of 1969 came to an end, and with it, all legislation, decisions and laws of the Gaddafi regime and its executive bodies. Moreover, Article 6 of Law No. 29 on transitional justice, issued in 2013, established the illegitimacy of unjust legislation issued before 2011.
This fully applies to Law No. 19 of 2001 on the freedom of association, and Law No. (80) of 1975 amending and repealing provisions of the Penal Code, which criminalized the exercise of freedom of association with harsh penalties, up to death (Article 206).
The legislative authority was expected at the time to issue a new law regulating the work of civil society organizations in compliance with Libya’s 2011 Constitutional Declaration.
This new law was to comply with Libya’s international obligations regarding freedom of association, even in exceptional cases, and to be consistent with the basic principles required in any national law regulating the work of CSOs, which were endorsed by the United Nations Special Rapporteur on the freedom of association in his 2012 report, including:
- Civil Society organizations should be able to register with the competent administrative body through a declarative non-authorization process.
- If a CSO commits any violation, executive authorities, including security institutions, should contest the registration before an impartial judicial authority and cannot refuse the registration without judicial oversight.
- CSOs should have the right to open a bank account without authorization from the executive authority, this bank account cannot be frozen unless there is a judgement from the judicial authority.
- Authorities should not ask CSOs to register again if they have already registered; the obligation of renewing the registration violates freedom of association.
- Authorities should allow CSOs to meet with domestic and international communities without prior approval.
- Authorities cannot suspend or dissolve a CSO without a judgment from the judiciary respecting a fair trial.
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