Nothing can be gained by turning back to Gaddafi-era law
III- Nothing can be gained by amending Gaddafi-era legislation: Formal amendments to a void law
It is unfortunate that the Libyan House of Representatives has failed once again to fulfill its constitutional obligation to enact a new law that guarantees the freedom and independence of civil society in Libya.
Instead, it has turned back to Law 19 of 2001, merely proposing formal amendments to the law that essentially amount to changing the name of the administrative body that will be in charge of restricting civil society organizations.
References to the General People’s Congress or Committee are now replaced by references to “the General Commission for Civil Society”, without any amendments significantly changing the nature of the broad, unconstitutional powers vested in this body.
According to the amendment proposed by the House of Representatives, this new Commission, which has a legal personality and an independent budget, will be subordinated to the legislative authority and its members are to be chosen by the Presidency of the House of Representatives.
It will be allowed to unilaterally accept or reject the registration of an CSO, suspend or dissolve the CSO, veto the decisions of the organization’s board of directors and issue new decisions, and pre-approve any activity or funding for the CSO.
It will not be required to give any reasons or secure judicial authorization for any of this. The Commission will also have discretionary powers to grant all permits for activities and events and supervise legal and administrative procedures of local and international non-governmental organizations.
Once again, the broad and oppressive powers given to the Civil Society Commission by Law 19 of 2001 do not only jeopardize the freedom and independence of civil work, which are protected by Libya’s Constitutional Declaration, they also violate the principles of freedom of association endorsed by the International Covenant on Civil and Political Rights, and the guarantees of freedom of association according to Article (10/1) of the African Charter on Human and Peoples’ Rights.
Furthermore, Law 19 fundamentally violates the basic standards required in any national law regulating civil society activity, as contained in the report of the UN Special Rapporteur on freedom of association issued in May 2012.
In addition, this national law still lacks legitimacy according to the Libyan judicial authority, according to Constitutional Appeal No. 57/01 issued in December 2013, reaffirming that “an international convention ratified by the Libyan legislative authorities is superior to national law. If there is a contradiction between national laws and international conventions, the latter [international convention] should be applied directly before the national courts”.
In December 1991, Libya’s Supreme Court ruled that an “executive act loses its correctness and validity” and is considered null if the act belongs “under the jurisdiction of the legislature or judiciary”, according to Administrative Appeal: 37-39 /1991. Similarly, the Administrative Appeal ruling 49-163 /2005 by the Libyan Supreme Court states that: “the executive decision, if tainted by the defect of lack of jurisdiction, is null for the reason of a severe defect and can be challenged without time limit”. Accordingly, the executive-issued administrative decisions regulating CSOs are invalid because such legal decisions fall under the jurisdiction of the legislative authority, not the executive authority.
The court’s ruling effectively prevents the executive authority from interfering in the work of NGOs and civil society organizations in Libya and guarantees their independence, in support of Article 15 of the 2011 Constitutional Declaration. This ruling became binding on 18 July 2022, while the merits of the case remain under consideration by the competent court.
IV-A new law is urgently required to protect the freedom of association in Libya
The Cairo Institute for Human Rights Studies considers that any national law regulating the work of civil society organizations in Libya should be based primarily on the civil and political rights guaranteed by the International Covenant on Civil and Political Rights (ICCPR), to which Libya acceded. It must also be consistent with the right to freedom of association guaranteed under Libya’s 2011 Constitutional Declaration and with the interpretations of the Human Rights Committee of the Office of the UN High Commissioner for Human Rights.
Special attention should be given to the nature of the restrictions or exceptions that may be imposed on freedom of association and the directives of the United Nations Special Rapporteur on freedom of peaceful assembly and association.
In this context, Libyan organizations have proposed the draft Associations Law, which would regulate the right to form civil society organizations in a manner guaranteeing their freedom and independence and restore the legislative authority’s rightful jurisdiction over free association.
The proposed draft law would provide legal protection against the current onslaught of draconian decisions and regulations issued by governing authorities in east and west, all aiming to suppress civil society and take punitive action against its members.
The proposed Law was drafted by specialized committees of Libyan legal experts and civil society representatives, and subject to review and amendment several times over the past ten years by Libyan and international experts.
It has garnered widespread support from Libyan organizations amid in-depth discussions of its merits with experts and other relevant officials. In June 2021, it was submitted to the Legislative Committee of the House of Representatives for discussion and approval in the plenary session.
Nearly two years later, the civil society organisations that submitted the proposal have not received any response from Parliament.
The proposed draft law guarantees the right to establish civil society organizations with a simple notification system. It protects them from arbitrary dissolution and from interference by the state and security agencies in their work and guarantees their right to access funding or to communicate and cooperate with international and UN agencies, while setting appropriate regulations to ensure transparency and accountability.
The proposed law also provides for the formation of a “Civil Society Support and Welfare Commission,” which is an independent administrative and regulatory body that guarantees the independent and free exercise of the right to form associations, and to assemble peacefully. The proposed law also introduces the right to petition, tasking the Libyan authorities with responding to popular petitions submitted by organizations and citizens.
As the Cairo Institute for Human Rights Studies announces its support for the proposed draft law on civil society organizations, it calls on other Libyan civil society organizations to likewise join and support this initiative by reviewing the draft law, with the aim of improving it and advocating for its adoption by the Libyan legislative authorities.
The legislative authorities must promptly enact a law that guarantees the freedom and independence of civil society work and the formation of associations. Otherwise, its constitutional obligation, set forth more than ten years ago by Article 15 of the 2011 Constitution Declaration, will remain unfulfilled. The absence of such legislation protecting the right to association in Libya for more than a decade, continues to leave civil society vulnerable to repression by governing authorities in the east and west of the country.