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UPDATE: Libya’s Legal System and Legal Research

 

By John L. S. Simpkins

 

John L. S. Simpkins is Assistant Professor and Director of Diversity Initiatives at Charleston School of Law (Charleston, SC).

 

Published November/December 2010

See Archive version here!

 

Table of Contents

Introduction

Historical Overview

The Libyan Legal System

The Executive Power

The Legislative Power

The Judicial Power

Legislation (Codes, Cases, Treatises)

Participation in International Organizations

Law Faculties

Official Websites

Additional Government Websites

On-line Legal Resources

Related Websites

Other Websites

Background Texts

 

Introduction

Libya’s legal and political identity has been shaped by its location at the nexus of African, European, and Islamic culture. Its relationship to the various aspects of its tripartite character has been fluid. Different facets of Libya’s collective identity have emerged at different moments in the country’s history. This article provides an overview of the Libyan legal system and governmental structure. It begins with a brief discussion of the historical conditions giving rise to the current system of governance. It also details the recent political and economic opening brought about by a series of governmental reforms. Finally, this article will identify on-line sources of Libyan law, official governmental websites, and related information available on the Internet and in print.

 

Historical Overview

Libya was ruled by the Ottoman Empire until 1911, when Italian forces gained control of the area around Tripoli. With the end of World War II, Italian occupation yielded to administration by the United Nations in 1943. Libya became the first nation to gain independence through an UN-administered process when it became a sovereign state on December 24, 1951. The new Libyan state was ruled as a hereditary and constitutional monarchy by King Idris I. Libyan independence presaged the postcolonial period, as other African nations gained independence from European powers.

 

One of the world’s poorest countries at independence, Libya achieved international notoriety and significant new wealth with the discovery of substantial oil reserves in 1959. [[1]] Most of this newfound wealth fell into the hands of the country’s elites. This concentration of wealth led in part to a 1969 coup, which ended the reign of King Idris I and resulted in the establishment of the Libyan Arab Republic. Colonel Mu’ammar Abu Minyar al-Qadhafi, the leader of the coup, was installed as the head of the post-monarchical regime. Col. Qadhafi ruled according to the Third Universal Theory, a system of governance of his own invention that reflected Libya’s diverse cultural heritage. The Third Universal Theory has been described as a “combination of socialism and Islam derived in part from tribal practices” and was to be implemented through participatory democracy. [[2]] There are over 2000 “Basic People’s Congresses” which, theoretically, are open to all Libyan citizens. [[3]]

 

Libya gained increased international prominence under Col. Qadhafi not only because of its oil wealth, but also because of its attempts to subvert the bipolar Cold War power arrangement. Qadhafi sought to undermine capitalist and Marxist expansion by aiding organizations—including terrorist groups—arrayed against both powers. Libya promoted Arab unity while at the same time seeking to identify with its fellow African states. Qadhafi’s political and economic influence permeated both the Arab and postcolonial African spheres, as evidenced by Libya’s military incursion into Northern Chad in 1973 and the country’s membership in the short-lived Federation of Arab Republics from 1972-1977. His early support of a Pan-African alliance played a role in the formation of the African Union. [[4]] Libya has been an active participant in other continental organizations, including the African Development Bank. [[5]]

 

Libyan involvement in the downing of Pan American Airlines Flight 103 over Lockerbie, Scotland, caused the United Nations to levy sanctions against the Qadhafi government. Prompted by the increased international isolation, Qadhafi undertook to repair Libya’s relationships with Europe. This effort culminated in the suspension of UN sanctions in 1999 and the lifting of those restrictions in 2003 upon the resolution of the Lockerbie matter. [[6]]

 

Libya further rehabilitated its international image in 2003 by renouncing its efforts to develop weapons of mass destruction. [[7]] As a result, Western nations have resumed economic and diplomatic ties with the Qadhafi government. The United States lifted economic sanctions on Libya in 2004, reopened full diplomatic relations in May 2006, and later removed the country from its list of state sponsors of terrorism.[[8]]

 

In July 2008, the United States Congress passed the Libya Claims Resolution Act (LCRA), in which the Libyan government agreed to establish a $1.5 billion fund to compensate victims of the Lockerbie bombing.[[9]] In addition, victims of the US bombing of Tripoli in response to the Lockerbie disaster were designated as beneficiaries of a $300 million dollar compensation fund.[[10]] Once Libya satisfied its financial obligations to the fund in October 2008, it regained its sovereign immunity under US law and had all pending claims concerning Libya-related terrorist activities dismissed.[[11]] In November 2008, Gene Cretz was confirmed as the first US Ambassador to Libya in 36 years.[[12]]

 

Libya has embarked upon a program of economic reform as it has resumed diplomatic relations with the West. Since 2008, the government has enacted measures to facilitate foreign investment; however, some have called for reform that is more comprehensive. Seif Qadhafi, one of Col. Qadhafi’s sons, has emerged as one of the most highly visible advocates for further change. The younger Qadhafi has pledged not to accept any position with the government “unless there is a new constitution, new laws, and transparent elections.”[[13]]

 

The Libyan Legal System

Libya’s legal and governmental structure is based on two constitutional documents: the Constitutional Proclamation of December 1969 and the Declaration of the Establishment of the People’s Authority, enacted in March 1977. The Declaration embodies many of the ideas expressed in Col. Qadhafi’s political tract, the Green Book. According to the civil code, the hierarchy of legal sources is, in descending order: legislation, principles of Islamic law, custom and principles of natural law and equity. [[14]] Executive functions are carried out by the Chief of State, the Head of Government and the Cabinet. The Legislative Branch consists of the 2,700-member General People’s Congress. The Judiciary Branch is composed of four levels of courts, culminating in the Supreme Court.

 

The Executive Power

Col. Qadhafi holds no official elective office but serves as de facto Head of State.[[15]] The Prime Minister serves as Head of Government in his role as the Secretary of the General People’s Committee.[[16]] Members of the General People’s Committee form the Prime Minister’s Cabinet.[[17]]

 

The Legislative Power

Legislative elections take place through a series of tiered people’s committees, culminating in the election of the roughly 2,700-member General People’s Congress, Libya’s unicameral legislative body. The General People’s Congress then elects the Cabinet and Head of Government. [[18]]

 

The Judicial Power

Reflecting its diverse heritage, the Libyan legal system is influenced by Islamic law as well as civil legal regimes in Italy and France.[[19]] Under Ottoman rule, one court system addressed secular matters while another was responsible for deciding disputes involving religious law.[[20]] The secular courts were organized according to the Napoleonic Code. Islamic judges applied shari’a law in the religious courts. There is no provision for judicial review in Libya’s constitutional arrangement. [[21]] Libya has not accepted jurisdiction of the International Court of Justice. [[22]]

 

In 1973, the dual court systems merged into one, with Shari’a law gaining ascendance as the primary legal authority in Libya.[[23]] Four tiers of courts comprise the judiciary: summary courts, courts of first instance, courts of appeal, and the Supreme Court.[[24]] Summary Courts hear misdemeanor disputes (matters involving 100 Libyan dinars or less) and are located in most small towns. Courts of First Instance are the primary courts and operate in three-judge panels. Appeals from judgments of the Courts of First Instance are heard by separate three-judge panels in the Courts of Appeal. The Courts of Appeal operate in three separate areas of the country (Tripoli, Benghazi, and Sabha) and hear both shari’a and non-shari’a matters.

 

The court of final appeal is the Supreme Court, which is composed of five chambers: civil and commercial; criminal; administrative; constitutional; and shari’a. Each chamber sits as a five-judge panel. Matters involving political and certain economic offenses were tried before the People’s or Revolutionary Court. This court, however, was abolished on January 12, 2005, by an act of the General People’s Congress. [[25]]

 

Legislation (Codes, Cases, Treatises)

Full Arabic text of Libyan Codes is available at the website for the General People’s Committee of JusticeLaws and Regulations of Libya in English are available from bakoush@yahoo.com (Hassan Bakoush, Translator, P.O. Box 2463, Tripoli- Libya; Telephone: +218 91 498 19 03 OR +218 92 506 93 40).

Civil Code

While the Civil Code is contained in Gazette 13 Feb 1954, many of its provisions have been abandoned in favor of shari’a law, as demonstrated by the amendments contained in Law No. (74) of 1972 and Law No. (86) of 1972. A translation of the 1954 code was published as The Libyan Civil Code. [[26]]

 

Code of Civil Procedure                  
Code of civil and commercial procedure of 28 Nov 1953. [[27]]

 

Commercial Code
Commercial code of 1953. Amended to conform to the principles of Islamic law by Laws No. (74) and (86) of 1972. [[28]]

 

On 02 March 2010, the General People’s Congress promulgated seven new laws intended to liberalize Libya’s economic system. The aim of the new legislation was to “provide an opportunity for Libyan people to engage in economic activity freely under fixed principles.”[[29]] The first and most significant of these reforms was the passage of a new Commercial Law to eliminate inconsistencies between the original Commercial Code of 1953 and subsequent amendments.[[30]] Additional measures addressed taxation, customs, foreign investment, the securities market, and private sector employment.[[31]] The new Commercial Code was published as Law No. 23/2010.

 

Criminal Code
Penal code of 1953. [[32]]

 

Copyright Law

Law No. (9) for 1968, Issuing the Copyright Protection Law. [[33]]

 

Case Law

Law reports are published in the Official Journal, al-Jarida al-Rasmiya. [[34]]

Supreme Court decisions are published in Majallat al-Mahkama al-‘Ulya. [[35]]

 

Treaties

Libya is a signatory to a number of UN Conventions and Covenants regarding financial transparency, human rights, and the proliferation of biological, chemical, and nuclear weapons.

 

Libya acceded to the ICCPR and ICESCR in 1970 with a general declaration to the effect that its accession shall in no way signify recognition of Israel or entry into dealings with Israel under the terms of the Covenants. [[36]]

Libya acceded to the CEDAW in 1989 with reservations relating to the following: Article 2 being implemented "with due regard for the peremptory norms of the Islamic shari’a relating to determination of the inheritance portions of the estate of a deceased person"; and to Articles 16(c) and (d) being implemented "without prejudice to any of the rights guaranteed to women by the Islamic shari’a". [[37]]

 

Libya acceded to the CRC in 1993 without reservations. [[38]]

 

Participation in International Organizations

Libya is a member of the following international organizations:

ABEDA, AfDB, AFESD, AMF, AMU, AU, CAEU, COMESA, FAO, G-77, IAEA, IBRD, ICAO, ICRM, IDA, IDB, IFAD, IFC, IFRCS, ILO, IMF, IMO, IMSO, Interpol, IOC, IOM, IPU, ISO, ITSO, ITU, LAS, MIGA, NAM, OAPEC, OIC, OPCW, OPEC, PCA, UN, UNCTAD, UNESCO, UNIDO, UNWTO, UPU, WCL, WCO, WFTU, WHO, WIPO, WMO, WTO (observer)[[39]]

 

Law Faculties

University of Gar-Younis Law School

P.O. Box 1308 Benghazi, LIBYA

 

Official Websites [[40]]

Central Bank of Libya
General People’s Committee for Foreign Liaison and International Cooperation (Arabic)

General People's Committee for Health and Environment
General Peoples Committee of Finance (Arabic)
Ministry of Energy and Water (Arabic)
Secretariat of the General People's Congress (Arabic)

General People’s Committee (Arabic)




On-line Legal Resources

 

 

Related Websites

 

 

Other Websites

 

  • Al-Bawaba—English/Arabic website featuring social, political, cultural, and religious information on Arab countries.
  • Ethnologue “Libya” entry
  • Libyana—Libyan culture 
  • Marweb—Libya-focused search engine and news
  • Society for Libyan Studies
  • University of Pennsylvania African Studies Center “Libya” entry—General country information

 

Background Texts

 

Ahmida, Ali Abdullatif, The Making of Modern Libya: State Formation, Colonization, and Resistance, 1830-1932, Albany, NY, 1994.

 

Anderson, Lisa, The State and Social Transformation in Tunisia and Libya, 1830-1980, Princeton, 1986.

 

Burr, Millard, Africa’s Thirty Years War: Libya, Chad, and the Sudan, 1963-1993, Boulder, 1999.

 

El-Alem, Mustafa, "Libya," Yearbook of Islamic and Middle Eastern Law, vol. 1, 1994.

 

First, Ruth, Libya: The Elusive Revolution, Baltimore, 1974.

 

Mayer, Ann, Islamic Law in Libya: Analyses of Selected Laws Enacted since the 1969 Revolution, London, 1977.

 

Metz, Helen Chapin, ed., Libya: A Country Study, Washington, D.C., 1989.

 

Otman, Waniss A. and Erling Karlberg, The Libyan Economy: Economic Diversification and International Repositioning, Berlin, 2007.

 

Pelt, Adrian, Libyan Independence and the United Nations: A Case of Planned Decolonization, New Haven, 1970.

 

Qaddafi, Muammar, The Green Book, Tripoli, 1980.

 

Samatar, Abdi Ismail and Ahmed I. Samatar, eds., The African State: Reconsiderations, Portsmouth, NH, 2002.

 

Segrè, Claudio G., Fourth Shore: The Italian Colonization of Libya, Chicago, 1974.

 

Vandewalle, Dirk, ed. Libya Since 1969: Qadhafi’s Revolution Revisited, New York, 2008.

 



[[24]] http://law.emory.edu/IFL/legal/libya.htm

[[34]] http://law.emory.edu/IFL/legal/libya.htm

[[35]] http://law.emory.edu/IFL/legal/libya.htm

[[36]] http://law.emory.edu/IFL/legal/libya.htm

[[37]] http://law.emory.edu/IFL/legal/libya.htm

[[38]] http://law.emory.edu/IFL/legal/libya.htm

[[39]] http://law.emory.edu/IFL/legal/libya.htm

[[40]] WorldLII