Libya (Socialist People's Libyan Arab Jamahiriya)


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

Libya became part of Ottoman Empire in 1551. Following Italo-Turkish War, Italy annexed Libya in 1934. After World War II, the British and French shared control until Libya gained independence in 1951. Military coup in 1969 ended monarchical system and established a republic under Colonel Muammar al-Qaddafi. Revolutionary Command Council issued decree proclaiming shari’a the principal source of all legislation and established a High Commission to examine all existing legislation in order to make it consistent with shar’i principles. Followed by the adoption of various pieces of legislation such as Law on Women’s Rights in Marriage and Divorce in 1972 introducing more beneficial provisions on khul’, various laws instituting hadd penalties in early 1970s, and new Family Law in 1984.

Article 1 of Civil Code identifies sources of law as: legislative provisions, principles of Islamic law, custom, and principles of natural law and rules of equity.

School(s) of Fiqh

Maliki majority; Christian minorities.

Constitutional Status of Islam(ic Law)

Constitutional Proclamation issued 11th December 1969; Article 2 declares Islam official state religion. State protects religious freedoms "in accordance with established customs". Article 37 states that permanent constitution is to be drafted, but as yet none produced. Declaration on the Establishment of the Authority of the People issued in March 1977; Article 2 provides that "[t]he Holy Qur’an is the Constitution of the Socialist People’s Libyan Arab Jamahiriya". Colonel Qaddafi also elucidates his own political and social theories in the Green Book, based on a speech delivered in April 1975.

Court System

After Revolution, Qaddafi abolished dual system in 1973, merging civil and shari’a courts. 4 levels of courts: summary courts, courts of first instance, appeal courts, and Supreme Court. Civil courts now employ shari’a judges (once constituted personnel of the Shari’a Court of Appeals) who sit in regular courts of appeal and specialise in shari’a appellate cases. Supreme Court has 5 chambers: civil and commercial, criminal, administrative, constitutional, and shari’a.

Relevant Legislation

Law on Protection of Women’s Right to Inheritance 1959

Law on Women’s Rights in Marriage and Divorce 1972 (no. 176/1972)

Law no. 87 of 1973 (merging civil and shari’a courts)

Family Law 1984 (no. 10/1984)

Law no. 22 of 1991 (amending law relating to polygamy)

Law no. 9 of 1994 (amending law relating to polygamy)

Wills Act 1994 (no. 7/1994)

also:

Law forming committee to Islamize Libyan legislation 28/10/1970

Law on Offences against Property 1972 (first amendment to Penal Code 1953)

Law on Artificial Insemination 1972 (no. 175/1972, introducing penalties)

Law on Sexual Offences 1973 (no. 70/1973, relating to zina)

Law on Sexual Slander 1973 (no. 52/1973, relating to qadhf)

Law on Prohibition 1973 (relating to alcohol consumption)

Law on Homicide 1973 (relating to qisas, diya and kaffara)

Notable Features

Marriage Age: minimum marriage age is 20 years for men and women; judicial discretion for marriages below that age on grounds of benefit or necessity and with wali’s agreement

Marriage Guardianship: guardian may not force ward of either sex into marriage or prevent ward from marrying; if guardian withholds consent, ward may take matter to court to obtain permission

Marriage Registration: obligatory

Polygamy: permitted with prior judicial permission based on grounds of financial and physical capacity; written agreement of wife may authorise husband to marry polygamously or authorisation may be given by court for certain reasons

Obedience/Maintenance: maintenance is husband’s duty, within limits of his ability, unless husband is in hardship and wife is wealthy; provision for either spouse to obtain maintenance order, or interim maintenance during suit if plaintiff appears to be eligible

Talaq: Article 28 states "[i]n all cases divorce shall not be established except by a decree by the relevant court" whether by talaq, mutual consent or judicial divorce; talaq uttered by a minor, insane, demented or coerced husband or without deliberate intent is invalid, as is suspended or conditional talaq; talaq to which a number is attached considered single revocable (except third of three); wife may also obtain khul’ from husband for appropriate compensation, which may include deferred dower or custody over children; if husband retracts offer of khul’ "due to obstinacy" court is empowered to rule a khul’ in return for appropriate compensation

Judicial Divorce: judicial divorce available on following grounds: husband’s failure or inability to maintain without cause; absence without justification; grounds of defect preventing fulfilment of aims of marriage or other grave defect; ila’ or hajr, after appropriate grace period; most of above grounds available to husband as well;

if parties do not agree to talaq by mutual agreement, court will appoint arbitrators; if reconciliation efforts fail and harm is established, judge issues decree of divorce with financial effects proportionate to relative fault;

annulment effected due to difference of religion in cases of conversion after marriage where this affects validity of marriage according to shari’a

Post-Divorce Maintenance/Financial Arrangements: wife may be awarded compensation by court if husband is considered to bear responsibility for causes of talaq

Child Custody and Guardianship: governed by Maliki principles; mother’s custody ends at marriage for daughters and puberty for sons

Succession: governed by Maliki principles; Law on Women’s Right to Inheritance 1959 reiterates classical law and introduces penalty of imprisonment for anyone withholding lawful share from a woman (until payment of her share); Wills Act 1994 introduced obligatory bequest for orphaned grandchildren through predeceased sons

Notable Cases

 

Law/Case Reporting System

Law reporting through Official Journal, al-Jarida al-Rasmiya; Supreme Court decisions published in Majallat al-Mahkama al-‘Ulya.

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – accession 1970 with general declaration relating to non-recognition of Israel

CEDAW – accession 1989 with reservations to Arts. 2, 16(c) & (d)

CRC – accession 1993 without reservations

Legal History:

The legal system includes elements of French, Islamic and Italian law. Libya became a part of the Ottoman Empire in 1551. Following the Italo-Turkish War (1911-1912), Italy annexed Libya in 1934 after exiling the most resistant elements of Libyan society, led by the Sanusiyya. Libya remained an Italian colony until World War II when the Allied forces and Libyan returnee fighters ousted German and Italian forces, following which the British and French shared control over the region. Libya gained independence in 1951, under its first king, Syed Idris al-Sanusi. A military coup in 1969 brought an end to the monarchy, and a republic was established under Colonel Muammar al-Qaddafi. The Revolutionary Command Council established a Committee for the Codification of Personal Law in the early years following the revolution.

While the Committee was still in deliberation, the RCC issued a decree identifying the shari’a as the principal source of all legislation and establishing a High Commission to examine all existing legislation in order to make it consistent with shar’i principles. Legal provisions for the purpose of bringing legislation into accord with the shari’a were to be based on takhayyur, maslaha, and custom and usage where the Maliki is the predominant school. Some of the recommendations of the Personal Law Codification Committee lead to the passage of the Law on Women’s Rights in Marriage and Divorce in 1972, introducing innovative provisions on khul’. The Penal Code 1953 was also amended by several laws passed in the early 1970s, making Libya the first country to introduce hadd punishments by state legislation. Penalties for various crimes such as theft, zina, qadhf and artificial insemination, were introduced by the amendments, although commentators note that the punishments have rarely been applied in practice.

A new Family Law was enacted in 1984 which raised the marriage age, restricted polygamy and divorce, and to a lesser extent evened the spouses’ mutual rights and obligations. Article 72 of the Family Law directs recourse to the sources of the shari’a as a residual source of law in the absence of specific provisions in the legislation.

Schools of Fiqh: The Maliki school is the predominant madhhab in Libya. Libya also has a small Christian minority.

Constitutional Status of Islam(ic Law): A Constitutional Proclamation was issued on 11th December 1969 and amended on 2nd March 1977. Article 2 declares Islam the official state religion. The state also protects religious freedoms "in accordance with established customs". Article 37 of the Proclamation stated that a permanent constitution is to be drafted, but it has yet to be produced. Article 2 of The Declaration on the Establishment of the Authority of the People issued in March 1977 provides that "[t]he Holy Qur’an is the Constitution of the Socialist People’s Libyan Arab Jamahiriya". Colonel Qaddafi also elucidates his own political and social theories in the Green Book, based on a speech delivered in April 1975.

Court System: After the Revolution, Qaddafi abolished the dual system, and civil and shari’a courts were merged in 1973. There are four levels of courts: summary courts, courts of first instance, appeal courts, and the Supreme Court. Courts of first instance have numerous divisions, including a personal status division. The courts of appeal (numbering three in 1987, at Tripoli, Benghazi and Sabha) and the courts of first instance are both constituted by three-judge panels with judgements confirmed by majority decisions. The shari’a judges who once would have constituted the personnel of the Shari’a Court of Appeals now sit in the regular courts of appeal, specialising in shari’a appellate cases. The Supreme Court has five chambers: civil and commercial, criminal, administrative, constitutional, and shari’a.

Notable Features: The minimum marriage age is 20 years for men and women. There is scope for judicial discretion on grounds of benefit or necessity and with the wali’s consent, though no minimum age is specified. The marriage guardian may not force a ward of either sex into marriage or prevent his ward from marrying; if the guardian withholds consent, the ward may take the matter to court to obtain permission. Marriage registration is obligatory.

Polygamy is permitted with prior judicial permission, and on grounds of the husband’s financial and physical ability. Amendments to the law on polygamy also permit the husband to marry polygamously with the written agreement of the first wife, or with judicial permission granted for serious reasons.

Maintenance is the husband’s duty, within the limits of his ability, unless he is in hardship and his wife is wealthy. Either spouse may obtain a maintenance order, or be awarded interim maintenance during a suit if the plaintiff appears to be eligible according to a provision which clearly diverges from classical rules of Islamic law. No maximum time limit is specified for claiming arrears of maintenance.

With reference to divorce, Article 28 of the Code states that "[i]n all cases, divorce shall not be established except by a decree by the relevant court". Talaq uttered by a minor, insane, demented or coerced husband or without deliberate intent is invalid, as is talaq that is suspended or conditional. Any talaq to which a number is attached is considered single revocable (except the third of three). Judicial divorce is available on the following grounds: husband’s failure to maintain without cause; husband’s inability to maintain (of which the wife was ignorant at the time of the marriage, and after an appropriate grace period); husband’s absence without justification; grounds of defect preventing fulfilment of the aims of marriage or other grave defect (whether such defect developed before or after the contract) and was not known to other party; and hajr, defined as the husband’s sexual abstinence for four months or more without justification, after an appropriate grace period. Most of the above grounds for judicial divorce are available to men as well as women. Judicial divorce may be obtained if the parties do not agree to talaq by mutual consent and arbitration and reconciliation efforts fail and harm is established. If the ‘harm’ is deemed to be the wife’s fault, her deferred dower is forfeit, maintenance frozen and compensation is required; if it is deemed to be the husband’s fault, he must pay the deferred dower and compensation. The wife may also obtain a khul’ for appropriate compensation, which may include the forfeiture of maintenance rights, her deferred dower or custody over her children and courts are empowered to rule for khul’ if the husband retracts his offer of khul’ "due to obstinacy". Payment of compensation to the husband may be deferred if the wife establishes hardship. Annulment is effected due to difference of religion in cases of conversion where the wife becomes Muslim and the husband does not or if the husband becomes Muslim and his non-kitabiyya wife does not.

The divorcing husband must pay his wife maintenance for the ‘idda, and for children in her custody. Compensation to the wife can be awarded by the court if the husband is considered to bear the responsibility for the causes of a talaq. The divorced mother’s custody ends at the age of marriage for girls and puberty for boys.

The Law on Women’s Right to Inheritance 1959 reiterates the application of classical law and introduces penal sanctions of imprisonment for anyone withholding from a woman her lawful share (until the payment of her share).

Notable Cases:

Law/Case Reporting System: Law reports are published in the Official Journal, al-Jarida al-Rasmiya. Supreme Court decisions are published in Majallat al-Mahkama al-‘Ulya.

International Conventions (with Relevant Reservations): Libya acceded to the ICCPR and ICESCR in 1970 with a general declaration 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.

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".

Libya acceded to the CRC in 1993 without reservations.

Background and Sources: El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996; el-Alem, "Libya," Yearbook of Islamic and Middle Eastern Law, vol. 1 (1994): 225-236; Layish, Divorce in the Libyan Family, Jerusalem, 1991; Mahmood, “Libya” in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Mahmood, "Legal System of Modern Libya: Enforcement of Islamic Penal Laws," and Mayer, "Libyan Legislation in Defense of Arabo-Islamic Sexual Mores," in Criminal Law in Islam and the Muslim World: A Comparative Perspective," 1st ed., Mahmood, ed., New Delhi, 1996; Mayer, "Reinstating Islamic Criminal Law in Libya," in Law and Islam in the Middle East, Dwyer, ed., New York, 1990; Mayer, Islamic Law in Libya: Analyses of Selected Laws Enacted since the 1969 Revolution, London, 1977; Metz, ed., Libya: A Country Study, Washington, D.C., 1989; Redden, ‘Libya’ in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990.