By Nigel Ash.
Tripoli, 18 April 2013:
The human rights group Lawyers for . . .[restrict]Justice in Libya has condemned “alarming” GNC amendments to the interim Constitutional Declaration, saying that the Declaration does not give Congressmen the right to remove judicial powers through legislation.
They have protested amendments which they assert violate other parts of the document dealing with equality before the law and the separation of powers between judges and legislators.
On 9 April the the GNC amended Article 6 to include a provision that removes any judicial review of the constitutionality of laws isolating individuals from holding government positions.
LFJL maintains that this amendment violates citizens’ rights and the separation of powers in several ways. One is in the limitation of the Article 6 provision that absolutely all Libyans are equal before the law.
“A political isolation law which aims to restrict certain citizens’ civil and political rights to participate in government, without due process before the courts, would be at odds with these Article 6 protections” asserted the LFJL. “The amendment not only unlawfully aims to prevent Article 6 protections from applying to an isolation law, but also prevents any challenge to the constitutionality of such a law”.
Moreover, argued LFJL, the amendment also violates Article 33 of the Constitutional Declaration by preempting constitutional challenges to the law, removing the right of “each and every citizen” to mount a judicial challenge and limiting such challenges to “those concerned”. Thus, it believes, individuals affected by the political isolation law could not contest rulings on a constitutional human rights basis, but on purely technical grounds.
“The rights of citizens to question and challenge the authority of any branch of government, by resorting to other branches of government as a check and balance on the authority of that branch, lies at the foundation of any constitutional democracy,” said LFJL Director Elham Saudi.
“Of these rights, the access to courts, as enshrined in Article 33 of the Constitutional Declaration, deserves the highest privilege. Without providing genuine means to check or appeal this law, in content and application, this amendment blocks access to justice and is itself a violation of human rights principles and of the core fundamentals of the rule of law.”
LFJL said the amendment is also in breach of the fundamental principle of the separation of powers embodied in Articles 32 and 33 of the Constitutional Declaration. The new amendment removed the jurisdiction and independence of the judiciary and the Supreme Court “to review future political isolation laws, before such laws have even passed, in essence undermining the judiciary’s role as a check on the actions of the legislature”.
LFJL said that the head of the GNC drafting committee, Omar Abu Leefa was quite specific in saying that there would be no right to judicial review of the amendment. The organisation quoted him as saying “ It is entirely within the GNC’s electoral legitimacy, as the supreme legislative authority in Libya, to make this amendment. The judiciary has no right to change provisions of the Constitutional Declaration.”
Quoting an article AbuLifa had written in Libya Al-Mostakbal, LFJL pointed out that the Congressman had said that had a future political isolation law been left without the protection given it by the amendment, “ it would be possible to seek judicial review as happened with the law on the Criminalisation of the Glorification of the Dictator and Law 52 adopted by the National Transitional Council prohibiting ambassadors under the previous regime of working in the new era.”
LFJL is blunt in its assertion that the Constitutional Declaration grants the GNC no rights to remove judicial powers through legislation
It said that the independent powers of the judiciary are explicitly protected in Article 32 of the Constitutional Declaration which highlights the clear separation of the judiciary from the influence of any other authority, including the GNC.
It quoted from Article 33 of the Constitutional Declaration “Laws shall not provide for the prohibition of judicial authority to [control] any administrative decree.” It said this was a further indication that the judiciary has the right to review other branches of government.
“This amendment to the Constitutional Declaration is the GNC’s most alarming infringement on the fundamentals of the rule of law and democratic processes to date,” said Saudi. “The GNC has tampered with citizens’ fundamental rights and stripped the judiciary of its jurisdiction, while dressing this disenfranchisement up as a monumental decision in democracy, when in fact it erodes the basic foundations and principles on which democracy is based. Due to the intrusiveness of political isolation laws on citizens’ rights, heightened scrutiny and protections should be required”
Saudi said that LFJL had in the past said it was concerned that the political isolation law would be used to circumvent due legal process. “These amendments prove that concern to be disappointingly true.”