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Libya’s Tumi Law Firm says that the Law Department of the Supreme Council of Law issued a significant, almost ground-breaking, legal opinion on 8 March 2023. The legal opinion issued by the Head of the Law Department essentially declared all NGOs and civil society organizations that have not been set up in accordance with Law No.9 of 2001 to be invalidly set-up and their registration should, therefore, be deemed void. The decision is seen as extreme and has caused much debate in Libya in general and amongst NGOs.
The Legal Mechanism Used
The legal tool that was used to make this decision possible is the Constitutional Declaration issued by the National Transitional Council in 2011. Article 15 of the Constitutional Declaration stipulated that “the state guarantees the freedom to form political parties, associations, and other civil society organizations, to be regulated by law. It is not permissible to establish secret or armed associations that violate public order or morals, and which harm the state and the territorial integrity of the country”.
The Law Department has placed emphasis on Art.15’s reference to have NGOs’ registration be “regulated by law” and concluded that since NGOs’ registration has been regulated and guided by the Executive Authority (government) and not legislatures, their registration therefore ought to be considered unconstitutional. The Constitutional Declaration clearly intends for the legislative authority through its laws to be the competent regulatory authority and not decrees and regulations issued by executives.
To that end, the Law Department is of the opinion that all organizations and associations that have been formed based on regulatory regulations issued by the executive authority; absent adherence to Law No 9 of 2001, shall have their registration annulled.
Rationale for the Decision
The rationale for this legal opinion that is advocated by the Supreme Council of Law is in the words of the Head of the Law Department to prevent “the foreign and national exploitation of these associations and organizations for malicious targets” and to safeguard against the harm to public order, morals and unity to the State of Libya that might be caused through NGOs. The Law Department is seen to extensively elaborate and heavily emphasize its scepticism towards NGOs and their operations in Libya; their arguments in relation to this have taken two thirds of the Legal Opinion.
The Material Effect of the Legal Opinion
The radicalness of this legal opinion is reduced in effect upon realizing that Legal Opinions issued by the Law Department are only binding on whom it is directly addressing and have named in title or in self-capacity. In this case, it is the chairman of the Civil Society Commission and none other.
Nonetheless, such opinion ought to not be ignored or overlooked. The fact that the aforementioned rationale was referenced numerous times across the Legal Opinion is an indication that such view is likely to resurface in other, perhaps, more binding forms.
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