|Libya : A judiciary Without Justice|
1. On 11 January 2005, Colonel Qaddhafi issued directives to the General People's Congress (a "parliament" with limited authority) to abolish the "People's Court", famous for political secret trials and death penalty sentences, and some unspecified exceptional laws. While welcoming these directives, the League hopes that the abolition of the Court will also apply to all the judgments that it has handed down in fields lying outside its sphere of jurisdiction, which Colonel Qaddafi defined as "prosecution of persons accused of corruption during the period from 1952 to 1969". It is noteworthy that the League has repeatedly, since its establishment in 1989, questioned the legitimacy of that Court and the legality of its judgments, especially those concerning events that occurred after 1969 and, consequently, lay outside its sphere of jurisdiction and thereby violated the right to a fair trial. Colonel Qaddafi acknowledged that the arsenal of exceptional laws had achieved its objective of spreading fear and repression among the population during the early years of his rule and were now no longer needed.
2. The abolition of the "People's Court" and the exceptional laws is undoubtedly a commendable step in the right direction but should be followed by other measures if the purpose of their abolition is to remedy the deplorable human rights situation in Libya. In fact, respect for human rights has been obstructed not only by the "People's Court" but, more particularly, by the total lack of an equitable and independent judiciary. Instead of merely abolishing courts, the urgent need in Libya today is establishment of the rule of law and an independent judiciary, which can be achieved only if practical steps are taken to set up a new judicial system that avoids the shortcomings of the present system. The principal shortcomings can be summarized as: (a) lack of independence of judges vis-à-vis the "revolutionary" authority and its organs, and inability of the judiciary to control the "revolutionary" authority: (b) failure to incorporate international standards concerning human rights and an equitable judicial system in Libyan legislation; (c) lack of minimum standards of detention and imprisonment and violations of the procedures for a fair trial, and; (d) inadequacy of the accountability mechanisms needed to monitor administrative and financial corruption in the "revolutionary" bodies.
3. In short, these are the main structural judicial obstacles preventing Libyans from enjoying their right to an equitable and independent judiciary regardless of the status of the "People's Court". As to the political obstacles, they mainly concern the structure of the State authority, which provides Colonel Qaddafi with excessive powers that are unprecedented in the history of political authority. For example, the "Charter of Revolutionary Legitimacy" that was promulgated by the "General People's Congress" places all of Libya's political , judicial and economic institutions in the service, and at the disposal, of Colonel Qaddafi, whose directives and instructions on any issue, including judicial matters, take precedence over the law and have priority of implementation. As a result of this anomalous situation, Colonel Qaddafi has, in practice, monopolized all power, of which he has become the fundamental source in the country. In addition to his arbitrary control over the promulgation and implementation of legislation, through the "Charter of Revolutionary Legitimacy" he is also empowered to intervene in judicial matters by obstructing the administration of justice or changing court judgments. This Charter even authorizes Colonel Qaddafi to completely circumvent the judicial system by establishing special or emergency courts whose judgments he may also change or totally set aside.
4. Abolition of the "People's Court", although of symbolical importance, will not succeed in changing the overall judicial environment in Libya unless it is followed by serious steps to get rid of the legacy of the above-mentioned obstacles, restructure the State on new foundations and review its institutions that are not only incompatible with respect for human rights but the very existence of which constitutes a blatant ongoing violation of those rights. This is the best way to create a new environment conducive to the establishment of the foundations of the modern, equitable and independent judiciary that Libyans are seeking as a fundamental guarantee of their safety and security and as the optimum framework for their political, economic and social development.
13 January 2005