|CDA 2014 Committee Proposal on Chapter 3: The Judiciary and the Constitutional Court|
Constitutional Drafting Assembly
3rd Specialized Committee
The Constitutional Court
Members of judicial bodies are independent in their work. They shall be subject to no authority other than the law and their conscience, they shall not be removed from their positions, are equal in their rights and duties, guarantors of the enforcement of provisions of the Constitution, the rule of law and protection of rights and freedoms, and the State ensures the independence of the judiciary, and interfering with the justice is a crime which is not subject to the statute of limitation, and they shall swear an oath before taking office in the manner set forth by the law.
Members of the Judiciary are judges, members of the Public Prosecution and the law shall regulate the manner in which they are appointed and the way their administrative and professional affairs are managed, in such a way as to ensure their neutrality and integrity. They are prohibited from exercising any political or party function or any other profession besides that of the Judiciary. They shall not be seconded or transferred to other jobs except in order to carry out the same job in Military Tribunals or the High Elections Commission or their equivalent. The same conditions and provisions shall apply to the members of judicial institutions
Members of the judiciary shall enjoy judicial immunity. They may not be arrested or interrogated unless their immunity is lifted. When they are caught in flagrante delicto in crimes for which provisional detention is allowed, the Supreme Judicial Council shall be informed, and it shall decide whether or not to lift immunity. Members may not be removed or dismissed. They may not be transferred to another job during the legal year except by a justified decision by the Supreme Judicial Council. They may not be disciplined except in the cases and in accordance with the guarantees stipulated by the law.
The Judicial Authority shall be exercised by the different types and degrees of courts. The right of litigation and defence is guaranteed by the Constitution. Court sessions shall be public unless the court decides otherwise due to public order or public morals. Court deliberations are confidential, but court rulings are public. Individuals under provisional detention shall appear before the courts in person. Death sentences are issued only in implementation of a judicial or Sharia sentence, and after ensuring the existence of Sharia-stipulated evidence. Rulings are issued in the name of the people. Refraining from enforcing final court rulings and judicial orders is a crime regulated by the law.
Provisional detention shall be an exceptional measure. The Public Prosecution may not incarcerate an individual for more than six days for any crime for which provisional detention is permitted. It may not be extended for more than a total of six months, during which the accused shall be referred to the ‘indictment chamber’ or the competent court, or shall be released. All trials shall take place on two levels. In felonies, trials shall involve three judges in the court of first instance. The rank of each judge may not be less than that of a court deputy. Rulings of the court of first instance may be appealed before the Appeals Court, which shall consist of three or five judges. Trials may not last for more than two years as of the date of the first session. The law shall regulate court proceedings and the duration of provisional detention
Human beings, in principle, shall be presumed innocent. Every person has the right to a fair trial before his natural judge within a reasonable time. Litigants shall be equal before the law. The state shall ensure easy access to the courts. The courts shall not admit any evidence extracted under coercion or through illegal measures. Creating special or exceptional courts is prohibited. No legislation may be given immunity against appeal before the courts. The law shall regulate the competencies of the different types and degrees of courts.
- The tenure for heads of judicial institutions and authorities and their deputies shall be four years or the remaining duration to their retirement, whichever is closer, and for one term.
- The term of office for a member of the judiciary terminates when he reaches seventy years of age. Nevertheless, upon his request, he may retire when he reaches fifty-five years of age. The law shall regulate the other cases and procedures for terminating their service.
Supreme Judicial Council
The Supreme Judicial Council shall consist of:
- President of the Supreme Court, as President;
- President of the State Council, as Deputy
- The Prosecutor General, as member;
- The Minister of Justice, as member;
- President of the Judicial Body Inspection Department, as member;
- Presidents of Appeals Courts, as members;
- Head of the State Lawsuits Authority, as member;
- The most senior head of a court of first instance, as member.
The Supreme Judicial Council shall enjoy administrative and financial autonomy, draft its own budget and discuss its full components with the Legislative Authority and afterwards shall be listed as a single figure. It shall also undertake the establishment of courts and prosecution offices and express its opinion on draft laws related to the Judiciary. When the President of the Council is absent, the next most senior member in the Council shall stand in as President. Every meeting must achieve a two-thirds quorum. It shall take its decisions by the majority of those present. When votes are equal, the side on which the President votes shall prevail and the law shall regulate its other competencies.
The Judiciary and the Public Prosecution
The Supreme Court is the highest judicial authority and shall consist of a president, a Deputy President and a sufficient number of counsellors whose grade shall not be lower than that of President of an Appeals Court, or the equivalent, and they shall be chosen by the Supreme Judicial Council. The Court’s President and Deputy President shall be from the three most senior judges of the court and selected by its general assembly. The court is the only competent authority to decide on matters of conflict of jurisdiction among judicial bodies and conflicts in implementing contradictory final rulings. The legal principles it decides shall be binding on all courts and other bodies, with the exception of the Constitutional Court. The law shall regulate the professional affairs of its members. Its rulings shall be subject to appear through a petition for reconsideration. The law shall regulate its other competences.
The Public Prosecution at the Court of Cassation shall be under the Supreme Court, and shall consist of a sufficient number of members whose grades shall not be less than that of Chief Prosecutor, or its equivalent. They shall join it upon a decision of the Supreme Judicial Council. Its president shall be its most senior member, and its competences shall be regulated by law.
Members of the Public Prosecution are prosecutors acting on behalf of the Prosecutor General who shall be responsible for investigation and initiating and conducting public actions and is the only authority with the power to request that legal immunity be lifted from those who enjoy it in order for the Supreme Judicial Council to rule on their cases. The Prosecutor General shall be appointed by the President of the State upon the nomination of the Supreme Judicial Council. He shall be selected from among Supreme Court Counsellors, members of the State Council, presidents of Appeals Courts or class (A) advocate-generals for a four-year term or for the remaining period until his retirement, whichever is less, and for one term
- The State Council is an independent judicial body based in Tripoli. Its general assembly may decide to convene it in any other place inside Libya. It shall consist of a president, deputy president and a sufficient number of counsellors of the level of President of Appeals Court or its equivalent. It shall be created by a decision of the Supreme Judicial Council.
- The administrative prosecution shall be affiliated to the State Council. It shall comprise a sufficient number of prosecutors whose grades shall be no less than first public prosecution, that undertakes investigation of administrative and financial violations and the administration’s overstepping of its authorities. It shall be responsible for initiating and conducting legal actions and attending the court’s sessions. Its members shall be nominated by the Prosecutor General and they shall be appointed via a decision by the Supreme Judicial Council. Its Chairmanship shall be assumed by its most senior member. The law shall regulate its other competences.
The State Council alone is authorised to hear administrative appeals related to human rights, disciplinary appeals, and electoral challenges made by the administrative departments of the Appeals Courts affiliated to it. Its competence shall also include examining conflicts in relation to enforcing all its rulings. It shall prepare, formulate and explains draft laws, revise draft contracts to which the state or any of its public or private bodies is a party. Its members shall be subject to the same procedures that apply to selecting the President of the Supreme Court, his deputy and the Court’s counsellors. The law shall regulate its other competences.
Judicial Inspection Authority
The Judicial Inspection Authority is a judicial body that shall be established via a decision of the Supreme Judicial Council. It shall comprise a president and deputy as well as a sufficient number of counsellors whose rank shall be no less than a deputy president of the Appeals Court or equivalent.
State Lawsuits Authority and the Public Attorney Department
It shall be a judicial body whose formation decision shall be issued by the Supreme Judicial Council and it shall represent the state in lawsuits filed by or against the state. It may request and accept amicable settlement at any stage of litigation. The Public Attorney’s Office shall defend whoever wishes to be defended by it. The law shall regulate the affairs and competences of both bodies
Lawyers are independent professionals and partners in administering justice. They shall enjoy criminal immunity and the arrest or detention of a lawyer during or due to carrying out his duties is prohibited unless he is caught in flagrante delicto. The law shall regulate the conditions of enrolment as lawyers and rules of accountability for their actions and disciplining them.
Military Tribunals are specialized in hearing military crimes committed by members of the military or in association with civilians. Civilians may not be tried before Military Tribunals except for crimes which constitute a direct attack on military installations or installations of a similar nature. The law shall set forth those crimes and other competences of Military Tribunals in a manner that ensures the right to challenge their rulings before the Supreme Court in the case of felonies, provided that lawyers shall be responsible for their defence in accordance with the law. Their members shall enjoy the guarantees and immunities enjoyed by members of judicial bodies
Benefits and other professional aspects enjoyed by counsellors of the Supreme Court and the Cassation Prosecution service shall apply to all members of judicial bodies. The Supreme Judicial Council shall issue a decision stating the seniority ranking of members of judicial bodies, including Supreme Court Counsellors
The Constitutional Court
The Court’s Structure
The Constitutional Court is a judicial body based in Tripoli, and it may be convened in any other city inside Libya upon a decision of its General Assembly. It shall have its own independent budget that is discussed before the legislative authority and afterwards listed as a single figure. Its opinion shall be sought in relation to draft laws concerning it.
The Court shall consist of eleven members, including its president and deputy president. The Supreme Judicial Council shall nominate five counsellors with the rank of president of an appeals court; the President of the State shall nominate three members and the legislative authority shall nominate three members. The nominees of the President of the State and the legislative authority shall be highly qualified and competent in the law, Islamic Sharia or political science, with at least twenty years of practical experience in their fields, or lawyers accepted before the Supreme Court for fifteen uninterrupted years. The president and deputy president of the court shall be among the members nominated by the Supreme Judicial Council. Vacancies in membership shall be filled using the same standards.
Members of the court shall serve one six-year term. Members of the court may not play any political or party role or perform any other job during their membership in the Constitutional Court. The law shall regulate the functioning of the Court, the procedures followed before it and its other competences.
The Court’s Competence
The Constitutional Court is the sole body authorised with judicial oversight over the constitutionality of legislation, interpretation of constitutional texts and reviewing international agreements to which the Libyan state is party. It is also authorised to rule on conflicts related to its members’ affairs, implementing the rulings and decisions it passes and ruling on challenges to rulings related to the constitutionality of establishing political parties, their programmes, the way they are formed and financed, their activities, objectives, procedures of dissolving them, terminating their activities and ruling on the extent to which all these aspects conform to the constitution. It is authorised to rule on conflicts between the authorities with reference to the powers given to them in the constitution, and reviewing legislation on which a ruling of unconstitutionality has been made before re-passing them. Its rulings shall be final and binding on all. The law shall regulate its other competences.
The President of the State, the Prime Minister and the Prosecutor General may submit a challenge to the Constitutional Court requesting the passing of legislation to regulate a certain issue if the legislative authority refuses to pass it. Likewise, any natural or legal person with an interest may ask the Constitutional Court to pass legislation to protect their basic rights provided for in the constitution. The rulings and decisions of the Court shall be published in the Official Gazette.