CDA 2014 Committee Proposal on Chapter 6: Rights and Liberties

Constitutional Drafting Assembly (CDA)

The Committee on Rights, Freedoms and Transitional Measures

Part on Rights and Freedoms

Article ( )

Rights and freedoms shall be the basis of governance, the State shall commit to enshrining them and reaffirming the values of democracy, human dignity, equality and freedom. All this shall be within the framework of Sharia and its definitive stipulations

Article ( )

Chapter (1)

Rights Related to the Human Body

Right to Life

1. The State shall ensure the right to life.
2. The State shall ensure compensation for those affected and injured due to crimes of blood and wounds, in the event that the perpetrator is unknown.
3. The State shall commit to care for victims of terrorism and natural disasters.

Article ( )

Physical and Mental Inviolability and Bodily Integrity

Every person shall have the right to the inviolability and integrity of their body. The State shall take the necessary measures to:

1. Prohibit scientific and medical experiments on humans for reasons other than their therapeutic interest.
2. Prohibit slavery and semi-slavery.
3. Prohibit financial gain from the human body.
4. Prohibit torture as well as harsh, inhumane and degrading penalties.
5. Prohibit forced disappearance and arbitrary arrest.
6. Prohibit all acts that constitute crimes against humanity, war and genocide crimes.
7. Prohibit all forms of violence.
8. Ensure health care for all citizens and provide preventive and therapeutic service therefor.

Article ( )

Chapter (2)

Rights Related to Human Integrity

The Inviolability of Private Life

The State shall ensure inviolability of private life and shall prohibit arbitrary interference therein, this shall include:

1. Inviolability of residences, which may not be entered except in case of necessity, nor may it be searched unless in the event of in flagrante delicto or by a court order.
2. Inviolability of correspondence and conversations, which may not be monitored except through an authorisation from the competent judge.
3. Inviolability of personal data.

Article ( )

The Right to Equality Between Male and Female Citizens

The State shall ensure equality between male and female citizens within and before the law. To this end, it shall take the following measures:

1. Prohibit discrimination whether by deprivation, neglect, increase or restriction.
2. Prohibit assumption of public functions by those convicted of a crime of discrimination.

Empower disabled persons in order to enjoy their rights and develop their capacities

Article ( )

Prohibition of Discrimination against Women

All forms of discrimination against women shall be prohibited, including:

1. Arbitrary dismissal for reasons related to maternity; they shall have the right to a paid leave and maternity leave.
2. Forced marriage.
3. All forms of violence against women; necessary actions shall be taken to prevent the same.

The State shall ensure:

1. Equal opportunities among men and women in responsibilities in all sectors.
2. Right to equal consequences of being Libyan for women on the same basis as men.

The State shall also commit to the acquired rights of women and shall work to support and develop them.

Article ( )

The Right to a Fair Trial

Every person shall have the right to a fair trial with regards to any criminal charge or to decide on his rights and obligations, before a competent court established by law where all safeguards shall be ensured, including in particular:

1. Declaration of arrest to the competent judicial authority, family of the arrestee or whomever he chooses, identification of the location of arrest and keeping him/her well informed of his rights at the time of arrest.
2. The right to counsel. The State shall guarantee counsel for those in hardship by virtue of judicial aid.
3. Counsel must be present for those facing felony charges before the criminal court.
4. Public hearing within the boundaries of public order, justice and fairness.
5. Legitimacy of the conviction evidence.
6. Provide adequate time and necessary facilitations for the preparation of the defense, and allow the accused to contact family, counsel and whomever he deems necessary to contact.
7. Every person shall have the right to know the identity of the person in charge of their arrest and the person conducting the investigation.
8. The right to be present at trial.
9. The right to interpretation service.

10. The right to remain silent and not to be compelled to provide evidence, as well as to draw his attention to the fact that he is liable for the information he provides, and to his right to be seen by a physician.

11. The right to appeal before a higher court.

12. The accused shall be innocent until proven guilty by a final court ruling.

13. Force of res judicata.

14. The right to the respect of human dignity in all criminal procedures.

15. The right to trial within a reasonable period; the speed and duration of proceedings affecting rights and freedoms shall be guaranteed.

16. Prohibition of arrest and detention in places defined by the law, and guarantee of rehabilitation of those who are incarcerated in them.

17. Justification of orders affecting rights and freedoms.

Provisional detention shall be an exceptional measure to maintain evidence or public order. It shall only be resorted to in the event of insufficient alternatives

Article ( )

The Right to Decent Life

The State shall ensure all male and female citizens a decent level of life and welfare proportionate to its economic situation. This shall include the following actions:

1. Integration of those of unknown descent within society, and enabling their access to social protection and social cover.
2. Provision of a decent life for retirees, divorced women, widows, female heads of households and spinsters.
3. Provision of housing subsidy for those in hardship.
4. Provide care to the elderly, as well as preserve their dignity and enable them to utilise all preventive and therapeutic services.
5. Protection against all social risks, including unemployment and old age.

Article ( )

Chapter (3)

Thought-Related Rights

The Right to Intellectual Property

The State shall ensure:

1. Protection of physical and moral rights of all forms of intellectual property.
2. Protection of popular heritage as well as cultural and civilisation legacy, which shall devolve to the State following the death of the author.
3. Protection of the right to physical utilisation by the owners of cultural heritage.
4. Protection of industrial property if characterised by excellence at the international level.
5. Necessary measures to combat the violation of intellectual property.

Article ( )

The Right to Education Every person shall have the right to education, which shall aim to build personality, maintain national identity, engrain scientific research, develop talents, encourage innovation, establish Islamic and human values as well as the values of citizenship, tolerance, solidarity and peace, respect of human and basic rights, and provide educational opportunities to every individual in accordance with mental and scientific capabilities. To this end, the State shall ensure the following: 1. Develop scientific curricula ensuring prosperity and stability according to global quality standards. 2. Compulsory education until the age of eighteen. 3. Spread of schools and institutes all over the Libyan region. 4. Promotion and development of vocational and technical education. 5. Continuous training for male and female teachers, taking into account their physical and moral rights. 6. Openness of educational institutions to all humanitarian experiences. 7. Education on human rights and basic rights.

Article ( )

Tertiary Education

The State shall take the necessary action to ensure:

1. State ownership of public universities and ensure their financial and academic independence, and the freedom of establishing private universities in accordance with the educational policies of the State.
2. Competitiveness and promotion of local and international cooperation among universities.
3. Academic freedom and the right to pursue knowledge for its own sake.

Taking into consideration the rights of gifted persons in university education

Article ( )

Freedom of Scientific Research

The State shall commit to take the necessary action to develop scientific research, including:

1. Development of scientific research and guaranteeing the right to enjoy the benefits of scientific and technical progress and provision of required institutional frameworks.
2. Protection of the ethical and material rights of researchers, as well as sponsorship and guarantee of the rights of innovators and inventors.

Promotion of international cooperation in scientific research

Article ( )

The Right to Equal Opportunity in Education

The State shall take necessary actions to ensure equal opportunities in education for all citizens, including:

1. Development of necessary measures to achieve social and economic equality required for parity in education.
2. Prohibition of the condition of residency and place of birth to join any educational institution or research center.
3. Giving priority to the various levels of education and scientific research in the national revenue distribution percentages.
4. The State shall ensure free education at all levels for the appropriate age groups in each education level.

Article ( )

Chapter (4)

Activity-Related Rights

Private Property

1. Private property shall be inviolable.
2. Commitment to utilisation of private property in accordance with the requirements of the public interest.
3. Private property may be utilised whenever necessary in return for fair compensation paid in full.
4. Private property may be expropriated for public benefit in return for a fair compensation paid in advance.
5. General confiscation of properties shall be prohibited.

Imposition of custodianship shall be prohibited unless by an agreement or order by the competent judge.

Article ( )

The Right to Residency and Movement

The State shall guarantee citizens the right to unrestricted movement and transfer of properties within the Libyan region. It shall also ensure:

1. The right to utilise facilities wherever these may be and facilitate movement and residency to benefit from development projects.
2. Non-permissibility of prohibition of residency and movement, or imposition of forced residency unless by a court order.
3. Freedom of travel and temporary and permanent immigration. Prevention from travel shall only be by a court order.
4. Prohibition of expulsion of citizens or prevention from return. Extradition of citizens shall not be permissible, taking into account international agreements.
5. Prohibition of forced displacement. The State shall ensure the right to return and compensation.
6. Linking the practice, or joining of any activity to the place of residency or birth shall be prohibited.

Article ( )

The Right to Expression and Freedom of Thought

1. Thoughts shall be free and the State shall ensure the freedom of expression thereof.
2. The right and freedom of publication shall be guaranteed, while not jeopardising the right of any person to respond.
3. The State shall take necessary measures to protect private life against publication, including:
4. Prohibition of defamation, libel, incitement of hatred, racism and violence, as well as prohibition of declaring others to be infidels.
5. Prohibition of imposition of thoughts by force or threat.
6. Prohibition of deliberate falsification of facts.

Article ( )

The Right to Run for Elections and Vote

Every person shall have the right to free, credible, transparent, and fair elections where all citizens shall be equal. Disenfranchisement shall be prohibited except by a final court order.

Article ( )

The Right to Participation

For democratic participation, the State shall ensure:

1. Citizens shall have the right to submit a petition or legislative proposal, and there must be a commitment towards issuing a regulatory law in this regard.
2. Associations shall have the right to participate in the development of draft law proposals related to their activities, and there must be a commitment towards issuing a regulatory law in this regard.
3. Legislative authority shall regulate the consultative and advisory role of civil society organizations and submission of proposals to public authorities and institutions.

Article ( )

Civil Society Organizations

1. The State shall promote and develop the role of civil society organizations.
2. The affiliation of civil society organizations with political parties shall be prohibited.
3. Civil society organizations shall be prohibited from receiving funds from any foreign government, illegal or unknown sources.
4. The State shall develop the standards necessary for balancing between the requirements of independence of civil society organizations and the requirements of transparency.

Article ( )

The Right to Establish Associations and Unions

The State shall guarantee the freedom to establish associations and unions on a non-profit basis without prior authorization and according to the following:

1. Registration shall be required
2. Interference of the State in the affairs of associations and unions shall be prohibited except as prescribed by law and in conformity with their independence.
3. The right to defend the interests of their members and the objectives on which they were established.
4. Joining or withdrawing from associations and unions shall be permissible.
5. The formation and joining of associations and unions by military and security personnel and affiliation with any armed or semi-armed formation shall be prohibited.
6. Their operation shall only be suspended by a court order. Dissolution shall only be by a final court ruling.
7. Their activities shall be exercised in public and clandestine activities shall be prohibited.
8. The right to representation of organizers before the courts and others shall be ensured.

Article ( )

The Right to Assembly and Demonstration

The State shall guarantee the right of assembly and peaceful demonstration according to the following:

1. Notification shall be required without the need for permission.
2. Imposition of restrictions shall be prohibited except in accordance with human rights standards.
3. The State shall ensure the security of demonstrations.
4. The decision to prevent assembly and demonstration shall be justified with limited considerations.
5. Criminal penalties against demonstrations and assembly shall not be imposed except for crimes perpetrated therein.
6. The use of force shall be prohibited except at a minimum and if necessary.

Article ( )

Political Parties

Every person shall have the right to choose political orientations. The State shall guarantee the right to the establishment, joining of and withdrawal form political parties, and shall undertake the following:

1. Non-affiliation of party members with movements outside the country.
2. Preservation of national unity by the party.
3. Prohibition of foreign funding of parties and show transparency of funding sources.
4. Prohibition of exercise of commercial activities by parties.
5. Contribution by the State to the funding of political parties. This shall be regulated by law.
6. Parties shall denounce violence, terrorism, hatred and discrimination, and they shall be prohibited from utilising tribes and regions.
7. Prohibition of affiliation of parties with any armed or semi-armed formation.
8. Prohibition of affiliation of judges, prosecutors, military and police personnel with parties.

Article ( )

The Right to Employment

Citizens shall have the right to employment, and the right to select the type of employment and fairness of its conditions so as to ensure a decent life. The State shall ensure:

1. Protection from employment-related incidents and commitment to reduction of risks and health, hygiene and security standards.
2. Entitlement to an allowance for hazardous, severe and harmful employment.
3. Prohibition of discrimination on basis of residency, place of work, sex or disability.
4. Prohibition of forced labour, unless necessary or for the implementation of a penalty.
5. Provision of training and rehabilitation programs.
6. The right to strike, ensuring minimum service at public facilities and unimpeded access of others.

The right to negotiation and conclusion of collective agreements, and the right to collective action for protection of interests.

Article ( )

The Right to Equal Employment Opportunities

The State shall ensure equal employment opportunities. To this end, it shall take the necessary measures, including:

1. Acceptance on the basis of competence and experience.
2. Prohibition against making the place of residency or birth a condition for being accepted into any employment opportunity.

Free competition with regards to the available employment opportunities.

Article ( )

The Right to Enterprise

1. Each person shall have the right to enterprise under free competition guaranteed by the Constitution.
2. The State shall undertake the necessary measures to protect competition and prohibit monopoly, as well as exploitation of power and influence.
3. All enterprises shall adhere to the non-harm of others or the interests of society.

Article ( )

Press and Media

The State shall guarantee the freedom, pluralism and independence of the press and media in accordance with the following:

1. Prohibit prior-censorship, except during wartime.
2. Organize the press and media in accordance with the foundations of an open and democratic society.
3. Prohibit the suspension of any newspaper except with a court order and in accordance with the law.
4. Prohibit the dissolution of any newspaper except with a final court order.
5. Issuance of newspapers by notice.
6. Confiscation of newspapers shall not be permissible.
7. Each Libyan shall have the right to own newspapers and media outlets.
8. Provisional detention shall not be permissible in press-related cases.

Article ( )

Sports

The State shall guarantee the right to practice amateur and professional sports for all; it shall take the following measures in this regard:

1. Provide and support needed facilities in all areas.
2. The State shall contribute to the support and sponsorship of sports activities.
3. Discover and sponsor athletic talents.
4. Ensure the independence of athletic bodies.
5. Promote national teams.

Article ( )

Multiculturalism

The State shall commit to taking the following measures:

1. Protect local languages and cultures, guarantee their prosperity as well as ensure that they are taught and used in media outlets.
2. Protect traditional knowledge and literature.
3. Protect and develop historic areas.
4. Teach the arts and deploy cultural services.
5. Protect manuscripts and artefacts.
6. Prohibit acts that are harmful to cultural, linguistic and historic heritage, provided that heritage protection-related lawsuits are considered public lawsuits that shall incur no judicial fees.

Article ( )

Chapter Five

Rights Related to Information, Transparency and Anti-Corruption

Right to Information

The State shall guarantee the freedom of receiving, relaying, exchanging and perusing information, as well as plurality of its sources, in a manner that does not jeopardize secrets related to the military and public security, justice management needs, sanctity of private life and anything that has been considered confidential in agreement with another state, while preserving the right to maintain confidentiality of the source.

Article ( )

Right to Transparency

All authorities, public facilities and partially or fully state owned enterprises, as well as parties and civil society organizations, shall commit to transparency; this shall include the following:

1. Public data, legislation, government projects and contracts must be published.
2. Citizens shall have the right to access all documents.
3. Individuals shall have the right to obtain their personal details from all institutions.

Article ( )

The Right to Equality in Public Employment

1. Libyans shall have no advantage for holding public posts and positions except in accordance with the aptitude and competence criteria.
2. No one shall be prevented from applying for public posts except with a final court order.
3. The law shall specify the grades of public posts in accordance with the criteria of competence and responsibility as well as with those required for the career ladder and a decent life.

Article ( )

Management of Public Facilities

Administrative facilities shall be established and managed in accordance with the criteria of quality, transparency and respect for human rights. This shall include committing to the following:

1. Simplification of their procedures, as well as addressing issues related to individuals with integrity and within a reasonable time, and in accordance with suitable procedures.
2. Periodic review and assessment.
3. They shall be responsible for damages resulting from their actions, and this shall not fall under the statute of limitation.
4. Regular and increased distribution of their services to all regions.
5. Beneficiaries shall have the right to lodge petitions and complaints, and to receive a response within a reasonable time.
6. They shall provide justification for their decisions.

Article ( )

Anti-Corruption

The State shall develop a detailed strategy on anti-corruption, through which it shall guarantee the following:

1. Engage citizens and society institutions.
2. Prohibit corruption in the public and private sectors.
3. Government contracts and the procurement system shall be based on the values of justice, fairness, transparency and cost effectiveness.
4. Non-conflict of interests with regards to the public interest.
5. Protect informants and witnesses.
6. Prohibit those who received a final conviction in a corruption crime from holding public posts.
7. Ensure the restitution of public assets, and compensate for their destruction or damage, as well as prohibit the application of amnesty or the statute of limitations in such cases.

Article ( )

Chapter (6)

(Solidarity-Related Rights)

The Right to Live in a Balanced and Clean Environment

The State authorities shall undertake the necessary measures to achieve the following:

1. Environmental sanitation and compensation for damages caused by pollution by those who are responsible.
2. Protection of natural resources and exploitation of wealth in accordance with eco-balance requirements.
3. Preservation of forests and protection of wild life and biological diversity.
4. Prohibition of acts that are damaging to the environment; related lawsuits shall be a common right claim that shall not incur judicial fees.

Article ( )

The Right to Equal Spatial Opportunity

Equal opportunity between areas is one of the requirements for equal opportunity among citizens and social stability, harmony and peace. The state authorities shall do the following:

1. Develop villages and cities, and ensure a suitable and balanced distribution of services among them.
2. Distribute resources and projects in accordance with economic competencies as well as balanced and sustainable development.
3. Take the necessary measures to encourage economic activities in all areas.

Article ( )

Chapter (7)

Rights of Special Groups

Rights of the Child

The State shall take the necessary measures for children to enjoy their rights as follows:

1. Each child shall have the right to a tripartite name, a surname and nationality at birth.
2. The right to family care, or suitable alternative care, and the provision of a decent life, as well as protection against neglect, violence, humiliation and use during armed conflicts.
3. Protection against situations that jeopardize his interests, education, development, health as well as moral and spiritual growth.
4. Safe-keeping and growth of his money.
5. Adoption of reform, rehabilitation and integration measures when he commits a crime or deviates.

In all cases, all legislation and policies of the State shall be based on the best interest of the child.

Article ( )

Rights of Youth

The State shall take the necessary measures to achieve the following:

1. Support youth so that they can engage in national life through the spirit of citizenship and responsibility, and interact with society and be open to different human cultures.
2. Broaden their engagement in social, cultural and political development, and facilitate their access to the different sciences and technology.

Achieve scientific, social and professional adaptability as well as development of their capacities.

Article ( )

Rights of Disabled Persons

The State shall undertake the necessary measures to enable disabled persons to exercise all their rights and enjoy a decent life, especially through the following:

1. Enable equal opportunity in employment and public posts, as well as their rehabilitation so as to enable them to perform or regain such posts, or compensate them.
2. Consider the specificities of disabled persons as an integral part of the education system and educational planning. Disabled persons shall not have a special system unless the public system is deemed unsuitable, and only for the objective of their gradual integration into the public system.
3. Ensure their access to all places, provided that the construction criteria of public facilities and private places correspond to their needs.

Commit to sufficient support for their incomes, ensuring their treatment as well as providing support for those who care for them.

Article ( )

Rights of Distinguished Persons

The State shall undertake the necessary measures to show the capacities of those who are talented and distinguished, as well as develop their capabilities in all fields

Article ( )

Consumer Rights

The State shall undertake the development of legal frameworks to protect consumers with a view to achieving economic balance, social justice and the rights of the consumer and producer. Their rights shall be especially protected with regards to the following:

1. Freedom to choose goods and services.
2. Receiving fair compensation.
3. Preserving health and safety.
4. Receiving information on the nature of goods.
5. The right to participate in consumer protection institutions.

Article ( )

The Rights of the Elderly

The State shall commit to the protection of the dignity of elderly persons, offering them suitable care, and providing and facilitating the necessary requirements for services.

Article ( )

The Rights of Foreigners

The State shall ensure the following with regards to foreigners who have legal residency:

1. Prohibit unfair and collective deportation.
2. Prohibit the handover of accused and convicted persons in there is suspicion that they will be exposed to torture, and this shall be subject to judicial guarantees.
3. Commit to taking into consideration the interest of the Libyan spouse and children with regards to the provisions of expulsion, handover, visa issuance and residency.
4. Guarantee political and humanitarian asylum according to international standards.
5. The right to the ownership of residence for himself and his family.

Article ( )

The Rights of Libyans Abroad

The State shall undertake the necessary measures to protect Libyans abroad and ensure the maintenance of their ties to their homeland, including:

1. Provision of care for Libyans abroad and ensuring their participation in the electoral process and contribution to development.
2. Provision of consular protection for them.
3. Conclude necessary agreements for their protection and work on their implementation.
4. Monitor violation of their rights and extend the jurisdiction of the Libyan judiciary in this regards

Article ( )

Chapter (8)

Guarantees

General Rules

Legislation shall be based on balance between the public and private interest; they shall be bound by the following:

1. Generality and abstractness of the legal rule.
2. Publication in the Official Gazette.
3. The principle that there shall neither be harm nor malice.
4. Necessity shall be assessed accordingly without excess or laxity.
5. A liability shall not be borne by another.
6. There shall be no felony, misdemeanour or custodial penalty, except with a law.
7. Criminalization and punishment shall be in accordance with the requirements of necessity and balance between rights, freedoms and the public interest.
8. Resorting to deprivation of freedom shall be prohibited, except in the case of insufficient alternative measures and punishments.
9. Proportionality of the punishment, crime and the personality of its perpetrator.

10. Prohibit amnesty in crimes against humanity, genocides, war and torture crimes; they shall not be subject to the statute of limitations.

11. Prohibit the provision of immunity for any administrative decision with regards to appeals before the courts.

12. The right to compensation for violations of rights, freedoms and judicial errors.

13. Compensation for provisional detention if an order is issued to dismiss for lack of grounds, or in the case of a sentence of innocence due to the lack of a crime or evidence.

14. The exclusion of any behaviour that affects or jeopardizes rights and freedoms from the jurisdiction of the court shall be prohibited.

15. Prohibit the inclusion of anything that jeopardizes acquired rights or the force of res judicata.

16. The right to resort to the courts when public authorities abstain from taking the measures mentioned in the part on rights and freedoms.

17. Prohibit detention in lieu of non-payment of a civil or commercial debt, where the person in debt is proven to be unable to pay.

18. Prohibit the restriction of rights and freedoms during a state of emergency except when necessary and strictly during the state of emergency, provided that it is in line with the obligations of the state under international law.

In all cases, all legislative and executive policies and development and progress programmes shall be based on the protection and advancement of human rights. The state shall subject its legislation and policies in this field to periodic evaluation, provided that the bases and results of the evaluation are published in the Official Gazette.

Article ( )

Restrictions on Rights and Freedoms

Legislation in the field of rights and freedoms shall commit to the following:

1. The organization of rights and freedoms shall be with the agreement of two-thirds of the parliament.
2. Restrictions shall preserve the core of rights and freedoms and shall be clear and specific.
3. Restrictions shall be necessary and genuinely fulfil the objectives of the public interest, as stated by the constitution, or the need to protect the freedoms and rights of others.
4. Restrictions shall be proportional to the interest protected.
5. Restrictions shall be proportional to the characteristics of democratic society

The abandonment of guarantees set forth by the law shall be prohibited

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Interpretation of Texts Related to Rights and Freedoms

Texts included in the Part on Rights and Freedoms shall be interpreted based on:

1. Promotion of values that characterize a democratic society under the aims and principles of the Islamic Sharia.
2. Human dignity and freedom as well as equality between all citizens.
3. Take international law into consideration.
4. Prohibit the use of analogy for restrictions stipulated with regards to rights and freedoms.
5. Prohibit the interpretation of any article in this constitution in a manner that would say that it includes the right to participate in any activity or undertake any act that aims to undermine the rights and freedoms set forth by the constitution, or restrict them more than it stipulates.

Article ( )

Chapter (9)

Duties

1. Respect the Constitution and adhere to legislation.
2. Exercise rights and freedoms in accordance with the spirit of responsibility and citizenship.
3. Defend the nation and its unity.
4. Bear the costs specified by the law.
5. Joint responsibility.