Letter to the Libyan Constitution Drafting Committee

2 November 2017

We, the undersigned human rights organizations, congratulate the committee drafting the Libyan Constitution, the latest draft of which was signed in Al Bayda on July 29, in the presence of 43 of the 60 parliamentarians.

We also praise the efforts thus far undertaken by Libya’s parliamentarians, as the constitution is a cornerstone in the construction of a civilian and democratic state respectful of human rights, fundamental freedoms, and pluralism.

However, we have analysed the articles on the freedom of expression and publication, on freedom of the press and media, on transparency and on the right to information; and we have found that they fail to conform to international standards regarding freedom of expression.

We are therefore submitting a number of recommendations designed to bring the draft constitution into compliance with Libya’s international obligations regarding the protection of freedom of the press and information, and in order to guarantee the rights and freedoms of Libya’s citizens and reflect the pluralism of its society.

Insufficient guarantees for freedom of expression

We note that the current draft of the constitution recognizes the right to freedom of expression in a limited manner. Many of its provisions restrict freedom of expression and recognize it only partially.

Article 37 states, in a vague manner, that freedom of expression and publication is a protected freedom. However, the international agreements to which Libya is party, in particular, Article 19 of the International Covenant on Civil and Political Rights, establish the principle of freedom of expression and imposes precise limits on the restriction of this freedom. Any restriction must comply with the criteria of legality, legitimacy and necessity. Article 37 should establish this principle in the same terms.

The same article says that the state will take the necessary measures to protect the privacy of the individual and to combat hate speech, without providing a clear definition of these two terms. This article itself therefore contains a restriction on freedom of expression because it is vague about the limits of these rights. This also violates Article 19 of the International Covenant on Civil and Political Rights, which affirms the right of all human beings to the freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of one’s choice.

Insufficient protection for media independence

We welcome the desire to protect media pluralism and independence that is evident in Article 38. However, the constitution must clearly define the means available to the state for limiting the concentration of media ownership and guaranteeing pluralism in the expression of opinions.

We also point out that the ban on provisional detention during trials of journalists does not suffice to guarantee full and complete freedom of expression. Similarly, protecting media companies from dissolution by court order is not a sufficient guarantee against abusive restrictions on freedom of expression.

The draft constitution should explicitly establish the High Media Council as a constitutional entity in a dedicated article. This should also define its composition, its responsibilities and the guarantees of its independence. The council’s sole role should be regulating the broadcast media. In this regard, Article 163 on “other bodies” does not guarantee the independence of the media regulatory authorities. It also fails to satisfy the requirements of international standards.

We remind the members of the drafting committee that, under Article 19 of the International Covenant on Civil and Political Rights (and the UN Human Rights Committee’s interpretation of this article in its General Comment No. 34), restrictions may only be imposed on freedom of expression when provision for them has been established by law. The restrictions must also be necessary and proportionate to the pursuit of one of the objectives defined in this article, which are respect of the rights or reputations of others, and protection of national security, public order, or public health or morals.

Need to reformulate article on the right of access to information

Article 46 on transparency and the right of access to information provides for the freedom to receive, impart and exchange information, but it does not comply with the requirements of international standards. The guarantee by the state of the right of access to information must conform to international law, in particular the standards related to the right of access to information, to the protection of personal data, to combatting corruption, and to transparency.

Poorly defined restriction on rights and freedoms

Article 65 on restricting the use of rights and freedoms lacks clarity and should specify that such restrictions must be envisaged by the law, must be necessary for the pursuit of a legitimate objective, and must be proportional to this objective.

We are also concerned about the repeated reference to the Islamic Sharia in articles 6, 153 and 161 without reference to the international instruments relating to human rights and fundamental freedoms. A document as important as the constitution, involving rights and freedoms, should above all contain references to the relevant international standards and should explicitly state that religious values cannot interfere with the recognition and guarantee of these rights and freedoms.

We would also like to express our dissatisfaction with the provisions on freedom of expression and information in Chapter II on rights and freedoms and in Chapter VII on constitutional entities, which contain concepts that are vague and unknown in international law. This lack of precision can obviously lead to arbitrary interpretations that violate human rights and fundamental freedoms.

Main recommendations

We urge the members of the Libyan Constitution Drafting Committee and the members of the House of Representatives to:

1. Redraft articles 37 and 38 on freedom of information and publication, making a clear reference to Article 19 of the International Covenant on Civil and Political Rights, which enshrines the principle of freedom of expression and information, while specifying that the use of this right must not be subject to prior control.
2. Provide for constitutional guarantees for press freedom and abolish prison sentences for media offences.
3. Redraft Article 46 on the right of access to information in order to improve access and the dissemination of information in the media, which would make it possible to ensure transparency, combat corruption and safeguard the rights of journalists and the confidentiality of their sources in accordance with international standards.
4. Clarify the conditions under which use of the rights and freedoms stated in Article 65 may be restricted. We suggest that this paragraph should refer to international law, under which any restriction must be envisaged by the law, must be necessary to the pursuit of a legitimate objective and must be proportional to this objective, so that no article can impair established human rights and fundamental freedoms.
5. Draft a constitutional provision guaranteeing full recognition of the High Media Council as a constitutional entity. The council would be responsible for regulating only the broadcast media and for granting licences to radio and TV stations. It should also be assured a consultative role on media legislation.

The organizations:

1. Libyan Centre for Freedom of Press (LCFP)
2. ARTICLE 19
3. Reporters Without Borders (RSF)
4. Libyan Network for Legal Aid
5. Cairo Institute for Human Rights Studies
6. Libya al Mostakbal
7. Mercy Association for Charitable and Humanitarian Aid
8. Libyan Group to Monitor Human Rights Violations