Libya Legal System Overview
The current legal system of Libya has been described as ‘in flux and driven by state and non-state entities’ and there are no laws applied consistently across the entirety of the country.
The Constitution of 2011 is no longer applicable to the current political situation, but in July 2017 a new Draft Constitution was created. This, however, has not yet been passed by the House of Representatives nor seemingly backed by Haftar’s faction. This draft constitution, which may be accepted once Haftar has consolidated his power and support, defines a potential legal system with Islamic Sharia being the primary source of legislation.
Legislation shall be controlled by a Shura Council, made up of the popularly elected Senate and House of Representatives. Executive authority shall rest with the President and his government and the Constitution shall be supreme over all laws, whilst the judiciary shall be independent, with actions taken to prevent corruption.
Nevertheless, currently the role of the judiciary is ambiguous owing to the lack of constitution. The system suffers heavily from political interference in the different regions of Libya and the power of militias has heavily curbed any de facto power the judiciary possessed.
Militias arbitrarily detain civilians and harass, intimidate and even assassinated judges, lawyers and other judicial workers. The judicial system is also heavily corrupt and rulings are not applied consistently.
Most foreign businesses operating in Libya usually settle disputes before the International Chamber of Commerce, but the domestic enforcement of foreign judgements remains weak.
Despite the lack of legislative and judicial authority, the Libyan Civil Code of 1954 and Commercial Code of 1953 have roughly endured and offer some form of legal stability which has transcended political change. These Codes are a mixed system based on the French and Egyptian Civil Codes mixed with Sharia law, particularly for matters related to personal status. The codes deal with civil, commercial and family law.
In the absence of legislative provisions, Sharia law is applicable, making it the secondary source of law, contrary to the 2011 Interim Constitution and the 2017 Draft Constitution. These Libyan Civil Laws define contracts and situations where they can be nullified, such as consent deriving from an error, fraud or duress.
Libya has signed a number of international treaties, such as the Geneva Convention and is a member of African Union and Organisation of Petroleum Exporting Countries, amongst others. Nevertheless, given the current political situation of Libya, participation in multilateral organisations is negligible and adherence to international law is poor.
Under the new Draft Constitution, ratified international treaties and conventions shall be ‘superior to the law and inferior to the Constitution’, hinting that the adherence to international law may remain ambiguous.
References
https://www.temehu.com/CDA/final-draft-libya-constitution-29-july-2017-english-translation.pdf.
https://www.hrw.org/news/2014/04/14/libyas-justice-pandemonium.
http://www.business-anti-corruption.com/country-profiles/libya.
https://works.bepress.com/dan_e_stigall/6/.
https://globaledge.msu.edu/countries/libya/risk.
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