At a time when everyone calls for a constitutional state governed by the rule of law, many constitutional violations appear daily in the application of criminal laws. This gives the impression that the Libyan judicial system is lagging behind advanced countries in constitutional, human rights, and humanitarian standards.

Based on my professional experience, I observe a number of fundamental issues that I hope will disappear once and for all, the most notable of which are:

First: Combining the authority of prosecution and investigation.

The accused is subject to the authority of their opponent, the Public Prosecutor’s Office, which combines both investigation and prosecution. This opens the door to the investigation being used to support conviction without impartiality, and places the accused under the dominance of their adversary. This undermines the principle of justice and compromises neutrality and objectivity.

Second: Excessive use of pretrial detention

In many cases that do not pose a danger to society, defendants are held in pretrial detention for long periods. As a result, pretrial detention becomes an actual punishment rather than a precautionary measure, which violates the accused’s right to liberty and makes it easier to deprive them of their freedom without a constitutional or legal justification.

Third: Using the media to defame the accused (moral assassination).

The accused is innocent until proven guilty. Publicizing accusations through the media before trial constitutes a violation of the presumption of innocence and an attack on the dignity and reputation of the accused. This contradicts justice, constitutional principles, and human rights standards.

Fourth: Automatic enforcement of in absentia judgments.

In absentia judgments are often enforced in a mechanical manner, without taking into account repentance or humanitarian circumstances. This leads to violations of human dignity and causes harm to families and society, as in cases where an old in absentia ruling is enforced decades later without consideration of substantive justice.

Fifth: Neglect of human rights in Libyan criminal law.

Criminal laws often excessively deprive individuals of liberty and rely on custodial sentences rather than deterrent financial penalties. This makes punishment tend toward retribution rather than reform and rehabilitation, and contributes to creating a judicial environment that may encourage crime instead of deterring it.

This article is not merely a form of criticism, but rather a call and a reminder to legislators and the judiciary to develop criminal legislation in line with constitutional and human rights standards.

Constitutional principles are derived from moral and humanitarian norms, foremost among them Islamic law, which guarantees human rights in life, freedom, work, family formation, and other rights. Law merely reveals these rights rather than creating them, and constitutional judiciary is tasked with protecting them, whether they are explicitly stated or firmly established in the human conscience.

Constitutional judiciary in Libya derives its legitimacy from the Supreme Court and its historical legacy, and it may not be altered except through a new constitution approved by referendum by the people. The judiciary must maintain its independence and impartiality, away from political maneuvering, as the judiciary belongs to the state and not to judges.

As stated by the Libyan Supreme Court in a landmark constitutional ruling:

“If any written constitution is devoid of a provision guaranteeing every citizen the right to resort to a judiciary that ensures their right to defense, then this principle is derived from the commands of the Almighty and from the natural rights of human beings since their creation.”

The stagnation of investment in Libya is not due only to the security and political situation, but also to legislative gaps and complexities. A foreign investor commits to a contract with the state, yet is exposed to delays, bureaucracy, and flawed administrative practices. This makes corruption a natural consequence of such legislation and hinders genuine reconstruction and investment.

Rights and freedoms have a declaratory rather than constitutive effect, and constitutional judiciary is tasked with protecting them even in the absence of written provisions. As for the second part of the constitution, relating to the form of the state and its authorities, it should be determined through a constitution approved by popular referendum, away from political disputes, in order to preserve the independence and credibility of the judiciary.

The concentration of both investigative and prosecutorial powers in the hands of the public prosecutor violates the principle of justice and places the accused under the dominance of their adversary. This contravenes the constitutional principle of impartiality and objectivity. The investigation must safeguard the rights of the accused and be conducted independently to ensure a fair trial, with the final determination of the charge resting with the investigating and trial courts.

The delay in the judicial process in Libya, particularly in civil and commercial cases, sometimes makes recourse to the courts of little practical benefit. The introduction of modern technologies enables faster presentation of disputes, better documentation of evidence, reduced time for adjudication, and enhanced efficiency of the judiciary, making it more aligned with modern requirements and contemporary needs.

Excessive bureaucracy and routine procedures in courts affect both litigants and judicial staff alike. Organizing case files and procedures in a scientific and administrative manner contributes to speeding up the resolution of cases and enhances the judiciary’s prestige and reputation.

Relying on modern electronic systems and scientific management of files and schedules achieves justice with speed and transparency, and makes the judiciary an effective part of citizens’ daily life.

With scientific and technological development, it has become essential for both the legislative and judicial authorities to keep pace with new developments through specialized courts. A judge specialized in civil disputes cannot adequately adjudicate complex commercial or criminal cases, particularly in light of cybercrimes and international banking relations.

Judicial specialization ensures the quality of dispute resolution, enhances the judiciary’s ability to protect rights efficiently, and contributes to developing the competence of lawyers and the public prosecution in providing advanced judicial services.