Libya-LAW AND THE JUDICIARY

During the period of the Ottoman Empire, a dual judicial system that distinguished between religious and secular matters developed in Libya and other subject countries. For Muslims, the majority of cases--those involving personal status, such as marriage and inheritance--fell within the jurisdiction of religious courts, which applied the Maliki interpretation of Islamic law--the sharia (see Islam and the Arabs , ch. 1; Tenets of Islam , ch. 2). The courts were organized into both original jurisdiction and appellate levels and each was directed by a qadi (see Glossary), an Islamic religious judge. Secular matters--those involving civil, criminal, and commercial law--were tried in a separate court system. Laws covering secular matters reflected Western influence in general and the Napoleonic Code in particular. Non-Muslims were not under sharia. For example, the Jewish minority was subject to its own religious courts. Europeans were subject to their national laws through consular courts, the European nations having secured capitulary rights from the Turks.

The colonial powers that ruled Libya after the disintegration of the Ottoman Empire maintained the dual judicial structure. After Libya achieved independence, however, an attempt was made to merge the religious and secular legal systems. The merger, in 1954, involved the subordination of Islamic law to secular law. Popular opposition, however, caused the reestablishment of the separate religious and secular jurisdictions in 1958.

The 1969 constitutional proclamation provided little guidance for the postrevolutionary judiciary. Equality before the law and presumption of innocence were stipulated, and inheritance was made subject to sharia. The RCC was given the power to annul or reduce legal sentences by decree and to declare general amnesties. Also stipulated was the independence of judges in the exercise of their duties, subject to law and conscience. It was the RCC, however, that promulgated laws.

Judicial independence and the due process of law were respected during the first decade of the postrevolutionary regime, except when political crimes were involved. After 1979, however, the situation deteriorated in direct proportion to the growth of the revolutionary committees (see The Revolutionary Committees , this ch.).

Qadhafi and other RCC members believed that the separation of state and religion, and thus of secular and religious law, was artificial--that it violated the Quran and relegated sharia to a secondary status. Two postrevolutionary bodies dealt with this situation. The Legislative Review and Amendment Committee, composed of Libyan legal experts, was created in October 1971 to make existing laws conform to sharia. The ultimate aim was for Islam to permeate the entire legal system, not only in personal matters, but also in civil, criminal, and commercial law. The Higher Council for National Guidance was created the next year (see Political Ideology , this ch.). Among its philosophical and educational duties was the presentation of Islamic moral and spiritual values in such a way that they would be viable in contemporary Libyan society.

Application of Islamic legal tenets to contemporary law and society presented certain difficulties. There was, for example, the question of the proper contemporary meaning of traditional Islamic physical punishments, such as the severance of a hand for the crime of theft. Debates arose over whether severance should mean actual amputation or merely impeding the hand from future crime by removing need and temptation. The most literal interpretations were adopted, but their actual imposition as legal punishment was very much restricted by exemptions and qualifications, also based on Islamic tenets. A thief's hand would not be amputated, for example, if he truly repented of his crime or if he had committed the theft to feed a starving family. Indeed, numerous observers have reported that the more extreme physical punishments are rarely, if ever, performed.

Data as of 1987