Sufi shrines destroyed in Occupied-Libya. The US-backed rebels are fighting each other and destroying religious institutions illustrating the lawless atmosphere after the overthrow of Gaddafi., a photo by Pan-African News Wire File Photos on Flickr.
Arabic Network for Human Rights Information (Cairo)
Libyan and Arab Rights Organizations Warn That New Libyan Law Undermines Freedom of Assembly
3 December 2012
The undersigned Libyan and Arab human rights organizations express their deep concern regarding Law no. 65/2012 (the Law) recently passed by the Libyan General National Congress to regulate the right to peaceful protest. While we acknowledge positive elements of the Law, we remain concerned that many aspects of this law fail to uphold international human rights standards.
We believe that limiting Libyans' right to assembly and imposing undue restrictions on this right contradicts the goals and aspirations of the Libyan people. We also believe that amending this law to bring it into compliance with human rights standards will serve to promote peace and security within Libya. As human rights organizations and activists from Libya and the Arab region, we call on the current Libyan government to redact provisions of the Law which criminalize or unnecessarily limit the ability of citizens to express themselves through demonstrations and protests, whether spontaneous or organized.
We welcome the Law's recognition that peaceful protest is a basic human right under the Libyan Constitutional Declaration as well as international law. Article 2 of the Law makes clear that the right to peaceful assembly and the need to maintain security and order are not in contradiction with one another. Indeed, we affirm that they are complementary elements of all free and democratic societies. Several provisions of the Law, however, contradict these initial assertions.
Articles 2 and 3
Articles 2 and 3 contain vague language that disallows assemblies which disrupt the functioning of public utilities, which may include roadways or government institutions. Temporary disruption of traffic or other uses of public space cannot be used as a reason to restrict assemblies. It is the government's responsibility to ensure alternative routes for traffic and to provide for public safety while also guaranteeing the fundamental right to assembly. The undersigned organizations insist that assemblies should be recognized as a use of public space no less legitimate than any other public use.
The requirement in Article 4 of the Law that a committee of organizers be responsible for maintaining order during a demonstration is in violation of international standards. According to the report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association (A/HRC/20/27), when assemblies take place, the state bears the primary responsibility to maintain public order and to provide for the safety of protesters and non-protesters alike, as is alluded to in Article 6(b) of the Law. In this report, the UN Special Rapporteur pointed out that best practice in this area allows for organizers to appoint stewards to help in the running of an assembly, for example by informing and orienting participants. However, the report also asserts that neither organizers nor individual participants should be held responsible for the actions of others, nor should organizers be held responsible for the maintenance of public order during demonstrations, as it is the duty of the government to uphold the rights of its citizens while also providing for their safety.
Article 5 and 6
Article 5 of the Law requires that organizers notify the authorities of any gathering at least 48 hours in advance. We recognize that the Law provides for a notification period comparatively better than some states and congratulate the Libyan government for having opted for a system of notification rather than a system of prior authorization for assemblies. However, Article 6(a) of the law gives the authorities unlimited power to arbitrarily adjust the time and place of the assembly. The law should clarify that any adjustments to the time and place of assembly must be both necessary and proportionate, meaning that the authorities should pursue only the least restrictive means of achieving their legitimate objective and should only impose conditions when absolutely necessary. Any adjustments by the authorities should seek to facilitate protests within 'sight and sound' of the object and target audience of the protest, as time and place are critical elements which impact the effectiveness of such assemblies. In addition, the Law provides that one of the justifications for adjusting the place and time of a protest is if the protest 'impedes the interests of the state.' This is unduly vague and an illegitimate basis for imposing restrictions.
The Law further fails to allow for a reasonable exception to the notification requirement for assemblies involving a small number of participants or leading to no disruption to others. Similarly, exceptions should be made relative to spontaneous demonstrations, and authorities should protect and facilitate such demonstrations when they occur, so long as they remain peaceful in nature.
Article 7(a) of the Law grants the authorities the power to prohibit a gathering for general security reasons. While ensuring security is a legitimate objective, the regular use of vague "security reasons" may severely repress the legitimate exercise of the right to assembly. Therefore, all decisions to ban protests should require judicial review as a safeguard against the abuse of such justifications. Moreover, the Law should include language stipulating that prohibiting protests should only be proposed where necessary and proportionate and as a measure of last resort where there is a serious threat of unlawful acts or crimes. Further, the rationale for any decision to limit or prohibit a gathering should be clearly conveyed and set forth in the relevant decision.
At present, it is not clear that the law allows for a formal appeal of decisions conditioning or prohibiting protests, referring instead only to the submission of a 'complaint' to the Minister of Interior in Article 7(c), without stipulating what remedial steps may be taken. The law should clearly stipulate that any administrative review undertaken has the power to reverse the initial decision. In addition, the law should specifically stipulate that ultimately any decision by a regulatory authority should be subject to appeal before an independent court or tribunal.
Under Article 8(a) of the Law, dispersal of a protest that has commenced is permitted merely for failure to comply with minor conditions of the protest. Where individual protesters commit violent or destructive acts, authorities should make every effort to remove those individuals without dispersing the protest as a whole. Dispersal of such protests should only be a measure of last resort and should not be undertaken based merely on a failure to comply with minor conditions of the protest.
We recognize that Libya has witnessed several violent assemblies in recent months, and as such, Article 9 of the new law rightly prohibits the carrying of weapons during demonstrations. At the same time, authorities should ensure that Libyan law is in harmony with the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, including by making sure that the law clearly requires that security forces "restrict [the use of] force to the minimum extent necessary" to break up an assembly, should it be necessary to do so, and ensuring accountability where excessive force is used. In this respect, the undersigned organizations call upon the Libyan authorities to adopt clear guidelines to govern the use of firearms by law enforcement officials during assemblies so as to bring their training and conduct in line with international standards.
Article 10 of the Law is most alarming, as it imposes criminal sanctions for gatherings in violation of the Law. While criminal sanctions may be applied in cases of individuals who engage in criminal acts in the context of any protest, organization of or participation in a demonstration which has not met the criteria of the Law should not in itself be punishable by imprisonment, as is currently provided for by the law. Freedom of assembly is not a privilege granted by the state that is only legitimate if approved by the authorities, but rather a fundamental right of citizens that must be protected by the government. To maintain such sanctions will have the negative effect of deterring citizens from exercising their basic right to freedom of assembly.
The undersigned Libyan and Arab organizations emphasize that the exercise of the right to peaceful assembly has played a pivotal role in the movement towards democracy in all Arab countries, including in Libya. While legislation protecting and providing for this right is essential, we emphasize that such legislation should be drafted in consultation with various sectors of society, including human rights organizations as well as political and labor movements. Furthermore, such legislation should always be guided by the recognition that the right to assembly is one of the most fundamental civil and political rights and that promoting and protecting this right is a primary responsibility of the government. The undersigned organizations therefore call upon the Libyan authorities to review the numerous provisions of the current Law that contradict this approach.
1.Cairo Institute for Human Rights Studies, Egypt
2.Lawyers for Justice in Libya, Libya
3.New Libya Foundation, Libya
4.Rashad Foundation, Libya
5.Eugrtin Organization for Amazighi Culture and Development, Libya
6.Qafza Organization, Libya
7.Kufra Youth Forum, Libya