ARTICLE 19 has followed the drafting of the new Constitution in Libya since 2011. The present review builds on our broader work to promote freedom of expression and freedom of information in Libya and in the Middle East and North Africa region more generally.
The purpose of this analysis is to emphasise the positive aspects of the Constitution, draw out its negative features through the prism of international human rights law standards, and present recommendations for its improvement. We do not undertake a comprehensive analysis of the Draft Constitution. In the light of our expertise, the analysis is focused on the application of international standards on freedom of expression to the chapters addressing rights and freedoms (Chapter 2) and independent constitutional authorities (Chapter 7). The omission of any provisions from this analysis does not mean that ARTICLE 19 endorses them or finds them in compliance with international law.
Summary of recommendations
- The Constitution should protect the right to freedom of expression in broader terms, in order to encompass the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers;
- The Constitution should specify that freedom of expression through all media is protected, including the Internet;
- Any restrictions on the right to freedom of expression should be in compliance with international human rights standards. Namely, the limitation clause relating to the right to freedom of expression should state that “the right to freedom of expression may only be subjected to such restrictions as are provided by law and are strictly necessary and proportionate in a democratic society for the protection of national security, public order, public health or morals, or for respect of the rights or reputations of others.” Alternatively, at a minimum, the Constitution should explicitly state that any restrictions must be fully compatible with international human rights standards;
- The Constitution should provide guarantees to protect pluralism of media ownership and diversity of content in a clearer way. The limitation restricting media ownership to citizens should be removed;
- The Constitution should clearly recognize the right of access to information and stipulate that the principle of maximum disclosure should be applied on information held by or on behalf of a public body, and by private persons with a public service mission;
- The Constitution should make clear that any restrictions on the right of freedom of information must be provided for by law, justified by one of a set of enumerated, legitimate aims provided for in the International Covenant on Civil and Political Rights (ICCPR), and be necessary and proportionate. In line with the general clause on restriction of the right to freedom of expression, the Constitution should indicate that the requested information can be withheld only if the disclosure threatens to cause substantial harm to that aim, and the harm to the aim must be greater than the public interest in having access to the information;
- Provisions on independent regulation of audiovisual media should be completely revised, in order to reflect international standards;
- The Constitution should impose a positive obligation on the State to respect, protect and facilitate the exercise of the right to protest. Any restrictions on the right to assembly and association and on the right to protest should be drafted in compliance with international law;
- The Constitution should not establish a State religion or privilege one religious legal system, such as Sharia, over any other. All references to any specific religious beliefs should be only symbolic.