Legal analysis

Libya : Protecting freedom of expression and right to access information in new constitution

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ARTICLE 19

01 Jul 2013

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A 60-member "Constitutional Committee" will be established by the General National Congress to draft a new Constitution for Libya. In response to these efforts and to support the work of the future drafters, ARTICLE 19 has produced a comprehensive policy brief (available here in Arabic) outlining how the new Constitution should protect the right to freedom of expression and freedom of information. Similar briefs were produced for the constitution drafting process in Egypt and Tunisia.

The brief is based on international legal standards on freedom of expression, including the decisions of international and regional human rights courts as well as the authoritative interpretation of international human rights law by the UN Human Rights Committee and the Special Rapporteur on Freedom of Opinion and Expression. The brief also lists specific examples of constitutional provisions in a range of other countries.

ARTICLE 19 hopes that international and regional standards and comparative examples indicating the best practices of states on the protection of the right to freedom of expression and freedom of information shall provide a useful source of reference for drafters of the new Libyan Constitution. 

More specifically, ARTICLE 19 believes that the new Libyan Constitution must contain a substantive chapter or section devoted to the protection of human rights, in the form of a Bill or Charter of Rights or equivalent. Such protection of human rights should be at the heart of the new Constitution. It is also of paramount importance that the new Constitution states that all international treaties ratified by Libya, customary international law and general international law have legal force in Libya, and that the core international human rights treaties which Libya has ratified are applicable and binding in domestic law. 

ARTICLE 19 also strongly urges the drafters to ensure that the new Constitution defines freedom of expression broadly to include the right to seek, receive and impart information and ideas, to cover all types of expression and modes of communication. The Constitution should grant this right to every person and should explicitly require that all limitations to the right to freedom of expression strictly meet the three-part test set by the international law.

The brief makes a whole range of specific recommendations for the protection of the right to freedom of expression and freedom of information, including the access to information, and details how the new Constitution should protect freedom of media and freedom of expression through Information and Communication Technologies (ICTs).  The policy brief also examines the place of religion in the Constitution. Finally, it describes the most appropriate mechanisms to effectively protect constitutional rights through a tribunal or constitutional court. 

Crucially, ARTICLE 19 calls on the Libyan Government to ensure that the process of drafting the new Libyan Constitution is genuinely participatory for all groups in society, including women and minorities, and transparent so that there is a real sense of ownership over the final text.

ARTICLE 19 hopes to continue to be engaged in assisting the Constituent Assembly and Libyan stakeholders to formulate the best possible constitutional framework for the Libyan people, one to meet the state’s international obligations but also serve to make human rights protection and promotion part of daily life and social consciousness in the country.

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