LIBYAN LEGAL SYSTEM

The Libyan legal system is comprised of Islamic, French and Italian elements of the law.^[298] In the early years following the 1969 Revolution, a special committee was established by the RCC (Revolutionary Command Council) to amend personal status laws in order to make them consistent with Islamic law.^[299] The RCC issued a declaration recognising Shari’ah as the main source of legislation and establishing a high commission to ensure that all legislation is consistent with Shari’ah principles.^[300]

Amendments were made to the 1953 penal code in the early 1970s.

There are four levels of courts within the Libyan legal system: summary courts, courts of first instance, appeal courts and the High Court.^[303] Courts of first instance are comprised of several divisions; noteworthy is the personal status division. Both the appeals court and the first instance court are comprised of three-judge panels with final judgements based on a majority decision ruling. Previously, Shari’ah courts of appeal were comprised of Shari’ah judges. However currently, Shari’ah judges sit in regular courts of appeal, specialising in Shari’ah appeals cases. The High Court has five chambers: civil and commercial, criminal, administrative, constitutional and Shari’ah.^[304]

Al-Jarida Al-Rasmiya is the official journal in which law reports are published. Furthermore, decisions made in the Libyan High Court (LHC) are published in Majallat Al-Mahkama Al-Ulya.^[305]

A thorough analysis of the relevant laws and other legal material is required to determine whether the LHC has upheld the requirements stipulated by law.

Interpretation in a very practical and policy-oriented area of socio- legal research has been adopted in this chapter along with a qualitative research style which involves a more explicit judgement and interpretation.

As stated earlier, over 60 LHC cases have been selected in a time frame of 30 years ending in 2001. This time frame represents a span able to demonstrate the effect of Shari’ah law on the Libyan legal system as it was introduced after the ‘1969 First of September Revolution’. Topics to be discussed in the context of Libyan law and LHC interpretations of ‘the best interests of the child’ are as follows: the definition of a child; the definition and ordering of potential guardians; whether the right of guardianship is that of the child or the guardian; guardianship conditions; the place and time of guardianship; the court’s responsibility with relation to guardianship issues; how and when guardianship is to be reinstated; and the issue of child and guardian maintenance.

Articles 62-70 of Legislation 10/1984 will be introduced, followed by presentation of LHC decisions prior to and subsequent to the introduction of Legislation 10/1984. Some of the high-level cases will be presented in depth. However, a number of key cases will be analysed in detail in terms of how lower courts and the LHC implement the ‘best interests’ principle when adjudicating on guardianship issues. Following each issue pre­sented in this chapter, a commentary section will examine whether the theoretical and practical sides of Libyan law are consistent with the main argument presented in this chapter.

III.