Sharia in the Gaddafi era, uniquely expanded

On ³ September 1969, Colonel Gaddafi seized power in Libya, accelerating the incorporation of Sharia into law. I distinguish between two periods based on the adopted interpretation of Sharia: 1 September 1969 to 2 March 1977 and 2 March 1977 to 17 February 2011.

During the first period, the regime gave Sharia a much wider role in national law compared with the Monarchy regime. The Constitutional Declaration of 11 December 1969 only pronounced Islam as the religion of the state, which in itself would not bring about any change. However, on 28 October 1971, the Revolutionary Command Council (RCC), which acted as both the legislature and the executive, issued a decree stating that Sharia was a principal source of legislation. As such, it would have to be considered when enacting any new legislation. Existing legislation had to be reviewed to ensure its compatibility with Sharia. The decree made clear that it concerned “the basic principles” of Sharia rather than Sharia as a whole, and established committees composed of religious scholars, judges, and lawyers to review existing legislation, and if needed, draft alternative legislation. In drafting this legislation, the committees were to select the more lenient solutions, aisr alhuloul, from various Islamic schools, madhabs, guided by both public interest and custom when doing so, as long as the custom was supported by the Maliki school.¹⁰

Since Sharia already applied to personal status affairs, the committees’ role was confined to reviewing legislation on other matters. One committee reviewed the civil, commercial, maritime, and civil procedures laws, and another examined the criminal ones.

The legislature, however, did not fully incorporate classical Sharia’s position on these issues. For example, Law 70/1973 on Hadd al-Zina, adultery, did not prescribe different punishments in accordance with whether the perpetrator was married or not; it prescribed a hundred lashes to all. Similarly, Law 74/1972 to ban riba al-nasia (usury) in civil and commercial transactions was limited to natural persons; if the transaction involved a legal entity, e.g., a bank, charging interest was still permissible. When asked to rule on the constitutionality of this law, the Supreme Court said that the legislature was still studying whether or not to prohibit such transactions.¹¹

The changes concerning personal status affairs were limited. These affairs continued to be regulated by uncodified rules from the Maliki school. However, in 1976, the opinion implemented became the mashour, the popular or mainstream opinion, rather than the rajah, the strongest in terms of evidence.¹² Interestingly, according to the Supreme Court, judges were required to identify the scholars adopting the supposed mashour opinion so that such a claim could be verified.¹³ This led to considering the Maliki school books to be a formal source of law, as some writers rightly pointed out (Duwi 1989, 161).

The changes the RCC introduced resulted in both personal and non­personal status affairs becoming, to a considerable extent, Sharia-conform. Thus, there was no longer a need to preserve the separation between shari and civil courts, and the regime merged them by virtue of Law 87/1973 on the Unification of the Judiciary.¹⁴ The qadis were transferred to the new courts where they could adjudicate—being graduates of law faculties like their colleagues—on all disputes.

Though incorporating Sharia into the legal system continued in the second period, the process differed in significant aspects. It became heavily influenced by Gaddafi's own thought about Sharia. The 2 March 1977, when Gaddafi issued his Declaration on the Establishment of the Authority of the People (DEAP), signalled the beginning of this period. This declaration outlined the general constitutional framework for Libya: changing the country to Jamahiriyya, i.e., the state of the masses, basing its ideological stance on a form of Islamic socialism, and more importantly, stating that the Qur'an was the law of Libyan society. In this way, the DEAP was the first step towards transforming Gaddafi's so-called Third Universal Theory into law. This theory was his alternative to both capitalist and communist ideologies. In its political expression, it provided for the organisational framework within which direct democracy was to be exercised. At the most basic level, this framework created Basic People's Congresses, in which every citizen who attained the age of eighteen was a member. Amongst the powers granted to these congresses was that of lawmaking; any congress member could propose a law and when discussed and adopted by his own congress, and subsequently by other congresses, it would be made into law (Otman and Karlberg 2007, 64).

In this system, Gaddafi was supposed to have no authority apart from that enjoyed by any other congress member. However, in practice, Gaddafi had a huge impact on the process of lawmaking, e.g., by setting the agenda for Basic People's Congresses' annual meetings, and giving instructions about how these agendas could be discussed.

The impact of this on the role assigned to Sharia in lawmaking should be clear when considering that Gaddafi had a particular understanding of Sharia, which he transformed into laws he claimed to be Sharia-based. One significant feature of this approach is the denial of the authority of Sunnah, i.e., the Prophet Mohammed's sayings and acts, which is considered to be the second source of Sharia, after the Qur'an (Takeyh 1998, 161-62; Martin and Tayob 2004, 557). Another feature was his call for opening the gates of ijtihad: free reasoning on Sharia (Martin and Tayob 2004, 557). He gave himself the liberty to practice it, and this led him to deny that the pilgrimage to Makkah, hajj, was one of the essential pillars of Islam (530).

Gaddafi's interpretation of Islam affected Sharia incorporation in Libya considerably. Various examples could be cited to show how, but due to space limitations, only one will be mentioned. Whereas polygamy was not a common practice in Libya, Gaddafi spoke out against it (Pargeter 2010, 11). Law 10/1984 on Marriage and Divorce and the Effects thereof¹⁵ allowed polygamy only with prior judicial permission and on the grounds of the spouse's financial and physical ability. Later, it added a further restriction. According to Law 22/1991, it became necessary to get the written, formal (rasmi) consent of the first wife. Failure to meet any of the conditions would result in the annulment of the second marriage along with all of its effects. Subsequently, Law 9/1994 required the husband to present “serious reasons” for wanting to marry a second wife and to get either the written consent of the first wife before the competent court or the permission of the court after a successful lawsuit by the husband against her.

This trend of increasing women's rights seemed to come to a halt, however, in 1998, when the GPC enacted a law removing the requirement of the first wife's consent. Gaddafi then, in a move plausibly described as being of “dubious legality,” annulled the 1998 law (Welchman 2007, 31). This is undoubtedly a very clear indication of his role in lawmaking: both in form and content. Hence, it can be concluded that Gaddafi, with his own understanding, largely affected the interpretation and incorporation of Sharia. While he limited Sharia to the Qur'an, he practised free ijtihad to determine what Sharia meant in this interpretation. His influence on the process has been the main driver of the calls made since 2011 to review legislation, again, for compatibility with more conventional understandings of Sharia.