The GNC

In July 2012, the GNC succeeded the NTC as the first democratically elected parliament. Just before the end of its term, the NTC made it a point to remind the GNC of the importance of Sharia.

Later, the advice became irrelevant. When it was given, the GNC was indeed the body responsible for (ι) selecting the Constitution Drafting Assembly (CDA), (2) reviewing its draft, (3) putting it to a public referendum, and (4) promulgating it once accepted by the voters. However, later amendments of the ICD resulted in reducing the GNC's role in the third and fourth tasks. The CDA became a body directly elected by the Libyan people, and the GNC no longer had any review power over the draft the CDA would produce (Ibrahim 2017). On 4 December 2013, the GNC voted in favour of a statement calling for Sharia to become “above the Constitution” and the “only source for legislation in Libya,” with any laws contradicting it deemed null and void (Russia Today 2013). However, given that the GNC had no power over the CDA, this statement was deemed only advisory.

The GNC then had no say on the constitution-making, but what about non-constitutional lawmaking? Here, the GNC would have full control, and considering how prominent the Islamists and their allies were, one would expect that an acceleration in Sharia's role would take place.

Initially, the ICD provided for the GNC to preside over the entire transitional period. It would it dissolve once a new constitution would be adopted and a new legislative assembly would take over. This process was thought to take 18 months, till 7 January 2014. It became clear, however, that more time was needed, and the GNC decided in December 2013 to extend its mandate for another year (Elumami 2013). This angered many who blamed the delay on the GNC itself and called for it to end its term. The GNC gave in and amended the ICD so a new House of Representatives (HoR) would be elected. When elected in July 2014, the HoR turned out to be a body in which the Islamists would have little say. Consequently, the GNC declined to hand over power for this very reason, leading to the situation of having two legislative assemblies: the HoR in the eastern part of the country and the GNC in the western part (Otto 2018).

During the first period, 2012-2014, the GNC's performance in terms of Sharia incorporation was limited. The Islamists' dominance was not absolute. As the Mufti, Sadiq al-Ghariani, described it with irritation, they were busy discussing with their opponents (the CNF) “regulatory issues, legal matters, theoretical debates, verbal quarrels, political parties' agenda, allocation of jobs, and regional preferences; and only Allah knows how much time they will need to finish with all these issues” (Al-Ghariani 2012).

Amongst the Sharia-based laws that the GNC passed is Law 1/2013 on the Prohibition of Transactions Involving Usury.²¹ This law came as a step towards the Islamisation of the banking system. While the Central Bank was cautious about the draft of this law, Dar el-Efta, the state office for religious advice, and the Ministry of Endowment supported the immediate conversion of the banking system and lobbied the GNC to adopt the draft (Abu Ghrara and Algheitta 2015, 70-78).

The influence of Islamists was not limited to the legislature; it also affected the judiciary. The ruling of the Supreme Court on polygamy is a clear example. When a wife discovered that her husband had married another woman without taking her consent, as Article 13 of Law 10/1984 on Marriage and Divorce required, she filed a lawsuit demanding the annulment of the second marriage as Article 13 stipulated when the required consent was not obtained. In response, her husband argued that Article 13 was actually unconstitutional. It indeed required the consent of the first wife, but, as he argued, this consent was hardly possible to get. Thus, it made polygamy, at least in most cases, unattainable. This made the article inconsistent with Sharia that knows no such restrictions. Since Sharia was, according to Article 1 of the ICD, “the principal source of legislation” in Libya, the inconsistency of Article 13 with Sharia made this provision inconsistent with the Constitution as well.

The claim came to the Supreme Court, and given that any decision about it would have significant impact not only on the parties involved but also on the legal system in general, as similar claims would be expected to arise about other laws, one would expect the highest court in the country to address all relevant issues. There is an argument that restricting polygamy is acceptable under Sharia, and there are Muslim countries relying on this argument in regulating and limiting polygamy, including Egypt, Morocco, Pakistan, and Indonesia (Otto 2010, 99). However, as it appears from the half-page-long reasoning, the Supreme Court did not really address any of these questions. It simply cited verses from the Qur’an on polygamy and did not mention any opinions which could have been expressed by the defendant.

Taken together, the GNC’s legislative changes were rather limited during this first period when considering its potential as a body dominated by Islamists with ambitious plans to implement Sharia. Wider changes only took place in the second period.

The GNC’s second period started in August 2014 and was marked by a significant expansion in Sharia incorporation into law. “The greatest work,” according to the GNC’s own description, was the 9^th amendment of the ICD on 24 May 2015, by which Sharia came to enjoy a much stronger recognition as a source of legislation. After the amendment, Article 1 read: “Libya is a Muslim independent state, [...] its religion is Islam, and the Islamic Sharia is the source of all legislation (kull tashri'), and it is deemed void any legislation, work or act done in violation to its rulings and objectives.” This text, the GNC proudly announced, “is the best constitutional text enacted in all constitutions of Muslim countries, without exception.”²²

Furthermore, on 18 March 2015, the GNC issued Resolution No. 25 to form an Expert Committee (EC) headed by the Deputy Mufti, Ghaith al-Fakhri, to review and amend legislation for compatibility with Sharia. The term ‘experts' suggested that the EC members were not necessarily religious scholars. The truth, however, is that the EC was composed of religious scholars, some of whom also held law degrees: “they were all from the people of the knowledge of Sharia” (ahl al-‘ilm bi al-shar'), as the head of the EC told me (Al-Fakhri 2015). In fact, the Resolution itself explicitly stated that the committee would be formed “of experts in the Islamic Sharia.” This way, the committee would be immune from the shortcomings of a similar former committee, the head of the EC said (Al-Fakhri 2015).

The Minister of Justice established this former committee on 9 November 2013 to review existing legislation for compatibility with conclusive determinations and basic rules of Sharia.²³ A Supreme Court judge headed it, and fifteen others sat on it: five representing universities, including two Islamic universities, three named by the Dar el-Efta, four named by civil society organisations, and three named by the Ministry of Religious Endowments (Awqaf). I represented the University of Benghazi. We had only two meetings, and it became clear during the discussions that appeasing extremist Islamist groups was the rationale behind establishing the committee; these groups, e.g., Ansar al- Sharia, were at their height, and there were fears that they would resort to violence to Islamise what they deemed an infidel state. The Minister of Justice wanted to assure these groups and those sympathising with their discourse that Libya was Muslim enough and its laws were Sharia- conform; if not, the state would make them so, and the committee at hand was its means of ensuring that. I recall that the committee selected criminal legislation as the first item to review; this legislation was, a member argued and the committee concurred, the most deviant from Sharia in these groups' eyes.

The earlier committee, however, failed to even start. The failure could in part be attributed to the deterioration of the political and security situation at the time it was formed, but it is fair to say that there was also a feeling amongst its members that what it promised was not good enough to the target audience. The committees established in the 70s had already conducted a thorough review of legislation for compatibility with Sharia's conclusive determinations and basic rules, and their recommendations had found their way into legislation (Muhsin 2004, 313-316). It would be highly unlikely that the new committee would ‘discover' any new contradictions to Sharia; even legislation influenced by Gaddafi's particular understanding of Sharia would not contradict these conclusive determinations and basic rules.

Over eight months, the EC conducted its legislative review, and ‘discovered’ many violations to Sharia, even in Sharia-based laws. It then recommended amendments based on this review that the GNC incorporated into law without any change. Due to the space limitations, I will only list the most prominent of the new laws. Amongst these is Law 14/2015 that amended Law 10/1984 on Marriage and Divorce to, among other things, abolish restrictions on polygamy. There is also Law 6/2016 that amended 40 articles and ended 16 others of the Civil Code, including Article ι that listed the sources of law in the following order: legislation, principles of Sharia, custom and rules of equity and natural law. According to the amended article, the sources are now limited to legislation, subject to not contradicting Sharia and the rulings of Sharia. Another new law is Law 20/2016, that amended the Penal Code to end provisions incompatible with Sharia and added new ones, including a provision prescribing capital punishment for apostasy. Likewise, Law 22/2016 amended Law 70/1973 on the Hadd of Adultery to introduce death by stoning as a penalty for when the condemned is married.²⁴

I should mention here that, legally speaking, the validity of the laws that the GNC introduced in the second period is seriously questioned. Its rival, the HoR, was widely recognised as the only legitimate legislature. Even the UN-sponsored Political Agreement (PA) that the two rivals signed in December 2015 to end the divide echoed this recognition.²⁵ Still, given that the GNC’s laws were implemented in the territories subject to its authority, which included the capital Tripoli, they would be too important to ignore. Besides, the PA’s recognition of the HoR as the only legislature will not necessarily translate into invalidating the GNC’s laws. The PA allows for sustaining such laws after a review by a committee of experts.²⁶ The GNC’s rival, the HoR, is, however, likely to oppose such laws; as such, this legal possibility may not translate into actuality.