Any views expressed in this article are those of the author and not of Thomson Reuters Foundation.
Reporters Without Borders is very disturbed by legislative provisions that Libya's provisional parliament, the General National Congress (GNC), has passed in the run-up to tomorrow's election for a 60-member constituent assembly.
An amendment to the penal code approved on 5 February bodes ill for the drafting of a constitution that respects freedoms and Libya's international obligations. The new "free" Libya seems further than ever from the principles of freedom that were nonetheless guaranteed in the 2011 Constituent Covenant.
The 5 February amendment modified the already highly controversial and draconian article 195 of the penal code, which said:
"Any person making what could be regarded as an attack on the Great Al-Fateh Revolution or its leader is liable to be punished with imprisonment. The same sentence will be applied to any person who insults the people's authority or a judicial, defence or security body". The penalty for contravening these provisions is 3 to 15 years in prison for insulting or attacking state institutions.
Reporters Without Borders had long criticized the failure to repeal or amend this Gaddafi-era provision, which violated Libya's international obligations and was used to detain journalists such as Al-Umma editor Amara Al-Khitabi, who was held for five months following his arrest in December 2012 for publishing a list of 87 judges and prosecutors suspected of corruption.
As approved on 5 February, the amended version of this article, Amendment (5) 2014, says:
"Without prejudice to any severer penalty, any person stating something that is detrimental to the 17 February Revolution is liable to be punished with imprisonment (…) The same penalty will be applied to any person who publicly insults the legislative, executive or judicial authorities or any of their members during or in connection with the execution of their duties, or who insults the emblem of the state or its flag."
The amendment simply adapts the existing repressive law to the new political context. It seems to be saying that freedom of expression will not be guaranteed in the new Libya any more than it was under Muammar Gaddafi.
Reporters Without Borders condemns this amendment as a direct attack on fundamental freedoms, especially freedom of expression and information, which are guaranteed by the Libyan Constituent Covenant of 2011 and Libya's international treaty obligations, and calls for this article's withdrawal from the penal code.
It violates article 14 of the Constituent Covenant, which says: "The state shall ensure freedom of opinion, freedom of speech for individuals and groups, freedom of scientific research, freedom of communication, freedom of press, media, printing and distribution, freedom of movement and freedom of assembly, demonstration and peaceful sit-in so long as it is not contrary to public order."
It also violates international treaties and conventions accepted by Libya, including the International Covenant on Civil and Political Rights, article 19 of which says:
"(1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
Reporters Without Borders points out that, in its General Comment No. 34 on article 19, the UN Human Rights Committee said, "a general reservation to the rights set out in paragraph 2 would be incompatible with the object and purpose of the Covenant." It added: "The Covenant does not permit general prohibition of expressions of (…) an incorrect interpretation of past events."
As well as criminalizing criticism of the 17 February Revolution (which toppled the Gaddafi dictatorship), the amendment also criminalizes insulting "the legislative, executive or judicial authorities or any of their members" and "the emblem of the state or its flag."
The ability to criticize or be disrespectful towards a government and its leaders is nonetheless essential in a free and democratic society. General Comment No. 34 says: "The mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties."
Insulting public figures should be regulated in accordance with paragraph 3 of article 19 of the International Covenant on Civil and Political Rights, which says that freedom of expression should be restricted only if necessary for "respect of the rights or reputations of others" or for "the protection of national security or of public order, or of public health or morals."
Insulting a public figure should be the subject of judicial proceedings only if the rights or reputation of the person concerned are affected. And, as such, it should be treated as a case of defamation, which – according to the UN Plan of Action on the Safety of Journalists and the UN Human Rights Committee – should be decriminalized.
General Comment No. 34 says, "imprisonment is never an appropriate penalty" for defamation or insults. The jail sentences provided for by the 5 February amendment (3 to 15 years) are moreover clearly disproportionate.
Two weeks before passing the amendment, the GNC issued Decree 05/2014 "On stopping and banning the broadcasting of certain satellite TV stations." It ordered the foreign, communications and information ministries to "take the necessary measures" to prohibit the broadcasting of any satellite TV station whose programmes criticize the "17 February Revolution," destabilize the country or promote internal dissent.
Reporters Without Borders reacted to the decree by condemning it as draconian and calling for its immediate withdrawal.
Libya's executive, legislative and judicial branches must work together to establish a true democracy that respects internal diversity and pluralism of opinion and promotes the fundamental freedoms of its citizens instead of legislating in their own interests. In every democratic society, the authorities must accept different opinions and criticism, which build and forge a public debate and, by their nature, are in the general interest.
As Libya prepares to begin a key stage in its transition to democracy, namely, the drafting of a new constitution and the creation of a new social contract between the state and Libyans, the freedoms enshrined in the new constitution must not be eviscerated in advance by other legislative provisions.
The constituent assembly's future members must establish firm guarantees of freedom of expression and freedom of information, and must take great care not to allow draconian legislative provisions such as those adopted on 5 February to sweep these freedoms aside. There should be a direct, enforceable requirement for the state, non-state actors and all other parties to comply with these guarantees.
Libya is ranked 137th out of 180 countries in the 2014 Reporters Without Borders press freedom index, a fall of six places from its ranking in the 2013 index.<br/>