The Constitutional Court in the Draft Libyan Constitution of 2017

Abstract

Modern states aim to establish the rule of law, thereby upholding the principle of legality, which, in its simplest sense, requires lower legal norms to adhere to higher legal norms, namely the constitution. To achieve this, the existence of an impartial and credible judicial authority is essential, tasked with ensuring respect for the constitution. This authority is the Constitutional Court, considered the ultimate guardian of the constitution. Libya, like other nations, has embraced judicial oversight of the constitutionality of laws, a principle enshrined in its constitutional frameworks since its independence in 1951. Initially, constitutional oversight in Libya was exercised by a chamber within the Supreme Court, and this approach has remained in place to this day.

However, following the events of February 2011, the Constitutional Declaration assigned the task of drafting a new constitution to a special committee. This committee was tasked with creating a constitution that meets the aspirations of Libya’s transitional phase.

The committee approved a draft constitution that included provisions for establishing a financially and administratively independent Constitutional Court. This court would be responsible for overseeing the constitutionality of laws and international treaties and monitoring the actions of public authorities to prevent abuses of power among them.

Despite the inclusion of this court in the draft constitution yet to be enacted at the time of this research some of its provisions are characterized by deficiencies and ambiguity.

This has necessitated a thorough study and analysis of the Constitutional Court as proposed in the Libyan draft constitution, comparing it to the Constitutional Court established under the Tunisian Constitution of 2022.