The Legislative Role of the Libyan Supreme Court
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Abstract
As the Supreme Court stands at the apex of the judicial hierarchy, its primary role is to ensure the proper application of legal rules to protect the rights of individuals. Therefore, its core jurisdiction remains judicial in nature, aligning with the principle of the separation of powers. However, this study addresses the "legislative jurisdiction of the Supreme Court," often referred to as its shadow jurisdiction, based on Articles 153, 155, and 158 of Libya's 1951 Constitution, as well as Articles 15, 17, 28, and 31 of Law No. 12/1953 establishing the Supreme Court and its subsequent amendments.
Under these provisions, the Supreme Court has been granted significant authority to regulate its internal operations, which has become the cornerstone of its work. Additionally, it has been entrusted with the interpretation of legal provisions, including constitutional texts in cases of disputes among the parties, thereby assuming the role of a legislative judge. In certain cases, it even acts as a foundational judge when it comes to the authority to provide binding interpretations of constitutional provisions, serving as the "judicial source of the Constitution."
Nevertheless, the exercise of this jurisdiction by the Supreme Court can lead to outcomes that may be characterized as positive. This is particularly true when viewed as part of a collaborative role between the legislative and judicial branches, with the Supreme Court at the top of the hierarchy. This collaboration helps fill legislative gaps and safeguards human rights and freedoms through the establishment of judicial principles that carry binding authority for all.
On the other hand, these effects can also be viewed negatively when seen from the perspective of their conflict with the absolute application of the principle of separation of powers. Such a role might be perceived as encroaching on the legislative authority's functions or as being influenced by the specific circumstances and needs of the Court itself.