Libyan Legal System - Research Proposal Example

Statement of the problem Libya has been plagued by various issues that have been repugnant to the attainment of the required levels of democracy. Traditions and norms applicable in the region have affected the nation in such a manner that the majority of the people have turned out to be less receptive to the attempts to align them to the international standards of human rights1. The tradition of the people living in Libya has also been of great influence on the delayed development of the justice system that is both effective and applicable2. It is impossible for one to look at the traditions of the Libyans without looking at the religious effects on the human right systems. Lack of a centralized system for dealing with the civil issues has also been a major source of deterrents to justice. The debate on the relationship that exists between the Sharia laws and the national laws in Libya is only new to the post Gadhafi period. The only difference now is that it gained momentum after the revolution as a result of the increasing legal and political importance of Sharia laws on the county3. There are a lot of instances where the importance of the Sharia laws has been seen both in the Gadhafi era and the post Gadhafi regime4. The major one after the revolution however is the Constitutional Declaration that was issued by the interim National Transition Council (NTC) stating that the Sharia laws remain the principal source of legislation in Libya5. In another speech in October 2011 the NTC President went ahead to declare that any law in the county that violates the Sharia laws was suspended with immediate effect. These included the laws that had been put in place restricting the practice of polygamy and allowing women to own certain kind of properties6. The announcement further indicated that the county would only use Islamic banking where usury will be banned in the county. This is a clear indicator on the importance that the Sharia was in the post Gadhafi Libya. The paper will also focus on the efforts being made to ensure that the legal system in Libya is more effective. It will also present an array of solutions that can be used in the creation of a more effective legal system that has wide acceptance in the country. Specific objectives The main objective of the paper is to outline the major flaws in the Libyan legal system that emanate from the cultural and religious influences. The paper will look at the individual issues that come from the poor and retrogressive traditions applied in Libya that act as major deterrents in the attainment of justice7. Traditional influences are the conventions of the people that may be accepted but not necessarily just. Therefore, the people may end up subscribing to civil procedures that are redundant and repugnant to justice. Religious influences have had significant effect on the people such that the alignment of repugnant practices with the religion makes them acceptable to the majority of the people. The fact that Libya is an Islamic nation makes the religious practices to be widespread. The paper will work at pointing out the practices whether customary or religious that is deterrents to the attainment of a just society. The paper will also go further to enumerate the instances when the said practices affected the justice delivery according to the international framework for justice. The paper also aims at pointing out the main disparities that exist in Libya compared to the international legal practices8. This will be done by focusing on the instances when the government practices have been openly criticized by the international human right bodies. The paper will look at such instances in the Gadhafi era as well as the post Gadhafi period. this particular analysis will be critical in the development of an understanding of the predetermining factors that affect the civil procedural law in Libya that are beyond the control of the regime. The paper will offer a set of solutions that can be implemented for the reduction of the disparities in the delivery of justice. These suggestions will be made with the religious and customary practices of the Libyans in mind. It will also consider the universal applications on human rights and justice delivery that the country subscribes to. Significance of the study Significance of the study (On 3 dimensions) Dimension 1 Law is applicable in different contexts; this is the reason why it is hard for the scholars to come up with a succinct definition of what law really covers. Therefore, the study will be instrumental in understanding the context in which the Libyan law operates. The understanding of the context will help the users of the information presented in the research develop the requisite level of understanding of the predetermining elements that make the people receptive to the law even when it is oppressive9. The study is also important in the creation of a bulk of knowledge for the understanding of the Islamic law practices. The study will also develop an understanding to the reader and the researcher of the major causes of the degrading legal policies and what makes them thrive in the modern society. Dimension 2 It will also touch on the extent to which the international law and conventions may be applicable in the development of the right legal practices that display the most basic respect to the people. This study will also form a basis for further research on the matter with the view of changing the legal practices in Libya that draw from old cultural practices. The fact that the country has been under the rule of Gadhafi for 42 years is also important with the majority of the rules and conventions in the country being under the control of the regime. Regime change may have had an effect on the political prescriptions of justice but there are instances when the customary practices that are more entrenched in the nation’s still perverse leading to the creation of the regressive legal practices. Dimension 3 Another way of looking at the issues of the customary practices is by looking at the people that were affected by the spring. The spring mainly affected two types of people. The first class of the victims that may demand justice is the presumed Gadhafi loyal that lost significant property and in some cases life during the spring10. The customs of the people at the time of the spring leant towards the incapacitation of the presumed loyal by destroying their property. Most of the loyal also found themselves losing even the more permanent property such as land. Therefore, this study will seek to shed light on the general customary and religious practices that have enabled the vices evidenced today to pervade. Dimension 4 The other dimension to be looked at is the legal pluralisms in Libya. Libya has basically operated with two legal systems. The country has had a constitution which has been used in determining some aspects of the property rights while in other cases Islamic laws have taken precedence. This has at times created conflict since none of the two legal systems clearly defines property rights in the country. The legal system during the Gadhafi era was basically controlled by the government and it tended to avoid making judgments that could put it in awkward situations with the government. This control could be seen by the then president making declarations such as the one allowing the Libyans to marry second wives without the consent of the first wife. This declaration was basically on the basis on the religious laws. When cases touching on those issues came before the Supreme Court, the judgments were made as per the decelerations of the president rather than the laws of the county. The post Gadhafi Libya however is still under this same kind of legal system with both the customary and religious laws as well as the constitution being used. The county remains a predominantly Islamic law ruled country and the rebirth of democracy and access to justice has been hindered by the retention of the mindset of revolutionary legitimacy. There has been little accommodation to different ideologies on terms of the religious and customary laws and the importance and application of the Sharia laws in the country. This has however been attributed to the decades of authoritarian rule in which legal pluralism was the order and any forms of political competition was restricted and even unknown in some areas. The state institutions like the courts have over the years been seen as bureaucratic entities .The legal systems and structures are seen and viewed as institutions where conflicting interest on property rights cannot be mediated and this has really affected the entire justice system of the country, both during the Gadhafi era and after the revolution. Research Questions In order for the paper to effectively address the issue of the property rights and the influences of the customary as well as religious practices on the effecting of the property rights of the people in Libya both in the Gadhafi era and the aftermath of the Arab spring. What are the key customary and legal issues that affect the tenure system in Libya with special focus on the women, youth and other disadvantaged members of the society and what are the sources of system failures that perpetrate these practices? What is the way forward for the nation in the aftermath of Gadhafi ouster given the existence of various conflicting approaches to the property right law and the ever flowing and undirected donor funding of the process? How does the government plan to address the mounting and conflicting tensions on the property rights given the increasing feelings of entitlement in certain factions of the society over some of the rights since they feel that they actually earned the right to the property after their involvement in the spring? What are the areas of low performance in the legal system that affect the effective creation of the right approach to the private land rights with special consideration on the effect of the policy making machinery on the property rights? How can the transitional government identify these major areas of concern and put in place effective measures that will help in boosting the performance of the legal system so that there is effective creation of right approach to private land rights? How has the importance of the Sharia laws changed over the years in Libya and what effect has the change in the importance of the Sharia laws has in the dispensation of justice in the country? How do the Libyan courts decide on when to use the Sharia laws or the constitution of the county when handling legal cases that concern the women, youth and other disadvantaged members of the society having in mind the fact that the country has witnessed legal pluralism for a long time? What impact does this have on the entire justice system of the country and on the individual property rights? How does the government plan to address the issue of former land owners whose properties and land was taken away from them by the state and given to the landless Libyans taking into account the fact that some of the former owners have turned to threats and violence to forcibly evict the current occupants of the land that they lost to the former regime? What are they plans that the government have in dealing with the individuals who have taken control of land and property to which they had no rights or were disputed having in mind that the country does not have effective local government to protect individual property rights? How has the transitional reforms in the legal system of the county and the declarations of the NTC on Sharia laws affected the performance of the courts especially in protecting the individual property rights? Do the Sharia laws which the transitional authority has declared to be the principal source of legislation in the country ensure that the property rights of all Libyans including women and the disadvantaged are protected? What measures have been put in place by the NTC to ensure that this is possible? Considering the fact that of Libya has the greatest distance to travel among North African countries towards pluralistic democracy, what measures have been put in place to help fast track this? How will the measures that have been put in place affect the individual property rights that have over the years been neglected and infringed due to the authoritarian rule that has been in place for over 40 years? Will the Sharia laws still play the most important part in the protection of the individual property rights especially among women and the disadvantaged Libyan citizens? The above research questions will be integral in the creation of an understanding of the legal systems in Libya and the barriers to the attainment of the required or desired land rights. The research questions are not exhaustive hence the need to expand them in the course of the research to accommodate the contingencies. The research will be conducted in a contextual manner with modifications on the research questions being made to suit the understanding and interests of the respondents. Research Methodology The research will assume both a primary and secondary approach. The majority of the research activities will be carried out in the field with the need of first hand data being observed to maintain currency and relevance of the data. The main data collection methods that the research will use include interviews both structured and unstructured, focus groups and questionnaires. The data analysis approaches that the paper will use includes correlation and regression analysis. These are the approaches that the research will use for the quantitative research. The research will also assume a qualitative analysis approach. This is the approach that will be used to assess the quality of the information provided. It will be conducted as an addition to the quantitative research. The data will be presented in forms of reports and statistical summaries such as pie charts and bar graphs. However, the main data presentation approach used in the research will be by the use of reports. Sampling Given the economic constraints of working with a large sample, the research will focus on the development of the most optimal sample. This research will, therefore, be based on a sample size of 500 respondents. This sample size will help in attaining the vital data that is required to effectively answer the research questions that have been formulated. The research will be undertaken within the scope of two years. 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