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Written by Alrassed Alliby Editor
15 Apr 2013 3:57 pm
professor Elmadani Bataiwarat appealed the guarding law

professor Elmadani Bataiwarat appealed the guarding law

We note that in recent times especially appeared a lot of statements and counter-statements and were tarnished some of the legislation related to the transition phase in Libya, and the flow of a stream of hasty legislation conflicting with the fundamental freedoms and human rights and much of which has nothing to do with the transition phase or was supposed to appear a long time ago in order to achieve the desired goal, which is protecting the interests of the Libyan people.

Seems that the end of the transition phase is ending and we are at the gates of the elections of the national committee may push by who are with special interests, which totally contradict the interests of this great nation, whether local or international.

(It’s a Chance for whoever want to win, this race has begun sadly since the Liberation and distribution of jobs, positions and tasks to the sound of self-interest and political relatives)

Wiseman said what do we need the wisdom for, these days (look for the man the "humanbeing" under the power), here's power in its broadest sense. And the wisdom requires moderation and stay away from reactions and exclusion and revenge. Wisdom requires the submission of national holders and efficiency and the ability to exercise the role and stay away from who pretend the efficiency and cheap compliments , as doing the opposite has often led to obstructive negative results and even damaged what was built of the pros and correct things. And wisdom also requires consideration of long term coz We are permanent partners in this country and both of us have duties and have rights. And finally wisdom requires no new opportunities for injustice as Preventing injustice in all its forms, and so must stay away from the arbitrary charge of individuals and groups and tribes without evidence and impartial investigation and a fair trial, this legal approach is the only thing to prevail. And assure that we as libyans we have agreed through the law of transitional period and national reconciliation and amnesty law and to confirm this legal approach, not to tolerat for whose hands are full of Libyans blood and have tortured the Libyans and embezzled the funds and food of the Libyan people, but this all was legally and nothing else.

Here as a lawyer warn the valued citizens (as my predecessors of Honorable colleagues of jurists and lawyers and all honorable patriots), and to maintain the revolution, that certain laws and accessories of the non-national Council recently is ambiguous and with a clear breach of the Declaration of Constitutional freedoms and the rights guaranteed to the Libyan people and the laws of the transition phase which We have agreed on, and here we want to give, an example, the most important constitutional appeals on law No. 16 of 2012 on the management of the funds and property of certain persons issued on2/5/2012, where Article 25 states that it runs from the date of issuance and shall be published in the Official newspaper and in various media and with extension table included the names of more than three hundred people and here are the most important constitutional appeals.

The Law in texts and a table:

First appeal
The Guarding or prohibition from acting in comparative law and jurisprudence theme Gul the owner’s hands of the disposition of the misappropriated funds from the state without legal basis and which constitute as a crime under the Criminal Code. This procedure is the role of the legislature in which only required controls and standards to be followed and to refer the matter to the executive branch represented by the Minister of Justice to refer the matter combined with the information and evidence to the Public Prosecution, led by the district Attorney to open an investigation into the matter and make sure about the relevant clues to prove that the money required is subject to the conditions of legal guard. For this last matter to investigate duly and the prevention of conduct that had replaced the money from suspected source, either directly or requested by the court ,so adding the names toan attached table with the law without investigation and absence for the accused, without making sure of the seriousness of the evidence,this approach is contrary to laws in Libya and elsewhere, which is a defamation through the media for all these people and their families and this contradicts totally with the constitutional rule that the origin of things is innocence and with international conventions and human rights instruments ratified by the Libyan state.

The second appeal of the first Article of the impugned law
(placed under the management of the Guard,the funds and property of the persons mentioned in the table attached to this law as well as the funds and property of husbands and sons of natural persons of them). What cameat the first article of the law replaced the appeal and crammed wife and adult children with the name contained in the table attached is a clear violation of the principles of law and the provisions of the Islamic Sharia as the essential source of legislation by the first article of the Constitution in Libya. As the wife and adults children have their independent financial disclosure and therefore can not be compromised by virtue of the relationship that bound them with the husband or father penalties or personal measures act.

The Supreme Court has established this principle since the dawn of its founding, where it ruled that the crime can not afford representation at trial and punishment tolerate representation in implementation. And the application of that text on the launch may even include a married daughter.

As stated in Article I, paragraph 2 (it’s allowed with a decision of the Council of Ministers to be added to the table any money or other property believes to be subjected to guard). Where delegated this paragraph, the Council of Ministers to add people to the table without presentation to the transition non-national Council. This approach, is contrary to the principle of separation of powers stipulated by the Constitutional Declaration, which leads to segregation in the legal tools and equality under the law included in the list provided by the Board transition and those listed by the Council of Ministers.

Third appeal
The eighth article of the law confiscated the right of persons mentioned in the first article to resort to the judiciary.It states (not permissible for any person referred to in the first article to raise any civil or commercial suit infront of any judicial body in Libya not to follow up on a pending case infront of the mentioned authorities if this lawsuit is related to funds owned by guard) This provision violates the rule of the article thirty-three of the Constitution (litigation is sacrosanct right and guaranteed to all people, and every citizen has the right to resort to the courts, and the State guarantees the speed of the disposition of cases). The text of the impugned is contrary to the decision of the Libyan Supreme Court in ruling sober (The closure of the door of litigation without any citizen, is contrary to both the constitutions of the world in written and unwritten texts, in its concept and in spirit, that if any written constitution doesn’t include the text on the right of every citizen to resort to court at which he has the rights of the defense, this rule is derived from orders of the Almighty and the natural human rights) a constitutional impugned No. 1 for the year 14 ,6/13/1970 session.

the fourth appeal of Article 14
(all the persons referred to in the first article of the law, must deliver the money and property that applies on it the provisions of this law to the guard ..... etc.) and here we wonder about which money they mean, are the funds specific and well-known among those to ask them under the pain of punishment delivered and where the evidence based of the claimed.
fifth appeal of Article 7 of the impugned law .

Invalidated all actions that occurred on the property of the persons mentioned in the first article since February 1, 2011 until the date the law get into force. This is consequent to destabilize legal centers and compromising the rights of others retroactively and this is not permissible.

Sixth appeal
The rush of the Governor of the Central Bank of Libya at the same date of the issuance of the law on 2/5/2012 squatters and the freezing of personal current accounts although the addressee in the law is the general guard who was not named yet. with the difficulty of applying articles 16,17 of private law and that the law did not specify the terms of the guard!.

Accordingly, this law as a whole suffers from serious defects far from just a prevention report from the act or Guarding in their legal frameworks.
The law lacks to justification for the year of its released as the legal system in its civil, criminal, administrative and international force includes numerous texts are sufficient to ensure that the judicial authority exercise the procedures established by law replace the appeal thus entrusting Guarding adviser given by the Council of Ministers or the Minister of Justice is aspersion to the inherent jurisdiction and The anti-judicial bodies. Accordingly, the text of the eighth Article of the Act explicitly violates the principle of separation of powers and Article 32 of the Constitutional Declaration (and judicial authority is independent handled by in the courts of different kinds and degrees)

In conclusion, in order to consolidate the rule of law and justice and the protection of rights and freedoms I invite affected honorable listed in the table, to appeal the unconstitutionality in front of Constitutional Chamber of the Supreme Court as this is what is left for those involved in the entrance of the legal lifting injustice from them, given that the Act may closed all legal entrances!.

And in the end, with the words of God Almighty, the name of God the Merciful (O you who believe! If a rebellious evil person comes to you with a news, verify it, lest you harm people in ignorance, and afterwards you become regretful to what you have done)

D. Elmadani Abu Ataiwarat Ramadan

Faculty of Law / University of Tripoli Thursday, 05/24/2012