The conviction of longtime political activist Jamal Haji and his quick sentencing on December 31, 2013, has divided Libyans and brought up accusations against the judiciary of selectivity, muffling voices and combating activists.
The Tripoli Criminal Court convicted Haji and sentenced him to eight months imprisonment with hard labor for defaming the Minister of Foreign Affairs Muhammad Abdulaziz, head of the National Forces Alliance (NFA) Mahmoud Jibril, head of the NFA Steering Committee Abdulmajeed Mleqta, and owner of the Alassema Channel Jumaa Usta.
The conviction of longtime political activist Jamal Haji and his quick sentencing on December 31, 2013, has divided Libyans and brought up accusations against the judiciary of selectivity, muffling voices and combating activists.
The Tripoli Criminal Court convicted Haji and sentenced him to eight months imprisonment with hard labor for defaming the Minister of Foreign Affairs Muhammad Abdulaziz, head of the National Forces Alliance (NFA) Mahmoud Jibril, head of the NFA Steering Committee Abdulmajeed Mleqta, and owner of the Alassema Channel Jumaa Usta.
Haji’s bail was set at LYD 300 (US $242) pending the appeal. The court also ordered him to pay LYD 100,000 (US $80,600) for each of the four plaintiffs as compensation for moral damage as well as to cover the trial costs of all the plaintiffs.
Defamation claims
Plaintiffs filed a lawsuit against Haji on March 24, 2013 for defaming them and leveling accusations of treason against them.
In defense, Haji said his accusations were based on a letter he received from Libya’s former ambassador to the Vatican, Muhammad Eribi, in which he talked about a secret meeting held in Rome in January 2013, bringing together all the four plaintiffs in addition to Libya’s representative to the United Nations Abdel Rahman Shalgham, Director of the Malta-based Mediterranean Airlines Abdurrazzaq Azmarli, and Libya’s former ambasador to Italy Hafez Qaddour.
In a comment he published on his Facebook page following the verdict, Haji explained that he became suspicious about the meeting given the nature of its attendees as well as its place and confidentiality. “Qaddour was so close to Gaddafi’s family and he cost the Libyans too much. The link between the attendees at the meeting is their relationship to the Libya AlGhad Program led by Saif al-Islam Gaddafi and with Gaddafi’s family. Jibril was an advocate of the Constitution and of bequeathing Saif al-Islam the country’s rule and Jumaa Usta is a former colonel at the External Security and was head of the General Union of Chambers of Industry and Commerce under Gaddafi,” wrote Haji on his page.
Failing to apologize for what he said, Haji asserted that all these considerations prompted him to participate in a TV program on Libya Alwataniya Channel and give an account of all the accusations Eribi mentioned in his letter. In addition, Eribi was a witness in the case and he referred to his testimony in a program on Libya Rasmiya Channel.
Accusations against the judiciary
The verdict has given birth to much debate on social networking websites and TV channels. Some support the verdict, deeming it a righteous victory and a great deterrent, saying that wrong doers should be held accountable, since no one is above the law and that all should accept the verdict showing sportsmanship with a high national sense. Others oppose the verdict and underline that dozens of media professionals, individuals and bodies have done and said much more than what Haji said; however, the lawsuits filed against them months ago have not yet been decided and that the court’s conduct was selective and a mere settling of scores among political rivals.
“Until we have an impartial judiciary able to investigate the files of the former regime and its leaders, Gaddafi’s leaders will remain accused as officials and partners of betraying the Libyans and destroying Libya,” said Haji following the verdict.
Muhammad Toumi, lawyer for the four plaintiffs says Haji accused him in the court room of betraying his country of “defending traitors”.
“In Libya, your patriotism is directly proportional to to the speed of your trial and conviction,” says activist Taha Zawi, questioning the integrity of the judiciary given the quick trial of “an outspoken opponent of Gaddafi and former political prisoner Jamal Haji, and the slowed trial of the former regime’s cronies.”
“Cases of a personal nature, like defamation, insult, slander, humiliation, etc. are classified by the judiciary as urgent and should not be adjourned for long periods. They are examined even during the judicial vacation. And when a defendant uses all ways of adjournment, the judge has but to set a date for the trial as soon as possible, and this is what happened in Haji’s case,” says Taher Zarrouq, a media professional and human rights activist. “I trust the Libyan judiciary and its integrity and believe that most of its employees are honest, patriotic and loyal. Justice is a two-pan balance; while some consider the verdict harsh, others deem it fair and just.”
“The judiciary has decided the case and those affected should have recourse to legal redress proceedings,” he added.
Freedom of media and responsibility
“Only very few types of speech offences should be criminalised. These include words or images that would clearly and imminently endanger the rule of law, society’s peace, or the safety of individuals: for example, incitement to violence, calls for discrimination, or distribution of child pornography. Speech that merely shocks, disturbs or offends should be dealt with in the civil-law courts. The same applies to speech that infringes on privacy, insults dignity or defames honour,” says Miklós Haraszti, the Representative on Freedom of the Media at the Organization for Security and Co-operation in Europe (OSCE) in the 2008 Media Self-Regulation Guidebook.
“International bills of human rights do not protect media outlets of any type from prosecution when they commit any criminal offense. The law determines the punishable crime and the punishment in accordance with the indictment bill and the evidence, and the judge has a discretionary power to determine the appropriate penalty,” says Justice Mustafa Nu’aymi. “Media may not comment on inconclusive court orders in a manner that defames the judiciary because they would suddenly find themselves in the dock.”
“Media professionals, political observers, authors and activists often commit an act considered a crime by the law through publishing a report offensive to people protected by the law ex officio,” he believes.
When asked about the abolition of imprisonment in defamation cases, lawyer Rida Farjani said: “This first requires changing the criminal policy of the legislature and then raising awareness. Under the current misunderstanding of democracy and freedom of opinion and expression, it is inevitable to retain this punishment.”
Jurisprudent in constitutional law Dr. Massoud Kanouni concurs with Farjani’s view, saying: “According to the Libyan law, the punishment of defamation which could be a misdemeanor or a felony can be as severe as imprisonment. Only the legislature could amend these laws inherited from the Italian era. Human rights activists and civil society organizations should demand the legislature amend these laws so as to be in line with democracy and freedom of the media.”
Expression-restricting laws
Haji’s trial is not the only case of freedom of expression. It was preceded by the trial of journalist Amara Khatabi who had accused a number of judges of corruption, in addition to the trial of both Ali Tekbali and Fathi Saqr who published a caricature under the Libyan National Party’s electoral campaign in the 2012 elections to the General National Congress (GNC), which was considered by the plaintiffs “blasphemous and offensive to Islam.”
While many, including Haji, demand the GNC issue repressive laws violating human rights, like the Political Isolation Law, only few activists call for reforming the laws inherited from the Gaddafi’s era and before, which might be used to suppress freedom of speech, intimidate critics or muffle the voices of those who want to open corruption files.
Article 262 of the Libyan Penal Code provides for penalties that can reach life imprisonment against anyone who accuses someone else of a crime even though s/he knows that that person is innocent or tries to frame him/her. Article 439 provides for punishments that can reach two-year imprisonment against anyone who defame others, especially public figures. Article 220 stipulates that anyone who publically defames the president of another country shall be sentenced to five-year imprisonment. Many articles provide for penalties for offending civil servants, administrative or judicial bodies, religions, sacred items and even corpses.
Lawyer Wa’el Ben Ismael says many articles of the Libyan Penal Code, including articles 195, 203, 207, 291 and 318, impose penalties that could reach execution for crimes related to the freedom of opinion, but they in fact violate the Constitutional Declaration and the international conventions on freedom of expression. “The superiority of the international conventions over the internal law should be stipulated,” he added.
Contradictory to international conventions
No international human rights organization has issued a statement regarding the verdict in Haji’s case. Human Rights Watch and other human rights organizations however had already issued several statements demanding that countries protect freedom of expression as defined by the United Nations Commission on Human Rights (UNCHR) through abolishing all defamation-criminalizing laws, dealing with such offenses in civil-law courts with penalties of fines only, and enacting more tolerant laws of criticisms leveled against officials.
In its 2011 general comment on Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the UNCHR, the authority responsible for interpreting the ICCPR, says the right to freedom of expression protects opinions that could be deemed offensive to or harming the adherents of a specific religion unless the text containing such opinions “incites hatred on national, racial or religious basis, which shall in such case be considered an incitement of discrimination, hostility or violence.” The comment also reads: “States parties should not prohibit criticism of institutions.”
