April 16, 2010

Acquitting al-Haji for criticizing the government was the right thing to do. But Libyans need to know that they can complain to the judiciary or criticize public officials for their performance without fear of arrest or imprisonment.

Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch

(New York) - The acquittal by the Libyan state security court of a dissident charged with "insulting judicial authorities" is a positive sign but highlights the need to end criminalization of free expression, Human Rights Watch said today. Jamal al-Haji, the dissident, was freed on April 14, 2010, after four months in prison.

"Acquitting al-Haji for criticizing the government was the right thing to do," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. "But Libyans need to know that they can complain to the judiciary or criticize public officials for their performance without fear of arrest or imprisonment."

Al-Haji wrote regularly online about sensitive human rights issues such as the government's responsibility in the death in May 2009 of a prominent political prisoner, Fathi al-Jahmi. On September 1, al-Haji told BBC World television: "It is disaster for Libya to have this regime for 40 years. There is no freedom here; there is no democracy. The UK, France, Italy, I don't know why they support this dictatorship. But we will never forget."

His arrest stemmed from a five-page complaint he sent to Justice Secretary Mostafa Abdeljalil on May 24, 2009, about violations of his basic rights, including torture and inhumane conditions, when he spent two years as a political prisoner from 2007 to 2009, and the refusal since his release to allow him to travel abroad. He also criticized Libya's lack of judicial independence, interference by security services in the judiciary, and the arbitrary detention of hundreds of people. Al-Haji had been convicted of "attempting to overthrow the political system" and "communication with enemy powers" for planning a demonstration in February 2007.

On November 5, the general prosecutor summoned al-Haji to respond to a criminal defamation complaint concerning his May letter. On December 8, the prosecutor ordered him detained in Jdaida prison in Tripoli pending trial. On December 9, the office of General Prosecutor Abdurahman Elabbar released a memorandum stating that it had "investigated the allegations in [al-Haji's] complaint and proved that they were untrue and therefore slanderous, which is punishable by law under article 195 of the penal code." That article provides a prison term of between 3 and 15 years for "insulting judicial authorities."

Al-Haji appeared before the state security court on February 17 without access to a lawyer, and the judge adjourned the session until March 3 to allow him to obtain one, Omar al Habbasi.

"Jamal al-Haji's case is the perfect illustration of why the penal code needs to be amended immediately," Whitson said. "The authorities have been promising to present a new draft penal code for years, but now they need to act."

The Libyan penal code includes a number of overly broad provisions that criminalize expression in violation of Libya's obligations under international law. Article 178 provides a life sentence for disseminating information considered to "tarnish [the country's] reputation or undermine confidence in it abroad." Article 174 provides a minimum of 10 years in prison for anyone who promotes "principles or theories that aim at changing the governing system."

A 2009 proposed draft penal code reduces some sentences but retains provisions that violate freedom of expression, including prison terms for offending a public official, insulting the Libyan leader, Mu'ammar al-Gaddafi, or illegally promoting principles with the aim of changing the country's Jamahiriya system of "rule by the people." The restrictions go beyond what is permitted under international law and would perpetuate an atmosphere that stifles free speech and criticism, Human Rights Watch said.

The right to criticize one's government is of crucial importance under international law because it provides a foundation for promoting and protecting many other basic rights against government infringement, Human Rights Watch said.