اجتهاد القضاء الليبي في قضايا المفقود

Abstract

This research examines the Libyan judiciary's diligence to cases involving missing persons. While there are multiple sources governing the rules regarding missing persons in Libyan legislation, this study focuses on the rulings issued by the Libyan judiciary and the interpretations made in cases of disappearance and the consequences of such judgments. The research concludes that the judicial rulings which have declared missing persons as legally deceased have overlooked the issue of a woman's waiting period (iddah), despite it being a matter of public order. Moreover, the juristic foundation for the period within which a judge may rule a missing person as legally dead is originally an issue of independent reasoning (diligence), and there is no impediment to reconsidering and potentially shortening this period in contrast to previous rulings, especially given that what occurred in Derna was unprecedented during the times of the founding scholars of the Islamic schools of thought. Therefore, their rulings and interpretations were not based on similar incidents. Furthermore, the judicial interpretations in determining the period have not deviated from the durations established by the four Sunni schools of thought, even though the Libyan legislator has expanded and opened up to all four Sunni schools and others. It would have been preferable to interpret these issues in line with the legislative approach adopted by the Libyan legislator.
The research recommends that the House of Representatives intervene by adding a legislative provision that makes the Public Prosecution a main party in all personal status cases, as a solution to the current issues, and in line with some Arab legislations that have already established this in their personal status laws.