مواجهة تداعيات ظاهرة المفقودين في ليبيا : العقبات و الحلول بين الفراغ التشريعي و التنوع الفقهي

Abstract EN

Libya has been witnessing waves of person disappearances and missing, in different forms and causes.

The phenomenon of missing persons has many aspects and dimensions and the way the Islamic jurisprudence has dealt with the missing person, his wife, children and belonging etc.

Islamic jurisprudence in formulating the governing rules regarding theses situation was guided with different principles such as protecting the social fabric through preserving the family structure as is the case in the provisions relating to the wife and the children.

Another principle is the management of wealth for the public good of society as is the previsions dealing with the belonging of the missing person.

Since the cases of missing persons in Libya now don’t correspond exactly with those found in the Islamic jurisprudence, we have adopted a number of principles to address the repercussions of the phenomenon of missing persons in Libya.

1-Transmission of the provisions of Islamic jurisprudence to legislative texts in fact or judgment, in order to protect the unity of the legislation and achieve its purposes.

2- The expansion of the legislator’s authority in the provisions of the missing persons, in order to respond to the changes in reality, and we focus on the judge’s authority to lift the state of freezing to the state of missing person, through the duration of the judgment of the death of the missing person.

The shorter the period required to issue a judgment to declare a mission person dead, enables the legislator to overcome the consequences of the situation of loss.

3- The expansion of the idea of preserving the money of the lost to include keeping the wife and children in the meaning of the belonging of the missing one.

4- Protection of the social structure, by resolving the dispute due to the multiplicity of interests between relatives, and the stability of legal positions.

5- Protecting the social structure, by focusing on protecting the wife, as she is the basis for preserving the family structure, and the connection of the children of the missing person to their family.

The problem of applying these principles revolves between the legislative vacuum in dealing and responding to the phenomenon of missing of persons in Libya, the diversity of Islamic jurisprudence provisions, and the inability of judges to employ the provisions of Islamic jurisprudence when confronted with the phenomenon of missing persons.

This was confirmed through the court judgments that we chose as models for the case study Which included four cities: Bani Walid, Misurata, Zliten and Benghazi.

It must be stated here that, the text of the reference contained in the Civil Code to the general principles of Islamic Sharia principles does not replace the legislation; that is why it is necessary for the legislator to intervene to address the repercussions of the phenomenon of missing persons in Libya.

It is important to look into the experience of other countries that have been exposed to the same situation have, and we share it in the source of Sharia for the provisions of the missing, including Egypt, Algeria and Morocco.

In my attempt to examine the issue, I have divided this paper into two parts: first is the provisions of Islamic jurisprudence regarding mission persons, and the second part dedicated to practical reality to identify obstacles and solutions, and ended the research with recommendations.