On March 13, 2017, Summary Affairs Judge in Beirut Jaad Maalouf issued a decision denying a claim to recover possession of a foreign [domestic] worker. According to the ruling’s conclusion, this claim aimed to obtain a judicial ruling to transfer possession of a person, and such a transfer would be absolutely unacceptable because of a number of principles and international conventions; and, because “it would involve considering the person in question to be the subject of an ownership right, which constitutes a form of modern enslavement that the judiciary cannot partake in or protect”.
On February 21, 2017, the plaintiff alleged that his granddaughter –the defendant– had, at his request and expense, imported [istaqdamat] a worker in her name to attend to him at home. She had then taken the worker because of a dispute between them over some real estate. She refused to return the worker to the plaintiff despite his need –stemming from his advanced age– for someone to attend to him at home. The plaintiff justified his granddaughter’s performance of the transactions necessary [to import a foreign worker] for him, on the basis that traveling to the government departments to do so himself was impracticable. He concluded that taking the worker thusly, after he had borne the costs of importing her and paid her wages and accommodation expenses, was a clear encroachment on his rights. Hence, he asked the summary affairs judiciary to compel his granddaughter to return the worker.
Although the judge could have rejected the claim on account of its illegality as the alleged right is obviously illegitimate, he preferred to place the case in its social context in order to send –via the grounds of the ruling– a series of messages to society in general. While these messages are significant because of their assessment and criticism of social patterns, they also open new prospects for the function of the judiciary; they promote its pioneering role beyond narrow adherence to the laws passed by the legislature. From this angle, the grounds constitute an implicit message directed at not only society as a whole but also, and in particular legal professionals, foremost among them judges and lawyers.
Messages Criticizing Social Patterns
The grounds in the ruling show that Judge Maalouf was not content to just place the case in its legal context. Rather, he also placed it in its social context.
The ruling states that the case is “unique” and raises a “key issue”, namely, “the acceptability of a claim whose subject matter is the handover of a human being on the basis of a financial and contractual relationship”. Once the judge had defined the case’s nature, he set about enumerating the legal bases that disallow such a handover. These include the Universal Charter of Human Rights, whose fourth article stipulates that no one shall be held in slavery or servitude, and slavery and the slave trade shall be prohibited in all their forms; and, the International Covenant on Civil and Political Rights which goes in the same vein. To define the concept of slavery included in these two documents, Judge Maalouf had no qualms about adopting the definition included in Article 7 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (which is itself the definition included in the 1926 Slavery Convention, namely, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised), even though Lebanon has not ratified this Convention. Notably, the judge preferred to speak in terms of slavery instead of simply referring to general contract law theory with respect to the legitimacy of the object of contract, or referring to the definitions included in the international protocol to combat human trafficking (the defendant’s attorney Muhammad al-Maghribi raised the point about human trafficking). Judge Maalouf thereby seemed to be sounding a warning that the case revealed a return to the time of slavery which many thought had ended for good, at least in Lebanon.
To give his ruling (or rather his warning) the [social] dimension it deserves, Judge Maalouf sought to place the case in its social context after finishing his examination of its legality. For while the case itself is “unique”, its gravity lies in the social patterns it reveals. In this sense, the ruling implicitly handled the case as a caricature, thereby illustrating the gravity of what social practices and customs toward domestic workers have amounted to and the discrimination exclusively targeting them. Maalouf again referred to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) to show that this is an instance of racial discrimination, as he had done in two previous rulings pertaining to the retention of domestic workers’ identity papers. However, in this ruling he went even further by also approaching the discrimination against such workers as gender discrimination based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for men and women as defined in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Maalouf thereby directed an extremely important critical message to all social groups, especially those that employ domestic workers. This message warned them of the consequences of slipping into racial and gender-based discrimination, namely, the restoration of means of enslavement per the legal definition of the concept. To this message criticizing social patterns, Judge Maalouf attached a reminder of the first article of the Universal Declaration of Human Rights (which we collectively have almost forgotten): “All human beings are born free and equal in dignity and rights, and they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” He thereby seemed to be adding to the message his vision of what society should be like.
New Prospects for the Function of the Judge
In addition to the above, the ruling included grounds with almost revolutionary dimensions and repercussions on the level of the judiciary’s function. These grounds not only approached the matter in its social context and ultimately explored the social patterns and customs that it illustrates, but also developed legal techniques that greatly expand a judge’s leeway to intervene in various social issues and that therefore tilt the principle of the separation of powers in the judiciary’s favor. This approach stemmed from the interpretation of the concept of “state” found in the two key UN conventions, namely, ICERD and CEDAW. The former obliged the state to “modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for men and women” (Article 5). The latter obliged the state to “condemn racial discrimination and undertake to pursue by all appropriate means and without delay, a policy of eliminating racial discrimination in all its forms and promoting understanding among all races [and] to engage in no act or practice of racial discrimination against persons, groups of persons or institutions, and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation [and] not to sponsor, defend or support racial discrimination by any persons or organizations” (Article 2).
What is the state that must perform these two extremely important reformist roles? More specifically, does the definition encompass only the legislative branch, or does it also encompass the executive and judiciary branches in their capacity as constitutional authorities? In the former case, judges must wait for legislations, and work exclusively in accordance with them. This is called the indirect application of international conventions. In the latter case, judges are obliged to apply the two conventions directly via their rulings, which gives them broad leeway for intervention and, in practice, for taking initiatives that curb these two social scourges. Judge Maalouf implicitly answered this question in a manner that relieves “the judge” from facing the binary of the direct versus indirect application of international conventions, and charges him with responsibility for resolving his cases with rulings guided by the principles and guidelines stipulated in these conventions. This he did by expressing his commitment to the essence of the conventions on eliminating racial and gender-based discrimination and, subsequently, to fighting “social prejudices” and stereotypical views in these two areas which implies a broad leeway for intervention and interpretative judgments. By explaining the decision so elaborately, he was able to oppose these prejudices in a manner that rendered the decision of great educational value for the public at large.
Note that this ruling complements the position that the same judge took when examining a case pertaining to freedom of expression, specifically the freedom to publish information about corruption. On November 19, 2016, he issued a decision rejecting a claim that an official in the Ministry of Telecommunications and a private company filed to prevent a media outlet from publishing an investigation suggesting that they are corrupt. Besides mentioning the principles of freedom of expression and warning of the dangers that prior censorship poses to media freedom, the decision referred to Article 13 of the United Nations Convention Against Corruption. This article obliged the state to ensure the participation of people outside the public sector in preventing and fighting corruption, and to ensure the public’s access to information related to corruption; for in some cases that is one of the only effective ways to expose and combat it. Interestingly, the judge justified invoking the aforementioned article on the basis that the judiciary is the “third branch in the state” (which committed to the convention by ratifying it), and that it is obliged in its aforementioned capacity to “implement the obligations arising from the aforementioned convention whenever doing so is within the scope of its powers and whenever the convention did not define the nature of the measure required from the obligated state”.
Needless to say, these grounds are at their core a covert criticism of the stances to the contrary adopted by the Courts of Publications. They also constitute a legal weapon in the fight to expose corruption being waged against the efforts to conceal and suppress.