Interpreting Lebanon’s Law Against Domestic Violence: Jurisprudence as Legal Reform

2014-06-30    |   

Interpreting Lebanon’s Law Against Domestic Violence: Jurisprudence as Legal Reform

Following a drawn-out women’s rights campaign, the Lebanese parliament ratified the Law on the Protection of Women and Family Members Against Domestic Violence (LADV) in April 2014. On May 31, the first judicial ruling made on the basis of this law was issued. Details of the ruling reveal that Beirut Summary Affairs Judge Jad Maalouf did more than just apply the provisions of the law. He also played a pioneering role that led to filling the legal gaps in the law and correcting its most prominent shortcomings, including the very definition of violence.

Domestic violence, Maalouf argued, is not restricted to those forms of violence specifically mentioned in Article 2 of the law.[1] Rather, as per Maalouf’s ruling and its interpretation of this article, domestic violence includes other forms of violence that were not mentioned in the law at all. Chief among those are forms of non-physical violence, such as verbal abuse, humiliation, confiscating a person’s identification documents and mobile phone, or preventing them from leaving the house.


The problematic issue of the definition of violence included in the law was raised by this author in two previous articles, showing how legislators had introduced a core amendment to the bill referred by the Council of Ministers. Such an amendment restricts the definition of violence to those acts listed by the law as crimes, thereby excluding all other forms of violence. Most prominently, it excludes non-physical violence and the harmful acts it involves, most of which draw their legitimacy from some of the most deeply entrenched patriarchal traditions. Such traditions include forcing girls to marry, or preventing women from leaving the house. It might be noted that legislators justified their approach by arguing that emotional distress would represent a very loose definition of violence. As such, it could potentially lead to absurd consequences, such as husbands suing their wives for emotional distress for withholding sex from them.


Against the backdrop of such legislative manoeuvring, Maalouf’s ruling turned the definition of violence on its head. For women, women’s rights groups and the general public, the ruling was a reassuring message about the judiciary’s ability to respond to many of their reservations or fears regarding the effective ability of LADV to protect women. At its core, such a message resonates with the messages judges had been sending before the law was passed. For instance, they had declared their adherence to a set of principles, such as the principle of personal safety being above all considerations.[2] They had also taken public stances declaring their resolve to protect women from non-physical violence, or proclaiming it a judge’s duty to create jurisprudence to ensure effective protection in this regard.[3]

In the case before Maalouf, the plaintiff filed a request with the summary affairs court for protection for herself and her eight-month-old infant daughter from marital violence. Beirut public prosecutor Bilal Dennawi had previously issued an arrest warrant against the plaintiff’s husband. This was based on a police investigation which concluded that the man had beaten and inflicted harm on his wife, as well as threatened her and tried to kill her. The wife had been informed that she could file a request for protection. After hearing the statements of the plaintiff and of her husband’s brother, it became clear to Maalouf that the man also used to verbally abuse his wife and prevent her from leaving the house, except for a few hours per month. In his ruling, Maalouf also referred to the mentions made -in the request for protection- about the husband confiscating his wife’s identification documents and her mobile phone.


A Breakthrough Definition of Violence


Before Maalouf could set protective measures, he had to specify the type of violence that would allow him to take such measures. This is where his pioneering ability to develop the legal text and infuse it with meaning appeared most clearly. Maalouf began by showing that the husband’s act of beating his wife, both bare-handed and with a belt, constitutes domestic violence as clearly stated in the law. He then added that “violence is not just limited to physical aggression. The evidence available in the present case shows that the plaintiff was also subjected by her husband to various other forms of violence, no less severe than physical violence. He abused her verbally, insulted her to her face and humiliated her, in addition to preventing her from leaving the conjugal home except for a few hours per month, without any justification. This constitutes a violation of her most basic rights, which doubtless falls under the definition of domestic violence [my italics] as stated in Law 293/2014. Indeed, what is meant by violence is that which causes psychological harm as well. And one can only admit to the seriousness and severity of psychological harm resulting from restricting the wife’s freedom of movement without justification or verbally abusing her”.


This provision of the ruling clearly illustrates Maalouf’s intention to expand the definition of domestic violence. Indeed, he does not restrict himself to the acts clearly stated in the legal text, but goes beyond them to include, in accordance with the rules of analogy, all acts of equivalent severity. Indeed, it would be absurd for domestic violence to include beating, for example, but exclude continued or repeated restriction from leaving the house and other extreme forms of behavior.


A More Comprehensive List of Protective Measures


Maalouf’s landmark role was not limited to redefining domestic violence, but also extended to the list of protective measures. He sought to add potentially necessary protective measures to those listed in Article 14 of the law, on which the request for protection was based. He did so after mentioning that his role as protector allowed him to take protective measures by virtue of his general powers, as prescribed in Article 579 of the Lebanese Code of Civil Procedure.


Strikingly, Maalouf did not stop there, but also subjected any breach of these new measures, which he himself created, to the criminal penalties stipulated in the Domestic Violence Law, which can reach up to a year in prison.[4] This indicates that Maalouf approached the protective measures listed in the law as merely a list of guidelines, meant to be illustrative rather than restrictive, and that could be expanded at need.

Among the most prominent of these additional measures is that of “[assigning] a social worker to make regular visits to the plaintiff’s home, for a period of six months following the ruling, extendable at need or upon the plaintiff’s request; so that the social worker may verify that the ruling is being properly carried out, provided that [the husband] does not hold prejudice against the assigned social worker”. Maalouf’s justification for this was that the plaintiff might not be able to file a complaint every time the ruling is breached.

As per the expanded definition of violence mentioned above, preventing psychological aggression was included among the newly created measures. These also included “that [the husband] …return the plaintiff’s identification documents, be prevented from confiscating her mobile phone, and allow her to leave the conjugal home”. Such measures complement those clearly specified in the legal text. The latter include: preventing physical aggression; preventing the victims from not being allowed to continue occupying the home; expelling the husband from the home for a week; requiring him to pay an allowance; preventing him from causing damage to the victims’ private property or home furniture; and preventing him from seizing or making use of shared funds. In the same vein, and in order to prevent renewed violence, the ruling required the husband to undergo a rehabilitation program at a center affiliated with the NGO KAFA at his own expense.


Complete Authority to Protect the Children


Another pioneering aspect of Maalouf’s jurisprudence was that of declaring his complete authority to protect the children. The request for protection filed by the wife had been restricted to herself and her eight-month-old daughter. Yet, according to Maalouf, the request for protection permitted him to extend such protection whenever the need arises to any family members who were minors, even if the request for protection did not include them. He based his claim on Article 12 of the law, which stipulates that all those residing with the woman concerned can benefit from the protection provided they are exposed to danger. Accordingly, Maalouf extended the protective measures to another minor: the husband’s ten-year-old son (presumably from a woman other than the plaintiff). In the judge’s view, the boy too had been exposed to violence, having witnessed his father’s brutal treatment of his wife, “which also in itself constitutes domestic violence that causes psychological harm to the family members mentioned”.


Non-Disclosure of Names to Protect the Family


Maalouf also seemed extremely sensitive about protecting the family’s identity in accordance with the provisions of the LADV. The latter prescribes that prosecutions connected to domestic violence should remain secret. Maalouf barred the names of the plaintiff and her husband from being disclosed if the ruling were to be published, or in any situation connected to the present case. In anticipation of attempts to abuse his ordinance, he explicitly restricted its application to cases where public disclosure has no benefit, as might be the case had the victim been a public figure. More importantly, Maalouf also included this non-disclosure rule in the list of protective measures, making its breach subject to the same penalties mentioned above.




The following four conclusions may be drawn:


First, this ruling being the first to apply the newly passed LADV, alerted public opinion to the fundamental role the judiciary can play in addition to applying the law. This role can extend to making its provisions more comprehensive and directing their course, as was the case with the definition of violence. Such a role could allow for overcoming the law’s major shortcomings and the reservations surrounding it. Legislators might remain hostage to their conservative sectarian considerations and produce texts that are truncated or illogical. However, it is the judiciary’s role to create jurisprudence in order to restore consistency between the legislation and the fundamentals of legal reasoning.


Second, judicial action once again proved largely to be in tune with public discourse and the evolution of public consciousness. This only highlights the importance of the success of women’s rights organizations (headed by KAFA), in forcing the issue of violence against women to become a public one. Such success is likely to motivate judges to develop jurisprudence within a climate of broad social acceptance. Under the right circumstances, such an outcome could compensate for the shortcomings of legislation to a considerable extent. Circumstances may not be as favourable if the jurisprudence were to cause strong counter-reactions from conservative forces, or be accompanied by substantial infringement on the independence of the judiciary. Such a scenario would be reminiscent of the strong resistance that faced Juvenile Court judges when they tried to expand the definition of an “endangered child”.[5] It thus seems clear that defending such jurisprudence would require strengthening social readiness to defend the independence of the judiciary against any interference.


Third, this ruling largely paves the way for developing the judiciary’s protective role. This does not apply only to women, but to all groups exposed to physical or non-physical violence as well, most prominently, female domestic workers. A glaring example of this is Maalouf’s focus on the issue of the wife being prevented from leaving the house and having her identification documents confiscated – a situation which thousands of domestic workers suffer from. If it is absurd to exclude such acts, in view of their severe consequences -from being subject to LADV- it is therefore equally absurd for judges to stand idly by while the same acts are systematically perpetrated against domestic workers. One thus hopes that this ruling will lead the way to strategic prosecution aimed at improving the working conditions of such groups.


Fourth, no such jurisprudence would have been produced had the decision to provide protection been left to the Public Prosecution, as KAFA had demanded. Public Prosecution does not enjoy sufficient guarantees of independence due to its hierarchical structure. More importantly, by virtue of the nature of its work and of its powers, it remains unable to create jurisprudence in the manner described above. Fears that women might be subjected to a great deal of pressure to relinquish their rights, while waiting for the decision to provide protection, constitute no argument against this. Indeed, a Summary Affairs judge can issue such a decision on the same day, even if it happens to be a holiday. Meanwhile, strong ties between the influential forces on one hand, and the not-so-independent Public Prosecution on the other may well turn the latter into the primary source of pressure to deter women from demanding their rights and favor settlements. But this is a different matter.


This article is an edited translation from Arabic.


The Legal Agenda will publish an English translation of of Maalouf’s ruling on Thursday, July 03, 2014


[1] Forcing a minor to beg, driving a person to depravity, relying on the prostitution of others, murder, adultery, inflicting harm or making threats in order to obtain marital rights to sex.

[2] See: Youmna Makhlouf’s, “Summary Affairs Judge Perseveres: The Principle of Personal Safety at the Top of the Hierarchy of Lebanon’s Legal System”, The Legal Agenda, Issue No. 15, March 2014.

[3] See: Nizar Saghieh’s, “Lebanese Court Affirms Women’s Right to Protection from Psychological Abuse”, The Legal Agenda website, March 20, 2014.

[4] Article 18 of the law punishes those who breach the protection order with up to three months in prison, a maximum fine worth twice the minimum wage, or both. If the breach also involves the use of violence, the penalty is increased to up to one year in jail and a maximum fine worth four times the minimum wage.
[5] See: Nizar Saghieh’s, “Endangered Child: the Judiciary Consecrates a System Binding for Sects”, al-Akhbar, August 13, 2009.

Share the article

Mapped through:

Articles, Gender, Sexuality and Women Rights, Lebanon

For Your Comments

Your email address will not be published. Required fields are marked *