This article is dedicated to my colleagues in the Lawyers’ Committee for the Defense of Protesters who litigated this case, foremost among them Ghida Frangieh, Mazen Hoteit, and Cherif Sleiman.
On 30 November 2020, Judge Nadia Jedeel issued a ruling to terminate proceedings against 15 protesters charged with rioting and attacking public property (removing barbed wire) during the revealingly named “You Stink” movement prompted by Lebanon’s garbage crisis in summer 2015. The ruling’s dimensions go far beyond the charges alleged before the court. Its content and language were heavily influenced by the 2015 movement as well as the October 2019 revolution and the interplay and repercussions that followed in all aspects of Lebanese public life. The courts were no exception, for how could the freedom to protest and its role in defending society during the 2015 garbage crisis be evaluated in isolation of its role in 2019 and 2020 amidst the crises caused by the financial collapse and the Beirut Port explosion? The ruling is doubly significant because the judge dedicated paragraphs to expressing her conception of the judiciary’s role and its relationship to citizens and the ruling authority. This conception paved the way for her to issue the ruling she deemed most in line with the people’s current circumstances and suffering. It allowed her not only to dismiss the case based on the judiciary’s role in protecting the freedom to protest (which the ruling deems a legitimate right) but also to stress that under the current circumstances, protesting is a duty for every “good citizen” for the sake of defending society.
Judge Jedeel’s perspective is clearly evident from the opening of the ruling’s explanation, which states that, “The judge issues his rulings ‘in the name of the Lebanese people’. Hence, he is not a king sitting atop a throne, far removed from his subjects, living in an ivory lofty tower. Rather, he is the spokesperson of every individual in society (he lives the same pain, breathes the same stench of rubbish, and bears the same economic burdens and crises). Subsequently, he issues decisions derived from the sovereignty of the people so that the people are the judge – a people fed up with the string of crises… that have deprived citizens of the most rudimentary essentials of life, especially in terms of health and the environment”.
The judge appears to have taken advantage of her examination of a case stemming from the current conflict between the social forces and the ruling authority to voice extremely important opinions on the judiciary’s place and role in the conflict, opinions that challenge several stereotypes in this regard. She thereby sent messages to three audiences: a message to judges expressing her conception of the judicial function and, implicitly, the good judge and their role under the current social circumstances; a message to litigants and, through them, the public, aiming to restore their trust in the judiciary (or at least to deter them from painting all judges with the same brush) and urging them to conduct further protests to defend society under the judiciary’s protection; and a message for the ruling regime, which transformed into the case’s real defendant. The last message aimed not only to establish clear boundaries in the relationship with this regime but also to clearly and explicitly condemn it for forsaking its core duty to guarantee citizens’ fundamental rights.
Before commenting on these messages, I must mention that this ruling was issued less than a week after Minister of Interior Mohammed Fahmi stated that 95% of judges are corrupt and, more importantly, the company charged with conducting a forensic audit of accounts in Lebanon’s central bank withdrew because of obstruction by banking secrecy, which the MPs refused to enable the judiciary to lift on the pretext that they distrust it. Hence, the ruling came at a time when the political authority was increasingly hostile toward the judiciary, in parallel with its relentless work to eliminate any chance of accountability.
The significance of these messages becomes more obvious upon examination of the excerpts that the judge included from the pleadings by the lawyers in the case (most of whom are members of the Lawyers’ Committee for the Defense of Protesters). She quoted Cherif Sleiman’s request for not only the protesters to be acquitted but also for a ruling that shields people against the corrupt system governing the country. She quoted Mazen Hoteit’s statement that the revolution’s top priority is to demand judicial independence in order to provide public freedoms. And she quoted Ghida Frangieh’s request that the ruling send a message to combat arbitrary arrests. Thus, the ruling’s content was in tune with these expectations.
The Duty of the “Good Judge”
One of the ruling’s most important messages was, as previously explained, the judge’s declaration of her conception of the judicial function. This message seemed to be directed primarily at judges, calling upon them to think about this conception and be guided by it in their work. In unusual language, the judge tore down two stereotypes.
The first is a traditional conception that restricts the judge’s role to applying the law as enacted by the political authority without any regard for the circumstances of the litigants or society, or the rulings’ effects on them. This perspective is based on a traditional understanding of the separation of powers whereby Parliament represents the public will, and hence makes the social and political choices, while the judge merely applies the norms that Parliament establishes (i.e. the laws) to the particular circumstances of each case and may not voice any opposition to its choices. This conception has appeared in several rulings that deemed the judge obliged to apply the law irrespective of their opinion on it and the injustices it might contain because amendment, when necessary, occurs in Parliament and not in the judicial area. Because of this conception, judges have usually appeared detached from their society and its concerns, and to gloss over the law’s injustices, which enforces a common caricature of judges living in ivory towers.
The second stereotype that the above-quoted paragraph sought to tear down is one expressed by activists on multiple occasions, namely that judges are part and a mere tool of the political regime and what applies to it applies to them per the slogan “All of them means all of them”.
Hence, via her ruling, the judge declared a new conception of judges that, contrary to these stereotypes, renders them part of the people and not the ruling authority. Just as judges shared their suffering of the garbage crisis, they now share their suffering of the economic crises and burdens. Hence, when judges speak in the name of the people, they do not restrict their work to applying the letter of the law per the will of Parliament; rather, they interpret and develop the laws in a manner that brings them more in line with society’s needs and requirements, hoping that these rulings will relieve these concerns and pains. Notably, the judge not only declared the judiciary’s allegiance to the people in its entirety but also deemed that she was issuing her ruling in the name of every person in society. This statement implies a commitment to heed all of people’s concerns and misgivings both when determining the general rules that must be applied and when applying them pursuant to the principle of equality before the judiciary, all without displaying any partisanship, prioritizing any group or majority, or marginalizing anyone. It therefore suggests that the judge’s rulings are based on her deep understanding of the concerns of all people, reflecting their true will and interests without favoritism or discrimination and diverging from the conception of the judge as a servant of the law irrespective of society’s circumstances. In this regard, the judge concluded that she derives her rulings from “the sovereignty of the people so that the people are the judge”, thereby replacing judges’ traditional allegiance to the law and, by extension, whoever enacts it with allegiance to the society in whose name they issue their rulings.
As a consequence of this conception, the judge exploited all means provided by the legal arsenal and principles of interpreting laws to expand the narrow space that the Code of Criminal Procedure defines for freedoms. For example, she gave fundamental rights enshrined internationally – or what is termed “natural and inherent human rights” – precedence over positive laws. She also expanded the concept of a “legitimate right” (in this case to protest against the regime’s lack of accountability), which, under Article 183 of the Penal Code, constitutes an exculpatory factor for an alleged offense. This article has been used twice before to give fundamental or natural rights precedence over positive law texts, namely in relation to refugees and LGBT+ people. Similarly, the judge did not hesitate to invoke the constitutional force of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights to give the rights they contain precedence over the positive law enacted and amended single-handedly by the political authority. She thereby appeared to be supplementing her previous works, particularly in the Court of Publications cases, that in several places affirmed the precedence of freedom of expression over the rights to dignity claimed by senior officials (including the president of the republic).
By declaring her conception, the judge was clearly not only aiming to restore people’s eroded trust in the judiciary but also, before all else, calling upon judges to rethink the conception of their function in light of the escalating crises now depriving citizens of the most rudimentary essentials of life. This call is extremely significant given the tension inside the judiciary between an independence current loyal to and guided by the people (which includes the Lebanese Judges Association and many reformist judges outside it) and the continued subordination of many judges, especially in high positions. While Jedeel’s ruling mentioned a duty on the part of every good citizen under the current circumstances to defend their society, she also seemed, by declaring this conception, to be defining a duty on the part of every good judge to protect this society.
The Duty of the “Good Citizen”, or the Right to Revolt
Furthermore, the judge went beyond examining the rioting and vandalism charges against the protesters to ultimately condemn the ruling regime for depriving the people of “the most rudimentary essentials of life, particularly in terms of health and the environment”. This condemnation is evident from the paragraph that I quoted earlier given the regime’s role in causing the crises it mentions. It is also evident in the judge’s description of the current protests as protests demanding the most basic fundamental rights being violated, namely the right to health and a decent life. In this sense, the judge seemed to be affirming the existence of circumstances indicating that the ruler has violated and rebelled against the social contract (or the state’s constitution), to put it in terms invoked by Enlightenment philosophers, namely Jean-Jacques Rousseau and John Locke. According to these philosophers, under such circumstances, citizens have a duty to take the initiative to topple the ruler in the hopes of restoring the force of the constitution, i.e. the so-called right to revolt.
To this end, the judge not only terminated the proceedings against the protesters but also went as far as to declare that “the right to participate in public gatherings to collectively voice opinion on the performance of the political authority” is a “legitimate right” and even a “duty for every good citizen striving to establish the principle of holding officials accountable for their actions in democratic states”. In this regard, she took the diverse sectarian, occupational, and regional backgrounds of the 15 protesters prosecuted before her as evidence both of the existence of circumstances necessitating the defense of society against an authority that has thoroughly undermined its rights to life and of their noble motives free of any criminal intent or even private or partisan objectives.
This is evident from the paragraph stating that the defendants participated in the protest “spontaneously and voluntarily from all sects and regions, without prior agreement or planning, at one square and one time that united the radiographer with the law student, the engineer with the undocumented minor, the internet provider with the unemployed person, and the social activist with the baker, the one common denominator being that they constitute a microcosm of the various walks of Lebanese society. They gathered near Al Nejmeh Square, where Parliament is located, to demand basic fundamental rights… namely the right to health and a decent life”. On this basis, the judge rebuked everyone (including the Public Prosecution offices and military investigating judges) who obstructed the protesters’ freedom or charged them because the judicial bodies and security agencies have a duty to protect their freedoms and treat them “not as a police state does but in a civilized manner like a state ruled by law”.
Thus, the ruling appears to be not only a victory for the legitimacy of the revolution and its demands but also a judicial commitment, in line with the lawyers’ aforementioned pleadings, to shield it in the hope of rebuilding the rule of law.
This article is an edited translation from Arabic.