Lebanon: Personal Safety as a Legally Protected Principle


2014-04-21    |   

Lebanon: Personal Safety as a Legally Protected Principle

Personal (Human) safety (salamat al-insan) was a concept that Lebanese law seemed to have abandoned in the wake of two recent cases. The first was that of Mu'min, the boy who died in February 2013 after his father failed to persuade a succession of hospitals in Tripoli to take him in. The second was the case of Manal Assi, who was brutally murdered in front of her family in February 2014. However, personal safety seemed to reoccupy the top rung of the legal ladder of priorities as far as marital and contractual relations are concerned in the wake of two other rulings by Summary Affairs Courts. The first was upheld by the Court of Cassation on November 29, 2013, and the second was issued by the Summary Affairs Court in Metn on December 5, 2013.

Personal Safety in the Face of Domestic Violence

In response to an ex parte order, Summary Affairs judge in Metn, Ralph Karkabi, had issued an injunction on May 8, 2012 forbidding the former husband of the plaintiff from entering the house where she and her daughter were living, after the courts had issued a ruling annulling the marriage.[1] The plaintiff had petitioned indicating that in the wake of marital disagreements, she had left the marital home and moved with her daughter to a house in the Mt. Lebanon town of Mansourieh. However, her former husband, she said, had come to the apartment, entered and physically attacked her and her daughter. As part of her petition, the plaintiff submitted medical reports, copies of the investigations and the criminal complaints pending between her and her husband.

The former husband subsequently objected to the ban in a petition in which he requested that the court suspend implementation and in effect overrule it. However, on May 24, 2012, Summary Affairs judges in Metn, Antoun Tomeh, dismissed the request for a stay of implementation, “given the totality of the facts presented, especially the existence of marital disagreements, which led to the annulment of the marriage, and the existence of criminal complaints related to battery and physical harm”. The former husband appealed to the Appeals Court against the dismissal of his request for a stay of implementation, stating that the apartment in dispute belonged to him because the plaintiff had arranged a contract selling it to him under an irrevocable power of attorney she had obtained from her mother.

On September 23, 2103, the Appeals Court issued a ruling in favour of the husband’s appeal, despite the imminent danger to the life of his former wife and the life of her daughter, and her statement that this contract of sale was purely nominal. Additionally, this ruling was made despite her protestation that her former husband had arranged an irrevocable power of attorney for her in relation to the apartment in question, and the existence of legal proceedings between them over this property. The court accepted the appeal in form and in substance, and as a result overturned the ruling and suspended the implementation of the disputed ruling issued by Karkabi on May 8, 2012, pending a decision relating to the substance of the objection [ownership of the apartment].

Noting that the two parties apparently had concomitant yet contradictory claims to the right to occupy the apartment, the court then decided that the former husband had a stronger claim. It said,“The right of the appellant (the former husband), who possesses the title deed of this apartment, also deserves to be protected based on the principle of the [right] of the owner to autonomously control their property. Preventing [the owner] from using their property is incompatible with the principle of property rights enshrined in the Constitution and the relevant laws, and the existence of a dispute over proving ownership should not stand in the way of the apparent owner making use of his property”.

What stands out in the ruling is that it downplays the imminent danger to the former wife, referring to such a danger as an “excuse that one party might assault the other inside the apartment”, and further stating that “it does not justify preventing one of them from entering the apartment”. The court went even further, urging “the aggrieved party to refer to the appropriate authorities to obtain protection, and to prosecute in the event of any incident taking place”.

The court seemed to have forgotten that in going to court the woman plaintiff was already referring “to the appropriate authorities to obtain protection”, given that only Summary Affairs Courts have jurisdiction under Article 589 of the Code of Civil Procedure to take “all interim or precautionary measures to protect rights and prevent wrongs”, and that no other judicial body has jurisdiction to prevent the former husband from going into the apartment and harassing his family. In addition, the plaintiff had already gone to the religious courts, the real estate courts and the criminal courts, and was involved in lengthy legal disputes with the other party.

The position of the Appeals Court is extremely dangerous since it closes the door on any preventive judicial intervention, or any provision of protection. It requires the plaintiff to wait for some incident to take place -possibly her own murder– before the judiciary will intervene to resolve the situation. Fortunately for the plaintiff, the Court of Cassation did not share the Appeals Court's analysis and was quick to overturn the ruling. On one hand, the Appeals Court indicated that it was the role of the Summary Affairs Courts to rule on the question of who had the right to occupy the apartment, in order to take the right decision in light of the annulment of the marriage. On the other hand, the court also went further and declared that “the safety of persons overrides all other considerations and the fact that one party has assaulted the other justifies in principle a decision to prevent any contact that might lead to injury”.

One of women's worst ordeal in marital disputes is likely to be that separate courts handle various disputes. With the multiplicity of legislations and jurisdictions, there is no single authority to provide women with recourse for material and moral protection. This is the dilemma of the civil status laws in Lebanon: even if a woman manages to free herself from the marital bond through religious courts, she remains hostage to her husband’s wishes and authority because she remains financially and materially dependent, in the absence of any joint ownership system that ensures she has a safe, independent place to live in and the financial resources to sustain her throughout.

A Lebanese woman even has to refer to criminal courts if she is assaulted or harmed, and these courts will not take up a case or impose punishments until the harm has already occurred. If she has retained ownership of any property, she has to refer to the real estate courts.

Pending the approval of a law against domestic violence and the creation of preventive mechanisms for the victims, the actions of the Summary Affairs Courts are welcomed steps towards asserting what should be the obvious: that personal safety outweighs all other considerations.

Personal Safety vs. the Force of Contractual Obligations

On December, 5, 2013, the Summary Affairs judge in Metn, Antoun Tomeh, issued a ruling obliging a company to evacuate the kidney dialysis center that it was operating in a hospital under a management and investment contract. Tomeh established that the company's operation of the center posed a danger to the safety of patients – danger that justified the hospital terminating the contract unilaterally.

The striking aspect of this ruling is that it gives a party to a contract (the hospital) the right to terminate the contract unilaterally, in the absence of any clause on termination, thereby setting a legal precedent in Lebanon. The ruling contravenes Article 241 of the Code of Obligations and Contracts. The article requires that the contracting party resort to the courts to terminate the contract, in order to give the accused party a chance to prove that it is fulfilling its contractual obligations. Tomeh’s decision emphasized that this right should only be granted when exceptional circumstances make it necessary. Based on medical and technical reports presented in the dossier, which proved that several pieces of equipment were out of order or poorly maintained, and that in one incident a sick child almost died as a result of a fault in the equipment, Tomeh concluded that the test of “exceptional circumstances” did apply in this case and a serious breach of contractual commitments had taken place.

The ruling read: “Given such data, unilateral termination is clearly justifiable, if not incumbent, and has a sound legal basis especially as people's safety and lives outweigh all other considerations, and the extent of the harm that the one party wishes to avert by unilateral termination justifies setting aside the principle that a contract can only be terminated through a ruling by the competent judge”.

Looking at the matter from the point of view of comparative law, we find that French courts has consecrated the right of parties to a contract to terminate the contract unilaterally in certain cases. Those include cases of work contracts, those of extreme urgency and pressing need, and all cases where one of the contracting parties is acting in a dangerous manner.[2] This legal development in France has been at times interpreted the adoption of an economic approach to law akin to the one promoted by Anglo-Saxon systems, where contracts can be abrogated prematurely for purely economic motives, which might encourage some people to annul contracts early when it becomes clear that the material benefits of termination outweigh the benefits of fulfilling the contract. The Lebanese courts have fortunately come to apply this legal innovation [of breaching contracts] in relation to the the principle that people's safety outweighs all other considerations, a principle that was also invoked in relation to gender violence.

This article is an edited translation from Arabic.

 

 

[1] This is an order issued by the judge based on the plaintiff's request for protection of rights and it is issued before the judge has heard the other party. The other party can contest the order in the court that issued it (the editor).

[2] For this development and the jurisprudential debate on it, see: Ch. Jamin, “Les Sanctions Unilatérales de L'inexécution du Contrat: Trois Idéologies en Concurrence”, in Ch. Jamin et D. Mazeaud, L'unilatéralisme et le droit des obligations: Economica 1999, p. 71.

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