Implementing a general amnesty is a goal that several political forces have been pledging to their supporters since before the spring 2018 elections. This pledge came to the fore with the October 17 Revolution, when it appeared in the reform paper that Saad Hariri’s government presented as part of its commitment to achieving the revolution’s demands just days before it resigned. The issue arose time and time again when it appeared in bills on the agendas of the Parliamentary sessions from 12 November 2019 to the 21 December 2020 session (including the sessions on 19 November 2019 and the sessions in April, May, and September of 2020).
Of the various bills, the first and most dangerous was submitted by MPs Yassine Jaber and Michel Moussa. The second was submitted by the head of the Future bloc Bahia Hariri, and the third was adopted by Parliament’s joint committees in May 2020. All these bills featured an amnesty aimed primarily at satisfying the demands of broad voter blocs upon which the influential political forces depended to varying degrees and thereby preserve or restore their loyalty. Foremost among these voters are Islamists (in relation to the Future bloc), drug dealers and producers in Baalbek-Hermel (in relation to the Shia duo [i.e. Hezbollah and the Amal Movement], and collaborators with Israel and their families (in relation to the Free Patriotic Movement). The influential political forces have had no qualms about pursuing the general amnesty while submitting numerous bills on accountability and combating corruption. They argue that the law does not pardon financial crimes and abuse of power (a claim we have proven false in several places as many versions of the bill constitute a blatant self-pardon, particularly for tax evasion, public accounting crimes, environmental crimes, extortion, and torture).
As COVID-19 spread and alarm about the risks posed by the overcrowding in prisons and detention facilities increased, the MPs found no better solution than to stress the need to adopt the general amnesty law. The amnesty bills presented thereafter included the pandemic at the forefront of their rationales without any substantial change to the general amnesty they proposed. These forces seemed to approach COVID-19 and its risks in prisons merely as a pretext for strengthening their argument for a general amnesty law rather than a cause of concern that must be addressed in its own right.
Hence, with every legislative session called, the MPs only answer for reducing prison overcrowding as a pandemic precaution was to reach a consensus among the political forces on one of the general amnesty bills. Even when they failed to reach a consensus because of conflicting requirements considered non-negotiable by them or the communities whose demands they work to satisfy, efforts to mitigate the risks of the pandemic inside prisons ceased and no alternative proposals were put forward. This occurred successively in the sessions of April, May, and September of 2020, with supporters of the general amnesty law accusing its opponents of lacking any humanity toward prisoners and detainees. For example, following the failure to reach a consensus in the September 30 session, Parliament Speaker Nabih Berri expressed regret about the inhumane conduct of all the MPs, stating that his goal with the law was “not to release people associated with any particular person [or region] but to ease the burden in light of the spread of corona”. The political exploitation of the pandemic becomes particularly evident when we consider that the Legal Agenda, which opposes the notion of a general amnesty for reasons it presented and then reiterated upon each legislative session, has put forward several alternative solutions to prison overcrowding. These solutions primarily involve suspending preventative detention rulings in crimes committed before a certain date (except for the most serious crimes), which would reduce the number of pre-trial detainees, who constitute more than half of the prison population. The Legal Agenda based this request on the principles of proportionality and risk mitigation, which justify forfeiting the safeguard provided by detention, depending on the gravity of the crime, when it could endanger the suspect’s life.
While the amnesty law remains on the agenda of the general session scheduled for 21 December 2020 [tomorrow at the time of this article’s writing], two new bills have been submitted pursuing alternative solutions to prison overcrowding in anticipation of another failure to reach a political consensus on the amnesty. However, these bills are insufficient as they place security and political considerations and even individual rights before protecting against the risks posed by the pandemic, which threaten not only individuals proven embroiled in crimes but also suspects who are supposed to be presumed innocent. This is what I shall discuss in this article.
The General Amnesty in the Age of COVID-19: Protecting the Right to Health as a Pretext Rather Than a Goal
As previously explained, general amnesty bills became popular as a response to the revolution before the pandemic. Their rationales were limited to political and – to a lesser extent – social factors. In this context, the COVID-19 crisis has, just like the economic and financial crisis, been treated more like a rationale for passing political bills than a social crisis that in and of itself demands special handling.
The best evidence of this trend includes the following:
Firstly, the beneficiaries of the general amnesty are not confined to prisoners and detainees; rather, the majority have not been subjected to any detention or perhaps any prosecution. This is because of the proposal to pardon many crimes irrespective of whether they have been prosecuted or tried, or whether the sentences for them have been executed. Additionally, in many instances the amnesty constitutes a self-pardon for crimes that the people with authority and influence themselves committed.
Secondly, the definition of the crimes encompassed by the amnesty and those excluded does not satisfy the principles of proportionality and risk mitigation, which require striking a balance between the importance of exercising public right and the risks that doing so poses. The general amnesty was proposed for crimes in which forgoing public right poses more danger than detention, whereas it was withheld in other crimes where the scale tips in the other direction. For example, public morality crimes (which, besides rape, are in principle less serious offenses, and usually people from disadvantaged social groups are prosecuted for them) were excluded. Similarly, the decision to make the amnesty conditional on the civil claim being dropped places the material interest of the injured civil party before the convict or detainee’s right to life and health.
Alternative Proposals Break the General Amnesty’s Monopoly Over the Approach to Prison Overcrowding
Amidst the failure to reach a consensus on a general amnesty law, legislative initiatives by the executive branch (the Ministry of Justice and the government) remained minimal. Besides the Ministry of Justice’s effort to obtain a special presidential pardon decree (which was not issued), on the legislative level the government merely presented a bill to pardon people convicted of failing to pay fines, as previously explained, which was in no way expedited by Parliament. As for legislative initiatives by MPs, the first such bills only emerged when the agenda for December’s session was drawn up (the bill by MP Jamil Al Sayyed and the bill by the Consultative Gathering bloc). While it is good that these bills have ended the general amnesty’s status as the sole means of reducing prison overcrowding, they clearly fall short of palpably achieving their stated goal (reducing overcrowding), and put factors related to security, financial compensation, and (at least in the Consultative Gathering’s bill) politics before public health, as explained below.
The first bill was issued by Al Sayyed on 19 October 2020. He justified the bill on the basis that “the COVID-19 pandemic is worsening day by day, especially in the overcrowded prisons and the various detention centers in Lebanon” and that any delay in addressing it would lead to “a humanitarian catastrophe resulting from an inability to accommodate the increasing [covid] cases”. He began his rationale by mentioning the “infeasibility of reaching a political agreement on the general amnesty law”, clearly indicating that he was submitting his bill as an alternative means of reducing prison overcrowding because the general amnesty was stalled.
The bill contains several ideas to mitigate overcrowding, the most important being reducing prison sentences. To this end, it shortened the prison year from ten months to six for current convicts and current detainees sentenced to fixed-length prison terms in the future. It also deemed capital punishment [currently suspended in Lebanon] equivalent to 30 prison years and life imprisonment equivalent to 25, albeit based on a nine-month prison year rather than the six months stipulated in the case of fixed-length sentences. However, the bill loses much of its effect in this regard by, like the general amnesty proposal, stipulating the condition that the civil claim be dropped. It thereby gives the injured civil party an extremely dangerous weapon, namely the discretion to either pardon or punish on behalf of society at large (in principle the holder of public right).
The bill is also problematic because it places a limit on preventative detention in misdemeanors and felonies, after which any detainee is released, that is in many cases futile as it exceeds the limit stipulated in Article 108 of the Code of Criminal Procedure, namely four months in misdemeanors and one year in felonies. Moreover, it stipulated the condition that the civil claim be dropped contrary to the Code of Criminal Procedure, which stipulates that release occur when the limit is reached as a matter of course. Instead, the bill should have lowered the limit or suspended preventative detention rulings in all less-serious crimes, as the Legal Agenda proposed pursuant to the principles of risk mitigation and proportionality. This measure alone is expected to remedy the overcrowding issue as pre-trial detainees constitute the majority of the prison population.
Moreover, the bill presents a list of crimes that it deems serious and whose convicts and detainees do not benefit from its provisions. However, the long length of the list (people detained under Judicial Council rulings and decisions; crimes against the state’s external and internal security irrespective of their seriousness; drug crimes involving export, manufacture, import, and financing for international trade; murdering civilians or military personnel, depriving them of liberty, or causing them permanent disability; heading an armed gang or performing leadership functions therein in order to conduct terrorist activity; kidnapping for ransom; squandering public funds; and armed robbery) again limits the bill’s effects. On the other hand, it releases non-leadership members of terrorist organizations and drug farmers and domestic dealers without exception, in line with the demands of the Future Movement and the Shia duo.
Finally, an extremely important clause of the bill drops all investigation and inquiry measures that the security agencies adopted absent a judicial instruction before the law’s issuance. While its enumeration of all such measures is beneficial, the concern is that the legislature’s intervention to drop them as part of a bill to reduce prison overcrowding could be understood as an acknowledgment of their legitimacy, especially as the clause pertains only to those previously issued. In other words, dropping those issued in the past could implicitly legitimize those issued in the future. Hence, the text must be adjusted to prevent any ambiguity in this regard.
The second bill was issued by Consultative Meeting bloc MPs Faisal Karami, Adnan Tarabulsi, and Abdul Rahim Mrad. While the bill’s rationale includes the COVID-19 crisis alongside other factors –, including rehabilitation and the principle of a balance between the interests of the accused or convicted person, on one hand, and justice and the interests of society as a whole, on the other, – it makes no mention whatsoever of the amnesty law. The bill grants a partial amnesty that reduces prison sentences by one third while translating capital punishment and life imprisonment into prison sentences of 25 and 20 years. The bill evidently aims to address the issue of Islamists sentenced to long terms. Hence, it too is based more on political considerations than social or health considerations. This is evidenced by the fact that it allocates no special provisions to lighten preventative detention rulings except for detainees whose custody has exceeded two thirds of the maximum sentence that could be handed down if they were convicted. Once again, this period could exceed the limit stipulated in the Code of Criminal Procedure.
It is again good that the aforementioned MPs have broken the general amnesty’s monopoly over the approach to the overcrowding problem. Their initiative, however, remains insufficient and in need of further development in the direction of risk mitigation.
This article is an edited translation from Arabic.