Jurist Renée Chapus might reconsider his famous claim that “the administrative judge is the judge of human rights”, in light of recent decisions issued by Lebanon's State Council pertaining to cases touching on fundamental freedoms.
These decisions suggest that the State Council failed to protect civil liberties, and instead opted to protect the interests of public administration and the current political system. By examining three such decisions issued in the past two years, this article seeks to explore and assess the State Council judicial review of the work of public administration that infringes on fundamental freedoms.
The decisions under study relate to the freedom of conscience, assembly and expression. The first two decisions, those of The Prayer Hall (2011) and the Cultural Awareness League (2012), touch on freedoms associated with freedom of conscience, such as the freedom to perform religious rites and freedom of association and assembly. The third decision concerning the censorship of the film “Hotel Beirut”, relates to the freedom of expression (2013).
The State Council pre-empted criticism of its decisions as violating civil liberties by stating that “while fundamental freedoms lie at the heart of this Council's duties, the Council remains incapable of looking into the extent to which some laws restrict those freedoms”. It was as if the Council absolved itself of the consequences of its decisions by claiming that these decisions were mandated by law.
Expanding the Interpretation of Legal Texts that Restrict Fundamental Freedoms
According to general legal principles, freedom is the norm and restriction is the exception. Placing restrictions on fundamental freedoms is permissible only if the legal text placing such restrictions is clear, and offers a narrow and specific interpretation. It follows that legal texts pertaining to issues of freedom that use language that is unclear, must be interpreted with a view to upholding these freedoms, rather than in a manner that would draw on the potential restrictions purportedly implicit in the text.
The State Council had acknowledged the general legal principles stated above in previous cases, but seems to have recently taken a step backward in this regard. The Council has -through a particular reading of legal texts- inferred non-existent restrictions on the freedoms of conscience and of expression even though these freedoms are constitutionally consecrated and as such can only be circumscribed on the basis of legal provisions explicitly sanctioning such restrictions.
1. The Case of the Prayer Hall: Limiting the Practice of Religious Rites to Legally Recognized Sects
In 2011, as part of its decision in relation to the Prayer Hall Case, the State Council stated: “Religious rites may not be practiced by any assembly or group -whatever it calls itself- that is not legally recognized, and these rites may not be performed in buildings or places marked for worship, unless these sites belong to one of the legally recognized sects or denominations”.
This decision placed important and serious restrictions on the freedom of conscious, denying citizens the right to conduct group prayers in a private venue.
The details of the case are as follows: A group of self-identified Christians used to gather to pray in a privately-owned hall that took the shape of a church. The mayor of Keserwan decided to shut down this hall or temple “in order to avoid any risk to public safety”. The mayor's decision was in response to a complaint filed by two parishes in the area. The State Council refused to quash the decision to shut down the hall and considered it in agreement with the provisions of the law, given that the practice of religious rites is not protected for sects that are not legally recognized.
It is clear that the State Council imposed a restriction on the practice of religious rites that was not stipulated by law, since there is no clear legal text that limits the practice of this freedom to a certain group or venue. The State Council thus restricted legal protection for the practice of religious rites to a legally recognized sect (i.e., to one of the sects listed in table one of the French High Commissioner's Decision No. 60 L/R issued in 1936.
The High Commissioner’s decision, however -in line with international standards- does not in any way restrict the right to practice religious rites to recognized religions given that it is derived from the right to freedom of conscience, which is an absolute freedom that cannot be derogated even in times of public emergency. It also a freedom inherent to all individuals without discrimination, provided that upholding it does not disrupt public order.
Recognizing a sect authorizes it to adopt regulations for personal status and grants it some privileges (such as recognition of its legal identity or the right to obtain the necessary property to perform its religious rites or houses its services). However, such a recognition is not tantamount to restricting religious beliefs or practices to these sects. Religious beliefs and practices remain rights that can be practiced in isolation of any official recognition, or, in other words, without the charitable permission or intervention of anyone.
It is clear that the State Council demonstrated, through this decision, its submission to the will of religious institutions that hold sway in the neighbourhood to oppress any religious activity taking place outside the walls of these institutions’ own places of worship. In other words, the State Council did not hesitate to prevent citizens from practicing their fundamental rights (the right to practice religious rites and freedom of assembly) by keeping this right within the framework of the recognized sects. The aim was to protect “a general religious order” that ensures the hegemony of sectarian institutions over individuals. The State Council's justification of its position added insult to injury by invoking Decision No. 60, which consolidates the individual's right to end their affiliation to any of these sects (Article 11).
In 2009, the State Council had expressed its position very clearly when it announced that “religious freedom in Lebanon is related to the confessional system, which forces every Lebanese person to belong to one of the official sects, thereby barring him from being free to act politically and socially outside the sectarian framework in which he was born or to which he belongs…”.
It is worth noting that the State Council insisted on including its aforementioned take on the matter in its decision while simultaneously declaring that a review of the Ministry of Interior’s decision to reject requests for taking one’s sectarian affiliation off their civil registration records, falls outside its jurisdiction and falls within the purview of the judicial courts.
It is equally noteworthy that this decision in 2009 was in complete contradiction to an opinion issued by the Consultations and Legislation Committee at the Ministry of Justice in 2007, in which it confirmed the citizen's right to cross out the reference to their faith/sect from their civil record. The two contradicting positions were signed by the same judge who now holds the position of president of the State Council (Shukri Sader) and who also signed the decisions that are the subject of this article.
Surprisingly, the State Council – in its latest decisions, continues to restrict freedom of conscious while many citizens were able to remove any reference to their sect from their civil records, and the first civil marriage (i.e., outside the confessional framework) has already taken place in Lebanon.
At a time when the wheel of change is moving towards consecrating the citizen’s right to belong or not to belong to a sect, the State Council is moving in the entirely opposite direction. This movement is towards keeping the individual a prisoner of his/her sect, and opting to protect a “general religious order” at the expense of personal freedoms.
Consequently, and as a result of this ill-conceived judicial decision, the right to practice religious rites in private venues has become a granted right rather than an inherent one. This is a violation of the Constitution, which guarantees the right to practice religious rites under the state's protection, and which did not allow for any restriction of this freedom except in cases of disrupting public order (Article 9).
Moreover, this exercise on the part of the State Council also constitutes a violation of international standards that do not permit restrictions on the practice of religious rites, unless the law stipulates such necessary restrictions for the preservation of public safety, public order or safeguarding the rights of others and their fundamental freedoms.
2. The Cultural Awareness League Case: Citing the Charter to Silence Political Imagination
In another decision issued in 2012, the State Council declared that seeking an Islamic Caliphate State runs contrary to the principles of the Constitution and to fundamental principles on which Lebanon’s political order and the National Charter rests. The Council’s pronouncement justified the decision to dissolve a cultural association -The Cultural Awareness League. The latter, it was argued, had undertaken “illegitimate political activities” contrary to its declared objectives (its members joined the [Islamist] Al-Tahrir Party), and had sought to achieve the state of the Islamic Caliphate.
The State Council cited the Law on Associations that bans the formation of associations “founded on an illegitimate basis that violates the provisions of the laws and public decorum or for the purpose of undermining the Kingdom's peace…”.
The decision was totally silent as to how the association’s objective contravenes the Constitution and the fundamental constitutional and political principles stated above. The State Council merely listed a number of constitutional principles -including the freedom of opinion and of conscience- without any clarification. It also hinted that such political activities could “disrupt the country's peace and quiet” without any explanation (it so happens that reference to “peace and quiet” in the Law on Associations was originally intended for the Ottoman Sultanate, which is a state that had adopted the same Islamic Caliphate system that the State Council considered illegitimate!).
In short, the State Council appeared quite willing to restrict the freedom of conscience and assembly without providing clear legal justifications, thereby opening the door to the rejection and oppression of any dissenting opinion that calls for a change to the political system in Lebanon.
This position which restricts freedoms, was in complete contradiction to a ruling that was issued less than two months earlier by a criminal judge in Tripoli (Nazek al-Khatib). The Tripoli ruling had dismissed the charges of members of al-Tahrir Party and refused to dissolve the association arguing that belief in an Islamic Caliphate system is not against the law. Unlike the State Council's decision, the Tripoli ruling had underscored that the freedom of conviction is an absolute right, one that encompasses atheism as well as religious extremism and the demand for altering the political system in a peaceful manner.
As such, it could be argued that a judge, and more specifically the criminal judge, in the person of al-Khatib, managed to invoke the law to protect fundamental freedoms against encroachment by the state. Meanwhile, the State Council signaled its facile readiness to sacrifice civil liberties at the altar of the current political system.
3. The Case of the Film Hotel Beirut: Pre-emptive Censorship Unlimited
In the case of Hotel Beirut, the State Council assumed the presence of restrictions on freedoms exogenously of any legal text. It also purposefully expanded the interpretation of some loose concepts in the Films Censorship Law, in a manner that led to a significant expansion of censor’s authority.
In this case, the State Council assumed the existence of a legal basis for administrative practices that restrict freedom of expression. The lawsuit was essentially aimed at putting an end to an illegal practice that the General Security Department has been engaging in for decades, namely, censoring film scenarios before they are made. The suit argued that this censorship practice is a restriction on freedom of expression that has no legal basis.
The case emerged after the committee tasked with censoring movies, akin to the General Security Department, refused to grant a license to show the motion picture Hotel Beirut unless any segments of the movie that did not stick to the letter to the approved script are cut.
In the eyes of the film's directors and producers, this stipulation amounted to a ban of the movie. Following the Lebanese cabinet’s refusal to repeal the committee's decision, they filed a lawsuit with the State Council (which is the first of its kind against the censorship system in the post civil war period), calling for the quashing of the Council of Ministers' decision and allowing the showing of the movie in its current form.
Yet, the State Council did not hesitate to supply the censor with the legal tools by resuscitating a decision that had been issued by the French High Commissioner during the Mandate period (1934) authorizing the commissioner to grant filming permits, not censor the scripts.
The commissioner’s decision should have ceased to be effective given the post of High Commissioner was eliminated without any legal provision transferring his powers to some other government authority. However, the State Council deemed the General Security Department the heir of such powers according to a 1947 law. This law does not, at all, address the issue of film making, but is rather limited to regulating censorship over showing films. Here, too, the State Council sets a rule, namely, that legal restrictions on constitutional freedoms are inferred and concluded, which is contradictory to the aforementioned legal principles.
In the same case, the State Council put on the hat of a censor by fishing for reasons to ban the showing of the movie. The movie’s problem, the Council thus proclaimed, lies in the movie’s explicit reference to Hariri's assassination, as opposed to referring to the assassination of a political figure. Such a reference, according to the Council, “stirs religious racist bigotry” (presumably between Sunnis and Shias), particularly through “hints” presented in the film regarding the “settling rather than investigating murders, and their sweeping them under the carpet” and “the role of domestic and foreign actors” in this case.
The more worrisome aspect of the State Council's approach is its suggestion that hints at sweeping the issue under the carpet in the movie harmed the “stature of public authorities” (which is another reason for censorship according to the 1947 law).
This opens the door to speculative interpretation, whereby any talk about sweeping any issue under the carpet, or instances of corruption, or even mistakes committed by public administrative authorities, becomes something that harms their stature, which justifies the silencing of any criticism of these authorities. In this sense, the State Council went beyond the actions of the censor whose sole objection was to the explicit reference to the person of Hariri.
Therefore, it becomes quite clear that the State Council did not hesitate to grant the censor a wider margin of action by an overextended application of loose concepts -such as “stirring bigotry” and “protecting the stature of public authorities”- that appeared in the 1947 law. These are the same type of phrases relied on by despotic and dictatorial regimes to restrict public freedoms; a strategy that was very commonly employed in Lebanon in the 1990's.
Limiting the State Council's Judicial Review Powers That Affect Fundamental Freedoms
It is established in French and Lebanese jurisprudence and doctrine that the administrative judge must exercise full and comprehensive oversight over the administration’s actions that infringe on fundamental rights. This is necessary in order to provide larger judicial [and citizen] protection against the administration’s discretionary and abusive actions.
The State Council has previously confirmed that its oversight is absolute and encompasses constitutional freedoms….
“whether these freedoms were restricted or free of any restriction” and “whether the relevant legislation was a guarantee of or a restriction [of such freedoms]”.
The Council also confirmed its oversight….
“when it comes to civil liberties, which are guaranteed by the Constitution, is not limited to the validity of events and their legal characterization, but includes also the administration's appreciation of the seriousness of the events in order to determine whether they justify the adopted measure in light of the circumstances of time and place…”.
Yet, the cases discussed in this article show that the State Council has moved away from this principle and it is confining itself to the verification of events and their legal characterization. It did not go beyond this formalistic examination to decide if the administration's freedom-restricting measure was commensurate with the interest that should be protected.
This approach was very clear in the case of the Hotel Beirut film. The State Council literally said that “the decisions taken by the administration in relation to film censorship fall within its discretionary powers”.
Therefore the State Council has set its oversight over decisions related to film censorship at the minimum level, in clear contradiction with established jurisprudence that leaves no room for discretionary powers for the administration when it comes to fundamental freedoms.Does this position, therefore, not constitute proof of the State Council's insistence on granting the administration (in this case the censor) the most expansive margin to restrict freedom of expression, while depriving the citizen of any legal protection against the administration's abuse in this regard?
It is therefore clear that, as the State Council abandoned its practice of comprehensive oversight on decisions that infringe on constitutional freedoms, it is granting public administration more room to practice a discretionary authority that is outside the framework of any judicial review. Consequently, it is placing itself in the position of the administration’s judge and not the administrative judge that protects fundamental freedoms.
This article is an edited translation from Arabic.
 The State Council, Decision No. 188/2011-2012, issued on December 22, 2011, George Shihadeh Toumiyeh vs. the State – The Ministry of Interior and Municipalities.
 The State Council, Decision No. 343/2011-2012, issued on March 7, 2012, The Cultural Awareness League in Tripoli vs. the State.
 The State Council, Decision No. 576/2012-2013, issued on May 23, 2013, The Orjouane Production Company and Danielle Arbid vs. the State – The Council of Ministers.
 The State Council, Decision No. 576, mentioned above.
 Refer for example to the decision in the area of political freedoms: The State Council, Decision No. 6/98-99, issued on October 7, 1998, Engineer Dawoud Atallah and others vs. the State – The Ministry of Interior and Municipalities.
 The High Commissioner's Decision No. 60, issued on March 13, 1936 (Adoption of the Religious Sects Regulation).
 Article 4-2 of the International Covenant on Civil and Political Rights, 1966.
 Article 2 of Decision No. 60: “The legal recognition of a sect that has a personal status regulation has the effect of granting the text of its regulation the power of the law and placing this regulation and its application under the protection of the law and the oversight of the public authority”.
 The State Council, Decision No. 573/2008-2009, issued on July 14, 2009, Vartan Hampersom Ukayan vs. the State – The Ministry of Interior and Municipalities.
 Ministry of Justice, The Consultations and Legislation Committee, Decision No. 276/2007, issued on July 5, 2007.
 On this matter, see Nizar Saghieh’s: “The President of the State Council Overturns his Position: A Lebanese May Never Live Outside the Sectarian Record!” Al-Akhbar newspaper, August 21, 2009.
 Article 18 of the International Covenant on Civil and Political Rights of 1966 and the General Comment Number 22 (freedom of thought, conscience, and religion) issued in 1993 by the UN Human Rights Committee.