On September 29, 2014, Lebanese MP Ghassan Moukheiber proposed a law to regulate underage marriage in Lebanon. The suggested law stipulates that a Juvenile Court Judge approves such marriages. The compelling motivation behind the proposal is the rising number of these marriages, given the repercussions they have on the individual and their social well-being. Such an increase requires legislators to intervene in order to provide social protection to children residents of Lebanon.

 

The proposal is the first official document -known to this author- to explicitly declare that the state has the right and the obligation to intervene in family matters, whenever such intervention seems necessary for the protection of its citizens. The draft law says that “the state firmly reserves the right to legislate on the protection of the Lebanese family; the Lebanese state has an obligation of guardianship [my italics], which requires it to protect its citizens in all social aspects”. Such an affirmation breaks with the official discourse which considers family matters the sole prerogative of the sects. It is each of the latter which possesses the right to regulate personal status affairs. Legislators, on the other hand, lack the right to even debate the issue. In contrast, the Moukheiber law describes the state’s obligation with total clarity, leaving no ambiguity regarding “public order”. According to the draft law’s mandating reasons, legislators are always required to reconcile two principles. The first is upholding personal status laws as per Article 9 of the Lebanese Constitution. The second consists of the state’s commitments towards its citizens and those residing on its soil, which require it to reinforce its role as guardian and protector.

 

As important as this might be, closer examination quickly reveals that the rules of public policy found in the text remain insufficient to ensure the effective protection of children. Human rights groups opposed to the Moukheiber proposal focused on several of its shortcomings. Rather than regulating underage marriage, they demanded that it should be fully banned. Such criticism, however, fails to recognize the significance of the law’s reference to the state’s declared role in imposing public order. In order to provide a comprehensive assessment of the proposed law, this article will first discuss the notion of public order which constitutes its chief positive aspect. This will be followed by a critical analysis of the nature and consequences of the rules it proposes, and ultimately, the kind of measures the latter might allow for the protection of children.

 

Public Order and the Family

 

The notion of public order in the context of the family is nothing new. It can be found in Article 9 of the Lebanese Constitution which grants free exercise of religious rites, provided that they do not disturb public order. It can also be found in the 1951 Law governing the work of religious courts, which allows legislators to exclude what might disturb public order when considering religious laws. Yet, legislators always avoided exercising such powers openly, and the dominant discourse remained one of complete deference to religious authority in regulating family matters of their respective sects. Religious laws were thus applied without any kind of legislative oversight, on the basis that such customs were in themselves binding. Under this framework, the notion of public order in family matters has come to be viewed as off-topic.

 

This notion only reemerged as a result of the work done by Juvenile Court Judges, who invoked Article 25 of the Juvenile Law in cases of child protection. The aforementioned law allows [judges] to take protective measures when the morals, health, education or other aspect of a child’s life is threatened.[1] A number of Juvenile Court Judges took such protective measures in conflict with rulings issued by religious courts. One such example was a ruling at a Juvenile Court to keep a child at their mother’s home, despite having exceeded the prescribed age for maternal custody which at the time was set by the Sunni Court at 7 years old. The Juvenile Court’s ruling was in violation of an Islamic Court’s ruling to hand him over to his father. The Juvenile Court Judge had justified his decision by arguing that the child’s mental health would be threatened if he were to be separated from his mother. In a landmark ruling issued on July 7, 2009, the General Assembly of the Court of Cassation ultimately confirmed the judge’s ruling, considering that the judge had been granted full powers to protect children.[2]

 

Public order was also mentioned within the context of the general discussion about protecting women from domestic violence, even if such references were rather timid and ambiguous.[3] By adopting this approach [of invoking public order] in a clearer and more explicit manner, the Moukheiber proposal thus seems to be giving it a new, cumulative momentum. This could turn the issue of underage marriage into an opportunity to initiate a clear public debate on the role of the state in the context of the family as a whole.

 

Public Order Lite

 

The question that presents itself is as follows: what kind of public order are we talking about? Is requiring the prior approval of underage marriages by a Juvenile Court Judge in itself sufficient? Would it ensure the protection of children against forced underage marriage, since judges would be able to verify whether minors are ready for marriage on a case-by-case basis? Or should the powers granted to the Juvenile Court Judge have been reinforced to guarantee that they would properly function to achieve the intended purpose of the proposed law?

 

A whole set of characteristics of the proposed law may severely undermine the notion of public order. These can be grouped into four categories:

 

The proposed law gives the Juvenile Court Judge a broad margin of action to grant or deny approval, within the confines of religious law. It thus lacks any binding rule for approving a marriage, such as a minimum age requirement, or the minor’s own approval as an absolute condition. Also, while the proposal does state that a social investigation should be conducted, it makes no mention of the need for a medical examination to verify that the minor is psychologically and physically capable of getting married;

The proposed law seems reluctant to clearly define the consequences of concluding a marriage contract without the approval of a Juvenile Court Judge, or despite the latter’s refusal to grant one. This could render the law, if ratified, completely ineffective.

Thus, in the case of an unapproved marriage contract, the penalty imposed on clerics, parents, or legal guardians is a fine of ten times the official minimum wage, i.e., US$4,500. Not only is such a penalty ineffective as a deterrent, but it is also completely inappropriate, given the tremendous importance of what it seeks to defend. In fact, rather than acting as a deterrent, such a fine would most likely merely lead to raising the price the husband would be required to pay. It should be noted here that the proposed law does not in any way penalize the husband of legal age, despite the latter having played a part in the violation. This is reminiscent of prostitution laws, in which customers having paid for sexual services are spared any penalty.

Furthermore, the proposed law does not state any legal consequences if prior approval of the marriage is ignored. Having violated the rules of public order, would such a marriage thus be considered entirely null and void? Additionally, in such a case, what would be the fate of any children that might result from it? Since the law remains silent on such issues, religious laws might return unchecked to impose their own solutions regarding such consequences. In turn, this would inevitably result in efforts to evade and deceive the public order such a law seeks to consecrate;

The proposed law completely ignores the children concerned with the marriage and strips them of a legal personality of their own. Besides the fact that the Juvenile Court Judge is required to hear their testimony, they have no right to request the intercession of a lawyer into the procedures of approval, or to challenge the decision allowing them to marry or be married off. Indeed, those requesting approval are their parents or legal guardians, and they alone have the right to appeal if their request is denied.

The proposal also ignores the role of groups normally involved in protecting children. It makes no mention of the Higher Council for Childhood, or of groups concerned with the protection of women or children. Such groups could have been given a role to play, even if merely a consultative one. Their role could have been to monitor the process of requesting and granting approvals, or even to challenge approvals issued by Juvenile Court Judges. Moreover, the proposed law requires the Court of First Instance to consult with religious authorities when considering appeals against rulings that had denied requests for marriage approval. The result of this has been increased criticism, as these are the same religious authorities that would have allowed the marriage. One also notes the complete lack of special protective measures, such as subsequent divorce when marriages are granted or denied approval; and

The proposed law leaves a broad margin of action for parents or legal guardians to challenge Juvenile Court rulings denying approvals, while granting a much narrower one to appealing those rulings granting approval. Indeed, the proposal does not merely give parents or guardians the right to appeal a decision denying approval. It also guarantees them the right to reapply for approval at any time, before the same Juvenile Court Judge or a different one. Consequently, pressures on minors are maintained and efforts to marry them off is sustained, and the chance of obtaining court approval increases. [Parents or legal guardians] are even given the right to reapply one year after being denied approval by the Court of Appeal. From this perspective, the proposed law seems completely at odds with its authors’ intended purpose. Indeed, while its mandating reasons argue that marrying off minors potentially endangers children and is thus undesirable, it goes on to facilitate its successful conclusion by giving legal guardians successive opportunities to [obtain court approval].

 

In light of these aspects of the law, the nature of the proposed public order appears to be merely limited to broadening the jurisdiction of Juvenile Court Judges. It provides no other mechanisms of control, or even a system of checks and balances that would facilitate the work of judges. It is as if the past success of Juvenile Court Judges in the field of child protection were sufficient to entrust them with such a task – the task of monitoring or supervising the work of religious courts when it comes to underage marriage. Judges are also expected to perform such a task within the framework of a system almost wholly dedicated to paying homage to religious authorities. Given such considerations, entrusting Juvenile Court Judges with this responsibility by legislators would only be placing these judges in the hot seat, rather than offering a lifeline for legislators to develop the legal system in the regulation of family affairs.

 

This article is an edited translation from Arabic.

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[1] See: Nizar Saghieh’s, “Endangered Child: The Judiciary Consecrates a System Binding for Sects”, al-Akhbar, August 13, 2009.

[2] See note 1 above, idem.
[3] See: The Legal Agenda, Issue No. 16, April 2014.