On 28 February 2019, Single Criminal Judge in Beirut Fatima Jouni issued a decision on a dispute between two giants: on one side, the Lebanese Forces party, which has 15 members in Parliament, and on the other, the Lebanese Broadcasting Corporation International (LBCI) and its director Pierre El Daher, one of the most prominent media figures across the Arab region. This dispute, which began approximately 12 years ago in 2007, pertains to the ownership of LBCI and its subordinates. The Lebanese Forces charged that El Daher breached the trust vested in him to administer the television station – which the Lebanese Forces established and funded via the levy system it adopted during the Civil War – by appropriating the station and denying the Lebanese Forces’ ownership. Jouni’s ruling discontinued the proceedings against El Daher and the companies belonging to his corporation and, in effect, rejected the Lebanese Forces’ claim.

The 112-page ruling was not restricted to the facts of the dispute between the two adversaries; rather, it also opened forgotten pages of the war’s economy and its legacy and read them using a different approach. In this sense, the ruling constitutes a landmark in the handling of the war’s legacy, and its content and dimensions deserve to be discussed in a manner that transcends interests and knee-jerk reactions.

While some comments have unfortunately addressed the ruling from a narrow viewpoint, comparing it to the rulings issued against the Lebanese Forces during the era of Syrian tutelage, we would like to make the following observations:

 

1- Going Beyond the Facts of the Dispute to Rehabilitate Public Order and the State

Before examining the question of the Lebanese Forces’ cession of the station to El Daher, the ruling deemed that there are issues that must be resolved first. These issues transcend the details of the two parties’ relationship and what they agreed upon or consented to. They relate to public order and, subsequently, the rights of the community and state.

Consequently, while the Lebanese Forces association based its case on the notion that it is the station’s true owner, the ruling ultimately refuted this ownership and, subsequently, dismissed the case on three grounds:

Firstly, when the station was being established during the 1980s,, the Lebanese Forces was one of the militias participating in the Civil War and had formed “illegitimately in the eyes of the law”. Thus its acquisition of legal personality or, subsequently, the right of ownership or any other rights cannot be recognized. To reach this conclusion, the ruling reminded that “the state alone has the right to establish armed forces because the security of the nation and citizen lies at the core of the state’s exclusive functions, and no body or group may establish military or non-military formations without the state’s permission”. The ruling reinforced this conclusion by affirming that it is a natural result of Lebanese positive law and that it applies to all militias and armed groups “irrespective of the justifications that necessitated their existence, the goals they sought to achieve, and the support that each enjoyed within its area of influence”. The judge thereby placed herself at an equal distance from all the militias warring at the time, warding off any accusation of political bias toward one side or another.

Secondly, the Lebanese Forces association (established after the war ended) cannot argue that it is one and the same as the “war forces” (i.e. the militia). This claim of oneness, whose justification the court said is the “historical and de facto genesis of the Lebanese Forces”, is not legally valid, especially because it conflicts with the Taif Agreement’s dissolution of all militias. Notably, the court justified this conclusion with the large discrepancy between the goals of the post-war association and those of the wartime militia. The former aims, according to its notice of establishment, to transcend the factional conflicts and build a nation in which all its people live (and the association is therefore lawful), whereas the militia, like the other militias, sought to divide the country and practice civil war among the country’s people. The court held that this difference in and of itself negates any claim of oneness, even if the Lebanese Forces’ leadership and members did not change. In this regard, Jouni set herself apart from an earlier decision that the Court of Cassation issued in the investigation stage of this dispute (306/2012), which deemed that distinguishing between the Lebanese Forces of the war and the Lebanese Forces after the war is “an illogical attempt to separate the party from the roots and popular bases from which it emerged”.

Thirdly, if the plaintiff and the wartime Lebanese Forces were legally the same entity, the court found – with the testimony of superiors in the Lebanese Forces – that the “station and its assets were funded with levy money, i.e. with the people’s money, and not the [Lebanese] Forces’ money”. The “cost of the station’s equipment, its employees’ wages, its operational expenses, its programs, and, in general, all its needs” was paid for using “levy money”. The court deemed that levying that occurs in this manner cannot vest the Lebanese Forces with rights to the monetary proceeds as it is unlawful under the Constitution, which renders tax collection an exclusive function of the state. To reach this conclusion, the court mentioned that “the right of ownership… is necessarily linked, like all other rights, to the legality of the money’s reception” as “legality is one of the foundations of the right in the absence of which the entire right does not exist”. Hence, “Nobody may argue that they acquired rights based on an illegal act, and it is inconceivable that this act could be a cause to establish a right or terminate a preexisting one”.

Hence, Jouni went beyond the dispute between the two parties to impose, via her ruling, the principles of public order with regard to the acquisition of both legal personality and ownership rights. Consequently, she declared that the militias established during the war could not have acquired ownership rights over the money they levied or seized. Rather, these militias’ money remains the property of the people and, therefore, the state. This public order applies to not only the Lebanese Forces but all the opposing groups during the war with regard to the money they collected.

The presence of public order in this case could have been reinforced by emphasizing the Audiovisual Media Law, which prohibits political parties from owning media outlets in order to guarantee plurality.

2- Prioritizing the Rule of Law Over Political Settlement Considerations

Complementing the above, the court asked whether the post-war reality, whereby the militias and parties retained all they had seized during the war, changes anything. This speculation appeared in the ruling in a clear whereas clause: “Whereas it could be argued that all the parties retained what their militias amassed during the Civil War… and that the state did not seize the monetary proceeds that the militias collected from the people”.

The court’s answer in this regard was very telling. Contrary to the prevailing climate of normalization with facts on the ground in a manner that threatens public order, the court deemed that it “adheres only to the law in its rulings, and it is not bound by any political settlements as they were not coupled with explicit laws enshrining the parties’ ownership over what their militias amassed” illegally.

This judicial stance comes as a warning against excessive normalization with reality, which has usually led to legal provisions being ignored. Similarly, in many cases, it has led to the interpretation and application (i.e. exploitation) of laws in a manner that bestows legitimacy upon reality instead of subjecting reality to the law’s requirements. Examples are abundant, but it suffices to note that during the case, particularly the interrogation hearing, the parties and witnesses discussed the levying and arms sales as though they were legitimate activities no different from free trade. Another extremely indicative example of this trend is the Court of Cassation’s aforementioned decision, which seemed more like a political stance than a judicial one.

 

3- The Ruling’s Dimensions: Who Defends the State? Or Will the State Defend its Rights?

According to the ruling, the station’s establishment was funded “entirely, before it reached self-sufficiency, with levy money… neither the militia, nor the Lebanese Forces party, nor Geagea, nor El Daher contributed their own money to the station’s establishment”. While Jouni emphasized El Daher’s efforts to develop the station after it reached self-sufficiency and upheld his right to the returns, she also found that he was unable to prove that he purchased the Lebanese Forces’ shares in the station. Hence, he remains responsible to the state as the money used for establishment was exclusively the money of the people.

Accordingly, the court emphasized the state’s right – and perhaps duty – to recover the people’s money. Thus, the ruling seemed to be calling upon the state to claim its rights in this regard. Hopefully, should the ruling be appealed, the Court of Appeal will take the initiative to add the state (represented by the Committee of Cases) officially to the case to compel it to defend these rights.

The question that the court is implicitly raising in this regard is, how might the state respond to its call? Will it again divide itself between those who support the media giant and those who support the political giant? Or will it side, for once, with the basis of its existence, namely public order (or public good), and succeed in adopting a clear, united stance? Of course, the question that Jouni raises here applies to more than one issue stemming from the war’s legacy and the legacy of the post-war corruption, such as the issue of stolen public property and the issue of the quarries.

 

Will the state rise to defend its rights before it is too late?

 

This article is an edited translation from Arabic.

Keywords: Lebanese Forces, Militia, Civil War, Television Station, Media, Money, Ownership Rights