By Muhamad Mugraby
Editor's note: The following is the first half of an article on the Lebanese legal system and the drive to try suspects in the murder of former Prime Minister Rafik Hariri. The article was first published by the Center for Democracy and the Rule of Law in Beirut and is republished with permission. The second part of the article will appear in Tuesday's issue of The Daily Star.
Introduction
The ongoing drive to set up a quasi-international court for the murder of former Lebanese Prime Minister Rafik Hariri, who was assassinated in Beirut on 14 February 14, 2005, and the heavy involvement of the United Nations Security Council (UNSC) in those efforts, ignore the structural complications of the Republic of Lebanon. This article argues that while Lebanon's very recent legacy of murder, massacres and disappearances have given rise to a deep need for truth and conciliation, the Hariri investigation sidesteps the massive corruption-linked impunity that has plagued the Lebanese political and judicial systems.
Furthermore, the involvement of the Security Council has unwittingly endorsed the 'one-time exception to the rule' syndrome prevailing in Lebanon, by which lawmakers improvise one-time unconstitutional and unlawful solutions to differing manifestations of the same chronic problems. As a result, the underlying Lebanese crises worsen and give birth to more crises without any realistic prospect for management. The most recent phase of the ongoing Lebanese crisis that started when President Emile Lahoud's term of office was extended in September of 2004 in defiance of UN Security Council Resolution 1559, is a case in point. This, and subsequent UNSC resolutions regarding Lebanon, have strengthened the faulty one-time-exception approach, endorsed a culture of impunity by turning a blind eye to the mountain of horrific crimes that preceded the Hariri assassination, and dealt an unfortunate blow to the prospect of a Lebanese rule of law.
The Security Council proposes to set up, in a highly unorthodox way, a special one-time quasi-international court to try a single criminal case, that of the Hariri murder. The prospective Hariri court is projected to cost an average of $40 million per annum (Office of the UN Secretary General, 2007; the international investigation has so far cost over $15 million, half of which was paid by the Lebanese Treasury). In comparison, the annual budget of the entire Lebanese justice system is barely $30 million. Furthermore, the tribunal will employ more personnel than the entire Palace of Justice in Beirut.
These are staggering figures given that the merits and demerits of the Hariri court proposal were never permitted to be freely and openly debated in Lebanon. If strong international involvement in Lebanon is unavoidable, it could perhaps be directed more fruitfully by applying similar resources to support freedom of expression and the press, the rule of law, respect for the provisions of the Lebanese constitution and the Universal Declaration of Human Rights (UDHR), and a sweeping judicial reform aimed at the restoration of basic credibility and integrity of Lebanon's constitutional and judicial systems. Finally, international involvement could ensure that qualified Lebanese judges and prosecutors, possibly with limited participation of highly qualified foreign judges and prosecutors, take on the Hariri case as well as dozens, perhaps hundreds of similar cases and other crimes against humanity in Lebanon and the Region in a way similar to the Cambodian model.
The Killing of Hariri and International Intervention
The murder of Rafik Hariri in 2005 came after years of worsening relations between Syria and the United States. The United States had been supportive of Syria's military intervention in Lebanon in 1976, to leash Palestinian forces. In 1982, it became militarily involved in Lebanon as part of a multinational force formed on the heels of the Israeli invasion of June, 1982. Having been forced to retreat from Lebanon in 1984, the US military returned to the region in force in 1990 to roll back the Iraqi occupation of Kuwait, and in 2001-03 to invade and occupy Iraq and Afghanistan. Despite its support for the First Gulf War under President Hafez Assad, the Syrian government under President Bashar Assad (Assad II) did not support the Second Gulf War, launched by President Bush II and was accused of supporting the Iraqi resistance to US occupation. Hence Syria's relationship with the United States deteriorated. As the Iraq war worsened, President Bush on December 12, 2003 signed the 'Syria Accountability and Lebanese Sovereignty Restoration Act of 2003.'
The new act authorized a combination of punitive economic sanctions and diplomatic measures and signalled a new round of confrontation between the US and Syria. The first battle in this confrontation was Lebanon. As the term of President Lahoud - like his predecessor Elias Hrawi elected under Syrian sponsorship - was to expire in November 2004, a semi-official press release was issued on behalf of Lahoud on August 24, 2004, asserting his willingness to serve a new full term in office pursuant to a new constitutional amendment. This breach of Article 49 of the Constitution was a repeat of a similar measure in 1995 when Parliament had the term of Hrawi extended for three years.
In 1995, the United States and France had cast a blind eye on the extension of Hrawi's term. Not so in 2004. The United States took strong exception to the prospect of extending Lahoud's term of office. The US/French-drafted Security Council Resolution 1559 was passed on September 2, 2004, calling for 'a free and fair electoral process in Lebanon's upcoming presidential election conducted according to the Lebanese constitutional rules.' The resolution also called for:
(1) withdrawal from Lebanon of 'all remaining foreign forces,' meaning the Syrian army (although the Lebanese government was and continues to take the position that Israeli troops occupy Lebanese territory in and around the Shebaa Farms area) and
(2) the 'disbanding and disarmament of all Lebanese and non-Lebanese militias,' meaning Hizbullah.
The following day the Lebanese Parliament met and approved a constitutional law extending Lahoud's term for three years.
When Hariri was assassinated, the UN Security Council, prompted by the United States and France, each with different motives, quickly decried the crime and reacted to it in a number of ways. Firstly the secretary general was directed to send a fact-finding mission to Lebanon to inquire into the 'circumstances, causes and consequences of this terrorist act.' The mission, headed by Peter Fitzgerald, an Irish deputy police commissioner, arrived in Beirut on February 24, 2005, and completed the mission's work in one month. Its report concluded that 'the Lebanese security services and the Syrian Military Intelligence bear the primary responsibility for the lack of security, protection, law and order in Lebanon;' that 'the Government of Syria bears primary responsibility for the political tension that preceded the assassination of former Prime Minister Mr. Hariri'; and that the Lebanese investigation process suffered from serious flaws. The report ended by urging that 'the restoration of the integrity and credibility of the Lebanese security apparatus is of vital importance to the security and stability of the country.'
Following the Fitzgerald Mission report, the UN Security Council adopted a series of resolutions, namely:
A. Resolution 1595 of April 7, 2005. This resolution called the crime of assassinating Hariri a 'terrorist bombing' and appointed an independent international investigation commission.
B. Resolution 1636 of October 31, 2005. This resolution acknowledged with apparent approval the conclusion of the investigation committee, headed by a former German prosecutor, in its first report that the crime could not have taken place 'without the approval of top-ranked Syrian security officials.'
C. Resolution 1644 of December 15 2005. This resolution demanded that Syria respond 'immediately and unambiguously in those areas adduced by the Commissioner and also that it implements without delay any future request of the Commission.'
D. Resolution 1664 of March 29, 2006. This resolution acknowledges a letter by Prime Minister Fouad Siniora to the secretary general requesting the establishment of a 'tribunal of an international character to try all those who are found responsible for this terrorist crime.'
E. Resolution 1757 of May 30, 2007. This resolution cited a letter by Siniora to the UN secretary general advising him to put the Special Tribunal into effect despite the lack of ratification from the Lebanese Parliament. Invoking the council's power under Chapter VII of the UN Charter, the UNSC decided 'that the provisions of the annexed document (the agreement), including its attachment (the proposed statutes of the court) ... shall enter into force on June 10 2007'.
Legal Culture and History in Lebanon
The intervention of the UN Security Council in Lebanon since 2004 must be seen against the background of the way in which Lebanon and its legal culture have been shaped by previous foreign intervention. The Republic of Lebanon stands on territories that were, for several centuries, part of the Ottoman Sultanate, and before that, from the seventh century AD, part of many Islamic kingdoms. For most of the nineteenth and the early part of the twentieth century, the Ottoman Sultanate underwent vast legal reforms as part of a comprehensive modernization process to enable its full participation in the European community of nations. The centerpiece of the reforms was the codification of civil law based on the Islamic Shariah. The new code was called Majallat al-Ahkam al-Adliah, the Code of Justice Rules. A significant part of this code is still in effect in Lebanon. In the early part of the twentieth century, two more modern laws were enacted: the Code of Judicial Procedure, which remained in force in Lebanon until superseded by the Code of Civil Procedure in 1932, and the Law of Associations which remains in force to the present day.
When the French expeditionary force landed in Beirut in October 1919, there was already a strong legal tradition in place based on a rich mix of Islamic Shariah and modern Ottoman codes. The French army claimed the Ottoman territories of Syria, including those that were to become the State of Greater Lebanon, pursuant to the secret Sykes-Picot Agreement of 1916.
After securing Damascus, French Commanding General Gourau returned to Beirut where, on August 31, 1920, he issued a decree declaring the annexation of the occupied Wilayat (administrational districts) of Beirut, including most of South Lebanon and part of the Bikaa, Tripoli, including Denniah and Akkar, and parts of the Wilaya of Damascus, namely the Qadha of Biqaa, the Qadha of Baalbek, the Qadha of Hasbaya, and the Qadha of Rashaya, to Mount Lebanon. The following day, September 1, 1920, Gourau issued another decree declaring the birth of 'Greater Lebanon' from all those territories. On September 29, 1923, France received a League of Nations mandate to rule Syria and Greater Lebanon. Greater Lebanon was renamed the 'Republic of Lebanon' under the constitution of May 23, 1926.
Although the French generals and other high commissioners who followed Gourau saw to it that the Republic of Lebanon did not only have a liberal constitution modelled on the French one, albeit with restricted sovereignty, the executive branch which included the ministers individually or as a cabinet, the prime minister and the president, paid little or no respect to the constitution or the written law. Furthermore, legislators habitually adopted laws in plain violation of the constitution, often delegating their legislative powers to the executive to issue laws by decree. Even more gravely, judges were ordered by statute not to examine cases of conflict between statutes and the constitution, which meant that they must apply all statutes regardless of apparent unconstitutionality.
An Environment of Impunity
No wonder then that an environment of impunity, with almost absolute immunity from prosecution, lack of accountability, and corruption, took root under the French Mandate and full hold of the country upon independence. Politicians and officials in high office got away with breaking the law, and so did their relatives, friends and cohorts. It started with gifts and commissions. It developed into the rape of public funds and assets, virtual highway robbery and mass murder including ethnic cleansing and other crimes against humanity.
Politicians formed their own private militias and commanders of such militias graduated into politics, unconcerned with their public history of bloodshed and looting. Here are some illustrations:
Unpunished Treason
On November 22, 1943, the will of the Lebanese people through their elected representatives triumphed over the will of their former French masters. A freshly elected parliament had convened and on November 9, 1943 introduced daring constitutional amendments that erased every mention of the Mandate or French mandatory authorities. French army soldiers responded the following day by arresting the president, the prime minister and a number of ministers who were within reach. A popular outburst of protest was suppressed by military force with scores of dead and wounded civilians. Many political activists were also detained without respect for due process. After 12 days in captivity the French released the leaders on what became Independence Day. In the interval, the French High Commissioner appointed a new president, Emile Edde, a former president, who accepted office with little hesitation assisted by a number of ministers. What happened after independence was true to the environment of impunity. Neither Edde nor his ministers were charged or prosecuted with such high treason offenses as aggression against Lebanon, colluding with a foreign power, attacking the constitution and usurping a constitutional power. Subsequently, many other politicians committed acts of treason without fear of being held accountable.
Crimes against Humanity
During the war on Lebanon from 1975 to 1990, a large number of politically motivated assassinations, massacres and acts of ethnic cleansing took place in Lebanon. None of them have been seriously investigated and no one prosecuted, indicted or tried. In January 1976, the poor Beirut suburb of Qarantina was razed after a large number of its residents were gunned down. Many residents of the town of Damour were simultaneously massacred and most of its houses razed. The Beirut suburb of Nab'aa was heavily damaged in the same year and many of its residents killed in order to drive away the remaining residents. Road blocks were randomly put in place where passersby were instantly murdered or simply vanished if they belonged to the 'wrong' religious community. In what became known as Black Saturday pedestrians in downtown Beirut were rounded up and members of the 'wrong' religious community instantly killed. In 1977, following the assassination of Kamal Jumblatt, hundreds of the residents of the Chouf District were killed in cold blood and many others fled. In 1982 the Palestinian and Lebanese residents of Sabra and Shatila were massacred to drive away the Palestinians and take revenge for the murder of president elect Bashir Gemayel. The resort town of Bhamdoun was overrun in 1985 and all residents who were found in their homes were killed in cold blood. Countless other massacres and acts of ethnic cleansing took place in Lebanon in the 1970s and 1980s. Tens of thousands of Lebanese disappeared and have not been accounted for by the state. The crimes of the war on Lebanon are comparable to the crimes that took place in the former Yugoslavia and merit an international investigation of the unwillingness of the murderers and/or their political allies to investigate them.
Whitewash by General Amnesty
Under Article 53 of the Lebanese constitution the president may issue special pardons, but general amnesty requires legislation. Covert amnesty is often given simply by lack of prosecution, as in the case of former President Emile Edde and his associates. Other general amnesties issued by parliament include:
A. On October 19, 1949, a general amnesty was issued for crimes committed before September 12, 1949, including all crimes with a penalty of one year's imprisonment or less, half the penalty in excess of one year, and one-third the penalty for murder.
B. On August 31, 1951, a general amnesty was issued for all crimes related to general elections carrying a prison sentence up to three years, other than crimes of an indecent character.
C. On December 24, 1958, all crimes of a political nature and acts of rebellion and infraction of state security received full amnesty and sentences of all other crimes committed before October 15, 1958 were reduced, with the exception of those of an indecent character.
D. A similar amnesty was issued on February 17, 1969, for acts committed before January 1, 1967.
E. A similar amnesty was issued on August 26, 1991 for acts committed before 28 March 1991.
F. A general amnesty for all drug-related crimes committed before December 31, 1995 was issued by Law No. 666 of December 19, 1997.
G. On July 19, 2005, an amnesty was issued for five specific sentences against Samir Geagea, head of the Lebanese Forces militia and party. In one of those cases, Geagea was convicted and sentenced for blowing up Prime Minister Rashid Karami in 1987 while the latter was travelling from his Tripoli home to his government office in Beirut on a military helicopter under the protection of the army. Simultaneously, another amnesty was issued for the prosecutions related to the Dinniah and Majdel Anjar violent clashes in two cases, one pending before the military court and the other before the Justice Council. It is clear that those amnesties were politically motivated in the wake of the retreat of the Syrian army from Lebanon in April, 2005.
The Law that was not Meant to be
Enforced
A law was enacted by parliament on January 11, 1958, temporarily suspending Articles 308-313 and 315 of the penal code and provisionally imposing the death sentence for a variety of attacks on national security. It has never been either repealed or enforced. In the opinion of the author it has been rendered void by the amnesty of December 24, 1958 which implicitly certified that the reasons for the suspension and provisional penalties were no longer present.
Half-hearted Prosecutions
On February 2, 2000, the public prosecutor for Mount Lebanon charged Fouad Siniora, former minister of state for financial affairs in the Hariri cabinet that resigned upon the election of General Lahoud to the office of president in November 1998, under Article 363 of the Penal Code, for having made a settlement for, and paid, an Italian company nearly $50 million in satisfaction of a claim related to a project to install a garbage incinerator for Metn District that was never installed.
Article 363 provided for a prison term of up to three years. Siniora's lawyers presented to the investigating judge a motion to dismiss on the grounds of lack of jurisdiction and maintained that, as a former minister, the proper authority to prosecute Siniora was the High Council under the rules of parliament. The judge dismissed the motion on February 23, 2000. Siniora appealed and the Mount Lebanon Court of Appeal confirmed, on March 9, 2000, the investigating judge's decision. Siniora appealed to the Court of Cassation.
On October 26, 2000, a new cabinet was appointed by President Lahoud with Rafik Hariri as prime minister and Fouad Siniora as minister of finance. The following day, the General Panel of the Court of Cassation met and issued a decision in which it agreed to review the lower court's judgment with respect to the issue of jurisdiction. On November 16, 2000, the General Panel issued a decision accepting Siniora's challenge to the jurisdiction of the regular judiciary and left it to parliament to carry on the prosecution. The court was chaired by the first president of the Court of Cassation, Mounir Hunain. The two opinions were authored by Judge Ralph Riashi.
In the meantime Chahe Barsomian, the former minister of energy in the same Hariri cabinet that left office in 1998, was being prosecuted under the same Article 363 and other articles of the Penal Code together with six alleged accomplices. The importation of oil products for power generation and other uses was exclusively controlled by the ministry which gave out contracts for inflated prices with a handful of importers exercising a de facto franchise. The importers were all companies owned directly or indirectly by influential politicians or their close relatives. Barsomian was accused of coordinating the spectrum of activities. His lawyers made a motion of lack of jurisdiction similar to the one made later by Siniora. The Court of Cassation dismissed his application on March 24, 1999, making his indictment final.
After Siniora got a ruling in his favor on the same issue, it became a matter of time before Barsomian benefited from that development. On November 30, 2002, Barsomian moved for dismissal of his indictment due to lack of jurisdiction. On December 16, 2002 the criminal court so ordered.
The above precedents notwithstanding, a former minister of agriculture, Ali Ajaj Abdallah, who served with Siniora on the same Hariri Cabinet appointed on October 26, 2000, was charged on September 2, 2003 with the misappropriation of 267 cows which made part of a donation of over 2,500 cows by USAID in the total appraised value of $15 million. He was arrested on December 9, 2003. Abdallah, guided by the precedents of Siniora and Barsomian, made a similar plea of lack of jurisdiction but was indicted by first investigating judge of Beirut, Hatem Madi, on January 22, 2004, and the indictment was confirmed on February 4, 2004, by the Court of Appeal, headed by Jamil Bayram. Abdallah further appealed to the Court of Cassation, and the court, headed by Afif Shamseddine, dismissed the appeal and upheld the jurisdiction of regular courts to prosecute and try him. His case remains pending before the Criminal Tribunal of Beirut as of December 2007.
Another famous case of a half-hearted prosecution involves current opposition leader Michel Aoun. General Michel Aoun was commander of the Lebanese army when he was appointed prime minister by President Amine Gemayel on September 22, 1988, literally in the last hour of his presidency, to lead a cabinet consisting of six military officers who had constituted the Military Council. This appointment was contested by the outgoing acting prime minister, Salim Hoss. As no new president could be elected, the new cabinet assumed the powers of the presidency in accordance with the constitution. Despite the immediate defection of half of its members Aoun's government was soon involved in bloody confrontations with the Syrian army and the Lebanese forces militia. On October 13, 1990, the Syrian army attacked Aoun's positions in force and took control of the presidential palace where Aoun had established his command. Aoun took refuge at the French embassy.
Several months later he and his ministers were permitted to go to exile in France under the terms of a special pardon decree signed by Syrian-sponsored President Hrawi and conditioned on total abstention from exercising any political activity for five years. Before accepting the special pardon, Aoun had already been charged with the crimes of conspiracy and attack on the constitution and national security and those charges were left standing.
Aoun was politically active in France and after the lapse of five years he was permitted by the French government to travel abroad. One of his trips was to Washington in September of 2003 to testify before a congressional committee in favour of the 'Syrian Accountability and Lebanese Freedom Act.' As a result, Beirut Prosecutor Joseph Maamari quickly charged Aoun under Article 288 of the Penal Code for his testimony at the US Congress and referred the file to first investigating judge of Beirut, Hatem Madi, who issued an arrest warrant against Aoun on October 24, 2003. On November 13, 2003, Aoun was indicted by the Indictment Chamber of the Court of Appeal of Beirut headed by Jamil Bayram and referred to the criminal court for trial. In the meantime, the October 19, 1990, charges were resurrected and Assistant Prosecutor Jihad Wadi, who had, on May 12, 2003, been promoted to first president of the Court of Appeal of Beirut, was appointed special justice investigating judge in the Aoun case.
Aoun returned to Lebanon in triumph on Saturday May 7, 2005, in a chartered plane loaded with his supporters. Hereafter a number of remarkable judicial developments took place. On the petition of Aoun's lawyer to Judge Wadi, Wadi issued a decision on May 4, 2005 dismissing the 1990 charges against Aoun. The following day, the criminal court at Beirut met and, on the request of Aoun's lawyer, suspended the arrest warrant against him. On July 5, 2005, the court met again without Aoun being present and considered a request by his lawyer to dismiss the charges. At the end of the hearing it issued a final decision of dismissal. Aoun has since been elected to parliament and leads a large bloc of MPs.
Violation of the Constitution and Human Rights
As I document in the following, most pillars of constitutional government and human rights continue, from Independence Day onwards, to be openly disrespected.
A. Article 7 LC provides for the equality of all citizens without discrimination. This corresponds to Article 7UDHR and Paragraph 2 of the Preamble of the United Nations Charter (UNC). Yet the Lebanese are not recognized as equal in every sphere of life. They do not cast their votes in general elections subject to the one-man-one-vote standard. Parliamentary seats are apportioned among religious communities. They are not governed by uniform family and inheritance laws, and members of different religious communities are not eligible to inherit intestate from each other.
B. Article 12 LC provides for the eligibility of all Lebanese to assume public office based on qualification and merit. This corresponds to Paragraph 2 of Article 21 UDHR and Article 8 UNC. Yet public offices in the executive, the judiciary, the army, etc., are reserved for members of specific religious communities. For example, the president of the republic, the first president of the Court of Cassation (who is, ex officio, president of the Higher Judiciary Council) and the commander of the army are selected from the Maronite community.
C. The freedoms of speech, of the press and of association are all guaranteed by Article 13 LC, corresponding to Article 19 UDHR. Yet a cartel is established by law over the press and no licence to publish a new newspaper may be issued unless two existing licences are tendered for cancellation in return. Similarly, a near cartel exists for television and radio broadcasting. Heavy penalties are provided by the Penal Code and the Military Justice Code for the slightest criticism of authorities.
D. Article 15 LC guarantees the sanctity of private property, which corresponds to Article 17 UDHR. As I document below, this guarantee is often violated.
E. Article 20 provides that the judicial power shall be exercised by independent judges subject to safeguards for both judges and litigants, and that all decrees by judges shall be issued in the name of the People of Lebanon. The system is plagued by extraordinary jurisdictions such as the Justice Council, a criminal court of exception, headed by the first president of the Court of Cassation (a court that tries cases specifically referred to it by decree) and military courts consisting of military officers with no legal training that have jurisdiction over violations of a variety of crimes related to state security. A case study that follows shows that Article 20 of the constitution is not fully respected even outside the area of exceptional courts.
F. Article 19 provides for a constitutional council with jurisdiction over the constitutionality of new statutes and challenges to election results, both parliamentary and presidential. There is no such council actually in existence, as will be shown by a case study below.
G. The state has the exclusive right to levy and to collect taxes from the general public, but an increasing number of private associations are being licensed to exercise this power and to pocket the proceeds for their own purposes. Among such associations are the Lawyers Association, the Judges Solidarity Fund, the Association of Engineers and the Architects, and the Doctors, Dentists and Pharmacists associations.
H. Additionally, and in the context of the latest phase of the crisis following the extension of Lahoud's term of office, Prime Minister Siniora, together with a number of ministers, civil servants and judges allied thereto, violated Article 52 LC with respect to the exclusive power of the president to enter into international agreements on behalf of Lebanon and to ratify the same, Article 54 LC with respect to the president's power to refer draft bills to parliament for consideration, and Article 54 LC with respect to the president's power to issue governmental decrees co-signed by the prime minister and the minister concerned and to publish laws enacted by parliament.
The Violation of Articles 15 and 20 LC
Article 15 LC provides a guarantee for the right of private property except in the event of a taking for a public purpose in accordance with the law and after the payment of just compensation. Article 228 of the Law on Real Property provided six ways in which the right to real property may be acquired. These were by (1) inheritance, (2) will or gift, (3) possession, (4) right of priority, (5) prescription, or (6) contract.
The old town of Beirut, commonly known as the 'City,' was badly damaged during the years when gunmen under the command and protection of politicians were let loose. The City was the commercial and cultural center of the country as well as the center of its government. After the new Syrian-sponsored government under President Hrawi became firmly established, the issue of rehabilitation of the City's infrastructure was raised. The government of Prime Minister Omar Karami decided that the Lebanese treasury did not have sufficient resources to undertake the task.
On January 31, 1977, during a tranquil interval, the Council for Development and Reconstruction (CDR) was established as an autonomous state agency. Initially, CDR was mainly of a consultative nature. By a 1985 legal amendment CDR was also charged with the task of executing projects for the rehabilitation of disaster stricken areas as ordered by the Council of Ministers.
By Law No. 117 of 1991, the CDR law was further amended to add a paragraph 6 to its Article 5. The new paragraph authorized CDR to implement the projects assigned to it by the Council of Ministers in areas damaged by war or other disasters, Council of Ministers 'either directly or through a public or a mixed corporation or a real estate company organized pursuant to Article 21 of the Code of Urban Regulations' (CUR), provided that its articles were approved by the Council of Ministers. Article 2 of Law No. 117 focused on the 'real estate company' by permitting its organization before the settlement of conflicts over 'the right of ownership of properties contributed to the company and other rights related thereto.'
Article 3 stated that 'the object of the real estate company as reorganizing one or more of the areas damaged by security events and selling the reorganized properties, building there on and selling or leasing the same.' The properties to fall under the company were to be decided by a decree issued by the Council of Ministers. Following that, the Council of Ministers was to appoint appraisal commissions headed by judges. Another category of commissions, also headed by judges, would have the responsibility for distributing the appraised values among the beneficiaries (landlords and lease-holders).
Upon the completion of subscription in the shares of the company the ownership of property rights and leaseholds were to automatically pass to the company. Upon the publication of the decree authorizing the organization of the company it should automatically acquire all publicly owned properties in the same area.
The decisions of the appraisal commission were final and not subject to any legal recourse of any kind including the one for exceeding authority. Moreover, the company was exempted from all stamp duties and taxes on the transfer of property and received a ten-year income tax holiday.
Only one company claimed the benefit of this law: Solidere (Societe Libanaise pour le Development et la Reconstruction du Centre Ville de Beyrouth). Solidere was launched with fanfare under the open
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patronage of Prime Minister Hariri, its founder and largest shareholder. It held itself to be the company and it is clear that a whole public law was originally designed to serve it. From the beginning, Solidere's primary object was to acquire those properties specified under Decree No. 2236, to finance and execute the works of the infrastructure in the area on behalf of and at the expense of the state, and to 'reorganize' its real estate holdings.
According to Law No. 117 and CUR, there were three steps to be followed in sequence. First, CDR had the mandate, under paragraph 4 of Article 5 of its law, in areas damaged by war or other disasters, to perform the tasks provided by Articles 4, 5, 7, 8, 9, 10, 11, and 12 of Legislative Decree No. 107 of June 30, 1977. These tasks are very interesting. They include the temporary acquisition by CDR of all the properties within the area of its operation, either through regular expropriation or by mutual agreement with the owners, the reorganization and rehabilitation of such properties, and securing the return of all the owners and lease-holders to new premises (Article 7). Upon completion of this task, the landlords shall receive real property rights, and the lease holders new leases, both equivalent of their respective old holdings less such share as may be needed for the creation and/or expansion of public areas like streets and parks.
Secondly, the Council of Ministers shall direct CDR to perform the projects in the areas referred to in paragraph 4 of Article 5 of its law either directly or through a defined number of agents including a real estate company organized pursuant to Article 21 CUR.
Thirdly, If CDR decides to use, as its agent, such real estate company, then its creation must be authorized by the Council of Ministers pursuant to Article 21 CUR.
Under this article, the company shall be organized by and between the landlords, the lease-holders and the government. The landlords and lease-holders shall contribute their rights and the government shall contribute property and funds. Nothing in this law suggests that participation in the company is anything but voluntary.
None of those conditions was fulfilled. The Council of Ministers did not issue a decree directing CDR to perform any project in the City. Solidere was organized without reference to Legislative Decree 107 of June 30, 1977. CDR did not recognize Solidere as its agent and gave it no mandate to perform any project. The consent of landlords and lease-holders was not solicited or obtained. It was not envisaged that they would be allowed to return to their premises.
Many landlords and tenants who took exception to Solidere refused to surrender their rights and went to court. Their actions were all dismissed both in regular courts and before the administrative court, the council of state, by judges who ruled unanimously in favour of Solidere. Buildings which were not damaged and were still occupied by the landlords and/or tenants were possessed, and their occupants evicted by force.
To the shock and grief of tens of thousands of dispossessed Lebanese, the appraisal commissions decreed very low values which were, pursuant to Law 117, incontestable before a court of law. Several applications brought before the General Panel of the Court of Cassation claiming gross errors in the lack of adversarial proceedings before the commissions were summarily dismissed and the applicants fined. The General Panel ruled that it had no jurisdiction over the judges who headed the commissions because the commissions were not part of the judiciary.
When it came to transferring the properties to Solidere, no procedure could be found in the statute book. The transaction did not fit any of the categories recognized by Article 228 of the law on real property for the acquisition of title. There was no contract. No expropriation decree was issued by the government.
The Real Estate Registry is part of the Ministry of Finance. Prime Minister Rafik Hariri held the portfolio personally until 1998. In fact the ministry was run de facto by Hariri's assistant, Fouad Siniora, who was minister of state for finance but had no direct authority over the Finance Ministry. Nevertheless, Siniora ordered the Real Estate Registry on June 2, 1994, to transfer title to the properties to Solidere 'as the transfer does not violate the laws in force.' The Real Estate Registry secretariat complied. A massive transfer of title was put into effect in favour of Solidere on the say-so of a minister without portfolio.
On other occasions, a simple letter by Solidere's chairman would suffice. One such letter, dated December 2, 1995, and addressed by Solidere's chairman to the secretary of the Central Real Estate Registry, Beirut, stated: Ref. Registration of properties in the name of Solidere SAL, Further to our letter of June 7, 1994, related to the captioned subject which stated that we will later provide you with a list of properties that may be returned where the owners did not exercise that right. Please find attached a list of the properties that should be transferred to the name of our company.
Members of the appraisal and distribution commissions received compensation from the state budget. As it turned out they also received compensation from CDR for and on behalf of Solidere. When the court of accounts discovered the CDR payments, which were not authorized in its budget, it ordered CDR to recover the amount of nearly LL5 billion from Solidere. So CDR brought action against Solidere in 1999 naming names and amounts. The action was brought in the court of a judge who was one of the recipients. He eventually recused himself. The action remains pending to this day.
The assumption by the government of the power to order changes in the records of the Real Estate Registry has not, however, been confined to Solidere. On August 22, 2007, it issued Decree No. 655 changing the name of the owner on 71 real estate lots in Beirut from 'Trustees of the American University of Beirut' to 'American University of Beirut' (AUB) based on the petition by the university. The trustees themselves did not join in the petition. A trust is an independent legal entity. The university is a New York corporation with head office in New York and no registration in Lebanon. Both the trust and AUB are foreign and subject to statutory restrictions on the ownership by non-Lebanese of real estate in Lebanon. No transfer fees were assessed or paid based on the value of the property as required by law.
Both in the case of Solidere and of AUB there is a drastic violation of the strict and formal procedures established by the statutes on real estate and on foreign ownership.
Another case of indirect taking of property without compensation involved the Mohammad Al-Amine Society. Organized in 1950 but officially registered in 1965, this association was collecting donations that it used to buy properties for the construction of a mosque on Martyrs Square in the City. By the 1990s it had managed to assemble a large tract of prime real estate with an area of 1559 square with a value of over $10 million, and was looking to finance the construction itself.
The association had bad relations with Solidere and many of its members were among the opposition to the company. On August 20, 2002, Presidential Decree No. 8572 was issued under the signatures of President Lahoud, Prime Minister Hariri and Minister of the Interior Elias al-Murr, dissolving the association. Based on this decree, the ownership of the real estate was administratively transferred to the Islamic Awqaf Department that reports to the office of the prime minister, a de facto expropriation.
Subsequently, Hariri built a big mosque on this property which was joined to an adjacent property purchased from Solidere, and donated to the project, by the Saudi Prince Al-Walid Bin Talal. When Hariri was assassinated his body was laid to rest in a spacious tomb adjacent to the new mosque.
The Serial Violation of Article 49 LC
The one article of the constitution that stirred the most controversy (and was eventually to constitute part of the raison d'e? of United Nations Security Council Resolution (UNSCR) 1559) is Article 49 which forbids the election to the office of president of the republic any person who is not entitled to run for parliament, and forbids the re-election of the incumbent president for another term. The violations or attempted violations of this one constitutional article could be described in lengthy volumes. For the purposes hereof they could be summarized, starting from Independence Day, as follows:
A. President Beshara al-Khouri, one of the heroes of independence who were detained by the French, arranged for an exceptional constitutional amendment of Article 49 permitting him to run for, and win, a second term. The parliament that complied was the one elected in May 1947, in a general election widely seen to have been openly rigged. The elections were called less than six months after the final departure of the French and British soldiers from Lebanon on December 31, 1946. Khouri served only two years of his second term then resigned under local and international pressure.
B. Khouri was succeeded by President Camille Shamoun, who was one of the vocal critics of the Khouri constitutional amendment. Soon Shamoun developed aspirations for a second term, which, coupled with his foreign policy, stirred popular resentment leading to a rebellion. All went well after the landing of the American marines in the summer of 1958 and a new president, General Fouad Shehab,won the office notwithstanding Article 49 which bans military officers from running for parliament unless they have resigned six months prior to being elected.
C. The leaders of the rebellion against the Shamoun presidency were all indicted by a senior justice investigating judge on 21 different offences. The judge almost literally 'threw the book' at them. The defendants' names were prominent in any Lebanese or even international who's who directory and included former prime ministers, speakers of parliament, ministers and MPs. Following Shehab's election, a general amnesty law was adopted by parliament on December 24, 1958, which wiped the slate clean without further process.
D. The succession of Helou was contested between Elias Sarkis, a high-level civil servant who had not resigned six months in advance, and MP Suleiman Franjieh and was won by Franjieh by one vote. Franjieh had earlier been prosecuted for alleged involvement in a Maronite church massacre at Meziarah, North Lebanon, in 1957 but became a beneficiary of the 1958 amnesty.
E. Elias Sarkis, who had become governor of the Central Bank, was elected by the 1972 parliament to succeed Franjieh without having resigned his office six months earlier as required.
F. The 1972 parliament elected Bashir Gemayel, a militia commander openly allied with Israel, to succeed Sarkis, but he was soon assassinated and succeeded by his brother Amine. Amine's term of office expired in September 1988 without the election of a new president. Just before his term expired he appointed a caretaker cabinet headed by the army commander General Michel Aoun.
G. The 1972 parliament met in November 1989, and elected a new president, Rene Muawad, who was assassinated on Independence Day of that year. The 1972 parliament then met and elected Elias Hrawi to succeed him. Hrawi's term was to expire on November 24, 1995. On October 19, 1995, Article 49 LC was amended for the exceptional extension of Hrawi's term of office for three more years.
H. The name of the army commander, General Emile Lahoud, was put forward to succeed Hrawi. In the meantime, an additional requirement had been added to Article 49 LC in 1990 precluding high civil servants and judges, which would
include high army officers such as Lahoud, from being considered for election to the office of president unless their
service shall have actually ended two years earlier. Hence Article 49 LC was amended to permit a one time exception to both requirements.
I. Article 49 was amended on September 3, 2004, to extend Lahoud's term of office for three years in exactly the same way Hrawi's term was extended, and the amendment was published in the Official Gazette on the following day.
J. In December 2007, the name of the current army commander, General Michel Suleiman, was advanced as a consensus candidate with wide local and international support. At that time the amendment of Article 49 to remove the two pre-conditions posed no problem. On May 25, 2008, the parliament met and 118 out of 127 MPs voted to elect Suleiman to the office of president without any constitutional amendment, but six MPs turned in blank ballots and one vote went to each of two former MPs. This event was met with the enthusiastic support of the United States and other world powers.
