Lebanese University Study: Special Tribunal for Lebanon (STL) has no authority over the Lebanese

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STL officials at the Phoenicia Hotel in Beirut. (Photo: Marwan Tahtah)

Published Monday, May 19, 2014

In a legal study conducted with the aim of defending the “existence of the Lebanese justice system as a whole,” the Faculty of Law and Political and Administrative Sciences concluded that the Special Tribunal for Lebanon (STL) has no authority over the Lebanese population. The study judged that any body must first be established by law to acquire a judicial capacity; otherwise, it would not have the power to issue rulings restricting freedoms. The study highlighted irregularities in the establishment and funding of the STL, calling on parliament to pass laws regulating the work of the tribunal and specifying its jurisdiction.

Justice and freedoms are two virtues that the state usually seeks to uphold through its various branches, and cannot be restricted except by law. Courts can only operate as required by law, and freedom may not be restricted without laws. In balancing one against the other, justice and freedoms are in an equal position. Item C of the preamble to the Lebanese Constitution states, “Lebanon is a parliamentary democratic republic based on respect for public liberties, especially the freedom of opinion […].” In addition, article 13 of the constitution stipulates, “The freedom to express one's opinion orally or in writing, the freedom of the press, the freedom of assembly, and the freedom of association are guaranteed within the limits established by law.”

The State Shura Council has ruled that these two texts have identified the general principle upon which the state system is based, namely, the freedom of opinion, entrusting its regulation to the legislative branch of power. The freedom of the press is part of the freedom of opinion, and hence, is one of the fundamental freedoms guaranteed by Lebanese law, the only valid reference frame to regulate said freedom, set limits to how it is exercised, and the limits of censorship thereon, so that any restriction on this freedom can only be imposed through legislation that permits it. (See: State Shura Council, Decree No. 438 dated April 19, 2011/ Lebanese Broadcasting Corporation International S.A.L./State-Ministry of Information).

As far as the justice system is concerned, article 20 of the constitution states, “Judicial power is to be exercised by the tribunals of various levels and jurisdictions. It functions within the limits of an order established by the law and offering the necessary guarantees to judges and litigants.” According to this text, for a body to have a judicial capacity, it must be established by law. Otherwise, it would not have any judicial capacity, or the power to issue rulings that restrict freedoms.

From this standpoint, in order for the STL to exercise its judicial function, parliament must approve its statute and acknowledge its establishment. But to date, no law has been passed establishing this tribunal, because this would have to necessarily follow the mechanisms prescribed in the constitution, i.e. it requires a treaty approved by parliament pursuant to article 52 of the constitution, which reads, “…treaties involving the finances of the state… are not considered ratified until they have been approved by parliament.”

Furthermore, the Lebanese state’s funding of the STL continues to proceed in violation of constitutional procedures. It is parliament that has the authority to fund the tribunal, pursuant to article 88 of the constitution, which states, “No public loan or undertaking involving an expenditure from the treasury funds may be contracted except by virtue of a law.”

However, since the creation of the STL to date, parliament did not pass any law to approve funding for the STL, nor was any budget passed containing special clauses for the STL’s funding.

Therefore, in absence of a law establishing the STL, it is the right of journalists who have been summoned to appear before this tribunal, to refrain from doing so, because the freedoms protected by the constitution and the law are stronger than a body that only has the pretense of being of a judicial capacity, when this has not been established adequately as required by the constitution.

Parliament has to rush to pass a law on the STL, determining its jurisdictions clearly and without equivocation, to establish the limits of its authority in the framework of the Lebanese justice system and specify the nature of its relationship with other Lebanese courts, as well as the Lebanese authorities in a way that respects the principle of the separation, balance, and cooperation of powers. This would prevent the STL from issuing regulations that are strictly the prerogative of the law in accordance with article 8 of the constitution, which states, “Individual liberty is guaranteed and protected by law. No one may be arrested, imprisoned, or kept in custody except according to the provisions of the law. No offense may be established or penalty imposed except by law.”

The STL has violated this article when it developed its own Rules of Procedure and Evidence, established offenses, and imposed penalties, particularly in Rule 60 bis – the article invoked in charging Karma Khayyat from Al-Jadeed TV and Al-Jadeed TV S.A.L. and Ibrahim al-Amin from Al-Akhbar and Al-Akhbar S.A.L. with contempt and obstruction of justice.

STL limited in scope

Parliament has also been called upon to pass a law requiring the STL to adhere to the limits of its competence. The STL, after all, is a special tribunal, created for a very specific purpose. As stated in the first article of the Statute of the Court, “The Special Tribunal shall have jurisdiction over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. If the Tribunal finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over persons responsible for such attacks….”

It is known in the legal domain that special tribunals have powers exclusively defined within the scope of the exception. Allowing the STL the freedom to expand the scope of its powers to include issues not specified in its statute contravenes the principle of the exclusivity of interpreting its exceptional scope. The STL may only consider specific cases enumerated in special legislation exclusively; its jurisdictions are exceptional and it can only consider a specific category of offenses in accordance with special procedures (Atef al-Naqib, Criminal Procedure, Dar al-Manshurat al-Huquqiah, new edition, 1993, p. 277). Special courts assume exclusive, non-comprehensive jurisdictions, and may not expand their interpretation. (Beirut Court of Appeal Ruling No. 744 dated July 12, 1995, the Lebanese state / Heirs of Ibrahim Gharara).

Therefore, the STL’s move to expand the scope of its jurisdictions, summoning and charging Karma Khayyat and Ibrahim al-Amin and the respective institutions to which they belong, to try them for contempt of the STL and obstruction of justice – both offenses that have not been stipulated in the first article of the STL’s statute – is in violation of the principle that bars the expansion of the jurisdictions of special courts, and infringes on the jurisdictions of the Lebanese Court of Publications. It we disregard this move, the STL may be encouraged to expand its jurisdictions again and override the Constitutional Council, the State Shura Council, and the military tribunals in the country.

Lebanese laws have precedence

This is the background of the stance taken by the Faculty of Law and Political and Administrative Sciences at the Lebanese University, in defense of the accused (Khayyat, Amin, and their media outlets), framed as a defense of the Lebanese justice system as a whole, by demanding respect for the jurisdiction of the Court of Publications detailed under the Legislative Decree No. 104 dated June 30, 1977 (and article 35 of Law No. 382 dated November 4, 1994). This law made it the exclusive jurisdiction of the Court of Appeals to consider all cases related to publications of any kind. This is not to mention the precedence of Lebanese laws over an international treaty that has not been concluded according to the principles specified in articles 52, 56, and article 88 of the constitution. Therefore, Lebanese law applies exclusively until this unconstitutional de facto situation is corrected, and the treaty is approved and ratified in accordance with these principles.

Until then, journalists Karma Khayyat and Ibrahim al-Amin and their companies are not subject to the penalties prescribed in Rule 60 bis, paragraph J of the Rules of Procedure and Evidence, which states, “The maximum penalty that may be imposed on a person found to be in contempt of the Tribunal shall be a term of imprisonment not exceeding seven years, or a fine not exceeding 100,000 Euros, or both.”

The reason is that this is in complete contradiction with the provisions of article 12 of Legislative Decree No. 104/1977 and its amendments, as well as article 383 of the Lebanese penal code, in addition to what we have previously stated regarding the inapplicability of these texts in Lebanese territory.

The charges against journalists Karma Khayyat and Ibrahim al-Amin, and two media outlets, Al-Akhbar and Al-Jadeed TV, flout the press freedoms guaranteed by international conventions, which are of constitutional value in accordance with paragraph B of the preamble to the constitution, which states, “Lebanon…is a founding and active member of the League of Arab States and abides by its pacts and covenants. Lebanon is also a founding and active member of the United Nations Organization and abides by its covenants and by the Universal Declaration of Human Rights. The government shall embody these principles in all fields and areas without exception.”

These declarations, conventions, and charters cited explicitly in the constitution, form together with the preamble an indivisible body of law that together enjoy constitutional force. (The Constitutional Council: Resolution No. 2/2001 dated May 10, 2001 issued in the appeal against Law No. 296 dated April 2, 2001 related to the amendment of the law concerning the acquisition by non-Lebanese of real estate rights in Lebanon).

Of these declarations, conventions, and charters we refer to:

■ Article 32 of the Arab Charter on Human Rights, stating, “The present Charter guarantees the right to information and to freedom of opinion and expression, as well as the right to seek, receive and impart information and ideas through any medium, regardless of geographical boundaries.”

■ Article 19 of the Universal Declaration of Human Rights, stating, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

■ Article 19 of the International Covenant on Civil and Political Rights, stating:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

■ Several articles in the Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, apartheid and incitement to war, dated November 28, 1978:

Article 2:

1 – The exercise of freedom of opinion, expression and information, recognized as an integral part of human rights and fundamental freedoms, is a vital factor in the strengthening of peace and international understanding.

2 – Access by the public to information should be guaranteed by the diversity of the sources and means of information available to it, thus enabling each individual to check the accuracy of facts and to appraise events objectively. To this end, journalists must have freedom to report and the fullest possible facilities of access to information. Similarly, it is important that the mass media be responsive to concerns of peoples and individuals, thus promoting the participation of the public in the elaboration of information.

[…]

4 – If the mass media are to be in a position to promote the principles of this Declaration in their activities, it is essential that journalists and other agents of the mass media, in their own country or abroad, be assured of protection guaranteeing them the best conditions for the exercise of their profession.

Article 9:

“In the spirit of this Declaration, it is for the international community to contribute to the creation of the conditions for a free flow and wider and more balanced dissemination of information, and of the conditions for the protection, in the exercise of their functions, of journalists and other agents of the mass media […].”

Freedoms supersede penalties

It is our legal opinion that the articles of international conventions guaranteeing freedom of the media supersede provisions related to penalties criminalizing actions carried by the media that are otherwise not prohibited under these conventions. This position was adopted by the French Court of Cassation in a ruling, in which it stated, “Whereas article 2 of the law [dated] July 2, 1931 through the general and absolute ban that it imposes, introduces an unnecessary restriction on the freedom of expression to protect the legitimate interests listed in article 10.2 of the Convention [for the Protection of Human Rights and Fundamental Freedoms], which is incompatible with the Convention’s provisions, it cannot form the basis for a criminal conviction.” (Court of Cassation – Criminal Chamber, January 16, 2001, Appeal no. 00-83608.)

[Original French text: “Mais attendu que l›article 2 de la loi du 2 juillet 1931, par l›interdiction générale et absolue qu›il édicte, instaure une restriction à la liberté d›expression qui n›est pas nécessaire à la protection des intérêts légitimes énumérés par l›article 10.2 de la Convention susvisée ; qu›étant incompatible avec ces dispositions conventionnelles, il ne saurait servir de fondement à une condamnation pénale -- Cour de Cassation Chambre criminelle, 16 janvier 2001, n° de pourvoi : 00-83608]

Drawing from this jurisprudence, our opinion is that media freedom and its constitutional and international guarantees renders it inappropriate to subject journalists to prosecution before a tribunal that is not competent to consider publication-related offenses. It is also unconstitutional to impose, on journalists, restrictions that are not stipulated in international conventions and laws, and the Lebanese laws and regulations in force.

The Faculty of Law and Political and Administrative Sciences, out of its keenness on protecting the duo of justice and freedom, demands parliament to act immediately to pass the laws governing the work of the STL and determine its competence, and emphasize safeguarding media freedom within the framework of laws, and name the judicial body that has the right to prosecute journalists if they violate the laws and regulations in force.

Dr. Camille Habib, Dean of the Faculty of Law and Political and Administrative Sciences

Dr. Ghaleb Farhat, Director of the First Branch

Dr. Khaled al-Kheir

Dr. Essam Ismail

International treaties that have not been published internally do not apply to individuals

With Rule 60 bis of the STL’s statute, the tribunal twice encroached upon the prerogative of the Lebanese legislator, in criminalizing and penalizing certain acts. UN Security Council resolutions, specifically Resolution 1757 dated March 30, 2007, may not be invoked in this regard.

Indeed, while this resolution is binding on the Lebanese state, it does not apply to individuals except following the mechanisms prescribed in the constitution, i.e. under a treaty approved by parliament, pursuant to article 52 of the constitution. This treaty and the law approving it must be published in the Official Gazette, in accordance with article 56 of the constitution, and Legislative Decree No. 9/ET dated November 21, 1939. The publication of the treaty is not just intended to inform individuals to abide by its provisions, but is a necessary condition that gives the treaty the force of law, as stated in the following Lebanese legal opinion:

“Whereas for the treaty to come into force, all its texts must be published in the Official Gazette, and not just the decree passing it, but the treaty itself after being ratified to become effective.

Whereas even if the Lebanese state implements some of the terms of the treaty, this does not make the treaty an internal law by which the citizens of the state must abide if it was not published in accordance with the internal laws of the state.

Whereas the issue raised by the defendant regarding the notion of acquired knowledge that would address the fact of non-publication [of the treaty], requires a reply, namely, that international treaties that have not been published internally do not apply to individuals, because this violates a necessary condition for them to have the force of law, in addition to the notion of the lack of knowledge thereof, through the means stipulated by the constitution in article 56, requiring its publication, then the plea citing the non-publication of the international treaty is deemed to be a fundamental argument related to public order, which may be advanced at any stage of the proceedings.

And whereas, therefore, and again, international treaties [satisfying the requirements for] having the force of law in the domestic sphere are not binding on individuals except from the time of their knowledge [of the treaty] through the means mentioned in the constitution, namely, by having it published [in the Official Gazette], national courts should therefore refrain from applying those treaties that have not been published internally because there is a violation of a necessary condition in order [for the treaty] to have the force of law.” (Civil magistrate: Ruling No. 1233 Date October 28, 2004, Hanna Abu Chakra and Huda Awad/ International Center for Agricultural Research in the Dry Areas).”

(Al-Akhbar)

This article is an edited translation from the Arabic Edition.

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