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Islam and Politics ( 16 Oct 2008, NewAgeIslam.Com)

An Islamic rule of law for Lebanon?

By Muhamad Mugraby

October 15, 2008

There is little doubt that Lebanon has no future as an independent and democratic political entity without the establishment of, and full respect for, the rule of law.

The question is: Which rule of law? A rule of law on the legal tradition which Lebanon borrowed from Western Europe, which may be referred to as the "civil rule of law," or a rule of law based on Lebanon's pre-statehood and original tradition of Islamic law, which could correctly be called the "Islamic rule of law?" The failure of the civil rule of law to take hold would make it inevitable for the Islamic rule of law to take over.

 

Among the most elementary requirements for the civil rule of law which Lebanon had to observe is the development of a body of statutes sanctioned by a legitimate legislature, constitutionally established (i.e. a duly elected parliament). This task has been mostly fulfilled by borrowing and Arabizing text from French law. But so far many other necessary requirements have not been met, such as, by way of illustration:

 

A. The existence of one legitimate constitutional government, recognized by the people as legitimate and sovereign, with all three branches constituted as per the constitution: the executive (Cabinet), the legislative (Parliament) and the judicial (courts of law), governed by law and accountable in accordance with the law with honour and integrity.

 

B. Equality under the law with no discrimination for reasons such as religion or gender, already provided under Article 7 of the Constitution.

 

C. Equal application of the law, which requires consistency in interpretation of the rules and in their application to citizens.

 

D. Respect for human rights, particularly in the prevention of arbitrary detention and all forms of torture, safeguarding the rights of defence and avoidance of denial of justice.

 

Lebanon's dismal failure on all these fronts flagrantly and flatly contradicts its subscription, in its statute book, to the West European legal model. Hence, a full and candid diagnosis is urgently called for.

 

It would not be an exaggeration to recognize that the entire modern political history of the Republic of Lebanon revolves around the open issue of maintaining Maronite Christian political supremacy, or at least parity, vis-à-vis Lebanon's Muslims. This issue has produced the strongest impediment to the emergence of a true Lebanese national consciousness based on a true national identity and citizenship, with full respect for the rule of law.

 

Role of the Maronite Church

 

The central role of the Maronite Church, before and after Lebanon achieved statehood, and its political leadership of a distinctly Christian political establishment, cannot be ignored. The rise of the power of the Maronite Church must be seen in its historical perspective. This church started as independent and outside the mainstream before reaching full affiliation with the Roman Catholic Church. 

The Roman Catholic Church had little or no presence in the Middle East until the Crusades. The first crusade commenced in 1096 on the calling of Pope Urban II in the Council of Clemont which he had convened on November 25, 1095. It took two centuries for the various crusades to be finally defeated. Within that period, the Roman Catholic Church established increasingly strong links with various independent Middle Eastern churches, including the Maronite Church, leading, by the 18th century, to the full incorporation of the Maronite Church as an autonomous unit of the Roman Catholic Church and, by the 20th century, to the patriarch of the Maronite Church becoming a cardinal of the Roman Catholic Church.

 

The Crusades

 

French crusaders long before established a special relationship with the Maronite community, and many Maronites fought along their side. It is said that a delegation of 25,000 Maronites went to Acre, Palestine, to welcome the landing of the French Crusader-King Louis IX in 1250. Later that year, Louis IX sent the Maronite Church a letter of commitment in which he stated: "We are persuaded that this nation that we found established under the name of St. Maroon is part of the French Nation. For its friendship to the French resembles the friendship among themselves."

Louis IX promised protection to the Maronite patriarch and his flock similar to that accorded to the French themselves. The French king was declared a saint by the Catholic Church after he led three unsuccessful crusading campaigns into Egypt, Palestine and Tunisia, with the last of his crusades ending with his death.

The Crusades came to a final end with the defeat of the crusaders in Tripoli in 1289 followed by their defeat in Acre in 1291. In the ensuing battles in the hills around Tripoli with certain Maronite forces formerly allied with the crusaders, Maronite Patriarch Antoine himself was killed. It was unprecedented that a leader of the Christian clergy was killed by Muslim soldiers.

 

Sykes-Picot

 

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, of many Islamic kingdoms commencing with the three historic Caliphates of the Rashideen, the Umayyads and the Abbasids. The French claimed the Ottoman territories of Syria, including those that were to become the State of Greater Lebanon, pursuant to a secret pact they had concluded with Britain on May 16, 1916, called the Sykes-Picot Agreement, defining the way the two countries wished to distribute among themselves the Ottoman territories of the Middle East after the expected defeat of the Ottomans in World War I. In short, the agreement allotted Iraq and Palestine to the British and Syria and Lebanon to the French. The Sykes-Picot Agreement was in sharp conflict with the pact that the British had with the Arab Kingdom of Hijaz led by Prince (later King) Faisal, a kingdom that fielded military forces that fought the Ottomans on the British side. So Faisal entered Damascus and established his government there on the faith of the Arab-British agreement. He accepted the declaration of loyalty from Beirut and Baabda, the seat of the autonomous Sunjuk of Mount Lebanon, and his flags were raised both in Beirut and in Baabda.

The Sykes-Picot Agreement was revealed by Lenin following the Bolshevik Revolution, and it became a matter of time before the true intentions of the allies, France and Britain, were tested. When Faisal refused to relinquish Damascus peacefully, the French Army, led by General Henri Gouraud, defeated the Arab army at Maysaloun, on the outskirts of Damascus, on July 24, 1920, and, the following day, entered the city triumphantly. The French general promptly visited the tomb of Saladin and announced to the dead Muslim hero that his people, known to the contemporaries of Saladin as the "Franks," were indeed back. After securing Damascus, Gouraud returned to Beirut where, on August 31, 1920, he issued a decree declaring the annexation of the occupied Welayat of Beirut, including most of South Lebanon and part of the Bekaa, the Welayat of Tripoli, including Dinnieh and Akkar, and parts of the Welayat of Damascus, being the Qada of Bekaa, the Qada of Baalbek, the Qada of Hasbaya, and the Qada of Rashaya, to Mount Lebanon. The following day, September 1, 1920, Gouraud issued another decree declaring the birth of "Greater Lebanon" from all those territories. On September 29, 1923, France received a League of Nations mandate over Syria and Greater Lebanon. In 1926, Greater Lebanon was renamed the "Republic of Lebanon" under the constitution of May 23 of that year.

 

Fall of the Ottoman Empire

 

The peoples of the Middle East were deeply wounded with the resounding defeat of the Ottoman Army at the hands of the British, and the routing of King Faysal's Arab forces at the hands of the French, and were further profoundly insulted by the treachery of the British. Gouraud was a reincarnation of a sort of Louis. Saladin, Kurdish by ancestry, was a native of Baalbek and an all-time Muslim/Arab hero. But now he was being derided in his grave with the remarks of the arrogant French general who believed that he was in Beirut and Damascus to fulfill the mission of the Crusaders. From there on the destiny of the Republic of Lebanon was heavily influenced by the conflict between Western influence, successively led by France, Britain and the United States, and Lebanese aspirations for real independence in harmony with Lebanon's natural Arab/Islamic environment.

 

Gouraud Declares 'Greater Lebanon'

 

When General Gouraud was making his announcement of Greater Lebanon, he had Maronite Patriarch Elias Hoayek on his right side. It is true that on Gouraud's left side was the mufti of Beirut, Mustafa Naja. But the mufti's presence was little more than dŽcor. For Patriarch Hoayek had played an active role in the preparation for that historic moment. He had been several times to Paris at the head of delegations of Maronite bishops advocating the Greater Lebanon that became. Many modern-day Lebanese credit Hoayek with responsibility for giving birth to what became the Republic of Lebanon. But the role of the Maronite Church in this event was not confined to the event itself.

 

The Maronite Church and the Republic of Lebanon

 

Since September 1, 1920, the leadership of the Maronite Church has, both overtly and covertly, played a major role in Lebanese politics. Under the French mandatory power, the political institutions of the country were dominated by Maronite politicians who were often former employees of the office of the French high commissioner. But no Maronite would serve in any office if vetoed by the church. The patriarch continues to this date to exercise the role of final arbiter among Christian politicians and to exercise a decisive, yet informal, veto power in Lebanese politics as a whole.

In 1920, it was generally assumed by the Maronite Church and the French military command in Beirut that the ratio of Christians to Muslims among the population of Lebanon was 55:45. The population census of 1932 failed to conclusively validate this ratio, and was never repeated. The 55:45 ratio was not given any political significance until the year 1943, when Lebanon declared itself independent despite French objections which were swiftly overridden by the superior British military presence. But it was slightly modified to a 6:5 ratio, which was reflected in the following general elections laws. In 1991, that ratio was updated to 50:50.

 

 Demographic changes

 

Hand in hand with this last amendment (which was part of the Taif Accord that ended Lebanon's 1975-1990 Civil War), the office of the president continued to be reserved to the Maronites, but was stripped of much of its powers. As no population census was made after 1932, population figures were estimated. Intelligent population guessing today puts that ratio at nearly 20:80 and receding fast as the Muslim Lebanese population is much younger than the Christian Lebanese population and the rate of emigration is substantially higher.

 

The National Pact

 

The moment of transition to independence away from France and a partial return to the Arab/Islamic neighbourhood marked a new political fiction conveniently called the National Pact, consisting of a reciprocal concession that Lebanon would have an Arabic face, but no more, and that the destiny of Lebanon would be linked neither to France nor to the Arab world, meaning that Lebanon would neither seek political unity with the Arab countries nor political alliance with France and the West. This fiction lasted until February 22, 1958, when the constitutional unity of Syria and Egypt was declared under the leadership of Egyptian President Gamal Abdel Nasser. Lebanon was already suffering from political turmoil marked by divisive general elections under the shadow of a definite political tilt by the Lebanese government in favour of the West. These were the days of the Eisenhower Doctrine and the Baghdad Pact which came on the heels of the tripartite invasion of Egypt by the combined Israeli-British-French military forces, ending in a massive political victory for Nasser that elevated him to the status of a modern-day Saladin. The situation in Lebanon quickly escalated into a rebellion which was further fuelled by the fall of the pro-Western monarchy in Baghdad in July of 1958. Soon the American Marines landed in Beirut and did not leave until the commander of the Lebanese Armed Forces (LAF), General Fouad Chehab, was elected president with the blessings of all concerned, including the Maronite patriarch and President Nasser.

 

The Chehabist Doctrine

 

President Chehab's term of office was characterized by the excessive use of army officers in key posts, the rise of the notion of state security based on the expanded activity of army intelligence and justified by a failed coup d'etat, and the building of institutions to apply sectarian parity, 50:50, in the hiring of government employees. In 1964 he was succeeded by Charles Helou, a lawyer and writer hand-picked by Chehab and handled by Chehabist army officers. During Helou's term, the catastrophic defeat of Egypt and Syria in the 1967 war fuelled the rise of Palestinian guerrilla organizations under the umbrella of the Palestine Liberation Organization (PLO). In open defiance of Lebanese authorities, those groups based themselves in, and commenced their operations from, South Lebanon in what came later to be known as Fatah Land, named for the PLO's dominant faction.

 

The Palestinian factor

 

Lebanese sympathy for the Palestinian cause brought the wrath of Israel on Lebanon. On December 31, 1968, the Israeli Army launched an unprovoked attack on Beirut International Airport and landed soldiers who briefly held the airport and used explosives to destroy every Lebanese civilian aircraft that happened to be there, amounting to the majority of the country's civil fleet, and signalling the beginning of a long and never-ending war between Lebanon and Israel. On November 3, 1969, the Commander of the LAF at the time, General Emile Boustani, signed an agreement with the PLO in Cairo which came to be known as the "Cairo Agreement," officially recognizing the Palestinian military activities in certain areas of South Lebanon and ceding Palestinian refugee settlements to their control.

The rapid expansion in Palestinian military muscle in Lebanon, with PLO Chairman Yasser Arafat taking control of a large section of Beirut for his headquarters, and the lack of an official Lebanese political will to check the Palestinian activities after the very close encounter they had with the Jordanian Army in 1970, fuelled sectarian tensions among many Lebanese and provided an excuse for the organization of armed private militias. A general breakdown of law and order followed the attack on a Palestinian bus transiting the neighbourhood of Ein al-Remmaneh on April 13, 1975, and the massacring of all its passengers, and precipitated a civil war between the PLO forces and their Lebanese allies under the umbrella of the National Movement ("NM") led by Kamal Jumblatt on the one hand, and the Christian forces of the Tigers, of former President Camille Chamoun, the Phalange Party and their allies. Some elements of the then-fragmented LAF joined forces on both sides. When the collapse of the Christian military front became a matter of hours, the Syrian Army entered the country, with the open and active support and consent of the big powers led by the United States, and swiftly ended the fighting. Its occupation of Lebanon was blessed by the Maronite Christian leaders and camouflaged as an Arab League initiative. The Syrians checked but did not try to end the PLO. They simply put it under a leash. In 1976 a new president was elected, Elias Sarkis, who was a high-ranking civil servant of the Chehabist era and a close ally of Chehab. He was elected in May 1976 at a hotel in the Bekaa under the protection of the Syrian Army.

 

The South Lebanon Army

 

The unravelling of the Lebanese Army gave Israel an opportunity in the South Lebanon town of Marjayoun where an army garrison was besieged by the PLO-NM alliance and could not be reached or re-supplied from Lebanese territory. Major Saad Haddad took command of this garrison by travelling via Israeli-held territory. Subsequently he became an Israeli ally and the Lebanese Army garrison developed into the South Lebanon Army (SLA) wholly financed, equipped and controlled by Israel. The largest of the Christian militias was borne of the Phalange Party and, after subduing by force the rival Tigers militia, came to be known in the late 1970s as the "Lebanese Forces" (LF). The LF was heavily trained, armed and financed by Israel. In 1978 the Israeli Army staged an invasion of South Lebanon and, in close cooperation with Major Haddad's force, established a "security belt" as a buffer to protect Israeli territory. Limited Israeli operations continued on Lebanese territory intermittently until the major invasion Israel launched on June 4, 1982, which ended the official PLO presence in Beirut and military presence in South Lebanon with the exception of the Palestinian refugee camps.

The commander of the Lebanese Forces militia, Bashir Gemayel, son of the founder of the Phalange Pierre Gemayel, was elected president during the Israeli occupation. He was assassinated following the eviction of the PLO forces from Beirut. This was followed by the massive massacre, in the impoverished Beirut suburb of Sabra and Shatila, of countless civilians, Palestinian and Lebanese, by Lebanese Forces militiamen in revenge for the death of Bashir, and the election of Bashir's older brother, Amin, as president with full Israeli and American support. Multi-national European and American forces had already landed in Lebanon, led by American Marines and French paratroopers. They departed following several major attacks, with hundreds of fatalities, including the blowing up of the Marines' compound at Beirut Airport, the headquarters of the French paratroopers not far away from there, and the US Embassy.

 

The Iraq war and Bashar Assad

 

The US military returned to the Middle East in force in 1990 to roll back the Iraqi occupation of Kuwait and in 2001-2003 to invade and occupy Iraq and Afghanistan. In spite of the Syrian government's support, under President Hafez Assad, for the 1991 Gulf war directed by President George H. W. Bush, the Syrian government under President Bashar Assad did not back the 2003 invasion of Iraq launched by President George W. Bush and was suspected of having an agenda to help the Iraqi resistance to US occupation.

Hence Syria's relationship with the United States deteriorated. As the Iraq war worsened, Bush signed into law on December 12, 2003, the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, designed to pressure Assad's government to work more aggressively in fighting terrorism at home and in Iraq. The new law authorized a combination of punitive economic sanctions and diplomatic measures. This signalled a new round of confrontation between the US and Syria. The first battle in this confrontation was Lebanon. The term of the Lebanese president, Emile Lahoud, was to expire in November of 2004. Lahoud, like many of his predecessors, was elected while Syrian troops occupied much of Lebanon. He was considered an ally of Assad.

Like most previous Lebanese presidents, Lahoud wished to have a second term in office, although re-election was explicitly forbidden by Article 49 of the Constitution. Parliament had extended the term of his predecessor, Elias Hrawi, for three years through a constitutional amendment. Lahoud thought it was fair for him to receive a similar extension. But the United States and France, which had cast a blind eye on the term extension of Hrawi, were now opposed to the Lahoud extension. After months of speculation on this issue, 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 which the United States and its allies openly opposed.

 

The shift from Shariah to French law

 

For most of the 19th century and the early part of the 20th, the Ottoman Sultanate was undergoing vast legal reforms as part of a comprehensive modernization process to enable its full participation the European community of nations. The centrepiece of the reforms was the codification of Islamic Shariah. The new code was called Majallat al-Ahkam al-Adliah, or the Code of Justice Rules. A significant part of this code is still in effect in Lebanon. In the early part of the 20th 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 until the present day.

Parts of the Arabic language are often abused in translation into other languages. The most significant example is the name "Allah" which is simply Arabic for "God," just as "Dieu" is for the French. Similarly, the Arabic word Sharia is Arabic for "law" or "legislation." Its various derivatives are still used as basic legal terms in Arab and Islamic countries. The Islamic tradition highly valued Islamic Shariah as a pillar of human society. Islamic Shariah was chiefly concerned with the sanctity of life, the sanctity of private property and the sanctity of contracts. Under the heading of contracts one does not only find private contracts and promises but constitutional contracts and international treaties as well. The most famous constitutional contract in Islamic history is the pact that was entered into by the Prophet Mohammad and the three groups that constituted the population of Medina: the Muslim immigrants from Mecca, the Muslims of Medina and the Jews of Medina.

It stated that, together, the three groups constituted an independent nation, and set forth the rights and obligations of the citizens and groups thereunder. The major towns that were taken by the Muslims as part of what is known as the Futouh - the plural of the Arabic word fateh, which means an "opening up" but is commonly, and erroneously, translated as "conquest" - were opened to the Muslims peacefully under written pacts with the community elders of each, where the Muslims pledged to protect the security of their lives and property. Hence the spectacular early Islamic Futouh were not accompanied by bloodshed among civilians or the destruction of cities. Thus Islamic Shariah maintained and greatly expanded upon the earlier culture of the covenants that distinguished the traditions of the prophets Ibrahim and Moses. But, unlike those covenants, the Islamic contracts were of a secular nature and made among people and not between prophets and God.

 

Protection of minorities

 

From the dawn of the Islamic era following the Futouh, a legal regime was put in place to protect the religious minorities called ahl alzimma. Church leaderships enjoyed great autonomy in religious communal matters and original jurisdiction over family law, and cooperated closely with the Islamic state's political leadership. Most of the Christian churches of the Middle East had, and continue to have, deep roots in the Islamic world.

 

Fall of the Islamic rule of law

 

So when the French expeditionary force landed in Beirut in October of 1919, there already was a strong legal tradition in place based on a rich mix of Islamic Shariah and modern Ottoman codes which gave rise to a distinctive and powerful Islamic rule of law, which the French proceeded to put an end to without ever succeeding in establishing a viable alternative thereto.

The French generals and other high commissioners who followed pursuant to the military occupation and the League of Nations Mandate saw to it that the Republic of Lebanon did not only have a liberal constitution modelled on the French one, albeit with restricted sovereignty, but that a series of statutes were issued modelled on French law. The jurisdiction of the Islamic Shariah courts, which before Gouraud exercised general jurisdiction as the courts of common law, was restricted to family law and inheritance, and their common law role was replaced by a new system of civil courts modelled after the French judiciary with a backbone of mixed courts where Lebanese and French judges sat by side in tribunals often chaired by French judges. As a result Lebanon received a legacy of civil law that, bit by bit, superseded the Islamic Shariah system. What enabled this vast legal development was the establishment in Beirut in 1913 of a Jesuit law school affiliated with a French university at Lyons. This school did not become fully functional until the French occupation of Lebanon. Most of its students were Maronite. From there on it supplied all the judges and a majority of the legislators, ministers, prime ministers and presidents. Until the late 1950s it enjoyed a total monopoly on legal education in Lebanon. If it had the rule of law among its mission statement, it certainly did not make of it much of a success.

 

A new call for the protection of ahl alzimma?

 

What happened is that the Maronite Church, followed by the Maronite political establishment, always endeavoured to have its cake and to eat it too. It not only sought to maintain the privileges enjoyed by the Maronite community under its leadership under the Ottoman Empire as a protected minority in accordance with the Sharia rules applicable to ahl alzimma, and to expand those privileges, but also opted for the exercise of political hegemony based on the theoretically superior numbers of Christians, constantly ignoring Article 7 of the Constitution.

This slowly but surely gave rise to a growing reaction among other religious communities with many communal politicians calling for similar or opposite privileges. Hence a perverted political discourse took hold, which continues with frightening manifestations to this day, marked by conflicting calls for "restoring" and/or "safeguarding" the perceived rights of each and every religious community, but not of human rights or the rights of citizens. When the number of Maronites in Lebanon dwindled dramatically, politicians from the communities who made the new majority naturally aimed for hegemony based on numbers. Consequently, the Maronite Church, followed by Maronite politicians, openly sought reinforcement of protection for the old privileges, much in the zimma tradition. In a way the Maronite Church and politicians may not have realized, they effectively voted for the restoration of the Islamic rule of law with all the safeguards for minorities it embodies, and against the civil rule of law based on the notion of equality and non-discrimination. Such behaviour, and the behaviour of the Maronite political establishment as a whole, makes the advent of the Islamic rule of law unavoidable.

 

The alternative

 

The alternative would have been for the Maronite political establishment to recognize that, in the long run, real and effective protection for the Maronites is the same as real and effective protection for all the religious communities of Lebanon, and lies mainly in the recognition of the equality of all Lebanese based on human rights and the protection of the civil rule of law. This alternative is still open but it may vanish before long. Choosing this alternative would necessitate a swift and convincing change in the political discourse beginning with the dropping of the "rights of Christians" slogan and the launch of a credible effort to put together a cross-communal political coalition to wage a national campaign for the civil rule of law.

 

Muhamad Mugraby is a Lebanese lawyer, human rights defender and president of the Centre for Democracy and the Rule of Law. He wrote this article for THE DAILY STAR.

Source: THE DAILY STAR.


URL:http://www.newageislam.com/islam-and-politics/an-islamic-rule-of-law-for-lebanon?/d/885


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