by Adel Beshara
Moreover, Lebanese Law accepted the concept of a “political intent” as something which can be logically imputed to an accused, once again an offshoot of the French penal code, which identifies the political offender as one who operates on a higher evolutionary level than a common criminal. A French treatise on criminal law stated, “The political offender is not like other offenders; he violates the criminal law because he combats the particular political regime that applies the law.”89
This goes a long way toward explaining why the French were indulgent towards political offenders during their mandate over Syria and Lebanon and why they preferred exile or imprisonment to the death penalty. Given that the offending act in 1949 was directed toward the authority of the regime and the elaborate system of privileges and restraints on which the political institutions were based, and not towards private life or property, its designation as a “capital crime” constituted an unreasonable breach of the Lebanese Criminal Code.
Since the target of Sa’adeh’s revolt was the government and not the bases of social existence, the offending act could not have crossed the cut-off point between a “pure” political crime and a common crime committed with political motivation. It remains a political crime par excellence as it did not involve acts of odious barbarity and vandalism prohibited by international law or the laws of insurrection. The death of one person in the confusion is not, in itself, a sufficient ground for criminality: killing or incitement to kill was never an intended part of the revolution.
Two other factors rendered the offending act as a political rather than a capital crime. First, the offender did not fit the character of a common criminal since his act was not “designed for the sole end of benefiting or avenging himself”90 but for purposes that are clearly more elevated than those manifested by common criminals. The true political criminal, says Ferri:
. . . is a pseudo-criminal and ought not to be considered in the same breath as the ordinary criminal. The latter is atavistic, harks back to a primitive and savage time; he is anti-social, antihuman, and is not to be confused with the political criminal since the latter is not anti-human, does not attack the bases of our human life, our life as social beings, but attacks only the bases of our political or governmental order which is transitory. The ordinary crimes, and particularly the mala in se or the natural crimes are regressive, whereas the political crimes are progressive. The natural crimes are involutive or involutionary; and the political crimes are evolutive or evolutionary.91
The second factor is the “public” nature of the offense, which again is directly related to the mind of the author of the act, his motives and end or goals:
Political criminals are characterized as being quite different from conventional criminals: they often announce their intentions publicly, challenge the very legitimacy of laws and/or their applications in specific situations, attempt to change the norms they are denying, lack personal gain as a goal and appeal to a higher morality, pointing out the void between professed beliefs and actual practices.92
The 1949 offending act revealed a political concern “that is in striking contrast to the self-serving goals of those guilty of ordinary offenses against persons and property.”93 The conscious purpose or the subconscious urge of the offender was “to indulge in the prohibited conduct as a means to some larger and more social ends”94 and he even gave notice to the public of his intentions. If from this point of view, the political criminal is blameworthy and ought to be punished in the interest of the established order, his criminality cannot be punished under the name of natural or common crimes or compared with that of the ordinary malefactor.95 To do otherwise would throw the concept of morality into chaos. For example, is it right to place a habitual criminal on a par with a man who commits a crime for the first time because of exceptional circumstances which are not likely to occur again?
4. The Political Character
Sa’adeh’s trial much more closely resembled a typical secret political trial conducted behind the iron curtain than the sort of judicial proceedings we now have a right to expect. Yet one of the glaring ironies of the trial was that the government continually insisted on labeling it as a non-political trial even though it had all the trappings of a political trial. Otto Kirchheimer, whose pioneering work Political Justice remains unexcelled for its erudition and analyses of political trials, argues that a political trial aims to affect in one way or another power relationships within society. It is one in which government or people seek through litigation to strengthen their own position and to weaken that of their opponents.96 A political trial, then, is
. . . any trial or impeachment that immediately affects or is intended to affect the structure, personnel, or policies of government, that is the product of or has its outcome determined by political controversy, or that results from the efforts of a group within society having control of the machinery of government to use the courts to disadvantage its rivals in a power struggle which is not itself immediately political or to preserve its own economic or social position.97
Scholars will disagree on the order of things – “motivation” for Theodore Becker,98 “defendant” for Reginald Major,99 and “procedure and impact” for Leon Friedman100 – but will concur, at least in principle, that a political trial is the result of efforts by either the defendants or those who control the government to use the courts for political purposes. It may be for the purpose of degrading a political adversary or simply to silence critics. Either way, it involves either challenges or abuses of the authority of government.
Contrary to the government view, the trial of Antun Sa’adeh was a political trial par excellence. Throughout the trial the stakes were political as much as they were legal. The case clearly falls in that category “in which the defendant is tried for an offense which is itself political in nature and represents a direct challenge to governmental authority.”101 At least two components of the indictment against Sa’adeh supported this: (1) inciting and participating in an armed rebellion against the status quo in Lebanon with the intention of seizing power; and (2) treason, expressed in the allegation that Sa’adeh collaborated with the enemy (Israel) in time of war. Needless to say, revolution and treason rank among the most serious possible offenses against the state.
The political attributes of Sa’adeh’s case were also manifested by the political background and standing of the defendants. As a product of a specific and identifiable set of political events, the case had a political agenda all its own and transcended in significance the boundaries of personal grievances. Its motives and objectives were thus political. The accused was a “political person,” to use a typology of Reginald Major, and his views were at sharp variance with political orthodoxy. All or part of the evidence against him was drawn from observations of the accused’s political conduct and political leitmotifs. The prosecution address, for example, was more of a political speech than a legal document and its character was frequently more of an accusation against Sa’adeh’s political ideology as a whole than of one against the individual accused. A demonstrable connection between the defendant’s ideology or organizational activities and the trial process can also be gauged from the charges leveled against the defendant.
Government interference in proceedings, whether to speed up the trial or to influence its outcome, also rendered the trial political. This interference seemed to have occurred throughout proceedings and aimed at bringing disrepute to Sa’adeh and to the political orientation he represented. The government enlisted the services of the tribunal to strengthen its own position and weaken that of its political foes. It is by directly involving the courts in the struggle for political power that the trial becomes political.
Therefore, the government’s reluctance to treat the case as political is tenuous. It was made in bad faith to ensure “the imposition of the fullest penalty of the law against [Sa’adeh]” – the death penalty. Under Lebanese law, only capital offenses are punishable by death: political crimes are also punish
able, but involve lesser penalties and may give rise to temporary imprisonment, hard labour or fines. As Antoine El-Gemayel has observed:
Such crimes are defined as intentional acts prompted by a political motive directed against the political rights of an individual or community. The Lebanese criminal system differentiates between political crimes and political offenses in terms of punishment imposed for each. Punishment for political crimes includes incarceration, exile, house arrest or civil degradation, while punishment for political offenses includes imprisonment, house arrest or fines. Civil degradation imposed for political crimes is generally accessory and automatic. When it is imposed as original punishment, it must be judicially declared.102
The government’s reluctance may have also stemmed from an inherent fear of a political trial. Political trials can be problematic for any government especially if the evidence is flawed or if the accused is able to mount a strong case. Even with strong evidence, a political trial might not always end on a good note for the government. A political defendant has at his or her disposal a number of tactics that can potentially turn the case against him around. For example, he can try to create a political climate in which the people see that prosecution is unjust, and the government is made to realize that there could be serious consequences if there is a conviction:
Whereas formerly the political criminal was treated as a public enemy, he is today considered as a friend of the public good, as a man of progress, desirous of bettering the political institutions of his country, having laudable intentions, hastening the onward march of humanity, his only fault being that he wishes to go too fast, and that he employs, in attempting to realize the progress which he desires, means irregular, illegal and violent.103
The government cannot, in those circumstances, keep the trial centred on technical legal issues, where it might be most impervious, or prevent the accused from building wide public support and adapting the legal strategy to that purpose. Criminalization, on the other hand, offered the government greater control over the case. For one thing, “when protest assumes a ‘criminal’ rather than a ‘political’ form . . . the issues become confused, with a political cause being given a criminal label. Dissidence can then be presented as being ‘against the law’ with the grievances or issues that gave rise to it being submerged or pushed into the background.”104 The “criminalization” of political disputes, as in the present case, is thus “a central aspect of the exercise of social control.”105
To this catalogue of political motives must be added a last one: the impulsiveness of a political trial. Capital cases naturally raise difficult questions of law, but “they do not involve the dual legal and political agenda that political trials simultaneously address.”106 In contrast, political trials which operate within the rule of law often present entanglements of facts, political issues, and ethical judgments. “They might have far-reaching political consequences, often knocking powerful figures out of the arena.”107 Such trials “up the ante and involve . . . tensions and much more. Its agenda (often more latent than manifest) includes, in addition to those inherent in the criminal law, the tensions of our public identity, our myth of history, and our sense of destiny.”108
As Kirchheimer has so aptly noted, political trials in democratic societies pose risks and uncertainties for all sides in the proceedings. Obviously the Lebanese government felt that a full-blown trial might not have been to its advantage but might have increased the morale of its adversary. As many political defendants and their supporters would attest, success in politicizing the proceedings, securing favorable press attention, avoiding convictions, or in changing the beliefs of some of the jurors or other trial participants produces a sense of heady optimism and encourages renewed hopes and efforts for change. Obviously the converse is also true; a trial that succeeds in none of these goals may be the occasion for much frustration.
Conclusion
When the political regime and the judiciary behave in a manner unbecoming of the law, no one should expect a fair outcome. Sa’adeh’s trial was a total shamble amounting to judicial lynching. Throughout the trial the government exhibited scant regard for the niceties of jurisprudence and little more for the letter of the law. It was really nothing more than an open-and-shut exercise in accusation and punishment, a trial more appropriate in the cruel days of the Middle Ages than in the supposedly civilized world of the 20th century.
As for Sa’adeh, the horror of the trial would be exceeded only by the shocking treatment that was subsequently meted out to him. What started out as a mockery on 7 July would turn into a greater mockery before the next daybreak.
Notes
1 On the state of the Khoury regime in 1949 see Michael C. Hudson, The Precarious Republic: Political Modernization in Lebanon. London: Westview Press, 1985: 87–105 and 264–272.
2 Beirut, Beirut, 8 July, 1949.
3 Ibid.
4 See Beshara Haykal Khoury, al-Mahkmah al-Askriah wa khususyatuha (The Military Court and its Particularities). Beirut: Dar Sadr, 2005.
5 Ibid.
6 See Matthew Hughes, “Collusion across the Litani? Lebanon and the 1948 War” in Eugene L. Rogan and Avi Shlaim. (ed.), The War for Palestine: Rewriting the History of 1948, 2nd ed. (Series: Cambridge Middle East Studies No. 15). Cambridge: Cambridge University Press, 2001.
7 Abdullah Qubarsi, Abdullah Qubarsi yatadhakar (Autobiography), Vol. 4. Beirut: Dar al-Furat, 2004: 68. The resort to ‘national security’ excuses in the conduct of secret trials has come under close scrutiny in law literature. A recent study opens: “Executive secrecy, especially in the realm of national security, poses grave problems for the legal process. This is because of the need to reconcile procedural fairness to individuals affected by contested decisions with the safeguarding of secret material on which such decisions are based. Governmental decisions are normally considered legitimate within liberal democracies if they are demonstrably within the law and are rational, principled, and proportionate. In the security realm, the difficulty is in devising appropriate political and legal mechanisms by which these criteria can be shown to be satisfied while also protecting secret material. The normal constitutional processes of adversarial legal proceedings and ministerial accountability to Parliament may seem to the executive to be insufficiently protective of secrecy. On the other hand, to give the executive free rein to determine the boundaries of its actions without any independent review or control is to invite political abuse and pays no regard to the rights of the individual.” Ian Leigh, “Secret Proceedings in Canada,” http://www.ohlj.ca/ archive/articles/34_1_leigh.pdf.
8 See John Daye, Muhakamat Antun Sa’adeh (The Trial of Antun Sa’adeh). Beirut: Fajr an-Nahda, 2002.
9 John Semple Galbraith, “The Trial of Arabi Pasha,” Journal of Imperial and Commonwealth History, 7:3 (1979): 274–292.
10 The early preparation of these laws and procedures took place during the French mandate, but its antecedents lay in past historical and religious codes: the Code of Hammurabi; the Canon Laws of oriental churches; the Syrian-Roman Custom Book; Islamic Law, and the Ottoman Khat Kol Khan, which proclaimed legal principles of freedom, personal property and equality among citizens, in keeping with European codes of the time.
11 The Dreyfus case underscored and intensified bitter divisions within French politics and society. The fact that it followed other scandals – the Boulanger affair, the Wilson case, and the bribery of government officials and journalists that was associated with the financing of the Suez Canal – suggested that the young French Republic was in danger of collapse. The controversy involved critical institutions and issues, including monarchists and republicans, the political parties, the Catholic Church, the army, and strong anti-Semitic sentiment.
12 Thurman Arnold, “Due Process in Trials,” Annals of the American Academy of Political and Social Science, Vol. 300 (July 1955): 126.
13 Beshara Khoury, Haqa’iq Lubnaniyyah (Lebanese Truths), Vol. 3: 242.
14 Ronal O. Sokol,
“The Political Trial: Courtroom as Stage, History as Critic,” New Literary History, Vol. 2, No. 3 (Spring 1971): 502.
15 Philip Berrigan, Prison Journals of a Priest Revolutionary. New York: Holt, Rinehart and Winston, 1970: 111.
16 See Antoine Elias El-Gemayel, The Lebanese Legal System, Two Volume Set. Rowman & Littlefield Publishers, 1985.
17 At least one known person at the trial, Saeed Taki Deen, subsequently joined the SNP and became its propaganda dean. See Suleiman Taki Deen, Sirat al-Adib Saeed Taki Deen (The Life of the Literati Saeed Taki Deen). Beirut: Druze Heritage Foundation, 2004.
18 There have been many instances in history in which defense counsels were harassed and intimidated to such an extent they were forced to withdraw from proceedings. The trial of Zamani Lakwot and six others in Nigeria is a glaring example. The African Commission, in its evaluation of the trial, found that the accused were denied their right to defense, in violation of Article 7(1)(c) of the African Charter, and called on the Nigerian Government to free the complainants. [The Constitutional Rights Project (in respect of Zamani Lakwot and six others) v. Nigeria, (87/93), 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, ACHPR/RPT/8th/Rev.I].
19 George Abdul Massih, Muhadarat al-Mukhayyam al-Sayfi (Summer Camps Lecture Series). Beirut: n.p., 1971: 29.
20 From the private papers of Rizkallah published in Antoine Butrus, Qissat muhakamat Antun Sa’adeh was i’damehe (An Account of Antun Sa’adeh’s Trial and Execution). Beirut: Chemaly & Chemaly, 2002: 102.
21 Gibran Jreige, Ma’ Antun Sa’adeh (In the Company of Antun Sa’adeh). Beirut: n.p., n.d.: 186–187.
22 Ibid. Former army Captain, Esam Karam, expressed his opinion that the authority succeeded in driving Attorney Lahhoud to walk out in order to arrive at the previously-decided sentence. See Butrus, Qissat muhakamat Antun Sa’adeh was i’damehe (An Account of Antun Sa’adeh’s Trial and Execution). Beirut: Chemaly & Chemaly, 2002: 104.