by Adel Beshara
In the darkness of secrecy, sinister interest, and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest guard against improbity. It keeps the judge himself while trying under trial.4
Openness as a vehicle of judicial accountability may apply even where a degree of secrecy is acknowledged to be necessary. What, then, if the reasons for secrecy are not compelling, as in the trial of Antun Sa’adeh?
In 1949, the Lebanese regime was less than six years old. As the first regime after independence, much was riding on its political performance. The irony is that Sa’adeh presented the Khoury regime with an opportunity to demonstrate its commitment to the rule of law and to provide a shared sense that the courts operate with integrity, and it didn’t. It chose, instead, to place its own power and interest above the power and interest of the law. Law, says Carol Chomsky, “must be more than the routine exercise of power. It must ‘guide and educate’ those subject to it and validate itself ethically in the eyes of the governed as well as in the eyes of the ruling class.”5 She adds:
Groups that form the policy must either share the norms of behavior reflected in the law or accept that the system that produces those standards represents the best interests of the community of which they are a part, even if some individual rule is not consistent with their own self-interest. Law is justified – and effective – only insofar as it reflects the community’s shared values or is the product of a process viewed as legitimate by the governed.6
Every consideration of government policy must give way to the principle of due process because the ideal of a fair public trial is the cornerstone of civilized government. It is the measure between good and bad governments:
For most people it is the criminal trial that overshadows all other symbols as the dramatization that this is a government of law and not of men. It represents the dignity of the state as the enforcer of law and at the same time the dignity of the individual even though he be an avowed opponent of the state, a dissenter or radical, or even a hardened criminal. So important is the public trial to the whole ideological structure of any government that the adoption of more efficient and speedy ways of punishing individuals is a sure sign of instability and insecurity.7
In its determination to get rid of Sa’adeh the Khoury regime willingly abandoned its liberal façade and reverted to fabrication. It carefully drafted and revised the charges to compound the allegations against Sa’adeh and deliberately distorted the facts to cover up its misdeeds. Many years later insiders exposed the process of constructing false charges with cynical candor and revealed gross legal violations perpetrated by the regime. Apparently, the evidence against Sa’adeh was so weak and vulnerable that distortion became the only practical avenue for conviction. The desire to avoid a political trial and thus a potential verbal confrontation with Sa’adeh is another possible clue and may have had a lot to do with it.
On the surface, this desire seemed logical and reasonable given the potentially political nature of the evidence and, thus, the danger of the trial turning into a platform for political mockery.8 However, it is ominous and downright treacherous when a government attempts to avoid a political trial through deliberate falsification of the facts and blatant disregard for the precepts of law. By depriving Sa’adeh of his right to a political trial, despite the overtly political character of his case, the Khoury regime cannot really be said to have acted fairly. For those who initiate a revolution, or make a futile attempt to do so, or even single-handedly hope to destroy what they consider despotism, by making it unsafe for the incumbent regime, are just as much political offenders as those who succeed.
Even more profound was the decision of the Khoury regime to consider the accused in the same breath as an ordinary criminal rather than as a political offender. This manner of looking at political criminality had ceased a long time ago and governments, notably in France, whose legal code forms the basis of the Lebanese Code, have since separated the political from the ordinary crimes and established for the former a scale of special penalties milder than the ordinary penalties. Moreover, unlike the older unenlightened practice, where all criminals were classified according to the physical facts of their conduct, the newer criminology considers the physical facts of the crime as merely some of the indications of the quality of the psychologic imperative conditioning the characteristics of the criminal conduct.9 This means that, as a political offender, Sa’adeh should have been judged, not by the physical quality and physical circumstances of his acts, but by the psychological qualities and circumstances of his inner compulsion, “only in so far as that was a conscious part of his criminal act.”10
So, was the trial simply an instance of miscarriage of justice?11 Yes, to the extent that state institutions were used to bring about results, which appear, on the face of it to represent justice, when in reality they only represent a perversion of justice. However, it is not normal to assign the phrase “miscarriage of justice” to a case where the verdict springs from a deliberate human fault rather than from fortuitous circumstances infringing on the legal rules.12 We cannot, for example, classify the trials of the Great Purge under Stalin as a “miscarriage of justice” because the entire procedure was stage-framed and carried out according to the general and direct orders of the regime. Likewise, we cannot speak of a “miscarriage of justice” in the Sa’adeh case because the trial was completely a frame-up: the “sentence” passed on Sa’adeh was almost assuredly drawn up and its wording decided upon before the trial had even started. The term is inapplicable because the trial was not in the slightest degree a juridical procedure designed to determine the truth or falsity of the charges brought against the defendant. History, facts, dates and evidence were as of little moment in the trial as human life and human dignity. The objective was to send the defendant to death by any manner of means possible.
II
The trial and execution of Antun Sa’adeh, then, were about revenge, not justice. The manner in which they were carried out – hurriedly, secretively, in the dark of night, in a mockery of any semblance of legal process – was incomprehensible. The trial was never designed to prove the truth or falsity of anything whatever, certainly not of the guilt of the defendant. To the extent that its intention was to defeat and destroy Sa’adeh, the Khoury regime achieved its goal with sublime complacency. However, from the point of view of truth and law, the trial goes down in history as the greatest disgrace to Lebanese justice.
Can the Lebanese redress this historic injustice and, if so, how? It would not be right to insist today that someone should be answerable for an unjustifiable act done many years ago. Redressing a historical wrong for venal reasons or to teach the perpetrators and their heirs a lesson is pointless and counterproductive. A sincere recognition that an injustice had been committed is all that would be required to ensure that it would not happen again. It would be a true measure of political maturity and an uncompromising expression of solidarity with the future if the Lebanese state could rise to the occasion. The moral and ethical obligations of the case demand it.
Redressing the injustice done to Sa’adeh requires, first and foremost, an acknowledgement from the Lebanese state that what happened was unwarranted and unjust. The Lebanese people too can do its bit for justice. They cannot change history but they can bring pressure to bear on the authorities to re-open the case. This is not to suggest that justice is prescriptive or that the lessons of the past lead inevitably to a higher and nobler consciousness. Far from it. The value of a new trial would simply be that it would alert those faced with moral choices to the myriad of possibilities that history presents and that actions and decisions that affect individual destinies must be weighed carefully.
The legalistic reasons for granting a new trial for Sa’adeh are numerous and may be classed as follows:
The flavor of misconduct sufficiently permeated the entire proceeding to provide conviction that the tribunal was influenced by passion and prejudice in reaching its verdict.
The evidence was tampered with to prejudice the tribunal.
Tricks were disingenuously practiced to stifle the proceedings or to obtain an unconscientious advantage.
The verdict was improper either because it was against the law or excessive, and appear to have been given in consequence of prejudice rather than as an act of deliberate judgment.
New material evidence has been discovered since the trial which would probably produce a different result.
The death sentence was disproportional with the charges.
Today, most Lebanese speak affectionately of Sa’adeh. They no longer believe the fanciful stories weaved about him by his adversaries and believe that he was unjustly treated. The former Chief of Lebanese General Security, Farid Chehab, encapsulated the sympathetic upsurge toward Sa’adeh in a single statement when he said: “Some people applauded Sa’adeh’s killing, others danced in joy, and others kept silent. I am a Lebanese above all else. However, if I knew that Lebanon would finish up where it is today I would have fought alongside Antun Sa’adeh.”13 Despite the affection, successive Lebanese governments have consistently ignored demands for a retrial.14 Some say it is because the Lebanese system simply cannot cope with the political repercussions of a new trial, let alone of an official exoneration. Others cite technical problems arising from a lack of credible record of what took place at the trial or from the unavailability of key witnesses. Moreover, the Lebanese Criminal Code does not allow retrials for criminal cases with irrevocable sentences. This restriction applies more specifically to martial cases, which is probably another reason why the Khoury regime decided to court-martial Sa’adeh rather than send him to a normal criminal court.
It is true that retrials in some criminal cases are permissible under Lebanese Law but they do not apply to Sa’adeh.15 The problem, though, is not irredeemable. One way to deal with it would be to amend the criminal code in relation to the relevant articles. That would remove an impenetrable legal barrier and pave the way for a posthumous retrial, but it would not entirely solve the problem. Without the original trial records a retrial would still be technically difficult. “Does this mean that whoever hid the file or destroyed it has closed all doors on the possibility of a retrial for Sa’adeh and for restitution of justice? It appears so.”16 At any rate, amending the Lebanese criminal code would be in the interests of justice whatever the public may feel about this tragic case.
An alternative course of action would be to set up an independent commission. This method has many historical precedents, but they are too varied and complex to be examined in detail here.17 In Sa’adeh’s case, an independent commission would have to meet very stringent conditions if it were to succeed. It would have to be created in a calm and rational manner to minimize political and personal prejudices and external interference from those with a direct stake in the case. Its members would need to have the competence to grapple with a case of such great sensitivity, which means that their grasp of both legal and political exigencies would have to be rock solid. At the end of the day, an independent commission into the poignant tragedy of Antun Sa’adeh would in great measure depend on Lebanese readiness to shrug off their somewhat blinkered view of justice and to acknowledge that truth and fairness are imperative for the challenges of tomorrow and the moral choices of today. At this juncture, Sa’adeh’s case should serve as a “reminder of the risk of departing from due process and of blindly accepting that the interests of the state and those of justice necessarily coincide.”18
It is true that no amount of compensation can serve as adequate restitution for a historical injustice, especially when a tragic death is involved. Nonetheless, a symbolic redress of such an unspeakable wrong would make of the Lebanese something other than what they might become:
The utility in recognizing a historical wrong is in the meaning it shares with other potentially unjust events. That we condemn a historical injustice is to express a value which conditions our response to choices that we currently face. It also reinforces a tradition which allows us to avoid actions that would otherwise imperil our sense of identity and moral worth. We as a nation must pass moral judgement on historical injustices because it is in this particular way of understanding the past that we become open to it and accept those very ideas and values we as a democratic people profess and use in shaping the justness of our own actions.19
History provides the lessons by which the mistakes of the past would less likely be repeated. The importance of this should not be lost on those who understand the larger meaning of truth and justice.
III
The Antun Sa’adeh trial has long been held by his supporters as the act of a corrupt regime assisted by a contaminated judiciary prepared to frame and put to death a noble challenger as a means of diverting public attention from its reactionary policies. As we have seen, the conduct of the Khoury regime and the military tribunal fell well short of the standards expected of them. But this does not mean that Sa’adeh was killed for a crime. The events and plots preceding his trial point to a vehement behind-the-scene desire for liquidation as a principal reason for his execution. In that case, the July Uprising has to be seen as a pretext for the execution rather than as the reason for it.
Likewise, to regard Sa’adeh’s execution as part of a sinister cabal chips away at the aberrant political behavior of those who sanctioned or encouraged it. The central reality of Sa’adeh’s execution is that it was planned and carried out with a high degree of rationality and deliberation. It was consciously organized in order to undermine his influence and to shut down any accessible space for oppositional or contentious politics outside the standard limits. Its purpose, too, was loud and clear: to put a halt to the spirit of revolutionary optimism and independent thinking that Sa’adeh was fostering and spreading. States and regimes, we are told, are likely to resort to covert repression and physical elimination of adversaries if they cannot come up with the adequate skills and resources to deal with them:20 the Khoury regime that killed Sa’adeh in 1949 belonged to this category.
In retrospect, then, Sa’adeh was killed because there was both a necessity and a will to kill him. His unifying vision and authentic new nationalist ascent, clarity of purpose, and courage in challenging powerful opponents gave him great moral and symbolic authority and made him unsuited to the established order of things. A man who carried such vision as this, thought many, ought not to be left at large if it could be helped. The Khoury regime may have from the first formed the irrevocable decision to put Sa’adeh to death, but it was not a decision made on the spur of the moment. An unerring belief that death was a necessary evil to rid the country of Sa’adeh and, by extension, of his political vision and movement was at the basis of that decision.
Long ago, J. Bowyer Bell wrote: “Some men are killed clearly as symbols; others are destroyed to eliminate the power vested in them.”21 The power that Sa’adeh commanded was neither political nor military but rather that of an “idea and movement” fired with an intense national consciousness and a thirst for independence and political freedom. Ironically, the “idea and movement” that were to become Sa’adeh’s trademark in life would also become the raison d’etre for both his rise and fall.
In his death Sa’adeh may have achieved more for his cause than he could ever have hoped to achieve in life. But this should not detract from the great injustice that was done to him. Until complete clarity and the full truth are established, the description of his trial and execution as un assassinat pur et simple remains valid.22
Notes
1 Robert B. Patridge, ‘O Horrable Murder’. London: Rubicon Press, 1998: 53.
2 See Antoine Butrus, “Matame’ Sahyun fi Lubnan” (Zionist ambitions in Lebanon). In his Qissat muhakamat Antun Sa’adeh was i’damehe (An Account of Antun Sa’adeh’s Trial an
d Execution). Beirut: Chemaly & Chemaly, 2002: 285–304.
3 Charles Milner Atkinson, Jeremy Bentham: His Life and Work. New York: A. M. Kelley, 1969.
4 J. Bentham, Rationale of Judicial Evidence, Vol. 1 (London: Hunt & Clarke, 1827) c. 10, cited by J. Dickson in Nova Scotia (A.G.) v. MacIntyre, [1982] 1 S.C.R. 175: 183–84.
5 Carol Chomsky, “The United States-Dakota War Trials: A Study in Military Injustice.” Stanford Law Review, Vol. 43, No. 1 (Nov., 1990): 94.
6 Ibid.
7 Thurman Arnold, “Due Process in Trials.” Annals of the American Academy of Political and Social Science, Vol. 300, Internal Security and Civil Rights, (Jul., 1955): 124.
8 The tactics of confrontation and antics employed at the Chicago Eight trial are illustrative of how this can happen. See A. H. Weiler, “Great Chicago Conspiracy Circus,” New York Times, 31 May, 1971. Also, Clavir, Judy, and John Spitzer (eds.), The Conspiracy Trial. Indianapolis: Bobbs Merrill, 1970.
9 Theodore Schroeder, ‘Political Crimes Defined’. Michigan Law Review, Vol. 18, No. 1 (Nov., 1919): 34.
10 Ibid., 35.
11 John Rawls describes miscarriage of justice as follows: “Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to advance this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time. A trial, then, is an instance of imperfect procedural justice. Even though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome. An innocent man may be found guilty, a guilty man may be set free. In such cases we speak of a miscarriage of justice.” See his A Theory of Justice. Cambridge: Harvard University Press, 1971: 85–86.