In order for a state to be classified as a state of law, all authorities in this state shall be subject to law, whether legislative, judicial or executive. This is called the principle of legality and rule of law, therefore, it is possible to distinguish between the state governed by the police and state governed by the rule of law, because what is meant is not law in its narrow sense passed by the legislative authority, but the comprehensive legal system that takes care of states’ relations with institutions and citizens. That is to say law in its broad sense, which includes all legal and ethical rules of the Constitution, international agreements and treaties.
The way to differentiate between the police state and the state of the law is to monitor their actions in times of crisis and emergency situations, such as the occurrence of popular protests. Here is a serious test to control the state's commitment to the principle of legality.
The most controversial issue is how the state’s legitimate institutions deal with protests in terms of balancing between controlling security on the one hand and protecting freedoms, the most important of which is the freedom to express opinion and expression and the right to protest. In most cases, governments fail this test despite it is easy, because the only required measurement is law enforcement, as countries fail to properly address the crisis by putting laws and customs into effect.
Lebanon has been a testing ground in this regard since the outbreak of the 17 October 2019 Revolution. The Lebanese authorities have been subjected to a test of the rule of law and the result was a miserable failure, as freedoms shrank, which was accompanied by a large scale of violations and irregularities regarding the use of new and innovative methods of arrest and detention in an extrajudicial way, in addition to forcible disappearance, and lastly torture during detention and investigation.
The principles of prosecution, investigation and trial in Lebanon are regulated by the Constitution, international treaties to which Lebanon is a party, and Lebanon’s own laws.
Article 8 of the Lebanese Constitution stipulates that: "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."
As for the Code of Criminal Procedure in Article 24, the Public Prosecution Office was mandated to investigate and prosecute crimes, initiate criminal proceedings and pursue them with the assistance of the judicial police that exclusively identifies its staff in Article 38.
Protecting the rights of suspects held in detention for investigation and preventing them from being subjected to torture has been legalized by Article 47 of the Criminal Procedure Law and the Criminalization of Torture Law, in addition to the Lebanese Constitution and relevant international treaties such as the International Convention against Torture ratified by Lebanon.
The Lebanese state, during its protection of security during protests, shall abide by two basic matters. The first is that pursuit and detention shall be carried out exclusively by the judicial authority represented by the Public Prosecution, which is assisted by the judicial police in accordance with the Lebanese law. The second is to ensure full protection of the rights of suspects held under investigation in terms of contacting their relatives or lawyers or requesting a forensic doctor to examine them and certainly not to subject them to any kind of torture or coercion during investigation.
Following the outbreak of the protests of 17 October 2019 and the second wave of protests in April 2020, which was the most violent after the total collapse of the Lebanese economy and Lira and the loss of citizens' deposits and savings. This loss was a result of arbitrary measures in violation of the Lebanese law taken by the Bank of Lebanon and the Association of Banks and other banks operating in Lebanon, to demand the simplest civil rights and the establishment of a just state based on accountability and the rule of law. The authorities committed numerous violations against the protestors and carried out an unprecedented violent and coordinated crackdown by placing the Lebanese army in the face of citizens where there have been many violations and breaches of laws and human rights. This included the excessive and unjustified use of force to break up gatherings and disperse protestors and the use of live and rubber bullets in contravention of international and local laws and norms. There have been many serious injuries such as the killing of one of protestors, including minors, some of whom were permanently disabled while the eyes of other protesters were extinguished due to the use of tear gas and severe beatings during arrest.
However, what was remarkable in recent repression was the use of torture in ways that reminded the Lebanese people of the past, such as exposing some detainees to electric shocks during investigation by the Lebanese army intelligence, which was documented through testimonies of detainees and medical reports.
reaching this level when dealing with protestors is a clear disrespect for the constitution, international treaties, legal and moral values that protect public and individual rights and freedoms. It became inevitable to speak up and shed light on these violations committed against citizens and to clarify laws that protect these freedoms and rights.
- The position of the Lebanese army against citizens and its assumption of the role of the judicial police by investigating and arresting people against the background of freedoms and the right to protest are major violations that shall be stopped immediately. Article 38 of the Code of Criminal Procedure law specified clearly what the judicial police is and who is assigned to assist the judiciary in the process of investigation and arrest. It turned out that the Lebanese army is not among bodies that should work with the judicial police, as defined in Article 38. Therefore, it is not possible in any way to consider the intelligence of the Lebanese army as a body of the judicial police, and it cannot be given the tasks of investigation or arrest and prosecution that are among the duties of the judicial police. Accordingly, all investigations conducted by the army's intelligence services are null and void, especially in regard to cases related to the right to protests and freedoms.
- The basic principle that we should not deviate from is that the army is not the judicial police and cannot be.
- It is well established that no person could be arrested except under a judicial order issued by the competent judiciary or a judicial reference issued by the Public Prosecution. The judicial police should adhere to the instructions of the Public Prosecution literally and should strictly abide by laws that organize the arrest, investigation and the rights of suspects in detention and in particular the principles enshrined in Article 47 of the Lebanese Code of Criminal Procedure. It has become customary that when a person is arrested by the army’s intelligence, no information is provided about him/her for at least 24 to 48 hours, which constitutes a form of forcible disappearance prohibited by law. Later, the place of detention is determined and during this period this person does not know what measures were taken against him/her during arrest and investigation, and many of these cases were recorded.
- As for the latest violations, torture occurred through electric shocks during investigation and detention by the army’s intelligence, with the aim of extracting confessions or statements from protestors, despite the fact that Lebanon has not been accustomed to hearing about such methods of torture against protestors held by one of its official security institutions, at least in the recent times. However, the Lebanese citizen had previously experienced these methods in the pre-2005 era and during the 1975-1990 civil war and it appears that some of those who deal with protestors wanted to return to these methods either because they favored the pre-2005 era or they are the ones who assumed official duties from militias of the civil war.
In addition to Article 47 of the Lebanese Code of Criminal Procedure, there is also Law No. 65/2017, the Criminalization of Torture Law, that defines torture and states it is not permissible to use including for necessity or under requirements by national security or orders of a higher authority or any other pretext. Orders of torture issued by any employee of any rank or authority are in all cases unlawful orders, and the law gives the concerned authority to investigate, prosecute and investigate torture crimes by the Public Prosecutor’s Office exclusively. It in turn decides, according to the case, to keep the complaint or to prosecute the person before the investigating judge without conducting any procedures or a preliminary investigation, except by the Public Prosecutor’s Office personally.
The paradox is that when those affected by torture filed complaints of torture during investigation, according to Law No. 65/2017, these complaints were referred to the security services. The most recent of which was the referral of electric shock torture complaints by the army’s Intelligence to the army’s Intelligence for investigation! This constitutes a serious violation of Law No. 65/2017 by entrusting the investigation to the security service that committed the offence itself, while the principles of law require the Public Prosecution to do so which should refer the complaint to the investigating judge to conduct needed investigations in accordance with the law. These violations indicate the Lebanese authorities’ violation of the law and refusing to abide by it when implementing international laws and treaties, in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the 1948 Convention against Torture, which Lebanon ratified without any reservations in 2000.
Based on this, it appears that the Lebanese authorities act more on paper than on the ground. In terms of enacting laws and ratifying international treaties on human rights, the Lebanese authorities are rushing to do what is necessary, but in terms of implementation and commitment act, they are increasingly resorting to repressive police state through committing repeated and serious violations of human rights and related laws. They think that this is a deception of domestic and international public opinion.
It is time for the rule of law to prevail. Military intelligence is not a body of the judicial police, and it cannot perform the functions of the judicial police, especially when it comes to human rights, freedom of opinion and expression and the right to protest.
It is time to protect the rights of suspects in detention and to enable them to contact their families, meet their lawyers, and not to subject them to torture, as well as to stop trying civilians before military courts.
It is time to set the record straight, implement the law, abide by international human rights, treaties and agreements, and establish a state of citizenship and law based on transparency and accountability. This could only be achieved through an independent, impartial, efficient, and strong judiciary that carries out its role and rules in the name of the Lebanese people, a judiciary that respect their aspirations and hopes. Otherwise, we should cry and mourn over the state of law and peace institutions that were struck by an electric shock that appears to have been fatal.