Outright Assassination

by Adel Beshara

  It is also quite obvious, both from the speed and secrecy which enshrouded the case, that transparency was lacking. The Khoury regime tempered the force of the law and violated in so many words all the legal norms that apply in a constitutional state. Yet in the eyes of the world it wanted to be seen to use them to some extent. As far as we can tell, the government regarded the time over which the trial happened as sufficient for the mechanism of justice. However, one cannot help but wonder why it went to such extreme lengths if the case was so straightforward and the outcome was certain. Again, a rationale seems to be more of a rationalization. And again, upon piercing the veil of reason, the acceleration of procedures is a strong indication that the decision was largely resolved in the individual minds of the several justices of the court before it was heard.

  A striking irregularity is the decision to court-martial Sa’adeh under the Emergency Law of 1948. Despite its inappropriateness to the case, the Emergency Law was invoked to enable the government to conduct the trial in secret “since the two justifications for secrecy, namely the threat to the security situation and public morals, were absent.”68 Kamal Jumblatt, in his 1949 interpellation to the Lebanese Chamber, called it the “first violation” of the law because “it is illegal to declare a state of emergency across Lebanon except on the basis of a law passed by the Lebanese Parliament.”69 Jumblatt added an interesting sidelight to the issue:

  It is noteworthy that the emergency law that the Lebanese government relied on in pursuing the SNP is decree no. 34 L.R., issued in February 1936, during De Martel’s era. It aimed to ensure the safety of the French armies occupying Syria and Lebanon, and, in turn, to maintain the state of the mandate. It appears, therefore, that the Lebanese government had resorted to a decree issued specifically to protect the colonial armies.70

  The application of the Emergency Law outside the rubric of the Palestine War was unjustified and morally wicked. No one who is conversant with the 1948 State of Emergency can legitimately consign the Sa’adeh case to the law governing it. Besides, the military tribunals established under that Law did not possess the adequate means or experience to deal with such complex issues as those arising from the case. The procedures in these tribunals were deeply flawed and fell seriously short of international standards for fair trial. A recent report by the Centre for Democracy and the Rule of Law has noted, “The military justice system in Lebanon is intrinsically unfair and does not comply with normal legal standards internationally recognized.”71

  At the procedural level, many limits were breached which affected not only the credibility of the trial but also its legality. First, the trial violated Sa’adeh’s right to a legal counsel and to communicate freely and privately with him. Since Sa’adeh was forced to accept an assigned counsel not of his own choosing, after his own lawyer withdrew in disgust, it could be safely argued that at no stage of the trial was the accused represented by counsel except nominally. Elias Rizkallah, Sa’adeh’s assigned counsel, did not possess the legal qualifications or the competence to deal with the case. He was not even a registered legal practitioner. Judging from his performance at the trial he seemed to be familiar with only the rough edges of Sa’adeh’s case. Moreover, as a member of the security apparatus and married into the Gemayel family, one of the traditional arch-enemies of Antun Sa’adeh and his party, Rizkallah’s appointment to the case was a clear breach of the principle of impartiality.

  There was a breach of the principle of equality of arms in relation to the right of the defense to call and examine witnesses. Questioning of witnesses by both the prosecution and the defense is vital to procedural fairness and provides the court with an opportunity to hear evidence and challenges to that evidence. Cross-examination, noted John Wigmore, is “the greatest legal engine ever invented for the discovery of truth.”72 Moreover, under constitutional law, to which Lebanon subscribes, the right of the accused to adequate time and facilities to prepare a defense includes the right to prepare the examination of prosecution witnesses. There is therefore an implied obligation on the prosecution to give the defense adequate advance notification of the witnesses that the prosecution intends to call at trial. This did not happen. The identities of the six witnesses who took the stand in Sa’adeh’s trial were not disclosed to the defendant until the trial. This confronted Sa’adeh (and his legal counsel) with an almost insurmountable handicap and deprived him of the necessary information permitting him to test the witnesses’ reliability or cast doubt on their credibility.

  A fundamental principle and prerequisite of a fair trial is that the tribunal charged with the responsibility of making decisions in a case must be established by law, and must be competent, independent and impartial.73 This right may not be suspended even in states of emergency.74 Despite the serious nature of the case against Sa’adeh, these criteria were not observed at his trial. The judging panel in the trial did not have the appropriate legal training or qualifications needed to deal with the case. Regardless of the character of its individual members, its composition alone created the appearance, if not actual lack, of impartiality. Independence was absent because the tribunal came under the Ministry of Defense, making it a special court subordinated to an organ of the executive. Impartiality, which requires that judges have no interest or stake in the case and do not have pre-formed opinions about it, was also missing: the panel condoned as well as participated in the violations of the defendant’s legal rights. In doing so, its members demonstrated a judicial incapacity for the proper administration of justice.

  Fair trial demands the respect of the rules of evidence. This principle was violated at least twice with Sa’adeh: (1) some evidence was elicited under duress in violation of standard practice which stipulates that trial evidence, including confessions by the accused, elicited as a result of torture or other cruel, inhuman or degrading treatment, must not be used in any proceedings except those brought against the suspected perpetrators; (2) some crucial evidence was based on anonymous testimonies and a forged photocopy of original documents – a breach of evidential authenticity, which requires that evidence as diverse as documents, physical evidence, telephone calls, and scientific processes must all be authenticated, unless it belongs to a class of evidence where the evidence is self-authenticating. When the facts at issue are withheld or distorted, a fair trial cannot be held.

  Finally, the prosecution’s refusal to disclose the evidence he intended to use against Sa’adeh until after the trial had started rendered the trial as a whole unfair. In proper trials, all evidence must normally be produced at a public hearing, in the presence of the accused with a view to adversarial argument. There are exceptions to this principle, but they must not infringe on the rights of the defense. It is also a standard legal norm that

  When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.

  The overzealous prosecutor at Sa’adeh’s trial did the exact opposite of that. He fed the court fake evidence and inflammatory outpourings to conceal his bad logic. His address to the court represented one of the most blatant attempts at legal manipulation. It is the prosecutor who decides whether or not to formally charge a defendant with a crime. It is the prosecutor who decides which particular charge or charges to file against the defendant. Once these decisions are made, the prosecutor will file the charges with the appropriate court. Many weeks, if not months, of pre-trial preparations then begin. The prosecutor must interview the witnesses and ensure that any appropriate analysis of the physical evidence is performed. These preparations
are much more intense in a death penalty case than in any other because of the stakes involved. They must be approached with the same degree of diligence afforded the trial itself. Fair trial demands it. In Sa’adeh’s case, the state prosecution violated every elementary judicial norm in organizing the trial. What should have taken weeks to prepare was completed in several hours, even though the trial was much more than a simple case of proving the guilt or innocence of the defendant: the charges carried a possible death sentence.

  2. Secrecy and speed

  That the trial took place in secret and swiftly was irregular in itself. Secrecy and haste appertain to totalitarian regimes where the administration of justice, like almost everything else, is degraded to an instrument of social oppression and intimidation. History shows that secrecy and haste in the trial of public figures has traditionally taken place on two grounds:

  (1) because the State lacked the evidence needed to justify conviction before the public; and (2) because the State’s case was so weak or vulnerable that a secret trial became the only practical avenue for conviction. Had Sa’adeh received a proper trial, the Khoury regime might not have been able to secure a conviction with the death penalty. There was sufficient and potentially dangerous evidence to incriminate key regime officials on charges of a very serious nature. Revelations of the government’s plot to dispose of Sa’adeh before the start of proceedings had the potential to turn the trial in favour of the accused and embarrass the regime.

  The matter is also intriguing because it goes against the norm of historical behaviour. Traditionally, governments in similar situations have used the courts to make a political point rather than simply to settle disputes or to try persons accused of breaking the law. The result often was a public trial in constitutional democracies or a show trial in totalitarian regimes giving the government an opportunity to show that it has the power and control to root out and punish unacceptable behaviour.

  A public trial, moreover, can make a positive contribution to a democratic society. The state, as the main litigant, stands to obtain a number of benefits from prosecuting dissidents with the aid of a public trial. First, public trials serve as a tool to intimidate radical movements and provide a pretext to control political dissidence. They “can have a symbolic value in enabling the state to signal to opponents that it is upping the stakes of political struggle”75 particularly where the state is subject to democratic or constitutional constraints. Public trials can also serve to discredit political opponents or damage their credibility in the eyes of the public. Even if they are not fully successful in the sense of securing a conviction, negative epithets bandied about at such trials can be damaging. Secondly, public trials can exhaust dissident groups and drain them of their vitality especially if the charges are serious and large resources and levels of organizational energy are needed to wage them. Thirdly, public trials can be used to indoctrinate the people or to mobilize social support for the state by implanting in the minds of the masses “a few stereotyped, simplified accusations.”76 Finally, public trials “force political energy to be diverted on to a particular legal battle rather than the original political target.”77

  Unless it has a legally weak case to present, the government and the wider polity have much to gain from a public trial:

  The state may use a trial to confront a resister with his doctrinal folly, to enmesh him in leeching formalities, to extort that most conclusive of tributes to power-abnegation. If the resister does submit, obviating the need for extirpative punishment, the state may claim to have acted with merciful forbearance. If the resister does not submit, his obstinacy is further proof of his guilt and the state may claim the sanction of justice. In either event the process of trial, by providing a ritual for obscuring the crude application of power, sustains the moral equilibrium of political authority.78

  Besides, the community has an interest in seeing that proceedings are kept public. It likes to know how the judicial system functions and to see that the accused is given a fair and impartial trial and that the prosecution is accorded a proper opportunity to present its case.79 From the standpoint of justice, public exposure of proceedings “constitutes an ever present check on the judge, stimulating his sense of responsibility and curbing his prejudices.”80 The conduct of the trial in secret circumstances, on the other hand, serves to distort the truth-finding process:

  A fully public trial . . . has been considered to have certain other advantages not to be found in restricted trials. Among these beneficial attributes are the increased testimonial trustworthiness resulting from the reluctance of witnesses to testify falsely before a public audience; the possibility of the attendance of those who may provide evidence yet who are unknown to the parties; and the affording to the public an education in legal processes with the consequent creation of increased confidence in judicial remedies.81

  Open processes of justice also serve an important prophylactic purpose and provide an outlet for community concern, hostility, and emotions. Secrecy, on the other hand, does little more than cloak potential corruption, foment distrust and prevent the community from seeing justice done. It breeds cynicism, paranoia, and distrust in the society because closed-door proceedings understandably make people apprehensive.

  Sa’adeh symbolized everything the regime opposed. A public trial on the charge of threatening the national security of Lebanon would have seemed a valuable propaganda opportunity to a regime that characterized itself as the defender of the regime and Lebanese statehood. It would have acted as an indicator of the government’s commitment to the rule of law, especially since its credibility was on the line. Even if politically explosive, an open trial with such a well-known defendant would have directed public attention to the legal system and the principles of justice they represented. That can be a sign of a healthy political system, especially in an emerging state:

  Though apparently limited to the peculiarities of the case at hand, [political trials] are at bottom a form of collective negotiation and exchange among individuals and groups affected by the different possible outcomes. They are institutionalized procedures for deciding not just the ostensible conflicts among participants but certain issues about the regulation, circulation, distribution, and operation of power as well.82

  There are also direct gains for society from public trials, particularly if they are about “an offense of a political character:”83

  Political trials within the rule of law provide society with the occasion to examine, and perhaps redefine, itself. Such trials do not, perhaps cannot, resolve the tensions forever . . . Political trials confront tangled issues, tied in tight knots. While a trial might not untie the knot, but only cut it, our reflection on the knot in front of us will help us to understand the next one much better. Hard cases, the adage has it, make bad law. Nevertheless, hard political cases make a better understood society.84

  By opting for secrecy and speed in trying Sa’adeh, the Khoury regime committed a grave moral mistake. It had an opportunity to vent its frustration and all the while maintain its commitment to due process and the values of modern democracy: instead, it chose to put the reason of state above the rule of law. The preservation of the right to a public trial is important both to the individual defendant and to the community at large.

  3. Political vs. Capital

  Another shortcoming of the trial lay in the decision to try Sa’adeh as a “common” rather than as a “political” criminal. Lebanese judicatories now argue that the “official” interpretation of the law was flawed because it overlooked Article 196 of the Code of Political Crimes, which defines as “political” any crime committed with “political intent” but not for selfish or vile reasons. They pose two questions: (1) was “political intent” visible in Sa’adeh case, and answer in the affirmative; (2) was the offense committed for selfish or vile reasons and answer in the negative.

  A basic incompatibility did in fact exist between the Lebanese Criminal Code and the way in which the government inte
rpreted the law. For unlike criminal codes that juxtapose political crimes with common crimes, the Lebanese Criminal Code, in harmony with its French counterpart, is based on a clear distinction between the two. It defines the common crime in the European sense as “such acts as offend the sentiment of humanity or violate the rules of conduct exacted by the common or average probity of present day civilized people . . . which show a deficiency of probity in the author of them, and lascivious acts.”85 Also, in harmony with the French code, Lebanese Law identifies political crimes “in the nature of the right violated, by the motives by which the action is impelled and by the end the authors pursue.”86 Article 196 of the Lebanese Penal Code states:

  Political crimes are deliberate crimes committed by the author with a political intent. They are also crimes that impinge on individual and public political rights as long as the author had not been impelled by selfish and vile purpose.87

  As defined in the above passage, political crimes include “those felonies and misdemeanours which violated only the political order of the state, be that order exterior, as in attacking the independence of the nation, the integrity of its territory, the relations of the state to other states; or interior, as in attacking the form of government, the organization and functioning of the political powers and the political rights of citizens.”88