by Adel Beshara
23 Butrus, Qissat muhakamat Antun Sa’adeh was i’damehe (An Account of Antun Sa’adeh’s Trial and Execution). Beirut: Chemaly & Chemaly, 2002: 105.
24 Ibid.
25 Ibid., 101.
26 Ibid.
27 Ibid.
28 Ibid., 102.
29 From an interview with the court clerk, Ibrahim Berri, Sabah el-Kheir. Beirut: 12 July, 1980.
30 Ibid.
31 Lebanon. Ministry of Information, Qadiyat al-Hizb al-Qawmi (The Case of the [Syrian] National Party). Beirut: Ministry of Information, 1949.
32 See the introduction to Qadiyat al-Hizb al-Qawmi.
33 See Jerome F. Goldberg, “Right of the Prosecution to Attack the Character of the Defendant (A Limited Recognition of a New Exception),” Journal of Criminal Law and Criminology (1931–1951), Vol. 41, No. 4 (Nov. – Dec., 1950): 456–462.
34 Ibid.
35 Najam al-Hashim, A’khir Ayyam Sa’adeh (Sa’adeh’s Last Days). Beirut: n.p., 1999: 87.
36 Ibid., 87–88.
37 Ibid., 88.
38 Ibid.
39 See the introduction to Qadiyat al-Hizb al-Qawmi.
40 Ibid.
41 Imru’ al-Qays was an Arabian poet of the 6th century, the author of one of the Muallaqat, an anthology of pre-Islamic Arabic literature. He is the son of Hujr, the last king of Kindah which is part of the present Republic of Yemen. He was born around 501 and died around 544. His mother was Fatmah bint Rabi’ah the sister of Kulib and Al-Muhalhl, two of the well-known Arabic tribe leaders. Imru’ al-Qays was named after Imru’ al-Qays Ibn Aban, a close friend to his uncle al-Muhalhl. Even though he was raised in luxury as a result of being the son of the king, he suffered because he was deprived from ruling after his father’s assassination. That is why Arabs called him al-Malek-al-Delleel or the Shadow King. See Abu a-Fadl Ibrahim (ed.), Diwan Imr’ al-Qays. Cairo: Dar al-Ma’arif, 1984.
42 The Public Prosecutor’s address was incorporated into the The Case of the National Party in 1949 but, curiously enough, without Sa’adeh’s reply. It is interesting to observe also that the Information Ministry in Lebanon published the speech without the epitaph with which the Public Prosecutor closed his speech. However, Captain Aziz al-Ahdab, who was on the judging panel, has confirmed that the Public Prosecutor did in fact utter this prose. It is also cited in the private notes of Elias Rizkallah.
43 Although a firm reason for its omission is lacking, it is a reasonable conjecture that the Government intentionally left it out to discredit the claim that Sa’adeh hit back with his own stinging prose when he addressed the court.
44 Ibrahim Berri, Sabah el-Kheir. Beirut, 12 July, 1980.
45 Ibid.
46 Al-Hayat. Beirut, 8 July, 1949.
47 Al-Qubs. Beirut, 10 July, 1949.
48 Ibrahim Berri, Sabah el-Kheir. Beirut, 12 July, 1980.
49 Ibid.
50 Butrus, Qissat muhakamat Antun Sa’adeh was i’damehe (An Account of Antun Sa’adeh’s Trial and Execution). Beirut: Chemaly & Chemaly, 2002: 111.
51 Under that article a defendant is entitled for leniency if at the time of the criminal conduct he or she, as a result of mental disease or defect, either lacked substantial capacity to conform his conduct to the requirements of the law or lacked substantial capacity to appreciate the wrongfulness of his conduct.
52 Ibid.
53 Ibrahim Berri, Sabah el-Kheir. Beirut, 12 July, 1980.
54 Ibid.
55 Elias Rizkallah, the one person who was in the ideal position to jot down the speech, recorded only three lines. When asked why he did not document the speech, he replied: “I was taken by the meticulousness of his defense and clarity of his intellect.” Muhadarat al-Mukhayyam al-Sayfi (Summer Camps Lecture Series): 30.
56 Al-Hayat. Beirut, 9 July, 1949.
57 Ibrahim Berri, Sabah el-Kheir. Beirut, 12 July, 1980.
58 Adel Beshara, Syrian Nationalism: An Inquiry into the Political Philosophy of Antun Sa’adeh. Beirut: Dar Bissan, 1995, p. 167.
59 Al-Hayat. Beirut, 9 July, 1949.
60 Ibrahim Berri, Sabah el-Kheir. Beirut, 12 July, 1980.
61 Ibid.
62 Butrus, Qissat muhakamat Antun Sa’adeh was i’damehe (An Account of Antun Sa’adeh’s Trial and Execution). Beirut: Chemaly & Chemaly, 2002: 115.
63 Najam al-Hashim, A’khir Ayyam Sa’adeh (Sa’adeh’s Last Days). Beirut: n. p, 1999: 85.
64 Ibid.
65 Beirut. Beirut, 9 July, 1949.
66 Butrus, Qissat muhakamat Antun Sa’adeh was i’damehe (An Account of Antun Sa’adeh’s Trial and Execution). Beirut: Chemaly & Chemaly, 2002: 114.
67 Ibid.
68 See as-Sayyad. Beirut, 18 July, 1949.
69 Istijwab Jumblatt al tarikhi lil hukuma hawla istishhad Sa’adeh ome 1949 (Jumblatt’s Historical Interpolation to the [Lebanese] Government In Regard to Sa’adeh’s Martyrdom in 1949). Beirut: SSNP Information Bureau, 1987: 34.
70 Ibid.
71 http://www.cggl.org/scripts/index.asp (26 October, 2007).
72 John H. Wigmore, Evidence in Trials at Common Law, vol. 5, sec. 1367, Chadbourn rev., 1974: 32. Also Robert Burns, A Theory of the Trial. Princeton: Princeton University Press, 1999: 98.
73 The key question in assessing the independence of military judges is whether they are subordinate to military authority in their role in administering justice. Military judges have been deemed to be independent if they are autonomous of their superiors in their judicial capacity, notwithstanding the fact that they have been appointed by their superiors and remain subject to the hierarchical authority of their superiors in all but the administration of justice.
74 The Human Rights Committee called on Lebanon to transfer the competence of military courts in all trials concerning civilians to the ordinary courts. UN Doc. CCPR/C/79/Add.77, April 1997.
75 Ibid., 282.
76 Marc Hensen, A Show Trial Under Lenin: The Trial of the Socialist Revolutionaries Moscow 1922. London: Maetinus Nijhoff Publishers, 1982: 188.
77 Peter Hain, Political Trials in Britain. London: A. Lane, 1984: 281.
78 Ann Fairfax Withington and Jack Schwartz, “The Political Trial of Anne Hutchinson,” The New England Quarterly, Vol. 51, No. 2 (June 1978): 231. See also Charles F. Abel & Frank H. Marsh, In Defense of Political Trials. Westport: Greenwood Press, 1994: 51–77.
79 Carl S. Krueger, “Constitutional Law: Public Trial in Criminal Cases,” Michigan Law Review, Vol. 52, No. 1 (Nov., 1952): 52.
80 Ibid.
81 “The Accused’s Right to a Public Trial,” Columbia Law Review, Vol. 49, No. 1 (Jan., 1949): 116.
82 Charles F. Abel & Frank Marsh, In Defense of Political Trials. Westport: Greenwood Press, 1994: 67.
83 On the use and misuse of this cliché see Theodore Schroeder, “Political Crimes Defined,” Michigan Law Review, Vol. 18, No. 1 (Nov., 1919): 30–44.
84 Ronald Christenson, “A Political Theory of Political Trials,” The Journal of Criminal Law and Criminology, Vol. 74, No. 2 (Summer, 1983): 557.
85 Quoted in Robert Ferrari, “Political Crime,” Columbia Law Review, Vol. 20, No. 3 (Mar., 1920): 308.
86 G. Vidal, Cours de droit criminel et de science penitentiare (cinquieme edition, 1916): 112.
87 A distinction between common and political crimes was introduced to the Ottoman Penal Code in 1860 as part of the Tanzimat reforms. See Dick Douwes and Norman N. Lewis, “The Trials of Syrian Ismailis in the First Decade of the 20th Century,” International Journal of Middle East Studies, Vol. 21, No. 2 (May, 1989): 215–232; and J. Bucknill and H. Utidjian, The Imperial Ottoman Penal Code. Oxford, 1913.
88 Ibid.
89 Robert Vouin and Jacques Léauté, Droit penal et procedure pénale. Paris: Presses Universitaires, 1969: 34.
90 Theodore Schroeder, “Political Crimes Defined,” Michigan Law Review, Vol. 18, No. 1 (Nov., 1919): 35.
91 Robert Ferrari, “Political Crime,” Columbia Law Review, Vol. 20, No. 3 (Mar., 1920): 311. Also Fer
ri, Criminal Sociology. New York: D. Appleton and Company, 1916: 335.
92 Charles E. Reasons, “The Politicizing of Crime, the Criminal and the Criminologist,” The Journal of Criminal Law and Criminology, Vol. 64, No. 4 (Dec., 1973): 474 (italics added).
93 Francis A. Allen, The Crimes of Politics: Political Dimensions of Criminal Justice. Cambridge: Harvard University Press, 1974: 29.
94 Theodore Schroeder, op. cit., 35.
95 Vidal, op. cit., 112.
96 Otto Kirchheimer, Political Justice: The Use of Political Procedure for Political Ends. Princeton: Princeton University Press, 1961: 46.
97 Michal R. Belknap (ed.), American Political Trials. Westport: Greenwood Press, 1994: xvi. Belknap identifies six distinct varieties of political trials: (1) Treason; (2) seditious libel; (3) espionage and sabotage; (4) political assassination; (5) cases determined by political considerations; and (6) cases that are deliberately politicized.
98 Theodore L. Becker (ed.), Political Trials. New York, 1971: xv–xvi. Becker identifies four subtypes of political trials: (1) the political trial, in which the nature of the crime is clearly political and the impartiality of the judge applying the law is not called into serious question; (2) the political “trial,” in which the indictment is clearly political and the impartiality and independence of the court is questionable at the beginning of the proceedings; (3) the “political” trial, in which the charge is quite unpolitical in nature but is only a subterfuge, and the real political aspects of the case are disguised or hidden; and (4) the “political trial,” which combines “hooked up” charges with a simultaneous implosion of judiciousness in the legal proceeding.
99 Reginald Major, Justice in the Round: The Trial of Angela Davis. New York: The Third Press, 1973. In Major’s view, no matter what the charge, if the accused is a “political person,” whose views are at sharp variance with what is considered political orthodoxy, or if all or part of the evidence against him is drawn from observations of his political conduct, then the trial is probably political.
100 Leon Friedman, “Political Power and Legal Legitimacy: A Short History of Political Trials,” Antioch Review, 30 (Summer 1970): 158.
101 Michal R. Belknap (ed.), American Political Trials: xvi.
102 Antoine El-Gemayel (ed.), The Lebanese Legal System – Volume II, Washington, DC: International Law Institute, 1985: 396.
103 Vidal, op. cit., 111.
104 Peter Hain, op. cit., 285.
105 Ibid. R. Quinney in his The Social Reality of Crime (1970) argues that criminal law is made, enforced and administered by interest groups largely for their own gains.
106 Ronald Christenson, “A Political Theory of Political Trials,” The Journal of Criminal Law and Criminology, Vol. 74, No. 2 (Summer, 1983): 554.
107 Ibid., 558.
108 Ibid., 556.
4 EXECUTION
Ordinarily, the pre-execution period is a fairly involved process that may take weeks and months on end to finalise. The condemned often has to go through an exhaustive appeal process, including appeals to the highest court in the country or to a court of higher jurisdiction. A hearing before the Board of Pardons is then held as a last attempt to have the death sentence commuted. When all these things fail, the condemned should have the right to apply to the President of the Republic for amnesty, pardon, or commutation of sentence, which may be granted in all cases. The death penalty may not be carried out until all rights to appeal have been exhausted, or the time limits for filing such appeals have run their full course, and recourse proceedings, including applications to the President, have been completed and requests for pardon and commutation have been exhausted.
With Sa’adeh, the pre-execution process was a hypocritical farce. The entire process took less than five hours to complete ending in a last-minute frenzy of activity. Despite the irreversibility of the death sentence, the right of the condemned to adequate time to prepare and complete all appeals and petitions for clemency was compromised by the relevant authorities. If that was not enough, Sa’adeh’s last hours on earth were marked by procedural lapses during which the condemned was treated in a very undignified manner.
Board of Pardons
Because Sa’adeh was tried in a military court and because his death sentence was irrevocable, his case was not subject to review by a higher court of appeal. His only avenue of relief was clemency from either the Board of Pardons or the executive branch which, in Lebanon’s case, is vested in the President of the Republic. It is entirely up to the defendant to decide whether or not to use these procedures. It is also the avenue that the state has to pursue to carry out a death sentence. The administration of these procedures is necessary under Lebanese Law and may possibly require a re-study of the case to ferret out factual errors.1
Sa’adeh was aware of his appellate rights but deferred them. Judging from subsequent remarks he made, he did not expect the death sentence against him to be carried out expeditiously. By law, the state had to allow adequate time between sentence and execution for the preparation and completion of appeals and, in cases of well-known personalities, for the preparation of petitions for clemency. It did not cross Sa’adeh’s mind that the State might tinker with the law again, as it did during the trial. Having endured a marathon hearing without sleep the previous night and having had little to eat during the day, he was too exhausted to even think about it, let alone to contemplate his next move. An exhausted person almost always develops a passive outlook, thereby losing the will to act.
The death sentence against Sa’adeh was referred to the Board of Pardons for review immediately after the trial. The Board was composed of the five judges Emil Tian (Chairperson), George Suefi, Badri al-Ma’oushi, Rida Tamer and Zahdi Yakn. Theoretically, the Board’s duty is to review the conviction and other records of the case, including:
(1) the evidence submitted during the trial;
(2) the information submitted during the sentencing hearing;
(3) the procedures employed in the sentencing hearing.
The Board addresses all substantive and procedural issues raised on the appeal of a sentence of death, and considers whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. If the Board finds that (A) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (B) the admissible evidence and information adduced does not support the conviction; or (C) the proceedings involved legal errors requiring reversal of the sentence, it remands the case for reconsideration or imposition of a sentence other than death. The Board cannot reverse or vacate a sentence of death on account of any error which can be harmless. Also, in order to award the death sentence, it requires a unanimous verdict by all judges. In the case of a non-unanimous verdict, it can recommend commutation of the death sentence to life.
According to President Khoury the Board “unanimously” ratified the death sentence. However, the Beirut newspaper claimed that the ratification, which lasted three hours, was a majority one. The evidence is inconclusive either way, but there are better reasons to believe the newspaper’s claim. The Lebanese government’s publication The Case of the National Party, for example, does not use the term “unanimous” when alluding to the Board’s decision. It simply states “The Board agreed that no other sentence was more appropriate than death.” More decisive is Kamal Jumblatt’s interpellation to the Lebanese Parliament in which the young parliamentarian expressed his gratitude to “the judges” who refused to ratify the death sentence.2
To complicate an already complex situation, the highly-reliable Lebanese an-Nahar newspaper reported that only three of the Board’s original members (George Suefi, Rida Tamer and Zahdi Yakn) were present at the ratification and that three other members had to be added to the Board that evening in order to obtain a majority ruling. By an-Nahar’s account, the three additional members were not judges but men of uniform: Lieutenant Gendarmerie Fayez Abdul Baqi, and Captains Na
’oum al-Bitar and Abdul Majid al-Zain. If true, then the government must have faced formidable opposition from the original Board, whose members were brought to the Tribunal in military vehicles “as they do under dictatorial regimes,”3 in obtaining even a majority ratification. What is certain now is that, in addition to the two absent members, one of the three remaining members, George Suefi, refused to ratify, apparently for the lack of substantial evidence and discrepancies in trial procedure. The Board’s Chairperson, Emil Tian, also did not ratify but requested the matter be referred to the President. Shortly after Sa’adeh’s execution, Tian resigned from the Board citing “external interference in the justice system” as the reason for it. In 1991, President Charles Helou revealed that Tian’s resignation was actually prompted by Sa’adah’s case. He recalled:
What is not known is that the Chairman of the Board of Pardons and Court of Appeal, Emil Tian shortly afterwards submitted his resignation, giving no reason for it, and never withdrew it. At that time, I became minister of justice, and tried to dissuade him from resigning. After lengthy discussions, he disclosed his secret, namely that the reason behind his resignation was the sectarian balance in carrying out the decision [to] execute Antun Sa’adeh along with the others [i.e., his supporters].4
The final position of the original Board of Pardon was thus:
Emil Tian (Chairman): neutral
George Suefi: refused to ratify
Badri al-Ma’oushi: absent
Rida Tamer: ratified
Zahdi Yakn: neutral
The Sa’adeh case, therefore, remains one of many where death sentences have been awarded despite dissenting opinions on either guilt or punishment. When judges disagree on the guilt of the accused, the dissent may be sufficient to constitute reasonable doubt. Furthermore, dissent on a death penalty raises serious concerns about the fairness of the trial itself. That aside, with the ratification of the death sentence, Sa’adeh’s case was all but over: the trial, sentence, and ratification of his conviction were finalised before 7 July was over. All that now remained was the approval of the President.
