Across the Middle East and North Africa (MENA) region, lawyers work to support those organizing on-the-ground; to mobilize the legal community; and to bring about systemic change. In Lawyering for Change, TIMEP’s Legal Unit conducts a series of interviews with lawyers, legal practitioners, and academics who explore the role that lawyers have played throughout the region’s protest movements and revolutions over the last decade.
In this Q&A on Lebanon, the Legal Unit speaks to Lebanese lawyer and researcher Karim Nammour, who is currently a member of the Legal Agenda (an action-research center based in Beirut) and host of the Qanuni Podcast (a legal podcast show broadcasted in Arabic language).
TIMEP: Since October 2019 and again following the Beirut Blast, we’ve seen protests take place across Lebanon. What roles have lawyers played in and around these protests and/or in support of the protesters themselves?
KN: I’m going to start with the October 17 protests and the role that lawyers played in them. It’s a role that wasn’t new— it developed significantly in the 2015 protests where lawyers gathered and formed a committee to defend protesters, and it was really the first time that they actively participated in the protests by playing their role as lawyers. Of course, a huge part of their role was to be present as professionals in the protests themselves, but in addition, lawyers brought their know-how on many levels. And this was very important, because there were a lot of lessons learned from the 2015 protests and the limitations that lawyers had to face back then, when protesters were being arrested. Lawyers were not really able to access police stations in order to follow up on the arrestees and it was very complex to get powers of attorney in order to defend them.
In 2019, defense of protests itself became a public issue. It [brought about], in its own way, another form of state oppression. The fact that lawyers were not able to go into police stations to get powers of attorney in order to defend protesters—this, in itself, became a public issue. It was covered so widely that there was a lot of pressure on the government and legislators. Unlike 2015, for the first time, the Beirut Bar Association and the Tripoli Bar Association also intervened to facilitate the entry of lawyers to police stations.
And there were a lot of successes. At some point, lawyers were actually able to enter police stations to talk to protesters and get power of attorney. Ultimately this led to, a couple of months later, the amendment of Article 47 of the Lebanese Criminal Procedure Code, which had been vaguely written; this vagueness had previously been used [as a cover to prevent] lawyers from entering police stations. This was amended to make clearer the right to an attorney, that the attorney can go into the police station at the very beginning of the process, and that processes of fair trial should be respected. This had been one of the major issues affecting the legal profession and that became a public issue itself with some form of resolution. The amendment wasn’t perfect, but we cannot not say that it wasn’t an improvement vis-à-vis the original text.
Another role that lawyers played was the legitimacy they gave to protests, particularly around the official narrative against protesters in October 2019. For example, if protesters were blocking roads, this was translated in the official narrative as “rioting.” Throwing stones at police officials was interpreted as attempted murder by the public prosecution. Lawyers played a key role in deconstructing this official narrative and legitimizing what protesters were doing, be it in the defense of protesters or in the research field. I personally worked at this level in establishing the legal framework that justified what protesters were doing even when we were talking about throwing stones at police officers, blocking roads, or drawing graffiti. We were really pushing for an alternative narrative, a narrative that justifies what protesters were doing, by removing their actions from the criminal interpretation of the acts into a more resistance-based, protesters’-based, and rights-based narrative. To give an example, when we say rioting acts are a criminal offense, we need two components: the material component (throwing stones or blocking roads) and the moral component (the criminal intent). Here the justification was that this was not criminal, but rather corrective intent, because the regime was so corrupt that the law was used in such a perverse way against the residents of the country, so these residents were using their natural right to protest an oppressive regime in order to correct the law. This is an example of how we, as lawyers, deconstructed the official narrative.
TIMEP: More broadly, how have recent years shaped the practice of public interest and human rights law in Lebanon in light of the country’s history of cause lawyering?
KN: All of this comes within a larger framework of cause lawyering in the last couple of years. We have a very dormant legislator who is not working on improving laws or creating progress from a legal point of view. In response, the democratic form of expression shifted from a parliamentary one to a more judicial one. In that space, lawyers have had a huge role to play. The legislator had not been doing anything to improve a lot of public causes, including women’s rights, refugee rights, labor rights, and LGBTIQ rights. So instead, these causes were played out in front of the judiciary. By undertaking strategic litigation for causes before the judiciary, a new democratic form of expression developed that involved four main actors: the lawyer, the judge, the defendant or plaintiff, and the media.
Over the last couple years, we’ve also seen the development of alternative media. In many countries—Lebanon included—traditional media is influenced by political parties who are part of the regime. Therefore, you have an official narrative that this media conveys. Alternative media developed in response—for example, Daraj, Megaphone, and the Legal Agenda. The role the Legal Agenda played is key because it was essentially a research and media platform that was developed by people working in the legal field. It filled a void in traditional media in terms of legal information and complex legal issues that were conveyed in a more comprehensive way so that they would be accessible to people who don’t have a legal background or who wouldn’t understand the technicalities of how the legal or judicial world works. The point of the Legal Agenda was to simplify this information and make it accessible. And other alternative media followed as well. The role alternative media played was key, because it covered issues of public interest not covered by traditional media. Alternative media gave space to the main stakeholders to tell their stories; it gave spaces to researchers, lawyers, and experts who are not given enough space.
Judges also started playing a new role. We had a lot of judges that were issuing progressive verdicts that were not receiving attention by the media and for various reasons, needed public support. When we take into account that the legislator, the government, and the regime are not passing laws to protect judicial independence, then judges become vulnerable. When alternative media started covering verdicts, it gave a push to judges to issue such verdicts. Previously, we saw the regime punish a judge who issued a landmark ruling regarding a woman’s rights to grant nationality to her kids. A couple of years later, and as alternative media started developing and when public support started growing around progressive judges and verdicts, judges had more courage and space to issue verdicts like this.
TIMEP: What are some of the opportunities and challenges you’ve seen in using the law to bring about systemic change?
KN: Speaking on opportunities first: There is rich ground where laws can be used to create progress. Lebanon is a signatory of many international covenants and human rights documents that are an integral part of its legislation and that can be used to push forward for the improvement of laws. When there’s a law that goes against an international covenant, these principles and rights and freedoms can be used in order to counteract the effects of the law. We’ve seen this in labor rights, LGBT rights, and women’s rights. A lot of these issues were improved by the judiciary, not necessarily referring to Lebanese law, but referring to international covenants. Lawyers used international law to fill the void that was left by the legislator.
The use of international law is important, but also the use of internal law. For instance, we have Article 183 of the Criminal Code which states that any act perpetrated in the exercise of a natural right is not considered a crime. This article was used by judges and lawyers in many cases (for instance, in LGBT cases) to say that being gay in Lebanon is the exercise of a natural right and therefore cannot be considered a crime. It was applied to refugees to say that there was a natural right to take refuge to countries close to a location of conflict to exonerate refugees who fled Iraq after the war. It was used to exonerate protesters—judges used this logic to say that protesters were exercising their natural right to resist oppression and therefore, the actions that were perpetrated by them could not be considered crimes.
Another opportunity involves the independence of the judiciary. We need judges who think about and interpret the law. In the absence of a progressive and active legislator, the judiciary is an ally to cause lawyering. In response, the regime tells judges to enforce the law as written, rather than thinking [critically] and interpreting the law.. This is dangerous to democracy. The role of the modern judge should be someone who is in touch with the community in which they are working and who is critically thinking about the law to progress it, especially when there are a lot of gaps left by the legislator.
In terms of challenges, I already spoke about how the establishment is creating a strong opposition in order to counteract any progress made in the judiciary, and how the legislator is mainly quite dormant and refrains from improving laws. But also, we need to speak about power dynamics. This is a huge challenge. I’ll give you an example around our work on the Spinney’s case, where the workers of a supermarket chain tried to establish a union in 2012 and were fought by the company and the entire political apparatus. We were facing a company that had a lot of connections and a lot of money, who could afford an entire legal department. Workers needed a lot of support to counterattack the company and create a balance in a structurally-imbalanced power dynamic. This is when activists, judges, lawyers, and volunteers got involved. We won all of the cases against Spinney’s, but something we were not able to counterattack efficiently is power dynamics. And we saw it again after October 17, in spite of huge protests, the regime resisted very well because it is a strong regime that is well-connected with the armed forces, the bank system, and the economic system. We are dealing with a strong opponent, and the power dynamics are key to understanding the challenges ahead.
TIMEP: What challenges and obstacles do lawyers in Lebanon face as they practice law? What forms of support can non-lawyers lend to better protect the legal community and provide them with the space to carry out their duties?
KN: We’ve already spoken about a couple of the practical challenges that lawyers face, so I’m going to focus on structural challenges. Separately, while we have spoken about how the judiciary is an essential ally to cause lawyers, the main challenges also come from the judiciary because there are structural challenges on how the judiciary functions.
There are two main challenges: The first is that the judiciary is not accessible to everyone and that people need to be empowered to go to the judiciary. Add to this the fact that going to the judiciary is expensive—you will need to pay legal fees. A second main challenge is that the work of the judiciary is very slow, mainly for administrative and structural reasons. In a study we published at the Legal Agenda about the verdicts of labor courts in 2018, we found that although the law states that any litigation should be resolved by the labor judiciary within three months, in practice, the average of every labor case before the judiciary takes three to four years—a huge amount of time for people who were just fired and need compensation. This shows that even when the judiciary issues a verdict that is progressive or to the benefit of the plaintiff, it is a form of slow justice. The judiciary is great for victories in principle, but practically speaking, it’s a challenging ground because it is slow and it’s not very accessible. It stops becoming a solution for efficient and timely intervention in various causes.
When we speak about support, I would suggest empowering the stakeholders we’ve been discussing, generating support for judges who are progressive, and investing in alternative and specialized media that promote empowerment in terms of legal rights and how the judiciary functions.
TIMEP: Some of the most complex challenges require both legal and non-legal solutions. What steps are lawyers and rights groups taking to coordinate, complement each other’s priorities, and bring about change together in Lebanon?
KN: Alternative media gave and gives lawyers space to conduct critical thinking and analysis. This is very important because a lot of the issues we work on are nuanced, and so we need enough time and space to convey our ideas. Specialized media also played and plays a role here. The Legal Agenda, for example, created a platform that didn’t exist before where people interested in legal issues could go. This is important and shows how lawyers got involved, not only in alternative media, but also by creating their own media to facilitate their work.
Going further, in the last couple of years and as shown by the October protests, lawyers also became involved in and worked with communities. Around the protests, there was a lawyers committee created to defend protesters in 2015 and then 2019, and this shows lawyers getting involved in the community by playing a direct role in various causes.
Furthermore, there’s an empowerment factor where lawyers and non-lawyers are collaborating. For example, we’re seeing groups host Know Your Rights sessions where lawyers speak; and we’re seeing lawyers become invited to be a part of conferences, debates, and meetings with community members.
TIMEP: Looking to the upcoming few years, what significant legal battles or legal windows do you anticipate in Lebanon?
KN: With the latest developments we’ve seen in the last 12 to 14 months and with the historical and catastrophic devaluation of the Lebanese pound, our entire economic system has really collapsed.
If you were asking me this question a year ago, I would have answered differently and spoken more about developing the civil state and civil rights using the law. Right now and in the current situation, the biggest legal battles in the future will be around socioeconomic rights—anything related to rethinking solidarity and cooperative-based economy, labor rights, and union rights.
As a practitioner, I can tell you that the regime in Lebanon (and ones elsewhere) has been somewhat more open to allowing lawyers to engage on civil rights (e.g. various public freedoms and liberties), rather than socioeconomic rights—which it views as its domain. However, the collapse we’ve seen in the last 12 months has really destroyed this narrative; it’s now of paramount importance to speak about alternative forms of economic systems and transitioning to a productive one, and so I expect the large legal battles to be in this space.