THU 28 - 1 - 2021
Apr 19, 2019
The Daily Star
LGBTQ protections progressing in courts – not Parliament
Finbar Anderson| The Daily Star
BEIRUT: When at the end of last month Lebanon’s top military prosecutor ruled that homosexuality could not be prosecuted as a crime, the decision made international news and was described as a “victory” for the country’s LGBTQ community. It was the latest in a string of wins to come from the judiciary - not the legislative or executive.In his decision, Judge Peter Germanos declined to prosecute four military personnel referred to his court in a case of sodomy, which was argued to be in violation of Article 534 of the Penal Code. The article states that “any sexual act contrary to nature is punishable by imprisonment of one year,” and is at the center of an ongoing legal debate surrounding its use against the LGBTQ community.
Following his ruling, Germanos told The Daily Star that sodomy is “not punishable by law.” Article 534, he explained, is not explicit in terms of what kind of relationship can be considered “contrary to nature” and does not distinguish between male and female.
In fact, similar decisions had already been handed down outside of the jurisdiction of the military prosecutor. The judge’s language echoes that used in a decision by a Metn judge, Hisham al-Qantar, in 2016, in which he ruled that the phrase “contrary to nature” did not apply to homosexual intercourse. More recently, Judge Rabih Maalouf ruled in another Metn court in 2017 that “homosexuality is a personal choice and not a punishable offense.” Maalouf’s decision was appealed but was last year upheld by the Mount Lebanon Appeals Court - the first time such a decision was taken by a high-ranking court rather than individual judges.
Georges Ghali, executive director at human rights NGO Alef, told The Daily Star that as a result of Germanos’ ruling, as well as those preceding it, Article 534 should no longer be used in any circumstances to prosecute the LGBTQ community. “These rulings have proved that [Article] 534 is useless,” he said.
But why is change coming from the judiciary and not Parliament? Ghali gave several reasons. Protections for the LGBTQ community and other minority or vulnerable groups would be unlikely to come from Parliament, he said, as a result of “a lack of legislative activity, the slowness of the process in general, and there is the issue of parliamentarians coming from different cultural and social backgrounds.”
Ghali warned that bringing the issue to Parliament might not result in more protection for the LGBTQ community as the “current environment” might encourage lawmakers to legislate harsher punishments.
Politicians often avoid pressing social issues “because most of these issues concern people who are either vulnerable or marginalized,” said Karim Nammour, a lawyer with NGO Legal Agenda. These groups, as minorities, do not offer large number of votes that might persuade politicians to win them over at the ballot box.
This is particularly true of Lebanon, where voters by default cast their ballot in their father’s village and issues like minority rights might take a back seat. “The people who are voting in a given community will vote based on interests related to land, property ... or the services they have there,” Nammour said.
“A lot of social issues are being put forward within the judicial arena and judges are asked by activists [and] by plaintiffs ... to answer these questions that the parliamentarians and the executive are not necessarily doing,” Nammour said. As a result, “advancing the social or legal or economic situation in the country is much more judicial work than parliamentarian work.”
It is not a role that the entire judiciary has willingly adopted. Shortly after Qantar’s 2016 ruling, the Supreme Judicial Council, in response to questioning from the Legal Agenda, said that a judge did not have the right to “expand or narrow the penal legal texts, otherwise it would be considered as infringing on the legislative authority [of Parliament].” That opinion, however, failed to convince other judges, as the success of Maalouf’s 2017 ruling in the Mount Lebanon Appeals Court showed.
Ghali believes that recent decisions prevent, rather than encourage, the judiciary from overreaching its authority. “What should happen is to try to make these rulings widespread and to name and shame judges that still look at [Article] 534 to incriminate LGBT relationships,” he said.
Nevertheless, in Lebanon the pace of change is slow. “Those social narratives and those social discussions are not happening as mainstream as they should,” Ghali said. “Discussions in Parliament or discussions in civil society are not really shaping a debate at the social level.” Progressive changes “require a paradigm shift or a social change,” he said.
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