Beyond Civil Marriage: Freedom is the Principle
On April 25, 2013, and after much hesitation, Lebanon’s Ministry of Interior validated the first civil marriage in the country. The concerned couple Kholoud Sukkarieh and Nidal Darwish, the battle’s chief architect Talal al-Husseini, and the notary public who ratified the marriage contract Joseph Bishara, all earned their laurels of “positive” citizenship. While recapitulating the legal debate regarding the validity of civil marriage contracts, this article highlights the animating principle of freedom of choice behind it and the legal implications of taking that principle to heart.
“A law for a nonsectarian Lebanese belonging should be enacted, as well as a law governing the provisions of civil marriage contract.” With this statement, the head of the Committee of Legislation and Consultations of the Ministry of Justice (CLC), Judge Marie Denise al-Meouchi, concluded the legal opinion issued on the matter. Close consideration of this sentence reveals, despite its brevity, its highly significant legal, social and political dimensions. Based on this statement, in the absence of any law regulating the status of persons not wishing to be categorized according to sectarian identity, those persons will have to remain within those pre-set sectarian categories regardless of their beliefs.
According to the issued opinion, Article 9 of the Constitution stipulating absolute freedom of belief is of no significance. Nor is it of significance that decree No. 60 L.R. acknowledges the existence of persons not affiliated to any sect, nor the fact that all international agreements concur on protecting the freedom of belief. These are all ineffectual elements here. The only element considered by the CLC is the law asserting that a Lebanese citizen can belong to a non-religious sect, which would be achieved by creating “a civil sect one can belong to at the administrative level”. However, and according to the opinion, in the absence of such a civil sect, it would be impossible to escape the currently recognized sects. In order to reach such a [dead-end] conclusion, the legal opinion had no qualms distorting the provisions of Article 10 of decree No. 60 L.R. This Article included reference to citizens not belonging to any of the existing sects without stipulating the need for them to belong to some sect [such as a civil one].
The same logic was applied by al-Meouchi’s opinion to the concept of marriage. The provisions of international instruments upholding the right to privacy and the right to establish a family were of no importance. As stipulated by French jurisprudence, “Marriage is a formal legal act by which a man and a woman establish a union imperatively regulated by law whether in terms of contracting the marriage, the rules of its dissolution or any consequences arising thereof”. Therefore, “no marriage shall be contracted…unless based on a law issued by the relevant legislative authority of a given nation, otherwise the union of the man and the woman shall be regulated by the rules of cohabitation”.
In short, according to the legal opinion in question, one cannot practice their freedom of belief and freedom of forming a family without falling captive to an official classification predefined by the legislator. This classification will surely be of a sectarian nature as long as the legislator refrains from administering civil marriage contracts. Thus, this opinion reflects the extreme caution with which citizenship initiatives to acquire a right are approached in the absence of legislation clearly acknowledging, consecrating and regulating the right.
Basic rights are therefore no longer considered inherent rights, but rights that are bestowed by the system according to what the system alone deems appropriate. The concept of the “public system” is no longer perceived as the protector of basic rights. Rather, this system is perceived to be protecting its own prerogative to restrain freedoms and rights, however basic they may be, and even suppress them when deemed appropriate. In other words, basic human rights are subject to the will and wants of the ruler and the concept of a public system becomes synonymous with such a will.
By violating basic rights through the citing of the absence of laws regulating such rights, the opinions of CLC become susceptible to more criticism. Despite the absence of these regulatory laws, the legal opinion neither makes a critical mention of the legislator’s neglect of their duty [to legislate these laws], nor calls on the legislator to perform their duty as a guarantee for the proper exercise of these rights. This is the case despite the fact that the legislator’s will is at the base of legal action.
To better understand the dimensions of this opinion, it should be compared to the legal opinion given by the High Advisory Committee of the Ministry of Justice. This Committee first mentioned the constitutional and international texts guaranteeing the rights to belief and to marriage. It then put forward three principles that would entirely undermine the grounds on which the CLC based its opinion.
The first principle is: “Permission is the norm and prohibition is the exception, and the Lebanese legislation does not include texts prohibiting civil marriage in Lebanon” for citizens who do not belong to any sect. This clearly contradicts the grounds on which the CLC opinion was based and which declared that freedom of belief and freedom of marriage cannot be attained without a governing law. The CLC opinion actually reversed the aforementioned principle to make prohibition the norm and permission the exception.
The second principle is: “The goal is to activate, not to impede, a text of law”. Accordingly, Article 10 of decision No. 60 L.R. which puts citizens not belonging to any sect under civil law should be activated. Here, the grounds of the CLC’s legal opinion are refuted by exposing the rules restricting the jurist when interpreting a text of law. The jurist should interpret a given text permitting a right in such a way so as to activate it and not impede it.
The third principle states that Lebanese law acknowledges civil marriage contracts issued abroad. This gives it all the more reason to acknowledge civil marriage administered in Lebanon in implementing freedom of belief, on the one hand, and “not to encourage the circumvention of the law and travelling abroad to get a civil marriage, on the other hand”.
Although the first two arguments alone suffice to deem the right to civil marriage permissible, this third argument comes as an additional argument to anticipate any criticism -of ideological or religious order- concerning the work of the committee.
How is it that Lebanon’s Mufti, Muhammad Rashid Qabbani, among others consider civil marriage administered in Lebanon as a major disobedience, while they have been accepting civil marriages registered abroad for decades? Don’t these extreme standpoints expose the deeply hidden motives of those people, and generally undermine their credibility? By accusing others of disobedience, aren’t they in fact accusing themselves of a greater disobedience that they have been practicing in for decades?
The reality of the matter is that the debate on civil marriage, in its depth, is a highly important socio-political debate on the relationship between public freedoms, basic rights and the legislators’ will. According to the CLC’s analysis, the rights of the individual, along with the legal developments of civil life, remain captive to parliament and the powers it hosts. These powers derive their legitimacy from the sectarian system, and in turn work hard to ensure its longevity. On the other hand, the High Advisory Committee’s interpretation allows individuals (especially jurists and specialists of law) to have a wider margin of action in their quest to develop the legal system and guide it out of the bottleneck of the governing structure. It also opens the way before society to conduct reform from the base up, in accordance with the pace and dynamics of civil life, which in turn paves the way for the concept of a State of Rights.
This article is an edited translation from Arabic.
 The country's highest official religious Sunni authority