Editor’s note: The following article was written prior to the recent ruling on April 11, 2017, in which the State Shura Council reversed its earlier decision that suspended the construction permit of the Eden Bay resort.

The Eden Bay resort project (commonly known as the Eden Rock resort), situated at the southern tip of Beirut, has been a major topic of interest for public opinion and the Lebanese media. This is certainly due to several factors, namely that it is one of the few cases related to the protection of maritime public property with a positive, even if initial, outcome. Having issued three successive rulings, the judiciary has asserted itself as a weapon of public action against powerful companies and financiers. Not only has the investing company’s ongoing construction work in defiance of judicial orders infuriated many citizens. It has led to significant implications at the judicial level: because of these actions, the case now is not just one about the environment and protecting a beach, but also about the judiciary’s independence and the fight against corruption.

In this article, I shall reflect on some lessons that the activist community might be able to draw on from this experience.

Lesson 1:  Access to Information is an Essential Part of the Battle to Annul Administrative Decisions

Access to information and documents was one of the main obstacles in this case, as the appellant had to challenge the contested construction license within the legal time limit without being able to view its maps. This is because the governor of Beirut refused to provide a copy of this file for several months. The Access to Information Law was passed two months after the case was submitted. In order to overcome this obstacle while waiting for the State Shura Council to respond to the plaintiff's request to compel the municipality to allow access to the license file, the plaintiff took three steps.

The first is self-reliance. The appellant sought to obtain the largest amount of information through [the soliciting of] documents held by citizens, or found in private or public archives (old property statements, aerial photographs of the property, historical documents, and old maps).

The second is resorting to the judiciary of urgent matters to obtain several pieces of information, and as a result being able to get a license to obtain an easement and planning statement.

And the third step, involved pushing for a speedy enactment of the Access to Information Law -which was issued only two months after the submission of the lawsuit- through an official request to the governor of Beirut to hand over the file in accordance with [the newly enacted law]. In its decision issued on March 6, 2017, the State Shura Council instructed the municipality of Beirut to disclose this file. The municipality did provide it, but it withheld a number of important documents (setback, elevation, maps signed by a surveyor for this purpose, and referrals among official authorities). Once again, the claimant demanded the disclosure of these documents. However, one major document which remains withheld is the record of public property demarcation which was written in the early 30s, in what is believed to be an encroachment on the public maritime property.

Lesson 2:  Enhanced Communication Among Persons with Different Expertise Helps Protect the Environment and Maritime Public Property

Not only did this case require improving technical knowledge of many engineering concepts contained in the Construction Law. It also necessitated the establishment of close cooperation between architects, lawyers, environmental and media activists, as well as researchers and civil organizations to address the various aspects of the issue. This cooperation has raised the level of advocacy for the case at the public, judicial, and media levels. It is hoped that this issue will pave the way for the institutionalization of such cooperation so that the community is more ready to deal with similar projects in the future, and perhaps to start the bigger battle to restore looted public property at large.

Lesson 3: Lawsuits Filed to Protect the Environment and the Seashore have a Cumulative Effect - the Development of Human Rights Discourse and Mainstreaming of Strategic Litigation

From Adloun Beach in the south, passing through Beirut’s Dalieh of Raouche to the northern coast of Kfaraabida beach and Al-Mina in Tripoli, the issue is one: the citizens’ right to public property and access to the beach. People from different regions demonstrate and protest, and they are increasingly coordinating with national human rights and environmental organizations to resort to the judiciary. So far, these protests have resulted in three lawsuits: the first set in the context of the restitution of the citizen’s right to enjoy the environment and the seashore. In addition to the Ramlet al-Baida lawsuit, several organizations (the Green Line Association, and Nahnoo Society, in cooperation with the National Campaign for the Protection of the Dalieh of Raouche and The Legal Agenda) submitted a review to the State Shura Council to revoke a decree that went into effect towards the end of the civil war in the late 1980s. The decree resulted in stripping the municipality of the right to own 25% of any property eyed for construction in Beirut’s 10th district, and returning the property seized by the municipality to its owners without any compensation. Due to its grave effects, the decree was never published, allowing activists to challenge it 25 years after the end of the war. The Green Line Association, along with activists from Al-Mina and in cooperation with The Legal Agenda, filed another suit before the real estate judge adjudicating issues of annexation and segregation in the port, to appeal the decision to annex public maritime properties to a private one (Property No. 220/ Basateen al-Mina). The appeal was on the pretext that this property was inadvertently included within the list of public property.

This rising number of lawsuits against public property encroachments taking place in a number of areas indicates a clear increase in social awareness of the importance of the environment, and public property. It also signifies the development of a human rights culture in public property issues which -in case it falls on deaf ears- would increasingly end up in resorting to the judiciary. This practically leads to highlighting the common factors in these issues despite their geographical dispersion, and serves as a catalyst for the adoption of strategic litigation mechanisms, in addition to the responsibility the judges have in adjudicating such cases.

As has been the case in the Ramlet al-Baida issue, any positive judicial decision on any of these cases would naturally serve as an additional incentive for the adoption of this approach; and, for judges to develop their jurisprudence for the protection of the environment and public property, without reservation or self restraint.

Lesson 4:  The Battle of the Independence of the Judiciary and the Judicial Legitimacy as a Necessity in all Human Rights Battles

As previously mentioned, as soon as a judicial decision was issued in support of the demands of Ramlet al-Baida’s activists, the battle took a different turn. It became about advocating judicial legitimacy and independence. Its aim was to execute the judicial ruling. Advocacy for judicial legitimacy is necessary not only to fulfill the environmental demand, but also to maintain the confidence that activists and citizens in general have in the possibility of bringing about change through recourse to law and justice. Thus, the battle for the implementation of the judicial decision continued for more than a month, and required the filing of three lawsuits before two different judicial authorities. In addition, a number of statements were issued and a number of press conferences, sit-ins, and protest vigils were organized. The plaintiff also wrote a letter calling on President Michel Aoun to exercise his role in protecting the Constitution, especially the principles of the independence of the judiciary and the separation of powers. The letter was attached with a petition signed by more than 1,000 citizens. These actions reflected well in the General Assembly of the House of Representatives, when MP Ghassan Mukhaiber demanded the implementation of judicial decisions in order to maintain the reverence (hayba) of the state and the law.

On March 21, 2017, following the issuance of the third decision ordering any violator to pay a fine amounting to LB150 million [US$99,219], the plaintiff issued a statement in a press conference announcing the end of the battle to implement the judicial decision, and warning at the same time of any interference in the judiciary following rumors and statements that were circulated in the media to that effect.

The battle for judicial independence is intertwined with other human rights battles. Let’s recall the issue of the implementation of the State Shura Council’s decision to hand over the file of investigations to the families of the disappeared [in the civil war], pursuant to the right to know (2014). In that case, these families raised signs demanding the independence of the judiciary and their right to know.[1] The same issue happened in 2009 and 2010, following the refusal of the General Directorate of Public Security to implement judicial decisions that would put an end to the practice of arbitrary arrests of tens of thousands of Iraqi refugees.[2]

The repeated failure to implement judicial decisions calls for reflection, not only in terms of being ready to defend violated rights [in public space], but also in terms of being ready to defend the independence of the judiciary.

This article is an edited translation from Arabic.

 

[1] See: Alaa Mroueh’s, “Tebʿan Litaslim Dhawi al-Mafqudin Malaff al-Tahqiqat: Istiʿada Libaʿd Mahattat al-Qadiyya”, The Legal Agenda, September, 2014.
[2] See: Sara Wansa’s, “Qadiyyat Yusra al-Amiri: Aw Hina Dafaʿa Iʿlamiyyun An Quwwat Ahkam Qadaʾiyya Fi Lubnan”, The Legal Agenda, April 2014.