Lebanese Judge Rules Against the Use of Article 534 To Prosecute Homosexuals9,865 views
Lebanon-based LGBT organization Helem launched on Monday, December 21, 2009 in Beirut a groundbreaking report on the legal situation of homosexuals in Arab countries.
Funded by the Ford Foundation, the publication, titled “Homosexual Relations in Penal Codes: General Study on Laws in Arab Countries with Reports on Lebanon and Tunisia”, is part of a series of thematic researches that address the effect of Article 534 on the political, civil, economical, social and cultural rights of gays and lesbians and other individuals who wish to express their sexual orientation and needs.
“The report is the result of a year and a half of work,” said Helem’s Charbel Maydaa. “We hope it will promote a calm and democratic discussion on sexual and gay rights as well as private liberties, and our right as citizens of this country and this world to lead a full life that is not oppressed on the basis of our sexual needs.”
He added: “It will serve as the basis of Helem’s future planning and advocacy work.”
The report was prepared by Dr. Wahid El Ferchichi, law professor at the Tunisian University, and Mr. Nizar Saghiyeh, Lebanese attorney at law and independent legal researcher.
Dr. El Ferchichi presented an overview of the comparative study on laws related to homosexuality in the Arab World, with a focus on the situation in Tunisia.
“This legal study covers laws and legislation in 20 Arab countries, which almost all penalize homosexual acts, whether they expressly mention them or not.” he said. “In spite of the differences in the penalties, homosexual acts, and the overall framework, sanctions are absolute violations of human rights, not just gay rights.”
Dr. El Ferchichi stressed that the “most vulnerable groups to the control of the law in Arab countries are women and homosexuals.”
Paths to reconciliation revolve around the “promotion of human rights and the decriminalization of the homosexual act in the laws,” Dr. El Ferchichi said. However he warned that decriminalization doesn’t necessarily mean acceptance or the legalization of this act. “It only means ridding our Arab legislations of all unjustified aspects,” he said.
Listen to Dr. Wahid El Ferchichi’s complete presentation and recommendations here (preceded by Charbel Maydaa’s opening speech):
Mr. Saghiyeh introduced the results of the research on the implementation of Article 534 of the Lebanese Penal Code, which penalizes “sexual acts against nature” with up to one year in prison.
“I thought Article 534 wasn’t implemented,” he said. “But it is with both men and women. And I was surprised to find there was a number of prosecutions on the basis of 534.”
Mr. Saghiyeh said that there was a kind of “social schism” between the general discourse on gay rights found in Beirut, for example, and the courts, where people are being arrested and prosecuted. “There are no arguments that say the Article violates private liberties,” he said. “There is no hint whatsoever to that [discourse] or the possibility of finding a similar legitimacy.”
He saw the report as a means to bridge the gap between the discourse in the public sphere in Beirut and the judges’ verdicts in the hopes of repealing the Article through the judiciary instead of politicians.
His research covered roughly 50 verdicts over the last five years in Beirut, Baabda and Tripoli.
“We analyzed proofs, pursuits, penalties, and the concept of Article 534 as well as its elements to understand how it’s being implemented,” Mr. Saghiyeh explained, stressing that the entire implementation process is a grave violation of privacy.
At the end of his presentation, Mr. Saghiyeh recommended that documentation of court proceedings continues, that a model court of the prosecution of a homosexual, based on judicial precedents be prepared to train lawyers, and that audiences be held with lawyers and judges to introduce the rights discourse to courts.
Listen to Mr. Nizar Saghiyeh’s complete presentation and recommendations here:
Then came the most gratifying moment of the press conference.
Mr. Saghiyeh announced that after completing his part of the report in mid-November, a verdict came out of the court in Batroun in relation to Article 534, in which the judge discussed nature, negating the application of the Article on homosexuals.
“I think the verdict warrants no comment,” he said, reading parts of it out loud.
Listen to Mr. Nizar Saghieh reading parts of the Batroun verdict in Arabic:
… whereas on the other hand the law didn’t define a specific concept of nature or a standard to measure how the act is in conformity with or against nature or its laws; whereas if it were up to the Judge’s decision, we believe that man has not been able to understand all the aspects of the laws of nature and is still trying to explore nature and his own even; whereas based on the aforementioned, the concept of the ‘unnatural’ is related to society’s mindset, customs and its acceptability of new natural patterns which he’s not familiar with or that are not acceptable yet; whereas man is part of nature and one of its elements, and a cell within a cell in it, it cannot be said that any practice of his or any behavior of his is against nature even if it is a criminal act because it is the laws of nature. If it rained in summer, if a heat wave struck in winter, or if a tree bore fruit after its usual time, it is all in accordance with the system and laws of nature for it is nature itself…
Here are scans of the actual verdict in Arabic: