BEIRUT: It may be years before early age marriage is prohibited in Lebanon, but some judges are re-interpreting existing laws to protect minors from the practice anyway.
For Judge Fawzi Khamis, who served as the head of the juvenile court from 2004-09, the key to protecting young women from early age marriage lies in how a judge interprets the legal definition of danger, as it relates to Articles 24-26 in the law for juveniles.
“The articles don’t mention early age marriage in particular, but they do state that if a juvenile is subject to danger, either in an environment where they might be exploited or abused, the judge can use this article to protect them,” he told The Daily Star. “This article can be used to intervene in a case of early age marriage.”
Lebanon is a signatory to international accords to protect children, and Khamis often refers to them when interpreting domestic laws. It is in the gray area between legal principle and practice that Khamis is able to exercise some level of subjectivity to protect young women, as are other judges who are so disposed.
However, his jurisprudence often clashes with that of the religious court, which argues it has the prerogative over marital matters.
When laws are not explicit, judges can follow precedent or set ones of their own. In terms of broadening the application of the danger clause, Khamis provides an example that could relate to early marriage.
He once presided over the trial of a divorced Christian couple whose two children attended a school in Ashrafieh right across the street from their mother’s home. After their divorce, the father, with the approval of the religious court, enrolled the children in a school further away, and the mother filed an appeal with Khamis.
After conducting his own investigation, Khamis came to the conclusion that the children were endangered by their father’s decision to switch schools, made, the judge believed, purely to chastise his former wife and exploiting the children in the process.
“In this case, I used the juvenile law to protect the children from being enrolled in a different school, so if a judge wants to use it to protect children for more severe cases like early age marriage, he can,” Khamis said, by arguing that the marriage could imperil a minor.
However, the religious courts would no doubt contest such a decision. Khamis brushed off the threat, saying precedent was on his side.
He recalled a case involving a divorced Sunni couple with one child. When the father decided to move to the Gulf, he planned on taking the child with him. According to the religious court, he was exercising his right. But according to the mother, the child’s abnormal maternal attachment might be life threatening.
Khamis requested that a psychiatrist see the child, and the resulting report indicated that indeed, detachment from the mother would harm the child’s mental well-being. In this case, Khamis’ verdict overruled that of the religious courts.
But the question of danger in early age marriage becomes murky when probing the details: Is a 17-year-old woman at risk when she marries a 21-year-old man. What if it’s a 50-year-old man? These are the underlying subtleties that any future law prohibiting child marriage must tackle.
Another high-profile judge based in Mount Lebanon, who requested anonymity, said Articles 503 and up, which relate to consent in a sexual relationship, in the Penal Code and the exploitation clause included in the 2011 anti-trafficking law could also be used to protect child brides. However, the problem often lies in the primacy of parents as consent givers, according to the religious courts.
“In such cases, the judge will look for physical or mental injuries,” the judge said. “But parents can hide their intention to exploit their children, by essentially selling them [in these marriages]. The question, is how can you, as a judge, prove something you can’t see?”
For this judge in particular, more legal tools are needed that can allow the civil judiciary to intervene. Specifically, the National Commission for Lebanese Women is lobbying to have marriages registered in the personal statute, which would require the approval of a civil judge. In this way, if the marriage involves minors, the judiciary can directly intervene.
“We can’t change the current regime,” the judge added, referring to the complexities involved in forbidding early marriages altogether in Lebanon, “It’s too much to ask.”
“All I am asking is that I as a judge am able to protect anyone who needs protection, but I need the tools first,” the judge added. “Because I don’t want to ever be in the position where I am looking at a case, and I sense there is injustice, but I don’t have the tools to do anything about it.”
The National Commission is in the process of drafting a comparative legal study, looking at laws regulating early age marriage in Europe and the MENA region, in the hopes of one day drafting a law to prohibit such marriages in Lebanon. Doing so would require bypassing the core values of the confessional system, according to a commission member involved in the drafting of the law, who requested anonymity as the process is still in its early stages.
“I would not be surprised if the law I end up writing is perceived as anti-constitutional,” the member said.