BEIRUT: Although not legally binding, a Justice Ministry committee’s published opinion on civil marriage in Lebanon is a dramatic boon for supporters of the idea, a legal expert told The Daily Star Tuesday, as President Michel Sleiman praised the body for its position.
The Higher Committee for Consultations’ decision – issued Monday and subsequently referred to the Interior Ministry – “dramatically strengthens the position of supporters of civil marriage and weakens that of its opponents,” Nizar Saghieh, a leading human rights lawyer said.
His comments come as Sleiman said: “This paves the way for establishing a modern civil state and getting out of sectarianism.”
Saghieh added that if the interior minister now refuses to approve Lebanon’s so-called first civil marriage it is a clear sign that “politics is dominating justice, politics is dominating rule of law.”
Moreover, he assured, such a ruling could be challenged.
The civil marriage debate took center stage in Lebanon last month when, after a year spent navigating uncharted legal territory in private, Kholoud Succariyeh and Nidal Darwish made public their efforts to have their marriage, conducted in a civil ceremony on Lebanese soil, officially recognized.
Their journey – for those few who need a refresher – began with the removal of their sectarian identities from their public records.
Then followed the invocation of Article 10 of Decree 60 L.R., which specifies that those persons not belonging to any religious community fall subject to civil, rather than sectarian, law.
Marrying before a public notary on Nov 10., the couple then sought to register their marriage, as is required by law, with the Interior Ministry.
When the ministry had still not registered the union by mid-January, Succariyeh and Darwish went public with their fight.
Almost immediately, Interior Minister Marwan Charbel announced that on the advice of the Justice Ministry’s advisory committee the marriage would not be approved. He cited Lebanon’s lack of legislation to govern the procedure as justification.
What followed was an outpouring of support for civil marriage which, in turn, triggered equally vocal opposition: Sleiman tweeted his enthusiasm while Grand Mufti Sheikh Mohammad Rashid Qabbani denounced it a “germ.” Elsewhere, citizens demonstrated, Facebooked, debated.
But the question isn’t whether one is for or against civil marriage. The question is: Is it legal?
This is what the consultation committee, the highest legal authority at the Justice Ministry, answered in the affirmative Monday.
The committee concluded that Lebanese not belonging to any sect have the right to hold civil marriages in Lebanon, notary publics have the authority to oversee civil marriage contracts, and – in the absence of Lebanese civil law to govern the marriage – that the couple has the freedom to designate a civil law.
Finally, the committee stated that “there is nothing that prevents registering the marriage of Kholoud Succariyeh and Nidal Darwish in the civil registry.”
Justice Minister Shakib Qortbawi has now referred the judgment to the Interior Ministry.
Yet, while the committee’s verdict is doubtless a victory of sorts, it should not be mistaken as a conclusive one.
Talal Husseini, Succariyeh and Dawish’s lawyer, told The Daily Star Monday that the Interior Ministry’s ruling was now unnecessary, but that is not strictly the case. Charbel must still approve the marriage. As of Tuesday afternoon he had yet to review the committee’s decision.
If he complies with the decision, “we will witness the first civil marriage in Lebanon,” Saghieh said. Those not belonging to any confession will be afforded civil rights, he added.
But both Qortbawi and Saghieh say the committee’s decision is not legally binding. Charbel’s approval, therefore, is not a foregone conclusion.
The consultation committee’s position does address the concerns of some legal experts surrounding the institution, but others remain outstanding.
The main opposition to approving the contract, raised by many over the past weeks and previously invoked by Charbel himself, remains unresolved: There is no Lebanese law to govern civil marriage.
For Marie-Claude Najm, a Universite Saint Joseph professor of law, although the consultation committee’s decision clarifies the query about whether notary publics have the authority to perform civil marriages, it does not address concerns about the absence of civil law.
“Allowing the spouses to conclude a mere contract by which they directly designate any foreign law they wish to chose to govern their marriage would be an extreme approach of the freedom of contracting when it comes to marriage,” Najm said.
“In no country in the world is such a system in existence. I think the only solution is for the Lebanese state to enact a civil law governing marriages.”
Saghieh, however, contended that allowing couples to designate a civil law to govern their marriage contracts is a perfectly feasible option to fill the gap until the Lebanese parliament enacts its own civil law.
Saghieh admitted that designating a foreign law is not ideal, but said that marriage is a well-known institution worldwide, making it is easy for jurists in Lebanon to review designated laws and set principles in relation to marriage.
For now, he concludes, the main issue is that the human right to civil marriage is upheld.
In the event that Chabel does not give his approval, there is, according to Saghieh, recourse: The minister’s decision may be challenged by going to the Council of State which can compel the ministry to recognize the marriage.
Qortbawi also acknowledged that while the decision currently rests with Charbel, his ruling is not absolute.
“If [Charbel] says no, we can challenge,” the justice minister told The Daily Star Tuesday evening, although he said he was unsure in which court it should be challenged.
Qortbawi was certain, however, that should the court rule in favor of the marriage, the ministry will be obliged to register it.