On Friday I was at the library of the Lebanese Syndicate of Lawyers (Bayt al Muhaami), where I have conducted much of the archival research related to my dissertation. As I was researching decisions made by the Ministry of Justice`s advisory body regarding religious conversion, I came across an advisory opinion issued by Hay`at al Tashri` wa`l-Istisharat in 1966 in response to an inquiry made by then Prime Minister Rashid Karami.
The Hay`at al Tishree` Wa Al Istisharat is an extra-judicial body housed at the Ministry of Justice. Currently it is headed by the jurist Marie Denise Ma`ouche. Members of the Lebanese government can request advisory opinions on matters such the correct bureaucratic steps of a particular procedure, or on questions regarding the rights and duties of government agencies, citizens, and courts. The Hay`at also gives its opinion on proposed laws that may be adopted by the Lebanese government. Once issued, these opinions are applicable only to the actual question being asked. Of course, new opinions modifying or reversing previous ones can also be issued. If a minister takes a decision that is contrary to the opinion issued by the Hay`at al Tashri` wa`l-Istisharat, they must notify the Ministry of Justice.
In 1966, a Member of Parliament from Mount Lebanon drafted a law criminalizing "sexual perversion." The draft law would have created a special police force tasked with investigating such crimes and would have sentenced anyone guilty of sexual perversion to five to ten years in prison and/or a 5,000-15,000LBP fine (the sentence would have been ten mandatory years if the offense was repeated). The draft law also states that known "perverts" would be barred from holding public offices and could be fired from public offices currently held. Furthermore, a citizen who owned a location where "perverts gathered" could be sentenced under the same statutes. The Prime Minister, Rashid Karami, requested the Hay`at al Tashri` wa`l-Istisharat, then headed by the jurist Robert Ghanem, to weigh in on the proposed law.
The strongly worded response is organized around three legal principles; 1) The bureocratic ramifications of passing such a law, 2) The fact that Lebanese jurisprudence does not penalize the psychological, physical, medical or financial states of citizens, but only penalizes actions undertaken by citizens, and 3) The illegality of stripping a citizen of civil and political rights without the proper legal procedures.
Justice Ghanem writes that the draft law, if implemented, is a step towards a "police state" and would bring more harm than good to the general population. He also writes that Lebanese criminal law is based on the punishment of illegal actions, adding that a law that would criminalize someone`s thoughts or feelings would be an invasion of personal freedoms. While one may have control over his actions, he does not have control over his desires. Most interestingly, Ghanem rhetorically compares homosexuality to bankruptcy, arguing that bankruptcy (like perversion/homosexuality) as a financial state is not illegal, but illegal acts that may have led to bankruptcy can be penalized. In the conclusion of his opinion Ghanem asks what the legal proof of perversion would be, and writes "would there be a court decision that would publically declare a state of homosexuality (حالت شذوذ) as there is now with regards to cases of bankruptcy?" Clearly, Ghanem shudders at the thought, and writes strongly, again and again, that actions alone must be punishable by the law. The legal sanction of thoughts, emotions, or identities would be unjust, and would constitute an erosion of the civil liberties gauranteeed by the Lebanese constitution.
In the court decisions that I have researched for my dissertation, the same jurisprudential principle applies. Consistently, judges who sit on the Lebanese High Court rule in cases dealing with religious conversion, where the plaintiff is accusing the defendant of converting in order to exploit the personal status legal system, that they cannot truly "know" the intentions under which a citizen converts. A judge cannot discern what is in a citizen`s heart or mind, nor should they try. Because the freedom of religion and the freedom of thought are protected civil liberties, the intent behind religious conversion is off limits to the law. Similarly, the advisory opinion from 1966 also makes clear that although Lebanese jurisprudence does criminalize actions, it does not criminalize thoughts or identities as such, a legal practice that Justice Ghanem clearly thinks is more just. As the comparison with cases of conversion demonstrates, the criminalization of sexual acts, not identities, is only one aspect of an overall jurisprudential philosophy that is centered on a separation between the mind (as the repository for thought, emotion, intent, identity) and the body (as the evidentiary terrain of action and practice).
This archival document, nestled between the advisory opinions I was actually looking for, is important on many levels. It approximates a picture of a discourse of sexuality and of homosexuality as an identity (a dangerous one, at that) that by decades precedes the advent of the internet, the Gay International, local LBGTQ activist groups, and the focusing on the plight of "Middle Eastern/Muslim Gays" by international human rights corporations and by the machinations of militarized foreign policy. It demonstrates the advisory body`s use of the words "الانحراف الجنسي " (sexual perversion), "ارتكاب اللواط" (homosexual acts/engaging in homosexual acts), and "حالة شذوذ" (state of deviance/state of homosexuality) as synonyms as early as 1966. Such archival research might provide the platform for a much needed intervention into the increasingly acrimonious debate between Arab LBGTQ activists and academics that examine discourses and practices of sexuality in the Arab world.
Justice Ghanem`s advisory opinion mentions that "unnatural sexual intercourse" is already criminalized under article 534 of the penal code, as "liwat" is in the 1931 law that regulates prostitution in Lebanon. While today activists are struggling to repeal article 534, it would be prudent to study the history of the article and to analyze how governmental agencies have historically viewed its purpose. Simply put, article 534 of 1966 is not the same article as it is in 2010. Sure, it contains the same words, but it is interpreted differently by the courts, the police, and local activist groups because the discourse on sexuality and personhood has changed in Lebanon. It has shifted, and it continues to shift, towards linking sexual practices to sexual identities, homosexual and heterosexual, which are then viscerally experienced as either opressed or priveleged by the law and other regulatory technologies.
Perhaps most importantly, this document is a clue to a paper trail that may prove to be indispensable for researchers who study discourses of sexuality both emanating from, and directed to, states in the modern Arab world. Based on this document, a researcher with the correct access could look up the request for the opinion written by the office of the Prime Minister, the text of the proposed law, parliamentary debates that may have been had on the subject of the proposed law, and press coverage the issue could have received. It is likely that one would also be able to interview former parliamentarians, lawyers, and members of the Ministry of Justice and/or browse their personal archives and correspondances for evidence of this 44 year old debate. One could mine the archives for life worlds that have come and gone, leaving a stain both on the pages of documents and on our lives today. As a would be anthropologist, my attraction to the law is that it leaves a trace, something tangible in my hands. But it also leaves me with an uneasy knowledge that I can only touch fragments and that somewhere, there is a document that will invite me to rethink everything I just wrote.
 Except in egregious cases of exploitation, such as the case of a man who converted and married three different women within four years under Greek Orthodox law, Sunnite law, and Maronite law.