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6 Judicial Organization as a Mechanism of Social Consolidation
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6
Judicial Organization as a Mechanism of Social Consolidation

There also emerged a characteristic judicial system in Mount Lebanon during the mutasarrifiyya period. Designing a system of justice that could help settle the protracted disputes which pitted the mountaineers against one another was a major concern for the preparers of the Règlement . A good many of its provisions were related to judicial affairs. Some of these provisions involved broad principles or specific issues, and their application posed little problem.[1] Another set of provisions that dealt with the organization of courts, however, proved problematic in practice. The Ottoman governors, who in general carefully observed the Règlement , felt obliged to deviate significantly from it in their efforts to build a court system in harmony with the social and political realities of the Mountain. The end result was a system in which judges representing different confessional groups cooperated in the settlement of disputes according to gradually standardized procedures. At first the system developed under the control of the governors, but eventually due measures were taken to secure the autonomy of the judicial process. The present chapter focuses on these interrelated developments, namely, on the rise of a court system peculiar to Mount Lebanon and of an autonomous judiciary that ran it.

The Court System

Three categories of civil and criminal justice were provided for by the Règlement . At the lowest level, there were justices of the peace (sulh hâkimleri or hâkim al-sulh ). Above them were the courts of first instance (bidâyet mahkemeleri or mahâkim dhât darajat ûlâ ). Finally came the Grand Judicial Council (mahkeme-i kebîr, majlis muhâkama kabîr ) or the Central Court (bas mahkeme ), as it was also called (1864: arts. 6–8). All commercial litigation in the Mountain and civil litigation involving for-


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eigners, however, were placed under the jurisdiction of the Ottoman Commercial Court in Beirut (art. 9). Only after the revisions of 1912 were the courts of the Mountain also empowered to decide on commercial litigation involving the Lebanese.[2]

Justices of the Peace

The Règlement of 1864 gave the powers of justice of the peace to the village sheikh, also called "sheikh of the peace." Each sheikh was elected by the village community as a whole, irrespective of its sectarian composition. He heard and decided minor civil cases (involving up to 200 piasters) as well as petty criminal offenses. The sheikh's decision was final, although in disputes between parties of different sects the claimant might appeal to the first-instance court the sentence of a sheikh who belonged to the same sect as the defendant (arts. 7–8 and 10).

This arrangement represented an improvement over the 1861 Règlement , which stipulated the election of a separate justice of the peace for each sect in each canton (dâira ). In 1864, these stipulations were amended upon the insistence of Governor Davud Pasha, to avoid reinforcing sectarianism and causing undue delays in the dispensation of justice.[3] With the rearrangement, the services of the justices of the peace were brought closer to the litigants. Even more significantly, a means was created to mend sectarianism in mixed villages. In order to assure their election and reappointment, the sheikhs of such villages were obliged to remain over and above sectarian conflicts. Justices of the peace seem to have served their purpose. Complaints about the partiality or misconduct of individual sheikhs do show up in the archival documents, but virtually none about the system as such.[4]

Courts of First Instance

According to the Règlement , civil cases involving sums over 200 piasters and misdemeanors were to be decided on by the courts of first instance. These courts were also to review the appealable sentences of the justices of peace (arts. 7–8; compare 1861: arts. 7–9). At least three courts of first instance were to be established, each to be composed of one judge, one deputy judge, and six "official counsels" (défenseurs d'office, resmî da'vâ vekîli or wukalâ da'âvî rasmiîn ). Each "counsel" was to represent a different sect. A case affecting members of the same sect might be submitted solely to the judge of that sect, provided the other judge was also present during the trial. The judges and their deputies were to be appointed by the governor, but the counsels were to be "designated by the [respective] communities" (1864: arts. 6–7 and 10). Governor Davud Pasha (1861–1868)


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established eight courts of first instance, one in each district center and the eighth in Dair al-Qamar. Despite the clear statements of the Règlement , however, neither he nor any of his successors ever allowed the election of official counsels to these courts. Explicitly, their conduct was a direct consequence of the negative experience they had with the counsels elected to the Central Court. As will be shown below, the public defenders in the Central Court tended to provoke sectarian antagonisms and slow down its operation.

Actually, the courts of first instance were composed of a judge, a deputy judge, and a scribe who assisted them. From the days of Davud Pasha, it became customary for the governors to appoint the judge and deputy judge from among the first and second leading denominations, respectively, of that district. Later, at the time of Governor Rüstem Pasha (1873–1883), it also became customary to appoint the scribe from among the third major sect in the district. This practice was clearly an acknowledgment of the fact that confessionalism was too deeply implanted in Mount Lebanon to be uprooted abruptly. According to the Règlement , the decisions in court were to be reached by a majority of the judges in principle. This principle implied that both the judge and his deputy had the right of vote in courts of first instance—but given the absence of stipulations in case of a stalemate between the two judges, the first governors opted to apply the principle in the Central Court alone. In courts of first instance, only the chief judge had the right of vote, although his deputy and the scribe were expected to influence his decision.[5]

Governor Vasa Pasha (1883–1892) disliked the consequences of this practice. He reported that as long as the final judgment depended solely on the absolutist vote of the presiding judge, the litigants who belonged to lesser sects could only depend upon his mercy for a fair trial. Inevitably, complaints about the judges lingered on, and the courts failed to serve the improvement of relations among the Lebanese, contrary to the well-known demands of the sultan in this regard, according to Vasa.[6]

Vasa took a rather bold step in order to deal with this problem. Without altering the established practice of selecting the judge, the deputy judge, and the scribe from among different communities, he extended the right of vote to the latter two as well and elevated them to the status of "members." In this way, the court of first instance turned into a council of three judges, with its "chairman" being from the largest and "members" from the second- and third-largest denominations of the district. Decisions were by a majority of the president and one other. Consequently, while the Maronite judges of the courts of Matn, Jazzin, Kisrawan, Batrun, and


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Dair al-Qamar were obliged to share their powers and responsibilities with judges of other sects, the Maronite members of the courts of Kura, Shuf, and Zahla were provided with the right of vote. All in all, so Vasa argued, the Maronites, who constituted the majority of Mount Lebanon's population, had perhaps lost some of their former influence in judicial affairs, but no longer in any district in the Mountain would a dominant sect be able to oppress the others. All the Lebanese would rest assured about the equity of the courts and learn to cooperate toward a peaceful and prosperous society. Consequently, they would feel a greater respect for and loyalty to Ottoman sovereignty.[7]

Feeling confident about the conformity of his reformative measures to the essence of the government's general policy in Mount Lebanon, Vasa began to implement them without even waiting for the final acknowledgment of the Porte. Istanbul, however, was reluctant to approve the new arrangement. In accordance with established procedures, the Porte sought the opinion of the legislations section of the State Council on the legality of Vasa's measures. The opinion was that the measures represented a significant deviation from the Règlement . If confessionalism continued to hamper the impartiality of the courts in Mount Lebanon, that was because of the negligence of its governors in implementing the stipulations of the Règlement concerning the representation of the sects in court through elected official counsels. The Porte adopted the State Council's opinion and asked Vasa to abide by the Règlement . The Porte also cautioned the governor to refrain from action that might lead to foreign pressure.[8]

Vasa insisted on approval of the measures which he had already initiated. He brought to the attention of the Porte that all three of his predecessors had deliberately avoided the participation of the elected or designated agents of the communities in the district courts, for it was clear that such a practice would deepen, not mend, sectarian frictions. Until then, neither the Porte and the State Council nor the European guarantors of the Règlement had objected to this de facto situation, due to rational assessment of the conditions in Mount Lebanon. Returning to the letter of the Règlement should be out of the question, according to Vasa. The district courts needed to be improved, but not at the expense of past experience and accomplishments. Vasa asked the Porte for a revision of his orders. He had his way.[9] In later years, no major revision was made in the operation of the courts of first instance. The form which these courts took at the time of Vasa proved to be stable, although it significantly deviated from the stipulations of the Règlement . A similar deviation occurred in the formation of the Central Court (Grand Judicial Council) as well.


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The Central Court

The Règlement called for the establishment of a Central Court at the administrative center of the mutasarrifiyya . This court was to hear and determine cases of felony and also to function as a place of appeal from the courts of first instance. It was to be composed of a president and six judges in addition to six official counsels representing the six major sects: the Maronite, Druze, Greek Orthodox, Greek Catholic, Sunnite, and Shiite communities. The president and the judges would be appointed by the governor, while the public defenders would be "designated by their respective communities." In cases which involved Jews and Protestants, their judges and public defenders would join the Central Court (1864: arts. 6 and 8).

There were two important interrelated differences between the original (1861) and revised (1864) stipulations of the Règlement concerning judicial affairs. Official counsels did not exist in the 1861 version. Instead, it was stipulated that the judges of all categories—that is, from the justices of the peace up to the judges of the Central Court—be "nominated and chosen by the leaders of the respective communities in consultation with the notables, and appointed by the governor" (1861: art. 11). Inevitably, this method of appointment would have put the judges more under the control of the notables and religious leaders of various communities than that of the governor. In 1864, upon the insistence of Davud Pasha,[10] the governor was empowered to appoint judges directly, except for justices of the peace (1864: art. 10).

In turn, the representative counsels were introduced, according to the Ottoman interpretation, in order to provide poor litigants with legal counsel and as a precaution against the possible sectarianism of the judges. From the beginning, however, the governors considered the conduct of the counsels a hindrance to the effectiveness of the Central Court. They reported to the Porte that the counsels tended to take advantage of their official position to perpetuate personal interests, resorting to every possible device, including fraud, in defense of their more influential electors. Instead of assisting the poor and counteracting sectarianism, the presence of the counsels in the Central Court had in fact been a cause of inequitable treatment of the poor, prolongation of cases, and the transformation of the Court into an arena of sectarian rivalry and conflict. It was precisely because of this outcome that Davud Pasha had refrained from the election of official counsels to the courts of first instance as well.

It was again in view of this same outcome that Franko Pasha (1868–1873) applied to the Porte in 1871 for permission to restrict the member-


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ship of the counsels in the Central Court to criminal cases alone. He held that in civil appeals the litigants might hire the services of a professional lawyer. Precautions could be taken to provide the poor with similar services. Franko was granted the permission he sought.[11] Even after this limitation of the powers of the counsels, the governors continued to view their presence in the Central Court as a cause of disturbance. In 1875, along with a number of measures implemented by Rüstem Pasha to improve the efficiency of that court, official counsels were eliminated altogether from the Central Court.[12] It is informative to note that first restriction and then elimination of the official counsels were undertaken with the approval of the State Council, the permission of the Porte, and the implicit acknowledgment of the guarantor powers. It was an action that openly violated the Règlement , but apparently it was considered necessary even by the European powers, whose interests at the time converged on not hindering the Ottoman efforts to establish an effective governmental order in Mount Lebanon.[13]

It was as a part of these efforts that Rüstem Pasha restructured the Central Court in 1875. After eliminating the counsels, the Central Court was divided into two branches, one for civil and one for criminal cases. Also the number of regular judges was increased. Six judges from the six major sects were appointed to each branch, plus a Maronite president to the former and a Druze president to the latter. The civil branch functioned as a court of appeal for the civil cases determined by the district courts. The place of appeal for misdemeanors tried in the district courts was the criminal branch, which also independently decided on cases of felony. This rearrangement was intended to accelerate the judicial process and also to bring the operation of the Central Court into line with the new system of "regular courts" (nizâmiye mahkemeleri ) that was being established in the Empire.[14]

According to Vasa Pasha, the new arrangement fell short of both objectives. Vasa complained about the continued accumulation of cases at the Central Court. He attributed the delays above all to the confusion that reigned about the laws and legal procedures to be observed in Mount Lebanon. The judges of district courts freely resorted to canonical law, to previously abolished legislation such as the regulations for the commercial courts, to local custom, and to the laws of procedure for civil and criminal cases that were enacted in 1879–80. They decided cases that came before them according to those of the old and new laws and regulations with which they were most familiar. Quite frequently, a judge also made his choice with the deliberate intention of supporting one of the litigants, usually the one of the same sect as the judge. Under these circumstances,


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almost any person who lost his case could and did appeal the sentence on procedural grounds.[15]

Yet the same confusion about legal and procedural standards prevailed also in the Central Court, whose decisions were not uncommonly based on grounds inconsistent both in themselves and with legal procedures prevailing in the Empire. This inconsistency in general procedures directly affected the activities of the criminal branch of the Central Court, for its decrees were subject to review by the High Court of Appeal in Istanbul, automatically in cases of murder and upon appeal in other cases of felony. The High Court of Appeal returned most of the dossiers which came from Mount Lebanon's Central Court for nonobservance of the relevant laws of procedure. The obligation to rehandle the invalidated cases further increased the Central Court's work.[16]

The decrees of the civil branch were accepted as final. At first sight, this practice, which was implicitly based on the Règlement ,[17] appeared to have simplified the task of the Central Court. Vasa, however, believed that leaving the civil cases outside the jurisdiction of the High Court of Appeal in Istanbul meant not only allowing the courts of Mount Lebanon partial independence, but also missing an opportunity to standardize their legal and procedural practices. Vasa asked permission of the Porte to enforce the laws of procedure for criminal and civil cases of 1879 and 1880 as the sole basis of judicial proceedings in Mount Lebanon. He held that this measure, together with the reorganization of the courts of first instance discussed above, would greatly reduce the workload of the Central Court. The number of its judges could thus be cut in half, making some savings in the budget possible. In 1884, the Porte complied with the governor's request.[18]

For some time, these measures proved to be effective. The appeals to the Central Court decreased in number, and the dossiers that had long dragged on due to procedural problems were rapidly cleared out.[19] Soon, however, cases began to accumulate once again. The duties of the Central Court were still too numerous for its restricted membership.[20] Besides, with the enforcement of the law of procedure for criminal cases, it had become obligatory to institutionalize prosecution. Given the special confessionalist sensitivities and traditions in Mount Lebanon, there would have had to be at least six prosecutors, one from each major sect. Mount Lebanon's acute budgetary problems ruled out the formation of such a committee of prosecutors. As a solution, the members of the Central Court were charged with conducting the prosecution in criminal cases, in addition to their other duties. This solution was inadmissible to the High


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Court of Appeal, which annulled the decrees of the Central Court on the grounds that the prosecutors and the judges were the same people. Briefly, special permission was acquired from the State Council through the intermediacy of the Porte to make the High Court of Appeal take the special circumstances in Mount Lebanon into consideration.[21]

By 1887, however, the growing inefficiency of the Central Court convinced Vasa and the Porte to restore Rüstem's modifications with certain refinements. The Central Court was once more divided into two branches, called the civil and criminal appellate (istinâf ) courts. Each branch consisted of six members and one chairman, along the sectarian lines established by Rüstem. The criminal branch was empowered to hear appeals against the sentences in criminal cases which had been tried in district courts, and to judge cases of felony. The civil branch was to settle the appeals against other sentences of the district courts, and also to function as a committee of prosecution in cases of felony. Within limits defined in the laws of procedure, the High Court of Appeal in Istanbul was recognized as the place of final appeal for all decrees of the Central Court.[22] In this way, the Central Court attained its final form.

It was by the time of Vasa Pasha, then, that the judicial organization of the mutasarrifiyya took its form. In other words, after a period of about 25 years of flux and experimentation, the formation of the courts of different levels, their relationship to one another and to the highest courts of the Ottoman State, and the procedural principles according to which they were to operate were finally settled. The outcome represented a significant deviation from the stipulations of the Règlement . The guarantor powers did not take an open position against this development before 1892. At the conference held in that year, upon Vasa's death, the guarantor powers urged the Porte to "advise" the new governor to revoke the modifications in the judicial system.[23] Naum Pasha, the new governor, was instructed to restore the judicial organization to the form stipulated in the Règlement .[24]

Naum Pasha ignored that instruction and abided by the experience of his predecessors. In defense of his position, Naum pointed to the contentment of the people of the Mountain with the existing judicial system. They only wanted its further improvement and extension, not retraction from it. Naum added that the consuls of guarantor powers in Beirut agreed with him that the present system was undeniably more practical, efficient, and reliable than the system advocated in the Règlement . Legal consultants of the Porte found Naum's position convincing, and they advised the foreign minister to uphold Mount Lebanon's judicial system. In 1897, the ambassadors agreed to Naum's reappointment, implying ap-


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proval of his past policies. Nevertheless, in the protocol signed on that occasion and also in the protocol for Muzaffer's appointment in 1902, the guarantor powers reiterated their demand for revocation of the changes introduced by Rüstem and Vasa. At length, the European powers gave up their demand and dropped the issue in the last two conferences held on Mount Lebanon in 1907 and 1912.[25]

The European powers could have resorted to forcible measures in order to see their demand fulfilled, as they did on other occasions. After all, even the State Council admitted that the actual organization of the court system violated the Règlement , which was based on an international agreement that bound the Ottoman government. Yet the powers chose not to press the matter. If they brought it up in the protocols, that was to keep the Ottomans under diplomatic pressure for other considerations.[26] Thus the European powers' avoidance of forcible measures suggests that the judicial organization developed by the governors suited the conditions of Mount Lebanon better than the organization stipulated in the Règlement .

In July 1915, the Ottoman government abolished the international protocols concerning Mount Lebanon and took steps to incorporate its court system more effectively into the Ottoman judicial organization. These attempts initiated a process aiming at the replacement of village sheikhs, in their capacity as justices of the peace, with properly trained judges, a process that continued into the French mandate period and culminated in the formation of the so-called single-judge courts of the Republic of Lebanon. During the war years, an effort was made also to streamline the functions of prosecution and interrogation in accordance with the criminal and civil procedural laws. Otherwise, the Lebanese judicial system remained basically intact until 1934, and constituted the basis of judicial reforms introduced by the French at that date. This endurance of the mutasarrifiyya's court system vindicates Vasa's judgment that in this case praxis and experience were better guides than the provisions of the Règlement .[27]

Supervision of the Judiciary

As already mentioned, the judicial system of Mount Lebanon had taken its shape by the time of Vasa, but the quality of judicial services still needed improvement. Confusion in laws continued to hinder the judicial process until the Ottoman judicial system, which was itself in flux, became more stable around the turn of the century. Also, the difficulty in finding competent jurists adversely affected the performance of the courts. The gradual improvement of educational opportunities helped deal with


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the latter problem.[28] Meanwhile, the definition of the relationship between the judges and the governor loomed as the major issue concerning judicial affairs.

After the amendments of 1864, the governor was empowered to appoint the judges directly, except for justices of the peace. He also had the power to dismiss them, this time including justices of the peace, although only after an investigation verified that a judge had acted incompatibly with his official duties or that he was guilty of corruption (1864: art. 11; compare 1861: art. 12). No hint was given, however, as to who was authorized to conduct an investigation or which procedures were to be followed.

This ambiguity began to create problems at the time of Rüstem Pasha. Rüstem's predecessors were above all preoccupied in securing the acceptability of the new regime to the Lebanese. They were cautious in their relations with the local interest groups, the most influential of which was the Maronite Church. One apparent concession that Davud Pasha made to the Maronite Church was to appoint most of the judges and other judicial officials from among the Maronite clergy, and to refrain from intervening in their business. Franko Pasha kept up the practice, and left the judicial officials appointed by Davud in their places. Theirs was a reasonable position to take from a technical point of view as well, given the continued importance of canonical law and the dearth of secularly trained judges in the Ottoman Empire in general, let alone in Mount Lebanon.[29]

By the time of Rüstem Pasha, the new administration in Mount Lebanon had become quite well established. Meanwhile, the Ottoman efforts to establish a secular judicial system had begun to bear fruit and had become more determined.[30] Rüstem refrained from executing the decrees of the judges suspected of sectarian prejudice.[31] He also began to remove the clerics from the district courts.[32] His action led to incessant complaints which obliged the Porte to open a secret investigation of the governor through Hamdi Pasha, a former grand vizier who was then the governor of Damascus. According to Hamdi Pasha, Rüstem's attitude was motivated by "the important objective of preventing the protection and patronage of the accused on the basis of personal relationships." In Hamdi's view, the judges of Mount Lebanon were "marked by strong sectarian zeal. Numerous incidents substantiated and confirmed that the judges and clerics who were of the same sect as the accused exerted their utmost effort and influence for his acquittal and release." Hamdi also explained in detail how the campaign against Rüstem was initiated and conducted by the Maronite Church because of his long-due attempt to put judicial affairs aright.[33]

When Vasa took over the governorship in 1883, only the judge of the


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Kisrawan court was a cleric. Soon Vasa contentedly reported to the Porte that he had replaced the last cleric in a judicial position with "a lay person whose ability and knowledge in legal affairs were verified by examination."[34] Complaints against Vasa's own political machinations, however, indicate that professional merit was not the sole criterion in the appointments he made. Evidently Vasa exerted pressure on the judges through his power to appoint and dismiss them, and he used his authority to influence the election of the village sheikhs as well. In response to the inquiries of the Porte, Vasa accused the Maronite bishops of having prepared petitions with false signatures against him because of his secularist policies and determination to weaken the influence exerted by the French diplomats over the Maronite community through the clerics. Nevertheless, the Porte rebuked Vasa for his cunning tactics.[35]

Clear evidence that administrative manipulation of the judges had become an acute problem in Mount Lebanon during Vasa's governorship is a petition signed by 1,200 Lebanese of varying denominations and presented to the Porte in 1892. This was the petition initiated by Yusuf Dibs, as discussed earlier. Vasa had just died, and an ambassadorial conference was called to discuss the candidates for the governorship and to review the situation in the Mountain. The petition was drafted to influence this conference. Its focal point was the "incompatibility of the degree of freedom enjoyed by the Mountain's governor in the appointment and dismissal of the judges and officials with any legislation or regulation that was in force in any part of the Ottoman Empire." Despite the stipulations of the Règlement , the governor could remove judges without due inquiry. The petitioners realized the vagueness of the Règlement about the process of inquiry. Consequently, they expressed their desire for observance of the laws and regulations that were in force elsewhere in the Empire.[36]

Actually, those laws and regulations empowered the High Court of Appeal in Istanbul to try and to punish a judge.[37] When the complaints resulting from Vasa's arbitrary actions against the judges were discussed in the conference, a different solution from that suggested by the petitioners was adopted. The protocol of 1892 urged the Porte "to insure respect for the guarantees allowed the judiciary . . . whose dismissal and displacement could only be undertaken after investigation carried out by the Administrative Council."[38] The official instructions issued to the incoming governor Naum Pasha emphasized the need to put Mount Lebanon's judicial affairs in order, but left fulfillment of this task to his discretion.[39]

Soon after Naum reached Lebanon, he summarily dismissed the judges of the court of Shuf, whom he deemed to have been too lenient to the accused in a case that involved a clash between Christians and Druze.[40] He


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undertook similar action with a number of other judges as well, including, at one point, the members of the civil branch of the Central Court. In 1897, his authoritarian attitude toward the judges prompted actions by the ambassadors of the guarantor powers in Istanbul. An inquiry was lodged with the Porte about the proper implementation of the 1892 protocol whereby the governor could dismiss the judiciary only after an investigation carried out by the Administrative Council. In defense of his position, Naum argued that since the protocol did not specify the precise form of investigation, he assigned the duty to the best-qualified members of the Administrative Council, using his own discretion, in conformity to the Règlement which defined the appointment of administrative and judicial officials as a prerogative of the governor. Naum also claimed that the Règlement had precedence over the protocols. The Porte as well as the ambassadors in Istanbul overlooked the flimsiness of Naum's argument, for reasons discussed earlier, but not his opponents in Mount Lebanon. They criticized the governor's authoritarian attitude toward the judges and demanded rectification of this situation in the massive campaign initiated to prevent the extension of Naum's term for a second time in 1902. Partly as a consequence of this campaign, the ambassadors insisted on the necessity of a proper inquiry by the Administrative Council in the dismissal of judges in the protocol of 1902, proposing Muzaffer's appointment to the governorship of the Mountain.[41]

This time the Porte chose to observe the protocols, as the correspondence with Muzaffer Pasha indicates. Soon after reaching his post, Muzaffer appointed inspectors to review the conduct of the judiciary. Their report indicated that some of the judges were corrupt and that criminal trials often were delayed for months, with the accused being held in jail.[42] Muzaffer reported the result of the inspections to the Porte, and asked permission to form a special temporary tribunal for the trial of the responsible officials. The Porte reminded Muzaffer that the Règlement and the protocols rendered such action impermissible, and that only the Administrative Council was authorized to sit in judgment upon the misdeeds of the judiciary.[43] Muzaffer Pasha duly passed the inspection file over to the Administrative Council. He managed to secure the Council's approval for the dismissal of several judges.[44]

Complaints about the courts continued. In 1905, Muzaffer once more dispatched inspectors to the districts. He presented their findings to the Administrative Council, seeking the approval of its members to replace certain judges who evoked particularly bitter complaints. This time the Council refused to cooperate, according to Muzaffer, because of "the relationship and affinity" between the accused judges and some of the coun-


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cillors. Muzaffer held that the uncooperative attitude of the Council prevented him from fulfilling his principal duty, which was to maintain an effective judicial administration in Mount Lebanon. He applied to the Porte for advice. The issue was first examined in the State Council and then in the Cabinet. Muzaffer's final instruction on this matter was to adhere to the stipulations of the protocols.[45]

Muzaffer's successor, Yusuf Franko (1907–1912), was an authoritarian and strong-minded governor. Complaints presented to the Porte indicate that he did not refrain from intervening in the judicial process when he saw fit. Despite the warnings of the Porte, Yusuf Franko kept bypassing the Administrative Council in his corrective actions against the judiciary. He tried to justify his position in terms of the unreliability of the members of the Administrative Council. Upon the accumulation of complaints against the governor, the Porte once more had the issue examined in the State Council. In addition to its earlier view that the Règlement and the protocols bound the Ottoman government, the State Council also pointed to the strict measures taken everywhere in the Empire to prevent the intervention of administrative officials in the judicial process, except for the execution of judicial decisions. The Cabinet ratified the opinion of the State Council, and Yusuf Franko was sternly warned to act accordingly.[46] The European powers must have been satisfied with the Porte's stance, for no concern was expressed about the guarantees of the judiciary in the last conference held on the Mountain in 1912.

Toward the end of the mutasarrifiyya era, then, the principle of the independence of judges from administrative control became reasonably well established in Mount Lebanon. If the governors had not been earnest about observing such a fundamental principle of the rule of law, it was only partly due to the authoritarian traditions of Ottoman statecraft. Aside from the difficulty of finding competent jurists, the governors felt themselves obliged to deal with the sectarian and self-serving abuses of the judges, which ranged from leniency in the administration of laws to outright corruption. There is sufficient evidence in the communications between Istanbul and Mount Lebanon to conclude that the governors were rightly concerned over the damage inflicted on the credibility of the courts by the misconduct of certain judges. As the Ottomans saw a direct relationship between equitable dispensation of justice and the respectability of their sovereignty over the Mountain,[47] the governors felt justified in exerting control over the judges. The absence of a clearly defined mechanism of supervision over the performance of the judiciary in the Règlement facilitated the domination of the judges by the governors.


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When that domination exceeded tolerable bounds—that is, when it led to serious public dissatisfaction in a way that undermined Ottoman prestige—the Porte checked the governors. Moreover, after a series of legislation dating from 1876 to 1880, the Ottoman judicial system itself prohibited the intervention of the governors in the judicial process through the appointment and dismissal of judges or other means. Only the highest judicial tribunal of the state was authorized to try and to punish judges. However, this legislation did not apply to the judiciary of Mount Lebanon where, instead, the Administrative Council was empowered to conduct inquiries into the competence of judges. As the Administrative Council was an elected and representative body which tended to develop into an embryonic legislature, the Ottomans were understandably reluctant to increase its powers at the expense of the governor, who embodied Ottoman sovereignty in Mount Lebanon. Ultimately, the overriding concern for peace and order in the area, perhaps coupled with a deeper appreciation of the virtues of the separation of judicial and executive powers, convinced the Porte to urge the governors to observe the prevailing stipulations.

In its final form, the judicial system of the mutasarrifiyya represented a unique reconciliation of the principles of sectarian representation and the requisites of a modern, secular judicature. At the lowest level, the election of the justice of the peace by the village community as a whole obliged him to win the trust of all groups. In the district courts, as well as in the Central Court, the judges of different sects had to accommodate their opinions to reach a verdict. Given the depth of mutual sectarian suspicions, which were at times exacerbated from outside by adverse diplomatic vicissitudes, the need to reconcile opinions probably slowed down the wheels of justice, but it also enabled each court to function as a forum to resolve sectarian differences. From the beginning, the Ottomans had deliberately aimed at a rapprochement among the Lebanese. Under the prevailing circumstances, the court system that emerged in the Mountain was a definite contribution toward the realization of that objective.

For effective operation of the court system, however, impartial judges were required. Honest, respectable, and properly educated people who could not be swayed and tempted by sectarian prejudices and vested interests had to be found from among each community. Divisive tendencies in Lebanese politics (along with other, less important, factors) made this task a formidable one. Taking advantage of the vagueness of the Règlement on the supervision of the judiciary, the governors attempted to keep the judicial process under control, mainly through their power to dismiss the


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judges. Eventually, sufficient checks and balances were incorporated into the constitutional structure of the mutasarrifiyya to assure separation of the executive and judiciary authorities. By the time the Ottomans withdrew from Mount Lebanon, they left behind an institutionalized and fairly reliable system of justice which also worked as a mechanism to draw the Lebanese closer together.


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