Truth claims, avowal, auto-biography, and madness in the
construction of criminality in contemporary Syria
Zouhair Ghazzal
Loyola University Chicago
In the Syrian penal system, which closely follows the French
model of evidence, a judge constructs evidence based on forensic reports,
interviews of and statements delivered by suspects and witnesses, and memos
drafted by judges, lawyers, doctors, and other professionals appointed by the
court in the course of the investigation; all of which constitute truth claims, as constructed by the judge from the
vintage viewpoint of his or her own narrative. In other words, statements
taken individually would be problematic in terms of receiving their validity
through factual evidence alone. If they do not stand on their own, it is
because their validity would only be established through the judge’s narrative.
There is, however, another twist to the matter, as judges
would be unable—or at the very least, feel embarrassed—to deliver their verdict
without the accused openly making an avowal: I did what you have suspected me
of doing, and that is the truth of the matter. That kind of avowal
(confession?), in its religious Christian underpinnings, becomes normative in the
secular European penal systems of the nineteenth century. The avowal opens that
unavoidable gap in our understanding of the act and the subject behind the act,
an attitude that led to the outsourcing of juridical opinions in the direction
of doctors and psychiatrists. Tell me who you are, and why you did it, became
the motto of judges towards their suspects and accused. Because such calls to
truth could not be answered once and for all, judges had to give up some of
their authority in favor of opinions delivered by doctors and psychiatrists. A
declaration of insanity was good enough to halt the verdict, as required by law
(again, following precepts adopted by the French Code pénal since 1832),
whereby the accused would be sent to a psychiatric institution rather than be
incarcerated in a prison cell.
One could argue, by tracing the discursive archeology and
genealogy of the penitentiary to its European nineteenth-century roots, that
the transformation of the avowal as the sine qua non of evidence prior to
verdict was probably related to the association of penance to the prison
system. It was not enough to incarcerate people for wrongdoing, as the prison
experience must carry with it the weight of rehabilitation: We have to know the
subject, who he is, for the rehabilitation process to be successful. Penance,
in its Christian medieval underpinnings, assumes a process of voluntary
self-punishment inflicted as an outward expression of repentance for having
done wrong: the prison would then become that public penance for having done wrong. But it was not enough,
however, for “society,” as represented by the judge, to know who did commit the
hideous act: the avowal of the culprit became normative across the penal
system.
What is striking here is the parallelism to be drawn between
the juridical and the medical. “I am mad”: The avowal becomes the key component
in the psychiatric process, without which there would be no contract between
the patient and medical authorities. Hence the patient must himself seal the conditions
of his incarceration in a medical institution. In similar vein, a suspect,
prior to becoming an accused, must declare that “I did commit the crime that I
was accused of.” In both instances, the act creates the contract, while in
civil law the contract establishes an obligation that is consensual.
Behind such exigencies, from both the juridical and medical
instances, lies a long history of avowal, one that is associated with “telling
the truth” (dire vrai) in general,
and, more specifically, “telling the truth of oneself” (dire vrai sur soi-même), both of which could be traced back to
their Greek, Roman, and Christian origins. With all the exigencies towards
“objectivism” to be found in both the juridical and medical science, what
brings them together is that strange requirement of the discourse of the
culprit/patient on him(her)self. Hence between the judge and the culprit lies
the discourse of the culprit, the knowledge that the latter has on
him(her)self. Similarly, between doctor and patient lies the truth that the
patient would reveal on him(her)self. The declaration itself could be
understood as speech act, but it
exceeds it in the sense that, at least in penal proceedings, it could
constitute the tragic climax of court hearings. Avowal is by definition
associated with “telling the truth,” as it does not make much sense to declare
that what I’m telling you is not the truth. The question then becomes to
understand the implications behind such practice of telling the truth, and how
it paves the way towards the penitentiary, as opposed to the mere experience of
the prison. The broader implication is that of governmentality, that is, the
political control of society as a whole.
To wit, an avowal is a “total” contractual obligation
between speaker and hearer, in the sense that it is the entire “culture” of a
society that is at stake. How people speak to one another, how they make a
confession, how they deny a previous statement, are not simply a product of a
“situated encounter,” but transcend it to what the archeology of knowledge in a
certain culture has produced over its long history.
In Arabic, avowal usually stands for iʿtirāf, whose root is the verb iʿtarafa,
to avow, to confess (which tends to be the former in a secular setting like a
court hearing). The other parallel term is that of iqrār, from the root verb of aqarra,
to acknowledge, to declare. However, even though the two terms of iʿtirāf and iqrār seem to be (wrongly) used interchangeably in the court
literature, even by judges themselves, they should not be confused. In effect,
the iʿtirāf carries that strong sense
of “telling the truth” in an exercise of self-revelation; iqrār by contrast is an act of acknowledging which could be “read”
or “interpreted” as such by a judge from a series of statements delivered by a
suspect or witness. It hence lacks that direct self-avowal.
It is beyond our purposes to trace back the genealogical
connotations of such concepts throughout the history of Arab and Islamicate
societies and civilizations. What we can do for our purposes here is to see how
such notions operate in the context of the contemporary Syrian courts, that is
to say, how they have been transplanted, adopted, and assimilated in order to
understand their juridical and political connotations in a developing state
like Syria. (One could indeed argue that practices of self-examination, whereby
an internalized belief must be externalized in relation to an authority that
would provide its “approval,” is indeed absent in Islam; or for that matter a
“hermeneutics of the self” is absent altogether.
A judge in the city of Idlib (north of Syria) made the
following remarks in a memo he drafted regarding a woman who was accused of
killing her husband (allegedly helped by her brother) in the late 1980s, problematizing
“avowal” into six broad categories.
1. A
judicial avowal must be descriptive, personal, frank, and emanating from a free will, while at the same time in accordance with reality.
2. When
there is a denial to the original avowal, as was the case here with both prime
suspects, having denied in the presence of a military prosecutor most of what
they had stated earlier, the earlier avowal could still stand as valid, in
particular if the denial would create an
implausible reality, that is, a “view contrary to the accepted reality (khilāf li-l-ḥaqīqa al-rāsikha).” In our
case here, it would have been implausible
that the victim would have died either in an act of suicide or targeted by
assassins other than the two suspects.
3. An
avowal must be devoid of confusions,
ambiguities, contradictions, and in no need of manipulated interpretations to
become intelligible down to its finest particulars (juzʾiyyāt).
4. An
avowal could also be implicit (iʿtirāf ḍimnī)
in the sense that the suspect avoided any direct acknowledgment of a truth, but
nevertheless her statements, when interpreted in conjunction with other
statements, either by the same suspect or by another witness, could bear the
light of a hidden acknowledgment.
5. In
all the above instances, it would be therefore up to the judge to decipher a genuine confession from a faked one,
or perceive an acknowledgment in the process of an interview or a police
report, and contrary to what the defense attorney in our case here had
repeatedly stated, denying an avowal (rujūʿ
ʿan iʿtirāf) is not enough for the judge to drop the confession in
question, as the denial itself could be devoid of any
truth.
6. Finally,
the aim of all this tedious but essential work in sorting out avowals and
acknowledgments would be to determine for each homicidal case “the cause of the
killing (al-bāʿith fi-l-qatl),”
considering that “each criminal act is in need of a motive (dāfiʿ).”
Even though taken out of context from the factualities of
the crime in question, such assertions are nonetheless normative enough to
reveal the discourse that stands in Syrian courts when it comes to avowal, and
more broadly, evidence.
What does it mean that an avowal must be frank and emanating
from a free will? One obvious interpretation is that an avowal must not be
delivered under duress, otherwise “telling the truth” would become meaningless.
But, a more deeper explanation would look in relation to the revelation of the
self, the fact that what is revealed in an avowal is that inner self, or as the
judge stated in item 6 above, the fact that every crime has a “motive” or
“cause”: identifying the killer is not enough, if the motive is not there yet.
What else would provide us with the motive but the avowal from the one who
presumably committed the act of killing? We therefore need to understand why
the discourse of the accused must, in the last resource, come at the rescue of
the objectivity of the juridical discourse; and why, at times, when the
defendant is unable to fill that gap, psychiatric and medical discourse is
there to fill that silence. Moreover, defendants, at times, in the solitary
confinement of their prison cell, draft “letters” on their own, addressed to
family members, friends, confidants, or even counsels and judges, which on
their own pose additional problems at identifying the meaning of avowals as
speech acts. Where do auto-biographical statements fit? What role should we
accord to them?
But then all those truth-claims need to be detected by someone, hence the importance of the
judge’s discretionary powers; or, as item 5 above states, it is “up to the
judge” to make distinctions, to decipher a genuine confession from a faked one,
or an implicit avowal from one that seems more straightforward, or whether a
denial should be accepted as such. More importantly, it is up to the judge to
construct the “motive” of the crime, as without this dāfiʿ the judicial process would be devoid of its substance. In all
this, therefore, the judge acts as a “hearer” in the face of a suspect-speaker
of sorts, a suspect who at the end of a hearing may have said very little, or
nothing at all. To relieve himself from such deadlock, the judge may at the end
seek psychiatric help for his suspect, but, whatever the outcome, all discretionary
powers are in his hands.
At times avowals could be frank and startling, as if there
is too much into them in a very little space:
I confess of having committed the
crime of killing my mother. The reason was that my mother kept interfering with
my marital life, forbidding me from filing for a divorce from my husband. I was
also aware that my mother and sisters were having sex with my husband. I
reiterate all previous statements [to the police and public prosecution].
This was a woman speaking to an investigating judge in his
office at Aleppo’s Palace of Justice in 1996. She will also inform him that
prior to killing her mother she had burned her own home, then went to her
mother’s house to spend the night, woke up early in the morning, took a hammer
from the kitchen and killed her mother in her sleep by smashing her skull.
Notwithstanding the horror of such scenes, the young woman,
Fatima, a mother of a teenage boy, drafted a letter to a family member while
serving in her prison cell.
To my paternal cousin Muhammad ‘Ali Shawwa Abu ‘Abdo,[1]
hoping that when you’ll receive this missive you’ll be in good health, as God
wishes. In case you’d care to ask, I’m doing well, and the only thing that I
miss is seeing my dear son Sami Shawwa.[2]
I also want you to talk to my brothers so that they would drop their lawsuit
against me, and to get me out of my prison. I can’t take it anymore, as I’m on
the verge of committing another crime
in prison. I’m unable to live here far away from my son Sami, as I’m unable to
adapt to this situation in such circumstances. Tell them that if they don’t
drop their lawsuit against me so that I get out of here, I’ll arrange for them
seas of blood—not a single sea only—and I can do that from my prison, and not
only in talk.
Besides the fact that such gruesome passages look startling,
if not embarrassing, it is not clear what judges do with them. The above
passage is taken from a long letter that the accused had drafted to her cousin
while in prison, a copy of which was in the dossier that was used by the judge
for his verdict. The discretionary powers of the judge were here, as they
always are, enormous. The judge could have, for instance, asked for psychiatric
evaluation, but he did not, probably because neither prosecution nor defense
pushed for such request. More importantly, however, was what he precisely did
with such written “testimony,” as there was no indication that he effectively used it in his verdict; but then it
could have had impacted him without openly addressing the issue. The point here
is that such “testimonies” which play the role of “avowals” even more strongly
than “normal avowals” would do, may, in the final analysis, not receive even a
casual mention in the verdict. Even by law, the question of their inclusion remains indeed problematic, as
these are statements delivered in writing but only in the privacy of the culprit, hence nothing was uttered in public, within the format of the usual
line of questioning. Which begs the question, why are they then included in the
dossier? What difference would that make?
What such question reveal is the fundamental problematic
that we have posed at the beginning of this survey, namely, that the avowal has
become in nineteenth-century Europe the centerpiece of the criminal dossier, in
that “telling the truth,” the discourse of the culprit, must come from the
subject him(her)self. In sum, the discourse of judges and doctors, though
necessary, is not enough. What we need to question, therefore, is, through an
analysis of dossiers, how the avowal
has become the centerpiece of evidence, what role does it serve, and the
deadlocks that the system has placed upon itself with such requirement.
References
Abi Samra,
Muḥammad, Mawt al-abad al-sūrī. Shahādāt jīl al-ṣamt wa-l-thawra [The Death
of Syria’s Eternity. Testimonies of the Silence and Revolution Generation],
Beirut: Riad el-Rayyes Books, 2012.
ʿAwwā, Muḥammad
Salim al-, Fi uṣūl al-niẓām al-jinā’i al-Islāmi, 2nd. ed., Cairo: Dar
al-Maʿārif, 1983 [1979].
Dulong, Renaud, ed., L’aveu.
Histoire, sociologie, philosophie, Paris: Presses Universitaires de France, 2001.
Fahmy,
Khaled, "The Anatomy of Justice: Forensic medicine and criminal law in nineteenth-century
Egypt," Islamic Law and Society 6, no. 2 (1999): 224-71.
Foucault,
Michel, Mal faire, dire vrai. Fonction de
l’aveu en justice, Presses Universitaires de Louvain, 2012.
Foucault,
Michel, La société punitive. Cours au
Collège de France, 1972–1973, Paris: EHESS–Gallimard–Seuil, 2013.
Garapon, Antoine, Bien juger.
Essai sur le rituel judiciaire, Paris: Éditions Odile Jacob, 1997.
Ghazzal, Zouhair, The
Grammars of Adjudication, Beirut: Ifpo, 2007.
Ghazzal, Zouhair, The
Crime of Writing, Beirut: Ifpo, 2015, forthcoming.
ʿUṭrī,
Mamdūḥ, Qānūn al-ʿuqūbāt, Damascus: Muʾassasat al-Nuri, 1993.
[1]
Muhammad ‘Ali was the brother of Fatima’s husband, hence her brother-in-law.
If, as she claims, he was her “paternal cousin,” then Fatima and husband must
have also been paternal cousins. There is a possibility, however, that they
were “cousins” only in the figurative sense of the term, that is, not as a real
blood relationship.
[2]
Referring to both son and cousin by their full names has something impersonal
about it, diminishing its intimacy, as if
the letter was meant to be read not by the recipient himself, but by some
anonymous judicial authority.
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