The detention of Khadija Asad received a revealing amount of media attention in Lebanon. The case had outstanding social dimensions because of the human sympathy and compassion –as well as the resentment toward the prevailing Lebanese regime– that it evoked. Khadija is an elderly woman (78 years old) with a terminal illness (cancer), and she had an appointment for treatment that she would not be able to attend because of her detention. Most importantly, she was detained for erecting a “tent” on the roof of her building so that her children could move from the damp bottom floor to a more livable place; all in a country where enormous thefts of state funds and property are being committed with impunity. This is the image that was disseminated by social media and that, irrespective of its veracity, constituted the basis of public debate in this regard.
While most comments inflated the detention decision because of Khadija’s age and health on one hand and trivialized her infraction on the other, fingers were ultimately pointed at the judiciary for bullying the weak and for strictly suppressing minor infractions without any human consideration; all the while ignoring major crimes such as corruption. Because of this discourse, Khadija’s case became a popular humanitarian cause. It expressed resentment over the collusion of judges with the political system of rule in place, and the judiciary’s transformation into a tool to forcefully repress the weak –however minor their errors may be– and to whitewash the strong and influential, irrespective of their crimes or the damage they have done to public interest. In the introduction of its broadcast on May 5, 2017, NewTV expressed this public sentiment. After recalling a number of crimes of corruption that went unprosecuted, the channel satirically deemed Khadija responsible for all the corruption and the slump in growth in Lebanon.
The facts surrounding the case were depicted, as it turned out, in a selective and exaggerated manner; especially with regard to the [supposed] triviality of the infraction and the extent of the Public Prosecution’s responsibility for the decision (an issue to which we shall return later). What interests us, however, is the path that the discontent surrounding this case took and the authorities’ reaction to it. The authorities did not see the discontent –which, whatever the facts of this case may be, is real and justified– as an opportunity to start a broad discussion about its causes, namely the selectivity of justice and the impunity in major crimes. Instead, figures who represent the current regime invoked populist discourse themselves to cunningly exploit this sentiment, in order to normalize selective justice or even to strengthen its foundations and hence pave the way for more grievances. When prominent political figures intervened to secure Khadija’s release, they appeared as if they were reformers determined to uphold people’s rights in the face of erring judges. This discourse stripped the case of its true dimensions. It depicted it as a case of judicial error rectified by the Ministry of Justice. The case was thereby closed, and with it the causes of discontent.
This course of discussion was reinforced by the campaign launched against Appellate Public Prosecutor in Nabatieh Ghada Abu Karrum. This campaign took on an unprecedented and ugly personal character, yet neither the judicial institutions, nor the Ministry of Justice, nor the bar association, or any group representing judges or lawyers came to her defense.
This discourse is the subject of a series of articles aimed at steering public debate in what I consider to be a more fruitful and just manner. The social interaction surrounding this case sheds light on the causes of selective justice in the judicial-political system. It constitutes an opportunity to address these causes, rather than, as has been occurring, consolidate all the existing instruments of domination and thereby entrench selective justice and inequality (the most important instruments of domination being interference in the judiciary, male chauvinism, and the normalization of building infractions).
Populist Discourse Opens the Doors to Interference in the Judiciary
On March 5, 2017, just hours after Hajja Khadija’s release, Minister of Justice Salim Jreissati appeared on NewTV following the latter’s coverage of the case. He confidently explained how Khadija was released: “Yesterday evening and this morning, I was contacted about the hajja*. I met her son in the Ministry of Justice. I reached out to [the trial judge and a Public Prosecution judge]. I asked them, specifically, to stay after hours because in principle a judge has no set work hours when liberty is denied. I asked the son who had contacted me in the ministry to, with his lawyer, file a request for release. I also asked [the two judges] –I did not interfere in judicial work, but my job is to ensure sound judicial performance– to examine the release request and take the appropriate measure, and that is what occurred”.
At the end of his interview, Jreissati dispelled any doubt about the nature and goal of his intervention. He stated that upon learning of the case, the Ministry of Justice “fully performed its duty to inquire about the case of this infraction and take the measures that would release this woman overnight, outside of work hours of course, for freedoms don’t wait for the work hours of judges or anyone else”.
When the program’s presenter praised his actions, Jreissati enthusiastically declared, in a tone containing a degree of self-admiration, that he is “a guardian over the rights of every person in Lebanon”, and that “every deprivation of liberty, nay every judicial decision, concerns him”. Such a statement normalizes interference by the ministry in judicial work. Amidst his enthusiasm, the minister did not forget to thank all the MPs and former ministers who contacted him, as well as the media, for shedding light on the case and informing him of it: “If I hadn’t known of the issue, I couldn’t have intervened”, and Khadija “would have had no way to know her rights.”
As soon as Jreissati had concluded his speech by mentioning the need to respect the judiciary and its awe [hayba] (even though he avoided defending Abu Karrum despite the outrageous expressions used against her), the news presenter was quick to state that the station is among the first to seek an independent authority over which no one has power. Yet that did not prevent her from repeatedly applauding the intervention by the minister and other politicians to rectify the judicial error.
By scrutinizing the minister’s interview, we can discern the following:
The minister endeavored to separate the issue of Khadija’s arrest from the cause of the popular discontent surrounding it. He made no reference to the selective justice or impunity that were the focus of the introduction of NewTV’s broadcast. Rather, he focused on how the judicial error in this case was addressed to ensure sound judicial performance. The minister thereby succeeded in transforming the issue at hand from one of popular discontent over selective justice and impunity –matters that largely incriminate the political regime of which the Ministry of Justice is part of– into one of a judge committing an error that could be rectified by a commendable intervention on the part of the minister.
The minister appeared to exploit the case’s popularity to boast openly about his interference therein; while interference in judicial work usually happens backstage and is seen negatively, the popularity of the intervention in this case allowed him to leave the “great circle of silence” and boast about it. Judges make mistakes, and the minister of justice as the “guardian of the judicial branch and the judicial system”, must intervene to correct its work for the sake of justice. The minister thus appeared to be trying not only to reap the fruits of his intervention, but also to use this case to assert his role (i.e., his authority) in delivering justice as a precursor to firmly establishing his right to intervene in future cases, amidst public applause and support.
While the minister verbally called for recourse to the Judicial Inspection Committee in the case of any judicial error, his tremendous success in securing Khadija’s release “overnight” will no doubt cause litigants to approach him in the hopes that he will advocate for them in their cases. He thereby turned the interference that a number of ministers of justice have practiced timidly and in secret, into a power that can rightfully be exercised in public and that enjoys popular support. The enormous sympathy that the public expressed for Khadija before it discovered the minister of justice’s efficacy in obtaining her release consolidates this acquired authority. Subsequently, interference in the judiciary’s work becomes permissible and desirable. The culture of judicial independence collapses completely, and the culture of interference in its work becomes normal.
This behavior inevitably affects the conduct of judges and their resistance to political interference now that the minister of justice’s interference in the judiciary has transformed from a blot against them, into a power met with acceptance, support, and praise. In such a system of values, the image of a successful judge in the eyes of political authorities –and, gradually, in the eyes of the judges themselves– may become the opposite of what it is expected to be. They must possess the ability to liaise with and listen to officials, among other such attributes, in order to assume any important position. The “righteous” government will not risk appointing a judge, who does not lend the government their ear, lest they make mistakes given their position’s influence over people. Hence, instead of a judge’s tendency to uphold their independence and rebuff any interference in their work being a medal of honor, it becomes a shortcoming. When that happens, many expressions are used to disparage the independent judge: he has a big head (said about a male judge), or she is manly or difficult (said about a female judge), or they will not listen to anyone. Politicians and the judges closest to them commonly repeat these synonyms to mock and scorn.
Judges facing such an incident can then be expected to become more prone to self-restraint and avoiding any confrontation with any influential forces, and less capable of pushing back against such a force’s interference. This consequence is that selective justice is consolidated and cases of impunity multiply.
In conclusion, under the cover of responding to the popular discontent over selective justice and impunity, the minister’s behavior (irrespective of his intentions) has entrenched practices that exacerbate them. For if the minister of justice or any other person has the authority to intervene in judicial work, then –in theory at least– the ruling political regime can more easily subject judges to their political calculations and –in practice– judges lose their ability to hold regime figures accountable. The idea that the minister of justice and forces that support him only have people’s rights in mind does not allay this concern. For even if this idea is correct (and accepting the infallibility of any public official is dangerous), there is a danger in establishing a precedent of intervention. The minister’s less righteous successors might not hesitate to use it to strengthen their influence, and the influence of all the forces they represent or to whom they owe their position.
Of course, in no way do we intend to suggest that we should ignore judicial errors (when they exist) for the sake of rejecting interference, or that judges may do whatever they like in the name of independence. Rather, the point is that it is unacceptable to address any local or institutional deficiency with actions likely to cause a greater deficiency in the future. Yet this is exactly the stance that the minister has adopted. This stance needed to be clarified and disputed to pave the way for serious thought on how to address the discontent among the people; that which in any case needs to be given the attention it deserves, and which I hope to tackle in the second part of this article.
Translator’s note: “Hajj” and “Hajja” are honorific titles used to address someone who has performed the Muslim pilgrimage to Mecca.