The decision by Fadi Sawan, Judicial Council investigator in the Beirut port massacre case, to charge three former ministers and one current minister was a critical moment in not only the investigation but also his career. Throughout his long judicial service, Sawan has been known for his reservation and reluctance to confront influential figures. Yet in response to critics of this decision and in a complete break with his past, he said that, faced with the horror of the port explosion disaster, he would stop at no immunity or red line.

As soon as the decision was announced, circles within the ruling authority and many media outlets unleashed a surreal discourse aimed at elevating the status of positions and immunities while degrading the judge who forsook his reservation and dared to “affront” them. Two of the defendants, namely former ministers Ghazi Zaiter and Ali Hassan Khalil, translated this discourse into a case they filed with the Court of Cassation to remove Sawan from the investigation, alleging doubt over his impartiality. They too focused on the judge’s “transformation”. Their claim literally stated that Sawan turned “overnight from a judge who apologizes to us when receiving us as witnesses for five minutes in his office, saying loudly and clearly in front of us that ‘it’s not your concern – you have no knowledge’ … into a predator charging us and thereby flouting constitutional principles that must be observed”. The claim went further to discuss this transformation’s causes, namely an intent to “solicit praise after feeling pressure amid a wave of populism that has seen demonstrations below his home to condemn his slow procedures and demand the arrest of prominent figures, which had the greatest impact on his psyche”.

On 18 February 2021, approximately two months after the confrontation began, the Court of Cassation issued a decision removing Sawan from the case. The court relied on two arguments: Firstly, Sawan, influenced by the horror of the disaster and the humanitarian considerations it evoked within him, intentionally disregarded Zaiter and Khalil’s parliamentary and professional immunities. Secondly, because of “human nature”, the damage that the explosion caused to Sawan’s home would certainly influence his state of mind and hence his ability to investigate objectively. Although these arguments may appear distinct, they actually overlap as both contend that the extent to which Sawan was influenced in human terms by the disaster, which did not spare his house, casts “legitimate doubts” over his impartiality in this case. Hence, the decision implies that the judge only broke with his history of reservation and charged people with immunities after he forsook his impartiality because of his sympathy for the suffering that the explosion caused for his society and people – sympathy that may not exist were he not also personally harmed. The court thereby seemed to be responding to the two ministers’ demands and the political discourse accompanying them, not only by establishing “immunities” as a red line separating the judge from the politician and rendering the latter untouchable, but also by laying down another, equally important red line separating the judge from society or the people. By the plaintiffs and court’s logic, these two red lines are connected as a judge’s abidance by politicians’ immunities is inversely proportional to that judge’s involvement in the concerns of his or her society, especially amidst the disasters now piling up on that society’s shoulders thanks to the ruling class.

This article will discuss the arguments that the court used to cast doubt over the judge’s neutrality to disqualify him. The court’s decision was issued via a two-member majority (President Jamal Hajjar and auxiliary judge Yvonne Bou Lahoud), whereas the third member (auxiliary judge Fadi Aridi) dissented, arguing that the elements for legitimate doubt are not present.

 

What Destabilizes the Legal Architecture – Infringing on Immunities or Upholding Them?

The court’s majority derived its first argument for doubting Sawan’s neutrality from its interpretation of the statement whereby he had concluded the justifications he presented for disregarding parliamentary and professional immunity. Sawan stressed that “facing the horror of the disaster and the human losses – which consisted of over 200 Lebanese and non-Lebanese martyred and over 6,000 wounded, 1,000 of whom are afflicted with permanent impairments – and the human tragedy resulting from the displacement of over 300,000 Lebanese and the destruction of a third of the capital, [he] will not cease prosecuting any official, no matter how high that official’s standing may be, or stop at any immunity or red line”. The court deemed that the immunities are “established by a constitutional legal text [with regard to ministerial immunity] and a regular legal text [with regard to lawyers’ immunity]” and are therefore binding irrespective of the judge’s personal opinion of them. Hence, it argued that by refusing to observe them, Sawan “intentionally and flagrantly broke the law” and revealed that he has preconceptions concerning the immunities issue. This, it concluded, threatens the legal architecture. The court also stressed that the humanitarian motivations stemming from the horror of the disaster are an insufficient justification [for disregarding immunity] because the guarantee of judges’ neutrality lies in their adherence to applying the law rather than purposefully violating it, even if the latter is for noble, humanitarian purposes.

This argument by the court has several flaws:

• The court interpreted Sawan’s aforementioned statement in isolation from the totality of the answer he provided, which included his legal grounds for disregarding the aforementioned immunities, as explained by dissenting auxiliary judge Fadi Aridi. For disregarding ministerial immunity, Sawan cited Court of Cassation jurisprudence that restricts the scope of this immunity and dates back to 2000. He justified disregarding parliamentary and professional immunity on the basis that the defendants were summoned based exclusively on ministerial actions. Rather than taking Sawan’s statement as a declaration of his independence, which is key to trust in his neutrality, the court portrayed it as merely an erratic stance or a leap outside the legal system motivated by the judge’s personal ideas and feelings.
• While the court gave much attention to the binding nature of the immunities and the need to respect them, it totally ignored their negative effect on society. In particular, over the past decades they have propagated a system of impunity not only for crimes of killing, as in the port massacre case, but also – and just as importantly – for the various crimes of corruption and abuse of office, which led to Lebanon’s economic collapse and the impoverishment of the Lebanese people. The court was apparently horrified by infringement on immunities, declaring that it threatens the legal architecture, but paid no attention to the horrors that abidance by them has caused not just for the legal architecture but also for the entire social structure. Instead of working to understand and encourage judges who use interpretation to narrow these immunities, which would restore the law’s binding force on officeholders and accord with the principle of judges’ independence, it reprimanded the judge who dared to confront such figures, deeming his behavior akin to tampering with and threatening the architecture of the legal system. Moreover, while the court questioned the judge’s neutrality based on his disregard for parliamentary and professional immunity, it remained completely silent about ministerial immunity. Hence, it failed to settle the extent to which ministerial immunity may be disregarded per the jurisprudence that Sawan cited in his response. This the court could at least have done to ensure the judiciary’s authority to disregard this immunity in certain cases.
• The court’s decision seemed, via what it included and what it omitted (namely a position on ministerial immunities), to accord with the dominant political forces’ discourse regarding the supremacy of their positions and sanctity of their immunities. It thereby reflected a bias toward these forces’ particular understanding of the limits of the judicial function and breached the principle of judges’ independence and, by extension, neutrality.

 

Via this ruling, the Court of Cassation has granted itself the ability to curb judges’ enthusiasm to prosecute people with immunities by imposing red lines that judges must all respect under penalty of being stripped of judicial authority. We will not have to wait long to discover the ramifications of this ruling as the new Judicial Council investigator Tarek Bitar will have to decide whether to proceed with interviewing the four ministers as defendants, to forgo doing so, or to attempt to activate the mechanisms for lifting immunity from them. The last process could be obstructed by the governmental bodies concerned, particularly Parliament, or the inherent complexities of immunity procedures. These complexities include the ability to contest, via the Beirut Court of Appeal, the permission that the Beirut Bar Association may grant [to lift lawyers’ immunity]. Additionally, judges in many other cases will find themselves facing the decision of whether to charge ministers or MPs for abusing their offices or to look the other direction for fear of meeting Sawan’s fate.

 

Impartiality Lost Due to the Judge’s Share of the Mass Damage

The second (and equally grave) argument upon which the court’s majority relied was the damage that the explosion caused to the judge’s home. According to the court, this too casts doubt over the judge’s neutrality and compromises “the essential fundamental rules of any trial” as no judge should investigate “a crime wherein he was personally, directly harmed”. The court even referred to the “psychological effect” that this damage has on the judge due to “human nature”. In reality, this argument trivializes the crime that occurred and the damages it caused, which were mass damages (dommages de masse) affecting all residents of Lebanon to varying degrees. In this regard, they resemble the damages caused by the economic collapse and subsequent insolvency of the banks. Given such mass damages, all judges become injured parties just by being involved, even minimally, in the life of their society. Hence, casting doubt over the judge’s neutrality on this basis leads to absurd results. For example, can we conceive disqualifying a judge whose bank deposit was frozen from depositors’ cases against the banks? Shall we remove a judge from the case concerning the importation of tainted fuel because that judge was harmed by the subsequent electricity rationing?

This argument also contradicts changes that have recently occurred in the judicial body, namely judges’ increasing involvement in social life through both their participation in public debate and their performance of the judicial function. As a case in point, in 2019 the large assembly of judges issued a statement calling for the people to support the judiciary in the battle for its independence so that it can support them in the fight against corruption. This trend is just as evident in the ruling that Single Criminal Judge in Beirut Nadia Jedeel issued on 30 November 2020 to discontinue proceedings against people charged for participating in the summer 2015 movement against the ruling authority’s corruption. Of her own accord, Jedeel reminded the Public Prosecution that judges too were harmed by that year’s garbage crisis. The grounds of the ruling tellingly stated,

“The judge issues his rulings ‘in the name of the Lebanese people’. Hence, he is not a king sitting atop a throne, far removed from his subjects, living in an ivory tower. Rather, he is the spokesperson of every individual in society (he lives the same pain, breathes the same stench of rubbish, and bears the same economic burdens and crises). Subsequently, he issues decisions derived from the sovereignty of the people so that the people are the judge – a people fed up with the string of crises… that have deprived citizens of the most rudimentary essentials of life, especially in terms of health and the environment”.

By emphasizing that the judge shares the people’s suffering, Jedeel seemed to be seeking to restore the people’s trust in the judiciary. The ruling suggests that the fact that judges suffer from the same crises constitutes a guarantee of their allegiance to the people and therefore strengthens their legitimacy to issue rulings in that people’s name, as well as trust in them. In other words, contrary to the Court of Cassation’s conclusion, Jedeel contended that a judge’s involvement in the mass damage is not cause to doubt their impartiality but another reason to trust that their rulings are sound. Consequently, in the conclusion of her analysis, she annulled the proceedings against the protesters on the basis that they performed their duty as citizens to defend their society against abuse by an authority that has “deprived citizens of the most rudimentary essentials of life”.

Hence, there is a vast difference between the approaches taken by the Court of Cassation and Judge Jedeel. The Court of Cassation defined judges’ neutrality and impartiality in a strict manner that requires the preservation of rigid dividers between them and the people such that the latter’s suffering has no impact on them and they remain largely the mouthpiece of the law as enacted by the political authority irrespective of its social consequences. Jedeel’s ruling, on the other hand, was akin to a bridge between the judiciary and the people – a bridge facilitating interaction and sympathy that render the judge more committed to protecting rights and freedoms against abuse by the authority and more inclined to deliver interpretative rulings to this end. This is the judiciary that we, as a society, desperately need today.

 

This article is an edited translation from Arabic.