On 10 December 2020, Fadi Sawan, the Judicial Council investigator in the case of the Beirut port massacre, issued a decision to question four former or current ministers in connection with their responsibility for the explosion. While the news initially leaked to the media, the Supreme Judicial Council’s Media Bureau promptly confirmed it. According to its statement, Sawan had sent a letter to Parliament earlier about his suspicions concerning government officials so that it could exercise its powers in this regard “while reserving [the right] to exercise his own powers in the same matter”. The statement thus seemed to be declaring that Sawan initiated this prosecution of the ministers after – and perhaps because – Parliament neglected to take measures to indict them.

The prosecution encompasses resigned prime minister Hassan Diab (who was informed clearly of the danger posed by the nitrate several times but took no action) and former ministers Ghazi Zaiter (who in 2014 headed the Ministry of Public Works, which asked the judiciary to impound the ship and unload its cargo, handled the storing and guarding of the material, and has oversight over the Port Administration Committee), Youssef Fenianos (who was also a minister of public works), and Ali Hassan Khalil (who headed the Ministry of Finance, which has oversight over the General Directorate of Customs).

While this decision constitutes an important turning point in the issue of ministerial immunity, the political and media reactions indicate that it will probably mark the beginning of a broader fundamental battle over Lebanese citizens’ right to justice and truth in the Beirut massacre case – a battle that is in line with our bet that the case will, because of its momentum, help spur the development of the entire justice system.

Ministerial Immunity Constricts?

Sawan’s decision indicates that he was eventually convinced that he can question ministers as defendants (two earlier statements by the Beirut Bar Association’s Prosecution Bureau suggested that he was hesitant), particularly after Parliament refused to make a decision on them. He thereby implicitly interpreted Article 70 of the Constitution, which pertains to prosecuting ministers, in a manner that allows him to initiate the prosecution without obtaining an indictment from Parliament. While Sawan did not explain his position clearly (as he will have to do in the decisions he issues should the ministers present procedural defenses), he probably relied on one of two interpretations of this article that the Court of Cassation successively adopted in 1999 and 2000 in the cases of ministers Shahe Barsoumian and Fouad Siniora.

The first of these interpretations is that the judicial judiciary still has the jurisdiction to prosecute ministers for criminal acts they commit in the course of performing their ministerial function as long as Parliament has not done so. To this end, the Court of Cassation relied, in particular, on the phrasing of the French version of Article 70 (i.e. the Constitution’s original text that was translated into Arabic and later amended in 1990), which states that Parliament “has the right” [a le droit] to indict ministers for high treason or breach of official duties. The court supported its decision by contrasting this phrasing with the more explicit phrasing of the article granting immunity to the president of the republic (Article 60), whose French and Arabic versions state that he “cannot be indicted except by Parliament”. With this interpretation, the Court of Cassation very clearly adopted the principle that the power of indictment and jurisdiction are not exclusive, so the regular judiciary can try ministers as long as Parliament has not indicted them before the Supreme Council for Trying Presidents and Ministers. The Supreme Judicial Council’s statement, particularly its comment about Sawan reserving his right to exercise his powers in this matter, suggests that he adopted this interpretation. From this angle, he appears to have sought, via his letter to Parliament, to inquire about whether it intended to prosecute the aforementioned ministers so that he could exercise his own powers should Parliament refrain.

The second interpretation, which the full bench of the Court of Cassation reached in the case against former minister Fouad Siniora on 27 October 2000, differs from the first. It is based on separating acts committed by ministers based on whether they are directly connected to the ministerial function. The court distinguished between two categories. The first comprises acts stemming from breach of duty or high treason and include those “related directly to the minister’s performance of his legal ministerial tasks” and connected to “the political nature of the minister’s work and the core of his ministerial tasks as established in laws”. These acts are encompassed by constitutional immunity. Hence, the power to issue indictments for them belongs to Parliament, and the jurisdiction to examine them belongs to the Supreme Council for Trying Presidents and Ministers. The second category comprises other crimes, including “criminal acts that a minister commits in the course of performing his tasks or in his private life” and flagrantly criminal acts that “constitute a misuse of authority via the supplanting of public interest with private interest”. The jurisdiction to examine these acts belongs to the regular judiciary. This interpretation applies, in particular, when there is suspicion of influence peddling or that a minister has, through their action or inaction, attempted to attain a personal benefit for themselves or someone else. The Court of Cassation reaffirmed this approach in the prosecution of former minister of agriculture Ali Abdullah in 2004.

Consequently, pending the Judicial Council investigator’s issuance of explained decisions (which could occur if procedural defenses are presented), it is likely that he adopted one of these two perspectives, probably the former given the content of the Supreme Judicial Council’s statement.

To understand the significance of this approach, we must note the following:

• Despite the Court of Cassation’s clear stance, over the last three decades only one lone ruling has been issued against a minister, namely against Ali Abdullah for exploiting his position to attain illegal benefits. Otherwise, the judiciary has acted as though Parliament’s power to prosecute ministers is exclusive.
• Parliament has completely neglected to exercise its indicting role. Consequently, over the last three decades, the Supreme Council for Trying Presidents and Ministers has not conducted a single trial, and ministers have therefore enjoyed impunity for all their actions irrespective of the gravity.
• Because of all these facts, people following the port massacre case faced a key question: Would the Judicial Council investigator’s position accord with the general trend of the Public Prosecution offices  or would he narrowly interpret Article 70 and the immunity it includes pursuant to either of the Court of Cassation’s interpretations? The former could keep the ministers out of the reach of the investigation, and suppress much of the truth and liabilities. The latter would permit the prosecution of the ministers. While this issue was pivotal to establishing truth and justice, several influential legal actors, – including the Lebanese Judges Association (in its 15 August 15 statement), the Beirut Bar Association (in its 14 November 14 statement), and the Legal Agenda, – intervened in favor of the latter approach. That the position the Judicial Council investigator ultimately adopted accorded with these stances will hopefully have a positive effect on justice and accountability not only in this case but in all cases in which ministers are suspected to be embroiled. The position of the investigator (whose appointment was marred by several ongoing concerns) also constitutes an important example of how the judiciary’s work can be developed through demands for justice both within the legal professions and in public discourse.

The Political Forces Defend Their Immunities

While the political forces remained completely silent about all the concerns raised by the Legal Agenda and the Beirut Bar Association regarding the course of the investigation, they suddenly collectively awakened when the news of the prosecution of ministers leaked. Ministerial immunity, it seems, is the one thing that worries or involves them in this case. Subsequently, we witnessed surreal political and media interactions reflecting a variety of means of ensuring impunity, not two weeks after the forensic audit was aborted.

There is a pressing need to document and analyze these means in order to understand the prevailing system and the forms that the social forces’ conflict takes:

Immunizing “Positions” and the Sectarianization They Reflect

The first sign of this discourse was the statement issued by resigned prime minister Hassan Diab. In it, he stated that the prosecution is not just against his person but also his position and that he will not allow the position of prime minister to be attacked by any party. Clearly, the mere claim that this position – which customarily constitutes the most important position allocated to the Sunni sect – is being targeted is an appeal to partisan sentiment among the Sunni populace. This was confirmed by the stances that former prime ministers rushed to take in solidarity with Diab, thereby transcending the rift that had existed between them and Diab since he assumed the position.

The statement of Abdul Latif Derian, mufti of the Sunni sect in Lebanon, depicting the immunity of the prime minister position as a red line provided a clear religious cover for this discourse. It thereby turned a personal liability (that of Diab) that ought to be investigated into a sectarian liability any investigation into which constitutes an attack on an entire sect, which could create intractable obstacles, in addition to enabling one of the suspects to play victim in order to escape any accountability.

Alleging a Political Attack and Double Standard

This discourse – which claims that there is a political attack and a double standard – stems from the restriction of the prosecution to four ministers even though Sawan had mentioned suspicions concerning many individuals. These include prime ministers and ministers of public works, justice, and finance in the letter he sent to Parliament. While this objection is serious, it was not accompanied by any call for the judge to expand the prosecution to include the others; rather, it was used almost exclusively to consolidate the immunity of all ministers and undermine the legitimacy of the prosecution of any one of them. Hence, it appeared to be a rehash of what occurs whenever a desire, however incipient, for accountability arises. In practice, this discourse thwarts accountability instead of correcting its course, thereby attacking public interest and all citizens on the pretext of rejecting a political attack. How is it possible to condemn a double standard discriminating among ministers while insisting on their immunity, which constitutes a double standard and case of persistent discrimination against all other citizens? Does the principle of equality before the law and judiciary apply exclusively among ministers, or does it apply among all citizens?

This discourse is even more problematic because the Judicial Council investigator’s action against these four ministers does not necessarily mean that he has ruled out prosecuting the others. Initiating prosecution against some of them may also be justified by investigation needs or by the particularly grave nature of the acts they are suspected to have committed.

Examples of such opposition include the statement that Hezbollah issued expressing its fear that “the investigation will become lost in the mazes of administrative procedures, routine complications, and legal issues, whereby … unreliable suspicions, baseless accusations, and untrue allegations come to the surface”. Once the party had explained its concerns, it immediately appointed itself judge of the investigating judge’s performance: after affirming its insistence “that all measures that the investigating judge adopts be far removed from politics and [unrelated] aims, accordant with the Constitution’s provisions, and not open to any kind of interpretation and that the prosecution occur on rational and legal bases”, it promptly condemned the latest measures for lacking “unified standards” and constituting “a political attack”. The statement ended by calling upon the judge to “re-approach the case” and “adopt legal measures … with uniform standards far removed from politicization”. Despite repeatedly mentioning uniform standards, the party seemed keen that they be set within the limits of the Constitution to avoid “complications”, clearly signaling that they must respect immunity.

Hypocritically Insisting on the Constitution and Law

This means involved the political forces maintaining that there is a need to respect the immunities stipulated in the Constitution for ministers, MPs,[1] and lawyers (three of the defendants are lawyers),[2] which they say Sawan violated. Irrespective of the validity of these arguments, their use reveals the political forces’ hypocrisy. Whatever the defendants’ liability for the Beirut massacre may be, the political forces to which they belong are widely recognized to have, since their inception, dealt with the Constitution and law in an extremely informal and lax manner. For example, they totally disregarded the Constitution’s articles requiring an annual public budget for 12 years, rendering all the spending, tax collection, and borrowing during that period illegal. Similarly, they have staunchly insisted on the Constitution’s articles guaranteeing their ministerial immunity and privileges while continuing their chronic laxity toward all the articles that impose on them, by virtue of these offices, any obligations or responsibilities. In other words, they enjoy the benefits of ministership without any of the drawbacks.

Invoking Vulnerability

The most surreal of the means produced to prevent infringement upon immunity is the discourse of gallantly standing up for the vulnerable. This discourse, which appeared in several newspaper headlines (e.g. Al Akhbar on December 11), began by focusing on the prosecution of Hassan Diab. It pointed out that unlike the three other ministers, Diab is not connected to an influential political force or even supported by the influential forces in his sect and that he has not been embroiled in any corruption scandals. Hence, the Judicial Council investigator prosecuted him while not daring to prosecute Saad Hariri, Tammam Salam, or Najib Mikati even though their names appeared on the list of suspects sent to Parliament. Most dangerously, this discourse evokes pity and sympathy for Diab, turning the matter from one concerning immunity, the technical question of its limits, or even political attacks into an injustice that conflicts with the minimum notion of fairness and warrants compassion.

Labeling the Judge Biased and Unreliable

Finally, the tool most used by the political forces whenever they sense desires to hold them accountable is to undermine the judiciary’s referential authority and legitimacy. This they did to abort a bill to enable Public Prosecution offices to lift banking secrecy, arguing that the judiciary is untrusted, subordinate, politicized, and not independent. Though this objection is important, its expression by political actors that have long worked to subordinate the judiciary and intervene in its organization and work, thereby making it what it is today, again reveals extreme hypocrisy. By voicing it, the political forces seem to be admitting that they crafted the judiciary in a manner that serves them rather than uphold the prosecution of lawbreakers, including themselves. In other words, the judiciary was not built to be an independent authority whose decisions apply to everyone but to be their tool. Hence, their objection is invalid under the established legal principle that nobody may invoke their own turpitude (nemo auditur propriam turpitudinem allegans).

Although these methods were diverse, they all sought to restore the fortress of immunity and prevent any encroachment on it. While this approach appears to dominate among the influential political forces, it also reveals to the public the truth of their resistance to any accountability. Consequently, the issue of ministerial immunity could turn into a pivotal battle in the course of this case’s examination, one that will probably sooner or later become part of citizens’ broad battle with the ruling system (i.e. the rule of elite leaders) to strengthen democracy and, with it, the principles of equality and accountability. So let’s keep watching.

This article is an edited translation from Arabic (13-12-2020).

 

[1] Article 40 prohibits criminal procedures against ministers during the parliamentary session. It requires that, in the absence of special permission from Parliament, the prosecution of Ghazi Zaiter and Ali Hassan Khalil be suspended until the parliamentary session ends.

[2] This claim is unsound because under the Law Profession Regulation Law, ministers must suspend their bar membership during their terms. Hence, any act they commit while they are ministers is completely unrelated to the practice of the profession and therefore does not benefit from this immunity.