On 30 August 2021, Appellate Public Prosecutor in Mount Lebanon Ghada Aoun charged several people in the Mecattaf money-smuggling case. She added another charge on September 9. While the investigation had occurred under the limelight because Aoun persevered with it despite a decision by the cassation public prosecutor to remove her, the announcement of charges against Michel Mecattaf and his associates was met with silence from Aoun’s opponents and supporters alike and no public attention. The media had displayed extreme interest in what her opponents labeled a “mutiny” in a campaign against her, or what her supporters called a “judicial uprising” and “April revolution”, yet it paid little attention to the case of smuggling money abroad in and of itself. This contradiction reflects a renewed effort by the ruling powers to suppress the case and avoid opening Pandora’s box. After their initial attempt to prevent Aoun from conducting the investigation succeeded only in turning it into a political conflict that had little to do with its substance, now they are attempting to cover up its results and the subsequent charges. This article will first recap the judicial and non-judicial arsenal that was harnessed to remove Aoun from this case and then explain what the charges reveal.

 

An Arsenal to Prevent Investigation

As soon as Aoun opened the case, she immediately faced a barrage of criticism. Initially, Societe Generale de Banque au Liban (SGBL) lawyer Alain Bou Daher confronted her in her office on 25 March 2021. Subsequently, media personality Marcel Ghanem attacked her on Sarelwa2et the same evening. The attorney for the bank’s chairman Antoun Sehnaoui then went even further by filing a case against Aoun for supposedly slandering his client. This move was an attempt to turn his client – the suspect who refused to appear before the judge – into the victim and turn the judge investigating his case into the defendant who should appear before the judiciary and face trial. Worse yet, the Cassation Public Prosecution promptly summoned Aoun to be interrogated in the case filed against her. When Aoun declined, her absence led to disciplinary action against her that occupied much more of the judicial authorities’ attention than the money-smuggling case, which the same authorities endeavored to suppress.

 

The main weapons in the arsenal used against the investigation were the following:

 

The Hierarchical Authority of the Cassation Public Prosecution

 

The Cassation Public Prosecution opposed the investigation and Aoun’s command of it in particular, as became clear from three steps it took as the case developed. The gravest was the decision that Cassation Public Prosecutor Ghassan Oueidat‎ issued on 15 April 2021 to retroactively redistribute work inside the Mount Lebanon Appellate Public Prosecution. He thereby removed Aoun from all important financial cases, including the Mecattaf-Sehnaoui-Riad Salameh case, and transferred them to an attorney-general in the same prosecution office, namely Judge Samer Lisha. Oueidat supported his decision with Articles 12 and 13 of the Code of Criminal Procedure and Article 31 of the Judicial Judiciary Regulation Law, thereby implying that his hierarchical authority over the governorate-level prosecution offices includes modifying the work-distribution decisions issued by their heads. This decision raised three major issues.

 

Firstly, Aoun was notified of the decision while in the middle of raiding the Mecattaf offices and by the company’s own attorney, Alexandre Najjar. Najjar learned of the decision to redistribute work in Aoun’s prosecution office before she did. This suggests that communication to the point of coordination was occurring between the lawyer and the Cassation Public Prosecution in order to halt the investigation into this case.

 

Secondly, Oueidat’s decision was in line with several of his previous circulars that aimed to expand his powers to control public right cases, especially cases of corruption and illicit enrichment on the pretext of their gravity. The Legal Agenda warned of this trend from his first month in office.

 

Thirdly, the decision itself is illegal and aims to expand the Cassation Public Prosecution’s powers and personalize public right by restricting it to one person. Article 22 of the Judicial Judiciary Regulation Law stipulates that the governorate-level public prosecutors are the ones who preside over the governorate-level prosecution offices, manage their affairs, and oversee their employees, their proper functioning, and – by extension – the distribution of work in them. The cassation public prosecutor lacks any legal power to take Aoun’s place in this regard. Several legal experts noted this violation of the law, and the International Commission of Jurists issued a statement contending that Aoun’s removal in this manner is a grave impingement on judicial independence.

 

While Aoun insisted on completing her task on the basis that Oueidat’s decision was illegal, the judicial police accompanying her – whom it ordered to “assist compliance” – responded to it. According to the decision’s text, it was conveyed to the Army Command, the Ministry of Defense, the General Directorate of the Internal Security Forces, the General Directorate of General Security, the General Directorate of State Security, and the General Directorate of Customs, as well as the ministries concerned and the judicial authorities.

 

Consequently, Aoun was forced to seek help from her bodyguards to complete her task. This the media reported repeatedly, broadcasting clips of them removing the company’s door after it was locked on her.

 

Oueidat did not stop there. Rather, based on a complaint filed by the company’s attorney, he charged the Criminal Investigation Unit with interrogating the experts who accompanied Aoun to the Mecattaf offices to examine information. The fact that these interrogations lasted for hours reflects an effort to deter the experts from cooperating with Aoun in this case.

 

The Supreme Judicial Council’s Authoritarianism

 

Just like the Cassation Public Prosecution, the Supreme Judicial Council (SJC) sought to remove Aoun from the case. To this end, it exercised powers demonstrating extreme authoritarianism and infringing on judicial independence standards. The gravest of the SJC’s actions were the following:

 

• Threatening to Declare Disqualification (Removal Without Trial)

 

Following an SJC meeting, it leaked that the SJC may invoke Article 95 of the Judicial Judiciary Regulation Law against Aoun. This article allows the SJC, via a decision supported by eight of its ten members, to declare judges’ “disqualification” and thereby dismiss them without trial, i.e. without a chance to defend themselves. When the SJC summoned Aoun to an interview in preparation for applying this article, it leaked that some SJC members objected, thus preventing the SJC from proceeding.

 

• The “Execute First,Object Later” Statement

 

Having failed to declare Aoun’s disqualification, the SJC issued a strongly worded statement instructing her to apply the cassation public prosecutor’s decision without delay. Remarkably, the statement insisted that Oueidat’s decision must be respected even though it acknowledged the questions over its validity, questions it did not bother answering. The decision must be implemented “irrespective of whatever observations have been raised about its content”, it contended. The SJC thus seemed to be applying the military principle of “execute first, object later” to judicial organization. In other words, judges should implement decisions issued by the heads of the judicial hierarchy irrespective of their validity.

 

In the same statement, the SJC asked the Judicial Inspection Authority to take the necessary action against Aoun, paving the way for disciplinary punishments. Yet it did not ask the Judicial Inspection Authority to interview Oueidat in the case, contrary to what the minister of justice had requested. To justify this stance, the SJC described the case in a reductive manner that places responsibility for all the commotion on Aoun’s conduct and erases all its other dimensions. The statement contended that the dispute was “not between someone who wants to fight corruption and hold the corrupt accountable and someone who does not want or is obstructing that”, “not a conflict between the cassation public prosecutor and the appellate public prosecutor”, and “certainly not a political conflict between two currents, as some are portraying it”. The SJC imputed to Aoun several violations that should be investigated, namely breaching the obligation of restraint, failing to fulfill her repeated pledges to the SJC, and refusing to attend the Cassation Public Prosecution, in addition to violating Oueidat’s decision.

 

The State Council’s Dereliction

 

In the course of defending herself and her insistence on completing her task, Aoun filed a challenge to the State Council (SC) asking it to suspend and annul Oueidat’s decision removing her from this and other cases. The SC’s Cases Council was expected to decide whether to suspend the challenged decision within two weeks of receiving the state’s response. Yet on May 17, the Cases Council issued an unusual decision reflecting its members’ inability to adjudicate the case one way or another. The decision was to add the suspension request to the merits, as well as to call on the SJC to deliver its opinion on the challenged decision.

 

The decision to add the suspension request to the merits violates Article 77 of the State Council Statute – which obliges the SC to rule on suspension requests within two weeks – in a manner that verges on a denial of justice. It is also unorthodox as no incarnations of the SC have ever made such a decision to the best of our knowledge. By deciding not to decide, the SC behaved not like a judicial body but like the political bodies, which end their disagreements with political settlements rather than rulings. Making matters worse, the SC provided no justification for the decision.

 

The decision was even more problematic because the SC asked the SJC to deliver its opinion when it knew that the term of most SJC members was about to end and that it was virtually impossible that their replacements would be appointed under the caretaker government because of then prime minister Hassan Diab’s arbitrary interpretation of caretaking.

 

Religious Leaders Preaching Against the Investigation

 

Besides the judicial arsenal, religious leaders swooped down on the investigation Aoun was conducting. Most notably, Metropolitan of the Greek Orthodox Church for the Archdiocese of Beirut Bishop Elias Audi launched an attack on Aoun without naming her in his Palm Sunday sermon. He mused, “May a judge mutiny against the law when he is entrusted with applying it? May a judge storm private property without a legal justification? May a judge operate outside the law? To what justice do we subscribe? And to what governance, given that justice is the foundation of it?”

 

Maronite Patriarch Bechara Boutros al-Rahi addressed Aoun in his sermon on the same day by saying, “In disbelief we witnessed on television screens a judicial incident with no connection to judicial culture nor the traditions of the Lebanese judiciary since its inception. What occurred tarnished the image of the honest judge free of affiliations and carrying prestige that commands respect for the judge and for law and justice”. He continued:

 

“We insist that the judiciary fight enclaves of corruption and crime free from any political interference. We insist that rights return to their owners, especially bank deposits. But what happened – which violated judicial procedure and legal norms – harmed the prestige of the judicial authority, respect for it, and its status as the sole safeguard of citizens’ rights and freedoms in their disagreements with each other and their disputes with the government and state. We now wonder, with great concern, about the nature and background of what happened. While it is not for us, nor anyone, to interfere with the course of judicial investigations or take a stance on the veracity of acts under investigation, we cannot keep silent about what is happening or refrain from expressing our concerns about such practices that undermine what’s left of the state’s image. Hence, we loudly declare our categorical rejection of this deviation and demand those in charge to curb this dangerous disorder and avert a total collapse of the judicial authority, for that would be the final blow to the rule of justice and institutions”.

 

These sermons were akin to a blessing of the judicial hierarchy’s measure against Aoun and a religious shield protecting Mecattaf and his associates from judicial investigation.

 

Brandishing Parliamentary Intervention to Stop the Investigation

 

The most significant opposition to the investigation by a politician came from Deputy Parliament Speaker Elie Ferzli. He stressed that Aoun had “mutinied” against Oueidat’s decision: “This sight indicates decay in the judicial body and a project to terminate the judiciary’s role and independence, something that did not even occur in the Civil War years. Hence, what Judge Aoun did is a distinctly mutinous act”. He also called on the SJC to “take the appropriate decision in this case, which must be commensurate with the incident and prevent and deter any future thought by any judge of performing this act”. Remarkably, at the end of his interview, Ferzli explicitly called on Parliament’s General Assembly to form a parliamentary commission with judicial powers to investigate this “mutiny” and whether it was politically motivated.

 

What Did the Unwanted Investigation Reveal?

The charges issued by Judge Aoun, which were published on several media and social media platforms, mentioned the following facts:

 

• Between 2015 and 2019, the company Mecattaf transferred USD13.3 billion abroad, including USD4.3 billion whose sources remain unknown.
• The company Mecattaf brought into Lebanon from unknown sources USD355 million in 2020 and USD243 million in 2021 (during the months encompassed by the investigation), i.e. a total of USD598 million.
• SGBL and Sehnaoui transferred USD1.017 billion in 2019 and 2020 in an exploitation of information that the national currency would drop, thereby making illicit profits.
• Michel Mecattaf erased some of the company’s data.
• Mecattaf and Sehnaoui took advantage of privileged information that they learned in their professional capacity.
• Riad Salameh colluded with SGBL and the company Mecattaf to commit illicit acts as they intentionally harmed the national currency and economy.
• The president of the Banking Control Commission of Lebanon (BCCL) withheld information from the investigation and neglected to investigate crimes that she could have discovered.
• The company PricewaterhouseCoopers made a false statement and concealed information from the judiciary.
• Mecattaf and his company broke seals and continued to transfer money abroad until 23 August 2021, i.e. one week before the charges were issued.

 

Hence, Aoun charged Michel Mecattaf and his company, as well as Sehnaoui and SGBL, with laundering illicit money obtained through the exploitation of privileged information, namely the information that the national currency would drop, thereby making illicit profits. This contributed to the fall of the national currency and speculation on it (Article 1 of the Law to Combat Money Laundering and Terrorism Financing no. 44 of 2015 in conjunction with Article 210 of the Penal Code in relation to the bank and the company, and Article 3 of Item A of the Law to Combat Public Sector Corruption and Establish the National Anti-Corruption Commission no. 175 of 2020). She also charged the first two with breaking seals (Article 395 of the Penal Code) and asked that the penalty be increased because they continued operating and executing transfers for approximately three months after the business had been wax-sealed. Finally, she charged Michel Mecattaf with tax evasion.

 

As for central bank governor Riad Salameh, Aoun charged him with complicity in money laundering, as well as corruption, influence peddling, breaching job duties, and abusing authority (Articles 371, 363, and 377 of the Penal Code in conjunction with Article 3 of Law no. 175). While she accused him of colluding, in his capacity as the bank’s governor and as president of the Special Investigation Commission (SIC), with SGBL and the company Mecattaf with an intent to undermine the Lebanese economy and currency (at odds with his key function of safeguarding the national currency), she did not explicitly charge him with the Penal Code articles that address these crimes.

 

As for BCCL President Maya Dabbagh, Aoun charged her with breaching job duties (Article 363 and 377 of the Penal Code) and withholding information from the investigation (Article 399 of the Penal Code), which are each a misdemeanor punishable with up to three years of imprisonment and a fine (though the prison sentence can be increased by one third to one half and the fine doubled). The basis for these charges is that Dabbagh provided insufficient proof that she informed the governor of the central bank and the SIC of the suspicious money transfers that occurred during her time in office (from 10 June 2020 to today).

 

Finally, Aoun charged PricewaterhouseCoopers with making a false statement and concealing information from the investigation (Article 412 of the Penal Code and Articles 14, 15, and 16 of the law regulating the bank auditing profession). Their punishment consists of a fine and a ban on practicing the profession for the company. The basis for these charges is that the company provided incomplete paperwork and falsely stated that the Mecattaf company had respected the legally required procedures in 2016, 2017, 2018, and 2019.

 

With the case having passed the stage of charging by the Public Prosecution, we must now await the investigating judge’s decision to see the details of the casefile and determine what might come of it. In this regard, there are fears of a repeat of the suspicious course taken by the Sonatrach case, in which many of the people implicated were spared from serious charges in the eventual indictment.

 

The mere issuance of these charges (the power to investigate of which belongs to First Investigating Judge in Mount Lebanon Nicolas Mansour) warrants the following observations:

 

An Opportunity to Collect Enormous Funds and Fines

 

Judge Aoun charged Mecattaf, his company, Sehnaoui, SGBL, and Salameh with Article 3 of the anti-corruption law and articles of the anti-money laundering law, and the application of either law allows enormous fines to be collected from them. Besides up to seven years of imprisonment in the case of money laundering and up to three years of imprisonment in the case of corruption, both laws impose a fine ranging from double to triple the value of the material benefit anticipated or reaped. The sums mentioned earlier – particularly the USD4.3 billion allegedly transferred abroad from unknown sources and the USD1.017 billion that SGBL allegedly transferred abroad via Mecattaf in 2019 and 2020 – reveal the significance of these charges. In other words, if the allegations are true, the fines could yield several billion.

 

Another Reason to Remove Salameh and Subject the Central Bank’s Apparatuses to Oversight

 

These charges constitute yet another reason to remove Salameh under Article 19 of the Money and Credit Law. Likewise, they provide insight into the performance of the BCCL under Dabbagh’s leadership.

 

Cause to Lift Banking Secrecy to Investigate Funds Transferred Abroad

 

The investigation that Aoun initiated was a means to reopen the issue of money transferred abroad via money exchangers and money shipping companies not subject to banking secrecy (such as Mecattaf). While Aoun managed to break through the barriers erected in her path, her success in accessing the documents and the transfers they revealed constitutes an incentive to revive the demand to lift banking secrecy, at least from people who benefited from transferring their money abroad during the suspect period, so that other crimes can be exposed. The SIC previously informed the Cassation Public Prosecution that it found nothing suspicious about the transfers that occurred between 17 October 2019 and the end of 2019 and involved more than USD2 billion – a conclusion that now seems questionable.

 

What if Aoun Had Not Continued?

 

The above raises the question, what if Aoun had not insisted on completing the investigation? What if she had merely stood before Mecattaf’s locked door with her hands on her hips? What if all the secrets she uncovered had remained under wraps? Of course, the case is still not guaranteed to reach its conclusion. But at the very least, there is an opportunity that would not have existed had Ouiedat managed to implement his decision. Most importantly, these charges reveal the scope of the opportunities to do justice and expose crimes that were lost because of the chains fettering the Public Prosecution, particularly the cassation public prosecutor’s hierarchical authority. Who today bears responsibility for wasting all these opportunities? The cassation public prosecutor? The president of the SJC? The members of the SC’s Cases Council? The religious and political leaders who exploit their influence to obstruct justice?

 

This article is an edited translation from Arabic.

 

Keywords: Lebanon, Mecattaf, Ghada Aoun, Ghassan Oueidat, Supreme Judicial Council, Cassation Public Prosecution, State Council, Money laundering, Corruption