Othman’s Memo: Freedoms in Lebanon’s Police Custody

2023-01-09    |   

Othman’s Memo: Freedoms in Lebanon’s Police Custody

In early September 2022, Lebanon’s General Director of Internal Security Major-General Imad Othman issued an internal memo that was only published by the media on November 26. According to its rationale, the memo addresses the “exceptional circumstances” arising from the judges’ strike. It stated that the inability of Internal Security Forces (ISF) detachments to contact judges has “dangerous repercussions on the justice process in general in terms of the duration of detention, preservation of evidence and crime traces, and necessary interrogations, and on law and order in terms of criminals getting away, the loss of rights, and the impact this has on social security”. Consequently, the memo allowed ISF personnel to bypass judges in in flagrante crimes, both in relation to conducting investigations and detaining the suspects. While the Code of Criminal Procedure requires that investigations be supervised by the Public Prosecution, the memo enabled ISF to exercise the Public Prosecution’s full powers without obtaining any order from it when it cannot initiate them itself. Furthermore, the memo granted ISF personnel authority over suspects’ bodies, authorizing them to keep the suspects detained without any judicial order. ISF can do so when two conditions are met: the Appellate Public Prosecution refuses to give the required judicial order or answer the phone, and the Cassation Public Prosecution cannot be contacted. Thus, the memo addresses a strike by a number of Public Prosecution judges by expanding ISF personnel’s powers to investigate and detain, and in practice deeming them substitutes for the Public Prosecution when it cannot perform its functions.


Minister of Interior Bassam Mawlawi’s press director told L’Orient-Le Jour that the minister had viewed and approved the memo. However, on November 29, following widespread criticism of the memo, Cassation Public Prosecutor Ghassan Oueidat requested that all ISF be sent a new circular that suspends it, albeit without explicitly saying so. Oueidat’s letter stated that if the Appellate Public Prosecution cannot be contacted, ISF personnel must contact the Cassation Public Prosecution to receive instructions from a prosecutor, thereby preventing them from conducting investigations or keeping people detained of their own accord. Notably, Oueidat’s letter mentioned that many personnel are using the Public Prosecution offices’ strike as a pretext not to make an effort, emphasizing that the Cassation Public Prosecution can always be contacted.


While Oueidat’s letter is expected to put the memo to rest, the memo’s mere issuance – with the interior minister’s approval – reflects a breakdown of several concepts resulting from an excessive regard for security and insufficient regard for freedoms and the judicial function. The only benefit of this memo, which contains many grave violations, is that it highlights the danger of the ongoing judicial strike. While the memo was an illegal and inappropriate response to the strike, we still need to find suitable solutions in order to preserve what freedoms and justice remain.


Searching for a Substitute to the Judge: The Substitute Police Officer


The memo approaches the police officer as a substitute or alternative to the Public Prosecution who assumes its powers, including to investigate and detain, when it cannot be contacted. Notably, it coincided with the September 5 letter by Minister of Justice Henry Khoury calling for the appointment of a “substitute” to the Judicial Council investigator in the port blast case, Tarek Bitar. Khoury, too, cited the judge’s inability to conduct his work (because the accumulation of cases filed against him have stayed his hand). Hence, we are facing a new trend of treating judges like mere pawns that can be replaced or bypassed as soon as there are obstructions preventing them from working, all without any effort to remove those obstructions. The assumption seems to be that substituting judges is acceptable – nay necessary – whenever they cannot work for any reason and that the obstructions to their work cannot be removed or addressed. Thus, while the public was busy debating the issue of the “substitute judge”, Othman was issuing a memo that consecrates an even graver concept: the “substitute police officer” who can supplant the Public Prosecution and exercise its powers on the pretext that it cannot be contacted.


Of course, the grounds cited in Othman’s memo differed from those cited in Khoury’s letter in that the prosecutors’ inability to work stems from voluntary reasons (the strike) while Bitar cannot work for reasons beyond his control. However, this difference is narrowed by the fact that the memo authorized police to establish that the Public Prosecution cannot be contacted or is withholding an order, without going through any other authority. Hence, ISF can concoct such conditions to claim the powers that the memo grants. Both Othman’s memo and Khoury’s letter therefore allow influential forces to increase their interference in judicial work and control over its course and outcome, whether by imposing judges more aligned or loyal to them (as occurred with the nominations proposed for the substitute judge) or by transferring power from the judiciary to the police, which is hierarchically subordinate to political authority. This totally undermines the separation of powers and independence of the judiciary and pushes us toward a public sphere totally controlled by the balance of power and divorced from the notions of law and justice or – in other words – right and wrong.


Freedoms Stripped of Their Constitutional and International Safeguards


The second dangerous aspect of the memo is its encroachment on freedoms and the constitutional and legal safeguards surrounding them. By granting police the power to keep the suspect of an in flagrante crime detained until the Public Prosecution is successfully contacted, it gave them the right to control people’s freedoms pursuant to the will of Major-General Othman and with no legal basis. Obviously, proceeding in this direction strips personal liberty of constitutional and international safeguards that prohibit restricting it except through a law and the procedure it establishes. Article 8 of the Constitution stipulates that, “Personal liberty shall be preserved and protected by law, and nobody shall be arrested, incarcerated, or detained except in accordance with the law”. Article 9 of the International Covenant on Civil and Political Rights, which is an inseparable part of the Constitution, stipulates that, “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.


The previous decision most comparable to the memo may be the General Security’s internal instructions in cases concerning foreigners, which opened the door wide for them to be placed in administrative detention once again in the absence of any legal text. The judiciary opposed these instructions in several decisions, declaring detention occurring on their basis to be in complete contravention of Article 8 of the Constitution.


The debate about the memo has once again raised questions about the transgressions occurring on this level, especially given the systematic exceeding of the maximum period of detention during preliminary investigations, even by Public Prosecution offices. The debate has also reintroduced questions about the constitutional safeguards of freedoms, especially because the public administrations casually encroach on them without complying with any constitutional or international controls. One example is Mawlawi’s recent decisions rendering the freedoms of assembly, expression, and belief (all of which are guaranteed by the Constitution and international conventions) fair game based on his own personal beliefs, in clear breach of the Constitution and even judicial rulings.


Overplaying Security and the Security Agencies


Finally, Othman’s memo overplays security considerations and the police agencies’ ability to conduct investigations by themselves without direction or oversight from the Public Prosecution offices while underplaying these offices, which are in theory more proficient, knowledgeable, and independent. This approach would never have been possible were it not for endemic practices whereby these agencies reach for powers not belonging to them and the Public Prosecution offices voluntary forgo exercising actual oversight over them, whether because of political instructions or otherwise. Hence, here too, this memo will hopefully be an opportunity to reexamine the real relationship between the security agencies and Public Prosecution offices and the mutual understandings and political interference it conceals.


This article is an edited translation from Arabic.

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