On 5 October 2022, Minister of Justice Henry Khoury called the Supreme Judicial Council (SJC) to convene on October 11 with two items on its agenda: adopting a position via a yes or no vote with regard to the identity of a second (or replacement, in our view) Judicial Council investigator in the Beirut port blast case, and deciding the appointments of the chamber presidents in the Court of Cassation. As justification, he stated that these two matters are still pending before the SJC and are urgent. Earlier, the SJC’s president Suhail Abboud had refused to place the “reserve” (i.e. replacement) judge matter on its agenda. Most recently, he issued a statement in which he spoke of pressure and transgressions. He deemed the justice minister’s call to be part of the political pressure, the intent being to force the SJC to adopt political settlements for non-judicial reasons.

 

In this context, we would like to clarify the following:

 

The Minister of Justice is Abusing His Power in Order to Pass Political Settlements on the Ruins of Judicial Independence

 

Clearly, the minister’s call is part of the political pressure on the SJC aimed at forcing it to consecrate political settlements, whether by appointing a second judge or increasing the number of Court of Cassation chambers in contravention of the law, judicial independence principles, and the proper administration of justice, as we detail below.

 

Appointing a Second Judge is Illegal and Beyond the Powers of the Minister of Justice and SJC

 

The minister has no power to ask the SJC to approve the appointment of a second judge in the port case as the principal judge previously appointed (Tarek Bitar) is still in office and there are no grounds to declare his incapacity. It makes no difference that he has been blocked from working by a clear political decision and dozens of abusive cases to disqualify him, cases whose adjudication has been blocked by their own plaintiffs. Hence, the request sent by the minister is illegal and cannot rightfully be put to the SJC because it only has the power to approve the appointment of one judge per case, no more.

 

This is not refuted by the fact that on 8 September 2022, the SJC approved the appointment of a second judge in principle. By nature, this preliminary approval has no force, and it is void because the SJC had no power to issue it. In other words, the SJC and its president were correct to renege on its preliminary approval pursuant to the principle that rescinding an error is a virtue. This action is justified by the virtual consensus in judicial and legal circles (the Beirut Bar Association, the Lebanese Judges Association, the Independence of the Judiciary Coalition, and many retired judges) that the appointment is illegal, as well as the refusal of the appointment by eight judges according to the minister’s statement.

 

Nor is it refuted by the argument that guaranteeing the rights of defendants detained in the port blast case is an imperative that permits the otherwise-impermissible, for the following reasons:

 

• The case cannot be divided by appointing one judge to examine “custody” and “liabilities” and another to “establish the facts” and “rights”.

 

• The power proposed for the judge appointed in this manner is not limited to applications to release detainees. Rather, it also includes examining formal defenses and any urgent application, according to the minister’s request. “Urgent” is a concept liable to expand the longer Judge Bitar is blocked from working such that the replacement judge’s power eventually includes preserving evidence, announcing the causes of the blast to ensure people’s rights in relation to their insurance companies, and issuing an indictment.

 

• Neither the minister of justice nor the SJC even has any power to limit the power of an appointed judge as it is determined only by the law. Hence, the judge appointed in this manner could take any decision and measure he or she desires in this case, and there is no way to limit them to applications for release.

 

• Given the above, the appropriate label for the appointed judge is not “reserve judge” [qadin radif] but “replacement judge” [qadin badil]. The appointment essentially removes the principal judge from a case he is examining, in contravention of the laws in force and the most important judicial independence standards.

 

• There are other ways to secure detainees’ rights that do not infringe on the rights of the victims or society and that strengthen the independence of the judiciary and justice work. A law that allows the Judicial Council investigator to continue working while disqualification and mal-judging cases are pending against him could be adopted. Criminal investigations, especially one as important as the port blast investigation, should not be suspended because of abuse by a defendant or doubts whose legitimacy no court could verify, in line with practice in most democratic countries (including France).

 

Politically Colored Personnel Charts Once Again

 

The minister of justice is putting appointing the chamber presidents in the Court of Cassation once again on the SJC’s agenda, months after the minister of finance refused to sign it, for two reasons. One reason – to replace one of the judges to be appointed (Jamal Khoury) because she reached retirement age during the waiting period – is legitimate. The other – to pressure the SJC to establish an additional Court of Cassation chamber presided over by a Muslim – is illegitimate. The goal is to alter the balance of power within the Full Bench of the Court of Cassation, whose decisions will influence the port investigation. This pressure draws on the decree defining the cadre of the Court of Cassation.

 

Here too, we call attention to the following:

 

• The SJC’s power to settle judicial personnel chart issues is enshrined in the law governing the judicial judiciary. It explicitly states that in the case of any disagreement with the minister of justice, the SJC shall settle the personnel charts via a seven-member majority vote, whereupon they become binding and final. Hence, the power of presidents and ministers to sign the decree promulgating the charts is, in this scenario, a constrained power, and none of them may veto the charts’ contents.

 

• The decree governing the cadre of the Court of Cassation is an irrelevant point because many judicial personnel chart decrees wherein the number of chambers was set to just ten (including the 2017 charts) have since been issued. More importantly, the judicial cadre is approximately 40% vacant and is now suffering from resource drain due to resignations, and establishing an additional Court of Cassation chamber is an action whose appropriateness and necessity it is up to the SJC to assess in light of the human resources available and the proper administration of the judicial system.

 

• The pressure to increase the number of chambers after the positions in them have been sectarianized opens a potentially endless struggle for influence and bargaining process over the confession and identity of the eleventh chamber’s president, one connected to the political forces’ desire to control the Full Bench’s decisions, particularly those concerning the port blast investigation.

 

• Finally, the bill on the independence of the judicial judiciary adopted by the Administration and Justice Committee in December 2022 allows judicial personnel charts adopted by the SJC in its new composition to be promulgated if a month passes without the decree on them being issued. The Ministry of Justice continues to obstruct the passage of this bill by neglecting to deliver an opinion on it during the timeframe set by Parliament (one month, beginning in February 2022).

 

Hence, we would like to express the following positions and demands:

 

• We remind the minister of justice and SJC that their powers are limited by the law. Neither has any power to appoint a replacement for Judicial Council Investigator Tarek Bitar in the Beirut port blast case, pursuant to the Code of Criminal Procedure and the principles of judicial independence and separation of powers enshrined in the Constitution.

 

• We confront the minister of justice with his duty to respect the limits of his powers set by the law by signing the version of the judicial personnel charts decree at which the SJC arrives without presenting it to the minister of finance, who has no power in this regard. We also confront him with his responsibility to release the bill on the judicial judiciary’s independence without delay.

 

• We call upon all MPs and parliamentary blocs to intensify efforts, as soon as possible, to amend criminal procedure to prevent criminal investigations from being automatically obstructed by disqualification and mal-judging claims in order to ensure the rights of the victims and detainees. They should also adopt the law on the independence of the judicial judiciary in accordance with international standards and in view of the Venice Commission’s June 2022 opinion.

 

• Finally, we warn of the consequences of muddling public opinion, which political forces continue to lead in the direction of stunting the port blast case, erasing the memory of the victims, and misattributing responsibility for obstructing the investigation. We call upon all media and citizens to confront these attempts to muddy the waters, given their dire effects on memory and justice.

This statement is an edited translation from Arabic.