On 4 May 2023, Lebanon’s Judicial Disciplinary Council issued a decision to fire Judge Ghada Aoun from the judiciary. I have not been able to view the decision’s text, which remains confidential at this stage, or ascertain the grounds and arguments it cited. However, the severity of the punishment in and of itself is extremely disturbing. Any decision to dismiss a judge (a rare occurrence) implicitly defines the attributes of a model judge in the view of the Judicial Disciplinary Council, the loss or abandonment of which constitutes cause for dismissal. In other words, when any ruling dismissing a judge is issued, the question is, what grave infractions did the judge commit and – most importantly – what are the aforementioned attributes?
The ruling is disturbing because Aoun, known for her financial integrity, is undeniably distinguished by her investigations into major corruption cases. She dared confront major influential figures and continued doing so despite the record number of organized campaigns to derogate, bully, and smear her as well as interfere in her work. From this perspective, the ruling appears – because of its severity – to intentionally downplay the task of combating corruption in the Lebanese judicial system, along with the obstacles facing it, while magnifying any error judges might make in their effort to overcome these obstacles and denying them any mitigating factors. The ruling is even more troubling because of the contrast between its severity and the fact that the judges most engaged in protecting major corruption suspects continue to occupy high positions without any accountability. This contrast confirms that in a judicial system without safeguards on independence and integrity judges who dare confront influential figures suffer negative effects on their careers, including even dismissal, while judges who align with and indulge these figures are promoted and revered. However, while Aoun’s bold efforts to confront these figures caused her many hardships, the disciplinary issues imputed to her, which were hyped by the media, clearly pertain primarily to her insistence on defending her powers and function from attempts to obstruct and disable them. On multiple occasions, this insistence took on extraordinary activist dimensions, especially as the challenges and obstacles to her tasks multiplied. This is evident from a brief review of the main incidents in which Caretaker Prime Minister Najib Mikati, the Supreme Judicial Council (SJC), or senior judges took tough stances on Aoun’s “behaviors”. From their perspective, although judges may try to do justice and hold perpetrators accountable, they must refrain from any activist actions in order to preserve their impartiality and pursuant to the “duty of restraint”, even if the result is a complete loss of justice.
From this angle, the ruling – while serving as an order to judges to exercise self-restraint – bears extra significance because it came at the same time as the political authority is escalating its fierce invasion of the judicial sphere and its determination to push forward with imposing near-total control over the judiciary, to the extent of rendering it inoperative. While under normal circumstances we could debate whether it was appropriate for Aoun to engage in activist actions (a matter we explored when critiquing the Basic Principles for Judges’ Ethics issued in 2005), condemning them under the current circumstances is akin to allowing politics to become all-encompassing and completely dominate the judicial sphere.
Note that several judicial and political authorities had previously sought to stop Aoun from working. In particular:
Before explaining these activist stances, I must mention the dysfunction in the mechanisms of judicial discipline, which unfortunately are liable to increasingly limit the potential for judicial struggle and facilitate further political interference in the judiciary.
The Dysfunction in Mechanisms of Judicial Discipline
Several factors render the mechanisms for judicial discipline dysfunctional.
Firstly, under the Lebanese system, disciplinary action against judges is contingent on a decision by the JIA to refer the judge concerned to the Disciplinary Council. While this requirement is portrayed as a safeguard for judges because the JIA is composed entirely of judges, these members are all appointed by the executive branch in accordance with sectarian quotas. Hence, inspection is often subject to political influences: infractions by politically favored judges are ignored, while infractions by other judges are policed harshly. The Independence of the Judiciary Coalition (IJC) has strived to change this situation by allowing the JIA’s members to be appointed by a judicial council whose members are mostly elected by judges themselves. However, the Administration and Justice Committee disregarded this effort in its latest bill and kept these appointments a prerogative of the executive branch.
Secondly, disciplinary trials are held before a first-instance body composed of judges appointed by the SJC president, and its ruling can only be appealed before a body (the Supreme Judicial Discipline Authority) composed of the SJC president or deputy president (who presides over it) and four SJC members. Hence, in addition to controlling the composition of the disciplinary council that dismissed Aoun, SJC President Suhail Abboud – or his deputy, Cassation Public Prosecutor Ghassan Oueidat – will also preside over the appellate body. Both these figures have repeatedly contributed to the adoption of stances and measures that reflect clear prejudice against her. All these facts indicate that Aoun was and will be subjected to an unfair trial controlled by someone who has preconceived stances on her or is akin to her opponent. Although she has the right to request that Abboud or Oueidat be disqualified, this request must be filed with the SJC itself, which may find itself unable to appoint anyone else to the presidency of what is legally the highest judicial authority. Note that the Constitutional Council, in a decision issued on 27 June 2000, deemed that denying judges the ability to challenge disciplinary decisions before the State Council and requiring that such challenges be heard by a supreme body that – like the first-instance disciplinary council – emanates from the SJC deprives them of one safeguard of their independence, namely two-level trials.
Thirdly, the Judicial Judiciary Regulation Law requires that disciplinary trials be confidential. This conflicts with the principle of the publicity of trials, which is a condition of fair trials. The Independence of the Judicial Judiciary Bill drafted by the IJC included a text explicitly guaranteeing that the trial be conducted publicly at the request of the judge concerned. This safeguard is especially important when judges feel that their disciplinary trials primarily target their judicial role, as in Aoun’s case.
Finally, the Judicial Judiciary Regulation Law includes no scale for disciplinary infractions or proportional punishments. Consequently, the disciplinary councils set whatever light or heavy punishments they deem fit in the absence of any controls. Hence, they have sometimes imposed light punishments on judges found to have accepted gifts or bribes, and heavy punishments on judges who might be faulted for exceeding the duty of restraint (or rather, the duty of silence). Making matters worse, the disciplinary councils’ decisions remain unpublished, so no jurisprudential scale of infractions and punishments can be deduced to compensate for the lack of a legally codified one. The IJC also attempted to overcome this problem by categorizing infractions and punishments and stressing the principle of proportionality. The Venice Commission then reemphasized that this principle should be included in the bill. However, the Administration and Justice Committee removed all these controls from its amended version of the bill, leaving the door open for arbitrary punishments.
Five Battles in Aoun’s Career
It is no secret that Aoun took charge of the Mount Lebanon Public Prosecution under the 2017 judicial personnel charts because of support from the President’s Office. While political interference in judicial appointments threatens the principle of the judiciary’s independence and at least its apparent impartiality, we must remember that it occurs on a wide scale and encompasses virtually all important positions in the judiciary, especially those in the Public Prosecution and investigating judiciary, and the court presidencies. Most importantly, Aoun was a symbol of independent judges in the era of Syrian Tutelage and became famous for a number of dissenting opinions that she added to the most freedom-suppressing decisions, most significantly the decision to shut down MTV. For these brave stances, the political forces opposed to Syrian Tutelage and calling for sovereignty and independence were indebted to her. During the last two decades, Aoun also played a key role in defending judges’ right to establish a judges’ association so that they cannot be isolated individually, for which she faced many questions from the JIA. These efforts paved the way for the later establishment of a judges’ club in 2018, although she was not a founding member.
Irrespective of all the above, what are the battles that Aoun waged during the last three years and that prompted efforts to attack and smear her, culminating in the disciplinary decision against her? This I will answer in five sections.
Applying the Illicit Enrichment Law for the First Time, 66 Years After Adoption
On 23 October 2019, i.e. five days following the October 17 uprising, Aoun charged Najib Mikati, his brother Taha, his son Maher, and Audi Bank with influence peddling and illicit enrichment for receiving USD30 million in subsidized bank loans. Aoun announced the charges on television, declaring that she had completed the investigations some time ago and decided to issue them after sympathizing with the anti-corruption protests. While smear campaigns were launched against her, targeting her hairstyle and postulating that the charges were politically motivated, the Legal Agenda called attention to the importance of these charges as the first of their kind in Lebanese history – 66 years after the Illicit Enrichment Law’s adoption in 1953.
We also pointed out that the action was based on strong evidence that disproves any malice or political fabrication, and renders it a national service irrespective of its timing. As for Aoun’s statement that she sympathized with the popular protests, which many people mocked, its logical interpretation is that she was emboldened by the protests and perceived political circumstances that could alter the balance of power and allow judges to abandon their self-restraint and open corruption cases against elite leaders [zuama] and very influential figures. The judicial hierarchy’s response to Aoun’s charges came swiftly: Oueidat ordered the judicial police not to take any orders or instructions from her, arguing that the charges were marred by egregious errors, the most significant being that they were issued without his prior consent. The Legal Agenda explained that Oueidat’s orders, which were aimed at obstructing the investigation into an illicit enrichment crime despite strong evidence, were illegal and he subsequently rescinded them.
More than two years later, First Investigating Judge in Beirut Charbel Abou Samra issued a decision dismissing the case against Mikati and his associates, not because illicit enrichment had not occurred but because of a mere procedural argument, namely prescription. The Legal Agenda refuted this argument.
Traffic and Vehicles Management Authority Corruption
The second battle that Aoun undertook and backfired was the case of Traffic and Vehicles Management Authority President Hoda Salloum. In December 2019, she issued a decision to arrest and charge Salloum, once again for influence peddling and illicit enrichment. Consequently, Salloum’s relative and lawyer, former MP Hadi Hobeich, stormed into Aoun’s office, directing the vilest phrases at her and accusing her of serving political agendas and turning her office into a “brothel”. Nevertheless, Aoun continued prosecuting Salloum, and in late 2022, the Public Prosecution in Mount Lebanon, represented by Advocate-General Nazek Khatib, subsequently busted the Traffic and Vehicles Management Authority case wide open, expanding the influence peddling and illicit enrichment charges to encompass many of its directors and employees. The Legal Agenda pointed out that this case had become an opportunity to develop the mechanisms for combating corruption in a public department, despite the continuous attempts to obstruct them by suing the judges.
The Investigation into the Mecattaf Money Exchange
Although this struggle may not be Aoun’s most important, it is certainly her most famous, and it is the one in which she resorted to extraordinary methods in response to the measures used to obstruct her work. Mecattaf is a money exchange specializing in moving USD banknotes abroad. It was prosecuted based on information indicating that it was used to transfer money abroad during the critical period shortly before and following October 17, in suspected collusion with Société Générale Bank (and the chairman of its board Antoun Sehnaoui) and Banque du Liban Governor Riad Salameh. This case was especially important because exchange companies’ transactions and records are not subject to banking secrecy. Consequently, the Public Prosecution could uncover some of the facts surrounding the foreign transfers made during the critical period and the identity of the actual beneficiaries, thereby overcoming the banking secrecy that was preventing it from accessing any such information. Nevertheless, the judicial task did not go smoothly. Aoun had to go to the company’s headquarters because it did not respond to the requests of the experts she had appointed. She then decided to remove its door after it was closed in her face. She also had to complete her task in the company’s headquarters without police assistance after the cassation public prosecutor notified her – via Mecattaf’s lawyer – of his decision to stay her hand while she was in the middle of the raid. Aoun ignored Oueidat’s decision on the basis that it was illegal (as stressed by the Legal Agenda and many legal experts) and called on the people to support her in completing her task in service of public interest. While the political and religious authorities descended upon her with accusations of insubordination, showing off, populism, undermining judicial traditions, and serving political agendas, the Legal Agenda pointed out that the problem was not her insistence on conducting the investigation but the fact that she was prevented from doing so. The problem was not the removal of the door but the fact that it was closed in the face of the Public Prosecution and justice. Aoun merely found herself compelled to adopt extraordinary means to overcome the refusal to supply her with the information necessary to accomplish her task. Hence, from the Legal Agenda’s perspective, the means of obstructing Aoun were an exercise in the art of imposing the system of impunity, whereas Aoun – via her “insubordination” to Oueidat’s decision and appeal to public opinion (which are definitely extraordinary, activist means) – was aiming to breach this system’s wall.
Unfortunately, the obstruction to Aoun’s task from within the judiciary did not come from the cassation public prosecutor alone. Rather, the SJC threw its weight in the same direction. Its worst actions included, firstly, threatening to declare Aoun incompetent, i.e. to fire her without trial. This process failed because of opposition from some SJC members, as previously explained. Secondly, on 20 April 2021, the SJC issued a harshly worded statement against Aoun, holding her responsible for the melee in the Mecattaf case and ignoring the importance of accessing the company’s records to uncover the truth of the foreign transfers. Unlike the Ministry of Justice, which had asked the JIA to take on the entire case and examine both Oueidat and Aoun’s liabilities, the SJC’s statement called upon the JIA to investigate and take action against Aoun alone for breaching the duty of restraint, failing to perform her repeated pledges to the SJC, refusing to attend the Cassation Public Prosecution, and contravening Oueidat’s decision (even though the SJC conceded that its legality was in question). In defense of her powers, Aoun resorted to another extraordinary means: challenging the legality of Oueidat’s decision before the State Council and requesting a stay of execution. However, the State Council merely issued a decision reflecting the inability of its members to decide on the challenge, inviting the SJC to explain its opinion on Oueidat’s decision, which it never did.
Hence, because Aoun insisted on accomplishing her task despite all the obstructions, in August 2021 she charged Mecattaf and its associates in the case with tax evasion, money laundering, transferring USD4.3 billion dollars of unknown origin abroad, and concealing information. These charges are still pending before the investigating judiciary in Mount Lebanon.
During the first half of 2020, Aoun took charge of the tainted fuel case after it leaked to the media that the Financial Public Prosecutor Ali Ibrahim had dismissed the complaint filed regarding a suspect fuel shipment from the company Sonatrach. Unlike Ibrahim, Aoun initiated investigations that uncovered corruption on several levels of public administrations (the Council of Ministers, the general directors in the Ministry of Energy and Water, and the laboratories subordinate to the Department of Oil Facilities) amidst political resistance just as serious as the resistance she faced in the Mecattaf case. Lebanon was even threatened with a total blackout as a means of extortion aimed at blocking the case’s investigation.
Perhaps the worst of these attacks came from former minister Suleiman Frangieh. In a press conference he held on 11 May 2020, he did not hide the fact two of the defendants, namely Teddy Rahme (president of the consortium in charge of importing fuel) and Sarkis Hleiss (general director of oil facilities), were under his protection and would not appear before the judiciary until Aoun – whom he described as malicious – was taken off the case. Aoun faced accusations not only from forces opposed to the Free Patriotic Movement (FPM) based on her closeness to it but also from FPM leader Gebran Bassil during his press conference on 17 May 2020. First Bassil stressed that General Director of Oil Aurore Feghali, who is close to him, had clean hands despite Aoun’s decision to arrest her. Then he said that Aoun was prosecuting Feghali only to prove her independence and avoid accusations of bias toward the FPM: “The logic of balances does not apply to justice. There is no [quota-sharing]. The culprit is a culprit, and the innocent is innocent. But apparently, we should [according to Aoun’s logic] arrest people from both sides to show that we are independent judges”. Aoun continued her investigation despite these attacks on her, ultimately gathering strong evidence against Rahme, Hleiss, and Feghali. Aoun’s insistence on prosecuting Feghali and exposing that she accepted gifts, abused her authority to cover up acts of corruption (a ship’s pollution of territorial waters) and thwart central inspection work monitoring shipments is a strong point against the accusation of selectivity and serving political agendas. Thus, the investigation into one of the biggest public procurements – which persisted for 15 years under a contract unfavorable to the state and cost over USD10 billion, much of which was probably wasted because the imported fuel was tainted – was completed.
Not only did Aoun confront the political challenges while conducting her investigations but she also later confronted attempts before Investigating Judge Nicolas Mansour and the Indictment Chamber in Mount Lebanon aiming, in particular, to quash the charges against Sonatrach, reduce Rahme’s liability, and disprove the elements of the crime of money laundering. Nevertheless, the Indictment Chamber ultimately reduced the liabilities on all these levels, dropping the charge against Sonatrach as well as the money laundering charge.
In this case too, Aoun appealed to public opinion and the media. In a televised interview on 18 November 2020, she warned that the Special Investigation Commission in Banque du Liban had refused her request to lift banking secrecy from the people involved because it did not want to expose corruption. One member of this commission is Judge Ibrahim himself, who had dismissed the case against Sonatrach. The withholding of information in this regard prevented Aoun from forming a clear picture of the network of financial relationships between the various suspects and made it easier for the Indictment Chamber and the Court of Cassation to drop the money laundering charge.
Notwithstanding these domestic setbacks, the U.S. Treasury Department recently sanctioned Rahme, his brother, and the companies they own for suspicions of money laundering based on the investigation into the Sonatrach case, which is still pending before the Mount Lebanon Criminal Court.
Riad Salameh, His Brother, and the Banks
Over the past years, Aoun dedicated a key part of her work to prosecuting Banque du Liban Governor Riad Salameh and the banks. As this is not the place to recall all the key events in this prosecution, I will merely highlight the most significant ones that are believed to have contributed to the decision to take disciplinary action against Aoun.
The first occurred in March 2022, after Aoun issued decisions to arrest the governor’s brother, Raja Salameh, for complicity in embezzling public funds and money laundering and ban several bank directors from traveling based on the circumstances surrounding their banks’ reception of a USD8.3 billion loan after October 17 (funds that came out of the central bank’s remaining reserve and were then transferred abroad). Following these decisions, Mikati expressed deep concern about “judiciary anarchy” and called the presidents of the SJC, JIA, and Cassation Public Prosecution to a government meeting to discuss measures to curb it. These figures refused the invitation, deeming it an insult to the judiciary. Consequently, Mikati not only announced the formation of a committee headed by Minister of Justice Henry Khoury but also threatened Oueidat with dismissal should he not take the initiative to curb the “anarchy”.
The second was the initiation of investigations into the more than USD8 billion in loans that were allegedly smuggled abroad by banks in the wake of the Oct 17 uprising. Aoun’s investigation was initiated after the law on lifting banking secrecy, which enables judicial bodies to request banking information when investigating financial crimes, was promulgated. In this framework, Aoun sent warrants to the various banks concerned, demanding that they clarify the circumstances of this loan and identify the beneficiaries of the foreign transfers. While some banks complied, others – particularly Bank Audi and Société Générale – refused to provide her with the requested information, prompting her to open reports on them based on the law on lifting banking secrecy. This law imposes the same harsh punishments for withholding information that apply to money laundering crimes. As soon as Aoun did so, the Association of Banks in Lebanon announced an open-ended strike, and a campaign to smear her began, claiming that accusing the banks of money laundering would sever relations with them and therefore halt imports and the entire Lebanese economy. Conversely, the significance of Aoun’s steps – namely that they constituted the first application of the law on lifting banking secrecy and aimed to expose the true circumstances surrounding the transfer of funds outside the country equivalent to the central bank’s entire remaining reserve – was ignored.
Subsequently, some banks filed disqualification and maljudging cases against Aoun in an effort to restrain her from taking any measure against them. Under Article 751 of the Code of Civil Procedure, filing a maljudging case automatically stays the hand of the judge concerned. Due to the inability of the court examining such cases (the Full Bench of the Court of Cassation) to convene because of the retirement of most of its members and the non-issuance of judicial personnel charts to appoint their replacement, this effect lasts indefinitely, as occurred in the port blast case. The IJC has repeatedly addressed these lawsuits and their abusive filing by defendants in major cases, arguing that they completely shut down judicial work and lead to universal impunity. Consequently, it has presented two bills in cooperation with nine reformist MPs.
While Aoun tried to continue her work, arguing that she had not been served with these cases, Mikati took a measure that went even further than his actions in 2022 in terms of heinousness, gravity, and interference in and subversion of the judiciary. He sent a letter asking Minister of Interior Mawlawi to intervene immediately and order the security forces not to execute Aoun’s warrants as long as she remained restrained under the aforementioned Article 751 (which he did). In his blatant interference in the judiciary, Mikati interpreted this article to apply as soon as the maljudging case is filed, before it is served to the judge concerned, in addition to condemning Aoun for evading service. Article 751 of the Code of Civil Procedure thereby transformed into a political weapon used by the prime minister to obstruct the judiciary and spread impunity, and impunity transformed from a de facto practice into a governmental policy. The SJC and Oueidat promptly matched Mikati and Mawlawi’s efforts to restrain Aoun from investigating this case, assigning no importance to the disastrous implication, namely that all defendants can obstruct any investigations into them indefinitely by virtue of the suspension of the Full Bench of the Court of Cassation.
The above leads to the following conclusions, which must be considered in order to determine future steps.
Firstly, Aoun made serious efforts to fight the system of impunity. She created a precedent by applying the Illicit Enrichment Law and the law on lifting banking secrecy (which conceals three decades of corruption crimes). Subsequently, her work – and the work of the advocates-general in her department – exposed widespread corruption in many state procurements and public administrations, most recently the Vehicle Registration Center and the Mount Lebanon Land Registry. While some criticize her for selectively prosecuting adversaries of the FPM for political ends, these criticisms fall flat before the serious evidence that the investigations produced, which totally disproves any malice. Moreover, in her investigations, she did not stop prosecuting people affiliated with the FPM, such as Feghali, thereby drawing prompt opposition from Bassil. She may not have managed to open all the cases that we would like to see opened, complete investigations into open cases that we would like to see completed, or even take clear stances on cases concerning freedoms. However, over the last years or even decades, she certainly exerted efforts that no other Public Prosecution office exerted to prosecute financial crimes, as evidenced by her pursuit of very important cases that the financial public prosecutor had dismissed without any investigation.
Secondly, Aoun was targeted by organized smear campaigns rivaled only by the campaigns that targeted Judge Tarek Bitar for investigating the port blast crime. Like Bitar, she also faced grave interference in her work not only by the cassation public prosecutor but also by government officials, who mostly sought to have her fired and deprive her of any police assistance. She was also threatened with a declaration of incompetence by the SJC and was ultimately referred to the Disciplinary Council and dismissed. Most crucially, these campaigns and interferences were directed at her and judges who dare open cases while the Financial Public Prosecution and investigating judiciary, especially in Beirut, are dismissing cases and forfeiting society’s rights amidst silence or muted criticism. Apparently, the media and judicial system is poised to attack anyone who dares confront the prevailing system of impunity, rather than those who identify with and conform to it.
Thirdly, Aoun struck defendants’ tactic of suing judges. This tactic involves confronting any judicial procedure with a wave of disqualification and maljudging cases against the judge who took it, pursuant to Article 751 of the Code of Civil Procedure. Consequently, defendants can now indefinitely halt any procedure against them because the Full Bench of the Court of Cassation is suspended, as previously explained. Hence, Aoun, like many judges, was forced – in order to preserve her powers and what remains of the right to litigate – to use independent legal interpretation to circumvent this article and the absurdity arising from it. We dubbed this action, which Bitar also took in his 23 January 2023 decision, “necessity-based legal interpretation” in the face of the system of impunity.
Given these facts, the most pressing question is: What criteria should be employed to hold a judge accountable? These criteria outline our desired model of a judge, as previously explained.
Should accountability criteria aim to consolidate judicial hierarchy, the influence of the SJC and cassation public prosecutor, and the force of these authorities’ orders – irrespective of their legality – so as to combat any insubordination to senior judges or resistance to their decisions? In that case, we are creating compliant judges who conform to their superiors’ orders and, therefore, lack independence. We are entrenching top-down hierarchy within the judiciary.
Should accountability criteria aim to consolidate the principles of restraint, silence, and abstaining from any activist action, condemnation, or appeal to public opinion irrespective of the circumstances of judicial work or social conditions? If so, we are creating silent judges incapable of confronting obstructions that prevent them from performing their function.
Or, to the contrary, should accountability criteria relate primarily to judges’ commitment to performing their function effectively? This criterion is the most consistent with public interest and the original purpose and meaning of the judicial function. In this case, we are manufacturing judges who are committed to their function and strive to overcome the obstacles to completing it. This requires a renewed approach to judicial ethics and the means that judges employ. The Legal Agenda elaborated this approach in its critique of the 2005 Basic Principles for Judges’ Ethics and in its Reformist Conception of Judicial Ethics in the Arab Region.
Of course, adopting this last criterion means radically changing our understanding of judicial ethics and, therefore, the work of the JIA and disciplinary councils. This change would not only affect the verdict dismissing Aoun but also entail – before all else – examining the liabilities of the judges who intervened to deter or restrain her from carrying out investigations or ignored extremely serious suspicions whose underlying truths would never have been exposed were it not for her. Of course, this change will not occur without great efforts within and beyond the judiciary and a targeted and resolute movement. In the meantime, it is unfair for Aoun to pay a high price for waging a war on impunity.