In mid-November 2017, The Legal Agenda organized a regional study week on the subject of the media and the judiciary. During that week, the causes of crisis between the judiciary and the media, as well as the means of addressing them to improve communication and cooperation between the two, were discussed.
On November 16, day four of the gathering, a new crisis erupted in relation to the Lebanese television talk show Kalam Ennas. The program’s host, Marcel Ghanem, criticized the prosecution procedures being carried out against him at the request of Minister of Justice Salim Jreissati. The latter went as far as to describe the program, which airs on the channel LBCI, as “media debauchery” that has no place in the new [presidential] era. While Ghanem’s initial statements seemed to be marred by a little arrogance and a lot of ad hominems, his later statements stressed that he submits to the judiciary and the law while questioning what the point of it is if the outcome of investigations is known in advance. Subsequently, he was subpoenaed. This exacerbated the crisis, with LBCI chairman Pierre El Daher, deeming it an attack on the station and on freedom of expression in Lebanon. No sooner had the first crisis subsided than a second crisis broke out with the initiation of the prosecution of Hisham Haddad, the host of the satirical program Lahon w Bas, for skits on Saudi Crown Prince Mohammad Bin Salman, Prime Minister Saad Hariri, and party official Ahmad El Hariri (January 2018). This prosecution was ordered by Cassation Public Prosecutor Samir Hammoud in contravention of Article 23 of the Law of Publications, which requires that such prosecutions be initiated by an allegation by the aggrieved party itself (which did not occur). While the host mocked the prosecution of skits at a time when many grave crimes (garbage, riots, and roadblocks to express the anger of one of the elite political leaders) were being ignored, the Supreme Judicial Council responded with a statement threatening anyone who undermines the “prestige” [hayba] of the judiciary and deeming the defense of this prestige to be paramount (February 1, 2018). This bodes further crisis, for it reinserts the relationship between the judiciary and the media into a futile dialectic between the prestige of the judiciary and media freedom.
At the same time, leaks from the preliminary investigations into suspected Israeli agent Ziad Itani, played out in a manner that revealed a deficiency in some media outlets’ handling of judicial affairs. It was a deficiency reminiscent of the errors that these outlets made when covering previous cases such as that of a girl in Tripoli who claimed to have been raped in the summer of 2016. Given these events, it is once again necessary to examine the causes and negative consequences of these recurring crises and, most importantly, the institutional methods to overcome them or reduce the chance of their escalation or recurrence.
The Judiciary: “Prestige” as a Tool to Impose a Distorted Image of Reality
In terms of the judiciary, the greatest failing may be the continued invocation of prestige to confront criticisms directed against it. This recently occurred, in particular, when the Supreme Judicial Council’s media bureau issued a statement on February 1, 2018, which announced that defending the judiciary’s prestige trumps all other considerations. The council thereby seemed to be preempting the invocation of any social interest to justify deviation from this principle. Is it appropriate to brandish the prestige of the judiciary at a time when the latter has obviously lost many of its guarantees of independence and grown weaker in the face of interference by influential forces? Under these conditions, the invocation of this prestige to ban addressing judicial issues obscures the scope of the interference occurring in the judiciary’s affairs and its negative effects. The judiciary seems to be relying on the legacy of “prestige” to impose a distorted image of the judiciary, a fanciful image that is out of touch with the evidence of interference in its work and the rise of suspicious relationships between dozens of judges and influential political forces. The implication of this image is that the attack on the judiciary comes not from the parties directing its decisions through coercion and enticement but from the media that dares criticize these decisions. Hence, the Supreme Judicial Council appears to have chosen not to reform the judiciary’s now-flagrant failings but to whitewash it instead. Rather than declare the judiciary’s independence paramount, it declares the defense of prestige (a cosmetic concept) to be so. Consequently, the policies for reforming the judiciary and the alliances needed to achieve them are inverted: instead of seeking to enable citizens and the media to help strengthen the safeguards of the judiciary’s independence against interference by the dominant political forces, the priority is to defend its prestige and dignity – and, in practice, the prestige of these forces – from the media.
Given the above, any public debate about a court case will probably turn into the blueprint of a new crisis between the judiciary and the media. Those in charge of the judiciary see no benefit in the media supporting its independence or reforming its affairs. Rather, they see the media as a constant threat that could expose what is supposed to remain hidden, even if it has become commonplace. Hence, repeated recourse to a punitive and threatening discourse about prestige becomes inevitable. This discourse appeared in the announcement of the bill on infringement on the judiciary’s prestige in 1998, which re-emerged in 2008 in response to the program Corruption broadcast on the television station Al Jadeed. The discourse emerged once again in the Supreme Judicial Council’s recent statement announcing that it will not ignore any infringement on the judiciary’s prestige, irrespective of the party concerned.
This belief is corroborated by the fact that the Supreme Judicial Council brandishes the prestige of the judiciary against media figures and independent activists but remains idle when the attack on it comes from influential political forces. One telling example is that the council remained silent when Prime Minister Saad Hariri acknowledged, in his famous interview with Paula Yacoubian at his residence in Saudi Arabia, that the ruling authority interferes in the judiciary in Lebanon. In another case, Parliament Speaker Nabih Berri acknowledged that only the weak resort to the judiciary. Moreover, instead of taking a firm stance on the broad interference in the production of the judicial personnel charts, which were mostly based on three lists drawn up by the major sectarian parties, the Supreme Judicial Council decided to invite judges to celebrate them in their best attire. The minister of justice topped off this celebration with a telling phrase directed at President Michel Aoun: “these are your judges, so take pride in them”.
Finally, for a better understanding of the Supreme Judicial Council’s statement, it is necessary to refer to the works of French judge and thinker Denis Salas. In his presentation of the French experience, Salas explains that the statements issued by the judiciary in problematic cases only gained esteem in France once it was liberated from its subordination to the political authority. He concludes that the judiciary’s credibility is tied to its level of independence. Seen in this light, Lebanon’s Supreme Judicial Council’s attempt to improve communication with the media appears to be conditional on adopting attitudes contrary to those that appeared in its latest statement. Pending the recovery of its independence and lost aura, modesty and rational discussion may be best for building and developing this communication. But if the council continues to rely on the rhetoric of prestige, arrogance and bullying, and the rhetoric of “it’s necessary because it is”, it will entrench distrust and antagonism and, consequently, recurrent and futile warring.
Press Freedom vs. Press Discussion of Undermining Judicial Independence
What about the media? What about its performance when approaching judicial issues and its means to launch a positive dynamic in this context? The first thing we notice in this regard is that media figures subject to prosecution usually endeavor to portray it – often in very narcissistic statements – as though it targets them specifically in order to silence them. While there is a tendency to turn their individual cases into a public issue about freedom of expression, few attempts are made to connect them to a larger public issue, namely interference in the judiciary, which affects many segments of society, and fundamental rights and freedoms no less significant than freedom of expression.
Even when discussion about interference in the judiciary does occur, as in the case of Marcel Ghanem for example, it is generally limited to complaining about a specific judicial behavior. It is not accompanied by any objective discussion about the safeguards of the judiciary’s independence, judges’ occupational environment, and, in particular, the legal and practical factors that increase the chances of interference in the judiciary or weaken its impregnability in such or other cases pertaining to social issues. Each occasion becomes another instance to reflect on all of the following: that some judges can yield to demands made by the minister of justice or other political forces, can fail to meet citizens’ legitimate expectations, can interpret laws or even facts in a manner that contravenes common sense, and can fail to maintain the independence or neutrality that they are supposed to. Meanwhile, there is no concomitant perception of the legal, occupational, and cultural factors that make such tendencies possible. One of the most prominent factors is the prevalent, deep-rooted culture of interference in the judiciary amid the erosion of the culture of its independence. Subsequently, the media’s stance in this regard tends to condemn judicial work without performing any objective review of how it is responsible for shaping this culture of interference in the judiciary, and more importantly, identifying its current responsibility to reform this culture.
It is therefore common for some of these cases to take on the character of a duel between a particular media figure and a particular judge in a simplification that ignores a number of other factors influencing the prosecution. This duel can develop into one between two professions: the media profession, which usually take action via programs, articles, and sit-ins in solidarity, versus the judiciary, which uses prosecutions and the belligerent (and repressive) statements occasionally issued by its council. Some ministers may join one side or the other in accordance with the interests that drive them. For example, the ministers of media and education stood alongside Ghanem by attending his interrogation hearing on January 4, 2018, whereas the minister of justice issued a statement against the media debauchery that he thinks Ghanem represents. Likewise, while Ghanem and El Daher’s visit to Parliament Speaker Nabih Berri on December 23, 2017, resulted in them praising Berri’s stances and expressing their deep gratitude for him, President Michel Aoun mentioned that there is not a single journalist in Lebanese prisons in order to trivialize media personnels’ objections. These duels occasionally lead to muscle-flexing between the networks of support, influence, and interests that the media and the judiciary each enjoy, which can sometimes weaken both sides. What is the interest of the media in appeasing some of the most prominent interferers in the judiciary in a battle revolving around the rejection of such interference? What interest does the judiciary have in a minister’s statement that foretells the outcomes of a prosecution initiated at his request and puts them in the context of the efforts of the [presidential] era to purge the media?
Given the above, it is no exaggeration to say that the conflict occurring between the media and the judiciary usually turns into one about occupational narcissism posing as sanctity. This attitude obscures underlying social interests and the responsibilities [of each profession] to tackle them. Most importantly, it makes it difficult to reach an objective approach to matters and, subsequently, to find meeting points that allow the recurring crisis between the media and the judiciary to be alleviated.
On one side is the narcissism of the judiciary, reflected in the aura constructed around the judiciary’s prestige, the defense of which is deemed paramount. As a result, the judiciary itself becomes imprisoned by these fanciful perceptions. It ceases to be candid with the public about its own ordeal or to be able to positively engage with the public to address its problems. Had the Supreme Judicial Council chosen modesty, disclosure, and logical discussion instead of condescendence and the constant invocation of prestige, things would have been different.
On the other side is the narcissism of media figures, represented by the aura woven around the concept of freedom, which is placed above all other rights, freedoms and social interests. This narcissism is often accompanied by rhetorical escalation that goes as far as to deem freedom of expression absolute and – like the judiciary’s prestige – an end in and of itself, in isolation of its social functions. This gives rise to a blurry view of the limits of this freedom and the responsibility associated with it, including the responsibility to defend the independence of the judiciary. Of course, the situation would be very different were there a self-reflective media that explored the factors facilitating subordination of the judiciary. This would allow it to place the cases filed against its figures in their correct context, and most importantly, to fulfil its primary responsibility in defending the judiciary’s independence.
This article is an edited translation from Arabic.
 A lecture that Salas delivered in Byblos on November 14, 2017, as part of the study week on the media and the judiciary.