After the Beirut port blast investigation was suspended for over a year, Judicial Council investigator Tarek Bitar issued a decision with which he took back control of it. The decision was a bombshell that blew a hole in the wall of impunity behind which the political forces impacted by the investigation had fortified themselves. The responses by these forces came quickly in various places and contexts. They culminated with Cassation Public Prosecutor Ghassan Oueidat’s decision to reverse his self-recusal, rob Bitar of his powers, charge him with usurping power, and ban him from travel – measures that the Judiciary Coalition described as a coup against legitimacy and justice.

Hence, the Lebanese public is witnessing yet another confrontation over the investigation, with one difference. While the political forces were at the forefront of the opposition to Bitar in 2021, which resulted in the investigation’s suspension, this time the confrontation is being portrayed as one between the Judicial Council investigator and the Cassation Public Prosecution, i.e. a confrontation among judges over their jurisdiction and powers.

How can we interpret Bitar’s return to the investigation and reactions to it? Where could this confrontation lead? These questions are especially pressing because, on February 6, Bitar decided to postpone the interrogations in light of the Cassation Public Prosecution’s decisions and – in practice – until the obstacles the coup has created are removed or other circumstances more conducive to completing the investigation emerge.

Necessity-Driven Legal Interpretation

As soon as Bitar issued his decision to retake control of the investigation, debates began about its bases and validity per the principles governing the technical interpretation of legal texts. Though important, this debate is clearly lacking if it is divorced from the absurd circumstances surrounding the investigation. Specifically, the investigation into one of the gravest crimes ever committed in Lebanon had been frozen by the will of the defendants coupled with a political decision. Hence, before assessing Bitar’s legal interpretation, we must first review the investigation’s milestones, which undoubtedly constitute compelling grounds for it.

How the Investigation Froze

Bitar took over the port case after his predecessor, Fadi Sawan, was disqualified for declaring that he would not comply with the legal procedures pertaining to immunities nor seek the permissions required to prosecute. After studying the case for weeks, Bitar assembled the same list of major defendants that Sawan had, with a few additions. However, he differed from Sawan in that he abided by the most conservative reading regarding the legal procedures that must be followed, his goal being to fortify the investigation and avoid unnecessary objections.

This approach initially managed to compel the parties concerned to formulate and justify their stances using the language of the law. However, they quickly began distorting the texts they invoked, in some cases stripping the law of everything but its name. Remarkably, except for the Beirut and Tripoli bar associations, all the authorities concerned (the Ministry of Interior, the Supreme Defense Council, the Cassation Public Prosecution, and Parliament) denied Bitar’s requests for permission to prosecute on formal grounds or because they assessed the prosecution not to be earnest.

Meanwhile, a collective effort to manufacture legitimate doubt in Bitar began in several media outlets, in particular accusing him of politicization and conspiracy without any evidence. These efforts, which reached unprecedented heights, resulted in a record number of suits filed to remove Bitar (more than 40), most of which automatically suspend the investigation as soon as they are filed irrespective of whether they are earnest.

While some courts examining these suits dismissed them in short order, the lawyers quickly innovated means of litigation that would complicate them and thereby prolong their suspensive effect. These means included filing a disqualification suit not only against Bitar but also against the president and/or members of the court examining the suit targeting Bitar. In such cases, the bench could only examine the disqualification request against Bitar after the disqualification requests targeting its president or members had been examined, so the investigation remained suspended for weeks longer. These innovations peaked with the discovery of two means to suspend the investigation until an indefinite date controlled by the anti-investigation political forces, one that kept it suspended for over a year and one month. One is to bring a maljudging suit against a judge before the Full Bench of the Court of Cassation, which automatically stops him from working as soon as it is filed and until it is adjudicated. The other is to prevent the Full Bench from examining the suit by depriving it of its quorum. This Minister of Finance Youssef Khalil did by refusing to sign the judicial personnel charts decree to appoint replacements for the court’s chamber presidents who had retired, even though the law regulating the judicial judiciary deems the personnel chart produced by the Supreme Judicial Council final and binding. Subsequently, filing maljudging cases before this quorum-less bench has become a tempting strategy for any defendant seeking to suspend his prosecution. For example, lawyers used it against Cassation Advocate-General Jean Tannous and then Public Prosecutor in Beirut Ziad Abou Haidar in the prosecution of Banque du Liban Governor Riad Salameh and his brother. They have also used it in the Michel Mecattaf case, the Road Traffic Department case, and recently, the case of the 9 billion dollars smuggled abroad. While disqualification and maljudging suits exist as safeguards of the right of defense before the judiciary, the practice adopted in the port case and financial cases has transformed it into a privilege enabling the defendant to subvert or indefinitely suspend legal accountability. Hence, we are facing a new kind of immunity enjoyed not only by MPs, presidents, ministers, and judges but also by any defendant capable of hiring a lawyer. This could be called the legitimization of the system of impunity.

Consequently, the investigation in this case remained frozen for a year and one month, endangering the evidence, the victims’ right to justice, and society’s right to truth. Moreover, throughout this period, the detainees found themselves in the absurd situation that there was no judicial authority competent to hear their requests for release. The political forces and the parties that are supposed to ensure the smooth operation of the investigation and justice seem instead to have adjusted to this situation, in this case and others.

Public Authorities Fail to Remove the Obstacles Stalling the Investigation

To overcome this absurd situation, the authorities should have taken the initiative to find solutions to the obstacles preventing the investigation’s completion and put it back on track, pursuant to the principle of the separation of powers, and cooperation and balance among them. Despite this duty, these authorities have apparently adjusted to the investigation’s suspension, making no effort to remove these obstacles.

While several MPs presented various bills in this area, including a unified bill backed by multiple blocs, none found their way to Parliament’s General Assembly. Moreover, the situation has become more complicated now that several parliamentary blocs have committed not to attend any legislation session and others insist that any session convened can only tackle essential legislation until a president for the republic is elected – another date dictated by bargaining among the influential political forces.

The solution proposed by the minister of justice was to appoint an alternate judge until the Judicial Council investigator can resume work. While the idea of appointing such a judge was initially linked to the examination of detainees’ release requests, it subsequently seemed – because of the expansion of his powers – to be an avenue for covertly removing Bitar and replacing him with a judge enjoying the consensus of the political forces. As the majority of the Supreme Judicial Council (most of whose members are appointed politically) was clearly aligned with the minister’s proposal, this appointment would have occurred were it not for the disruption of the council’s quorum due to opposition from its president Suhail Abboud. This stance placed Abboud under escalating pressure not only from the Amal-Hezbollah duo but reportedly from people close to the US administration as well. In an interview with Annahar, Lebanese American lawyer Celine Atallah said that Abboud was preventing one of her clients (Badri Daher) from seeking release, and the paper added that it had learned from foreign sources that US sanctions against Abboud and other judicial officials were being sought.

Bitar’s Options

Because of the complete impasse, Bitar faced three difficult options:

• He could recuse himself, clearing the way for a “consensual” Judicial Council investigator, i.e. one content to work within the limit imposed by the political forces and concede to the hypotheses about the blast that suit them.

• He could accept the indefinite freeze of the investigation, along with the risk of the appointment of an alternate “consensual” judge who could gradually fully supplant him.
• He could independently, without relying on any of the authorities, interpret the texts to find a way out of the absurd situation that had arisen from the exploitation of the Code of Civil Procedure, collusion among the influential political forces, and obstruction of legislation and the judicial personnel charts – in practice retaking control of the investigation. This option would mean choosing “confrontation” and defiance, and facing the subsequent risks and all-too-predictable reactions. This is what he did in his decision on 23 January 2023. The decision deemed that the procedures governing the regular investigating judiciary do not apply to the Judicial Council investigator (who is part of an exceptional trial for serious crimes that could undermine domestic or foreign security) and that the disqualification and maljudging suits therefore do not suspend the investigation.

Bitar thereby appeared to be interpreting and applying the law in a different manner because the anti-investigation forces had imposed a new reality that rendered the previous manner futile. In other words, he deemed it necessary to sacrifice some defense rights (the ability to file disqualification or maljudging suits against him) to preserve the right to access justice and the judiciary’s authority to investigate one of the gravest crimes to occur in Lebanon. This could be called “necessity-driven legal interpretation”, i.e. interpretation that was imposed by the impasse in the investigation and had become imperative, because of the changed situation, in order to prevent the cementation of the impunity system. Hence, Bitar’s decision cannot be assessed through technical analysis or legal logic without considering the surrounding circumstances, which were certainly the decisive factor. In other words, the legal arguments that Bitar used to make his decision are based on the need to put an end to the absurd situation that the investigation had reached and do not necessarily constitute rules relevant in all circumstances.

The abuse that Bitar declared his intent to confront consists of not only the suspension of the investigation but also the collaboration of the political forces to deny all the requests he had submitted against senior officials, as well as the Cassation Public Prosecution’s reluctance to examine the responsibility of the two judges he had referred to it in July 2022. Here, too, Bitar struck a situation imposed by the crime of a system in which almost all the ruling forces are embroiled. This prompted him to adopt another legal interpretation enabling him to limit the scope of legal immunities and thereby charge people occupying extremely sensitive offices, including Cassation Public Prosecutor Ghassan Oueidat, General Director of General Security Abbas Ibrahim, General Director of State Security Tony Saliba, former commander of the Armed Forces Jean Kahwaji, and three judges. Thus, the decision became even more confrontational and defiant. The fact that Bitar charged these influential figures, which he could only do after summoning them for interrogation, suggests that he is preparing to indict them.

The Coup

Oueidat immediately responded to Bitar’s bombshell, reaching unexpected new heights in terms of breaching rules and procedure. His reactions resemble a coup in three aspects.

Firstly, he revoked his previous decision to recuse himself from any role as a prosecutor in the case (on the basis that his brother-in-law Ghazi Zaiter had been charged), a decision that had been duly confirmed by the Court of Cassation according to the Beirut Bar Association. This he did at the same moment he was informed of another factor definitively necessitating his recusal, namely that he had been charged in the case. Hence, this coup has the unprecedented result that the same person is both a defendant and the prosecutor in this case.

The coup’s second aspect appeared in the letter that Oueidat sent to Bitar. The letter included verses from the Quran and Bible that signaled the measures that would follow it. The Quranic verse reads, “If you are able to pass beyond the regions of the heavens and the earth, then pass. You will not pass except by [God’s] authority”. By using it in this context, Oueidat seemed to be telling Bitar that whatever he does, he cannot escape the authority of the ruling regime encircling him. The Bible verse reads, “With the measure you use, it will be measured to you—and even more”. Here, Oueidat seemed to be threatening Bitar that he would respond in kind and with greater severity. These two verses were quickly translated into action. Having reclaimed his power as a prosecutor, Oueidat not only charged Bitar but also banned him from travel, apparently to make him understand that he will remain at the mercy of those in control of the Lebanese situation and cannot free himself from it.

Thus, Oueidat reversed the roles, transforming from a defendant into a prosecutor against the Judicial Council investigator who had charged him. He also did not neglect to file a complaint against Bitar with the Judicial Inspection Authority.

Oueidat was not content with just these measures. Rather, he coordinated with the security agencies to create a spectacle demonstrating his hold over the situation in the face of a judge portrayed as having lost any capacity to continue his case, whatever his will or intentions may be. Oueidat appropriated Bitar’s powers by releasing all the case’s detainees. The judicial police’s implementation of these illegal decisions despite Bitar’s warnings about the consequences definitively showed that Oueidat calls the shots in this case and can impose his will even if it conflicts with the entire judicial-legal system. The sight of detainee Ziad al-Ouf boarding a plane hours after his release was further evidence of Oueidat’s ability to bend the law however he likes. Another sight reflecting the security forces’ coup against the judiciary was the leaked photo of Oueidat climbing the broad stairs to the courthouse flanked by approximately 20 heavily armed security personnel. On February 4, a State Security source leaked the news that if Oueidat drafts an enforceable summons for Bitar, the agency will execute it.

What Are the Investigation’s Prospects?

Since Oueidat announced the coup, serious questions have been raised about the investigation’s prospects. How can Bitar carry out notifications or warrants if the Public Prosecution does not recognize his authority? How can he issue his indictment decision without the submission from the Public Prosecution? Moreover, news spread indicating that the minister of justice may intervene to deprive him of his clerks and hence his logistical capacities. Such questions show the absurdity of the situation now that one of the case’s defendants has managed to appropriate the Public Prosecution, disregarding the Court of Cassation decision to recuse him. Does it make sense, for example, for Bitar to be required to send the entire casefile to Oueidat to obtain his opinion on it, on the pretext that he represents the Public Prosecution, when he is a defendant in the same case? Is it not completely absurd to require Bitar to obtain the opinion of a defendant before issuing an indictment? Should the Cassation Public Prosecution draft an enforceable summons or arrest warrant against the man who controls it and knows about every decision taken inside it? And these questions have highlighted another absurdity: the government’s failure to appoint another cassation public prosecutor in this case under Article 354 of the Code of Criminal Procedure. This article stipulates that if the cassation public prosecutor is charged in a case, a special cassation public prosecutor shall be appointed for the case by government decree – a procedure that certainly falls within the scope of caretaker-government decisions. Hence, the new circumstances, in which applying the texts would produce completely absurd results, seemed to be calling for Bitar to exercise legal interpretation once more.

However, the gravest question quickly became Bitar’s ability to move about and, in practice, to go to the courthouse because of continuous leaks about Oueidat’s readiness to issue an enforceable summons against him. The forces supporting Oueidat and the coup he initiated against the Judicial Council investigator were clearly striving to compound the obstacles preventing him from carrying out his task or issuing the indictment decision, going as far as to threaten his personal safety and liberty.

This last factor specifically seems to have motivated Bitar’s decision to indefinitely postpone the interrogations, which cited “the recent decisions made by the Cassation Public Prosecution”. However, he did not rescind his decision to retake control of the investigation or any of the charges he made against the cassation public prosecutor, security officials, or judges. This suggests that he deemed it difficult to complete his work unless two things occur. Firstly, Oueidat must acquiesce to the Court of Cassation decision to accept his self-recusal from the case, letting go of the Public Prosecution’s reins. Secondly, the complaint filed against Bitar for usurping authority must be dropped, either by the Public Prosecution or by the investigator that will presumably be appointed if Oueidat doubles down on it.

Thus, Bitar has – through necessity-based legal interpretation – taken steps forward in protecting the investigation and restoring hope that it will be completed. The most important of these steps include retaking control of the investigation – which will hopefully preclude the appointment of an alternate or replacement Judicial Council investigator – and expanding the scope of the charges to include several figures, foremost among them the cassation public prosecutor, the general directors of General Security and State Security, and the former commander of the Armed Forces. In other words, although pressure from the forces confronting him has compelled him to slow the pace of the investigation, there has been no regression and – most importantly – the investigation has been unfrozen in advance of a more convenient moment to forge ahead with it.

The battle to breach the wall of impunity that Bitar initiated is – like any extremely difficult battle – not expected to run smoothly, as it might in other countries where judicial independence and accountability principles are firmly rooted. Rather, it progresses in stages and milestones interspersed with many obstacles that sometimes halt the investigation and at other times slow it down, albeit without terminating it as there is a Judicial Council investigator who remains determined and capable of completing his task despite the risky confrontation it involves. The fears and concerns that beset us and that could halt the investigation again should not eclipse the fact that the bump we have struck is further along the road to our destination, so let’s keep our sights set on it.

This article is an edited translation from Arabic.