August 4, 2020: a day engraved in both individual and collective memory, a day during which time froze for a few moments in Beirut, moments during which the Beirut Port blast killed more than 200 people and injured over 7000.
More than four months after the blast, on December 10, 2020, Judicial investigator for the Beirut Port blast, Judge Fadi Sawan, charged caretaker Prime Minister Hassan Diab, former Finance Minister Ali Hasan Khalil as well as former Public Works ministers Ghazi Zeaiter and Youssef Finianos for negligence that led to the death and injury of hundreds.
Once the news of the charges got out, political movements and parties that once were and are still in power rushed to voice their support to those charged considering this a matter of “constitutional immunity”, refusing the “abuses of prosecutorial discretion”.
In the wake of these charges, former ministers Ali Hasan Khalil and Ghazi Zeaiter filed a request that the case be transferred. Consequently, on February 18, 2021, the Lebanese Court of Cassation issued a decision by a majority of two-thirds of its members to remove judicial investigator Judge Fadi Sawan from the Beirut blast probe and to transfer the case to another judge.
The court came to this conclusion after it had considered that there was “legitimate suspicion” over Sawan’s neutrality and impartiality for the following two reasons:
- First, the interpretation of what Sawan had said when the request to transfer was made: “I will not stop at any immunities”, as something “that cannot have any other explanation, that he clearly means that he will not uphold any laws on said immunities”;
- Second, that Sawan had affirmed that his house was damaged from the explosion.
What stood out in the Court of Cassation’s decision is its insistence, on the one hand, on enforcing its own reading and understanding of the constitution and of the legal texts, forbidding the judge from looking into the conditions for the application of the immunities stipulated by the constitution and the law; and on the other hand, on expanding the concept of ‘conflict of interest’ that might forbid the judge from looking into any case that might be brought to him.
The Court of Cassation’s decision raises issues related to a conflict between some constitutional standards and immunities enshrined in the constitution, that require reconciliation between them. These issues are related to the right to access justice (a right that is guaranteed in the International Covenant on Civil and Political Rights that has constitutional value), and to the principle of the independence of the judiciary, stipulated in Article 20 of the Lebanese Constitution. These two issues will be discussed in this article.
When analyzing the adopted logic, it becomes clear that the decision to recuse the judicial investigator was made following a reading of the constitutional and legal texts related to the immunity of members of parliament and lawyers. It is likewise clear that this logic was based on a view of the legal function that keeps the judge from looking into public affairs cases.
1. The independence of the judge stops at immunities
Article 20 of the constitution stipulates that “the judges shall be independent in the exercise of their functions.” The independence of a judge is not limited to his external independence from the legislative and executive authorities, but also lies in the concept of internal independence from his fellow judges. The judge is “ not to be subjected to any pressure from within the judiciary by judicial bodies and colleagues, especially those who hold high judicial positions and more specifically positions that have an influence on his or her career. Paragraph 3 of the Singhvi Declaration points to the independence of judges when making their judgments from other judges who may be either their colleagues or even superiors, and that any hierarchical judicial regulation or a difference in rank or position shall not in any way affect a judge’s freedom to make his or her judgment freely. ”
One of the most prominent aspects of this internal independence is that it is not permissible to interfere in the decisions issued by the judge except in the context of the appeal procedures that are permitted by the law, and these include objection, objection by others, retrial, appeal, and cassation. It is thus not permissible, for example, to transfer the case and recuse the judge just because the litigants object to his reading and interpretation of the law. Said litigants are to await the issuance of an appealable judgment for them to refer to and appeal according to the means established by law.
The problem raised following the decision of the Court of Cassation lies in this point and specifically in that the court interfered with the judge’s interpretation of the law and the constitution. The court did this while it was not looking into the investigation of the Beirut Port blast in its status as the competent authority for challenging the decisions of the judicial investigator (thus it was not up to it to consider the correct application of the law), but rather as the authority that looks into and considers the request for transferring the case and verifying whether there is legitimate suspicion.
In other words, the issue before the Court of Cassation was not related to whether the judicial investigator had the right to charge lawyers and members of parliament in their capacity as former ministers when ammonium nitrate was imported in bags and stored, as this falls under the category of procedural claims that defendants may present before the investigative judge, and at a later stage, before the Judicial Council (Abdo Ghossoub, “Notes on the decision by the Criminal Court of Cassation, 6th Criminal Chamber, under No. 5/2021.”)
However, the court has insisted on delving into this issue and imposing its own reading of the constitution and law, making immunities one of the legal prohibitions that the judge is forbidden from examining or verifying that the conditions for the application of said immunities are met.
Thus, the takeaway from the court’s decision is that any judge who decides to limit the application of immunities stipulated in the constitution and laws will be recused and will no longer look into the given case. This in itself constitutes an interference with the judge’s internal independence, an interference that stems from his colleagues, members of the Court of Cassation. This interference in fact dictates to the judge a certain way of interpreting the law, outside the appeal framework, at the risk of recusing and stopping him or her from the case file he or she ought to look into.
It is also worth noting in this context that this directive came in relation to the alleged immunity of political officials from prosecution and to the closing of any window of opportunity to confront the stifling corruption in how public affairs are managed. In the law, though, different approaches to the issue of constitutional and legal immunities exist. This is evident, for example, in the approach of some courts, specifically the European Court of Human Rights, which convicted countries for violating the right to a fair trial when the parliament refused to lift parliamentary immunity, despite the absence of any link between the actions subject to prosecution and parliamentary functions. The Court considered that “the suspension of criminal proceedings against a member of parliament during their parliamentary mandate would result in a substantial amount of time elapsing between the commission of the acts complained of and the opening of criminal proceedings that would render the latter uncertain, particularly regarding evidence…” (CEDH, 16 November 2006, Tsalkitis v. Greece, application n°11801/04).
It is within this very same framework that Judge Sawan expressed that “the decision to summon the plaintiffs as defendants was made in their capacity as former ministers and not in their capacity as lawyers or in their parliamentary capacity, so they do not benefit from immunity.”
In brief, this is a message addressed to all judges in Lebanon: Beware of resorting to interpreting the law and the constitution as if it were to set conditions for the reconsideration of immunity and for prosecution fundamentals; any autonomy will be met with dismissal!
The position of the Court of Cassation raises controversy not only regarding the interference in the work of the judge but also in relation to the refusal to read and interpret how immunities are stipulated in the constitution and law in light of the goal of said stipulation, as well as in light of the constitutional right to a fair trial.
2. The neutrality of the judge keeps him from looking into cases related to public affairs
The Court of Cassation based its decision on a second reason, which is that the judge’s house was damaged. This incurred a “psychological impact due to human nature,” which would justify “the plaintiffs’ belief that this situation will make it difficult for the judicial investigator to make decisions in the case he is investigating while preserving his impartiality from any prejudice.”
Following this reasoning, the court seems to overlook that the judge belongs toa community and that he is exposed just like the rest of the community to the damages resulting from any act that constitutes an infringement on public interest and affairs. This is the case of the Beirut Port blast, which has caused extensive damage, affecting all residents of Lebanon. “Personal interest” is not a factor when the judge’s interest does not differ from the interests of all residents in Lebanon in general and Beirut in particular, especially since the judge, as stipulated in Article 20 of the Constitution, issues decisions and rulings “in the name of the Lebanese people.” (Pascale Fombeur, Alexandre Lallet, « Fasc. 70-11 : JUGEMENT. – Impartialité de la juridiction. – Prévention des conflits d'intérêts des juges. – Abstention et récusation », JurisClasseur Justice administrative, n° 41.)
Recusing the judge specifically for this reason constitutes a dangerous development at the level of the judicial function in general, as it leads to keeping the judiciary from looking into all cases related to public affairs under the pretext of lack of neutrality and impartiality.
Therefore, in view of the aforementioned, we cannot help but ask: What “legal structure” does the Court of Cassation refer to in its decision, when the judge’s independence is not respected and when the judiciary is kept from looking into all public affairs cases in the manner we have just referred to?