Lebanon’s Prosecutorial Authority, a Shield for Protecting Society or an Arm of the Political System?

Credits: Judge Ghada Aoun talking to reporters after storming the Mecattaf Holding Group’s offices – Marc Fayad – L’orient Le jour

Since the October 17 uprising, the Lebanese people have been calling for the disclosure of corruption files and for holding corrupt officials accountable. The Public Prosecution Office (PPO) is the legal authority entrusted to carry out investigations into these matters and has the authority to exercise their role in defending the interests and rights of society. They are the ones that enforce accountability, particularly through the initiation of public prosecutions1.

On a number of occasions, and in contrast to what is expected of the PPO, independence and impartiality of investigations was not adhered to. The most prominent example being the actions of the Court of Cassation Public Prosecutor Ghassan Oueidat who met with representatives from the Association of Banks in Lebanon (ABL) in his office. This meeting followed several complaints against ABL as a result of the restrictions imposed on depositors’ rights without any legal grounds. It was an unusual incident that falls outside the judicial investigative framework or the mandate of the PPO. Additionally, defying standard conduct, the results of this meeting were recorded as “unattested meeting minutes” and not as an investigation report. In the end, it was blatantly clear that this meeting was held to protect the interests of the banking sector and not the citizens “the depositors”. It became apparent that the aim was to cover up the banks’ actions and justify how they evaded their obligations towards depositors rather than discussing any precautionary measures to prevent the banks from smuggling their funds. What should be noted is that the Cassation Public Prosecutor (CPP) suspended the March 5, 2020 Financial Prosecution Office’s order to freeze the assets of 20 Lebanese banks, their top bosses, and boards. Oueidat justified his actions by claiming that the order represented a “threat to the public interest.”

Credits: Directed ‘protesters’ scuffling with the Lebanese Army soldiers in front of the High Judicial Council – EPA (EPA) – The National News

To add fuel to the fire, Mount Lebanon Public Prosecutor Judge Ghada Aoun has been storming the news headlines lately after having authorized raids of Mecattaf Holding Group’s offices. The wholesale money exchange group is part of investigations into money laundering and illicit enrichment allegedly conducted by some of Lebanon’s top-level financial officials such as Riad Salameh, Governor of Lebanon’s central bank as well as leading banking institution Société Générale de Banque au Liban (SGBL). Judge Aoun had obtained information pertaining to the transfer of billions of dollars abroad by Mecattaf between 2019 and 2021, for the benefit of five local banks with the largest share being for SGBL. The raids were instigated by the judge after the company refused to submit the documents she had requested as part of the investigation. However, she was later informed by the company’s lawyer of the CCP’s decision to redistribute the public prosecutor’s tasks within the  Mount Lebanon Governorate PPO. This resulted in her subsequent dismissal from the case or any other financial one.  

The decision constituted yet another example of the abuse of power to close judicial cases and work against the interest of the public by the CPP. Again, it can be seen that  the objective of the CPP’s intervention was in favor of the banking sector and its allies. The Lebanese Judges Association referred to just that in its statement explaining that Ouediat’s decision on the redistribution of responsibilities was issued almost simultaneously with the letter sent by the Central Bank’s governor to him about the importance of putting an end to prosecutions against the banking sector. 

Credits: Lebanese army soldiers guarding the High Judicial Council while Ghada Aoun was summoned inside – EPA (EPA) – The National News

Society Rights in the Hands of One Person

In 2001, former CPP, Adnan Addoum, pushed for the adoption of the Code of Criminal Procedure Amendments, which resulted in the transfer of PPO’s authority from the Minister of Justice to the CPP. Even though the aim was to strengthen the independence of the PPO, the appointment of the Cassation Public Prosecutor who heads it through a decree by the Council of Ministers and based on a proposal by the Minister of Justice, defies this aim. This is done without giving any role to judicial bodies and in the absence of any objective criterion, except that of seniority. Essentially, the transfer of power goes from one single member of the government to a judge collectively appointed by the government and in the context of political bargaining. Such a transference of the authority in this manner is merely a cosmetic change aimed at projecting an image of independence of the prosecutorial authority, while in reality it is the opposite. This move gave politicians more leeway to abuse their powers without bearing any direct responsibility. What makes this more dangerous is that the judicial functions of the Cassation Public Prosecutor allows them to interfere in the work of State Public Prosecutors more than the Minister of Justice before them. Furthermore, this is done under the pretext that such interference is coming from within the judiciary system instead of the executive one.

The 2001 amendment of the Code of Criminal procedure granted the CPP immense authority over the public prosecutors and this is lethal to the impartiality and independence of the justice system in Lebanon. In addition, the amendment now gave the CCP the power to investigate all criminal cases and lift public employees immunities . Authority was also given that extends to all prosecutors and through it the CPP may give them written or oral instructions for the conduct of a prosecution. Due to the fact that the CPP is right at the top of a vertical structure in the strict hierarchy that the Lebanese prosecutors operate in, they can give instructions to all staff working in the PPO and override orders given to public attorneys for example by their superiors.

One thing that the law does not do however is impose an obligation to formally communicate  these instructions in writing. Thus presenting a lack of transparency and accountability and therefore any  concerned parties cannot review them. Moreover, no member of the Public Prosecution can challenge or scrutinize these instructions. 

The amendment of the law and granting the CPP the authority to fully control prosecution offices enabled the government to indirectly control it and helped politicians avoid corruption allegations. The loyalty of the CPPr to those who appointed them transformed the role of the PPO to a judiciary of instructions one.  Accordingly, just as Adnan Addoum constituted a guarantee for the Syrian regime, subsequent CPPs played similar roles in protecting the interests of the ruling elites after 2005. This is what the former CPP Hatem Madi admitted when he stated in a television interview (Nharkom Said, April 19, 2021, on LBCI channel) that the CPP is the security and judicial arm of the ruling elite. 

Accordingly, Ghassan Oueidat’s actions, circulars, and decisions are in complete harmony with the actions of his predecessors. The current system of the PPO is a threat to public interests and is one of the most prominent tools of the current corrupt leaders’ impunity. 

No Prosecution of Corruption Cases Without Instructions from the CPP? 

Since his appointment, Oueidat has adopted several practices to gain more authority under the strict vertical hierarchy of the prosecution offices beyond what the law permits him: 

  1. On September 23, 2019, less than two weeks after his appointment as a CPP, he issued a circular2 to all members of the PPO. The circular instructed them to inform him of any action to be taken on all cases related to the public sector and public interest, including corruption ones. Thus, fostering the vertical and strict hierarchical system of the prosecution authority and violating the law. His action also disregarded the provisions of the International Convention against Corruption (UNCAC), which requires facilitating the prosecution of corruption cases and prevents hindering them.
  2. Seeking to hinder and stop the corruption case3 initiated by Judge Ghada Aoun against former Prime Minister Najib Mikati and his associates on the grounds of illicit enrichment.
  3. Issuing orders that all files related to attacks on activists of the October revolution must be referred to him. This measure  restrained the initiation of any prosecution against the supporters of the parties in power, who destroyed the activists’ tents and assaulted them in Beirut.
  4. Oueidat’s full control4 of the file cases on the violations of maritime properties, which led to the PPO’s failure to exercise its role in evacuating unlawful and unauthorized maritime occupancies.
  5. The circular issued on August 4, 2020, which is addressed to both PPO and investigative judges, prohibiting them to take any action against any public employee before consulting with the Central PPO, i.e. CPP. On April 14, 2021, Criminal Judge Lara Abdel Samad issued a memo denying abidance of this circular
  6. His intervention to force Financial Prosecutor Ali Ibrahim to stop his decision5 preventing the banks and members of their boards of directors from disposing of their real estate and shares. This is in addition to his interference in the money smuggling case following the letter from the Central Bank’s governor Riad Salameh.
Credits: Lebanese army soldiers facing directed ‘protesters’ in front of the High Judicial Council where Ghada Aoun was summoned – EPA (EPA) – The National News

Conclusion

In this article, we wanted to emphasize the negative effects of the Public Prosecution’s structure and its strict hierarchy, on people’s rights and public interests. In particular we aimed to focus on holding public officials accountable despite the fact that this hierarchical authority guarantees the impunity of public and political officials.  Judicial reform is an important step in overcoming  many of Lebanon’s problems that stem from corruption and abuse of power. Such reform will ensure the independence of the judiciary and as a result accountability of public officials.Conducting criminal proceedings on behalf of the government or in the public interest

1 Conducting criminal proceedings on behalf of the government or in the public interest

2 The Legal Agenda, the hierarchy of the Public Prosecution, which the Legal Agenda has been constantly warning against: The “Public Interest” is in the hands of one person, 03-05-2021 

3 Legal Agenda, the judge who applied for the first time the Illicit Enrichment Law against an off-duty official: Mikati continues his political activities as if nothing is happening, 30-10-2020

4 Nizar Saghieh, the Public Prosecution recognizes the “commodification” model of the beach: When war values prevail, 18-05-2020 

5 Nizar Saghieh, Imad Sayegh, Cassation Public Prosecution falls under the bank rationale: Restricting the rights of depositors on the pretext of protecting them, 14-03-2020

The Legal Agenda
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Legal Agenda is a Beirut-based non-profit research and advocacy organization with offices in Lebanon and Tunisia and correspondents in several other Arab countries. It was established in December 2009 by a group of legal professionals, scholars, and human rights activists who institutionalized their efforts to build a critical and multidisciplinary approach to law and justice in Arab countries with a special focus on political, civil, social, and economic rights.  Since its inception, the Legal Agenda has conducted analytical research on legal and judicial developments in the Arab region from a critical and multidisciplinary perspective. Its research examines how laws are produced and applied and the relationship between law and social changes. The Legal Agenda has three different media publications, namely The Legal Agenda–Lebanon, The Legal Agenda–Tunisia, and The Little Agenda magazines, in addition to its website. Via these platforms, the Legal Agenda contributes to public debate with the results of its research, investigative journalism, and watchdog activities. Through strategic litigation and advocacy activities, the Legal Agenda promotes legal and social change via the courts and public institutions. In 2014, the

Legal Agenda established the Civil Observatory for an Independent and Transparent Judiciary in Lebanon, which monitors and analyses court cases, trials, and judicial policies concerning the various actors in the justice system, such as judges, lawyers, litigants, and judicial assistants. In 2019, the Legal Agenda launched the Parliament Observatory in Lebanon, which monitors and analyzes legislative activity and practices and works to ensure access to legislative information and improve the legislature’s work.