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Special Report on the
Independence of the Judiciary and the Role of the Prosecutors and the
Military Justice System in Lebanon
Introduction
On May 27, 2004,
regular contingents of the Lebanese Army engaged, in a poor Southern
neighborhood of Beirut, demonstrators who were participating in protests
during the national general strike called by the General Labor Union. As a
result, five civilians were dead, dozens of civilians suffered bullet
wounds and 109 persons were arrested. Most of the detainees were
prosecuted before military justice. A nearly equal number of non-detainees
were also prosecuted. On June 15, 2004, the chief public prosecutor before
the court of cassation, Adnan Addoum, submitted a written report on the
events to the president of the Republic, Emile Lahoud and the council of
ministers. The report was co-signed by Jean Fahd, the military prosecutor
general, and Brigadier Nabil Ghaferi, commander of the military police.
Apparently, Addoum, Fahd and Ghaferi constituted an ad hoc committee. The
basis and terms of reference of this committee, if any, remain unknown.
The report was leaked to the press which published it on June 20-21, 2004.
On June 23, 2004,
Addoum gave a televised press conference at his office at the palace of
justice, Beirut. His statements in the report and at the press conference
give cause for concern as regards the lack of recognition of the rule of
law and the dim future for democracy in Lebanon.
In this special
report, the Center for Democracy and the Rule of Law ("CDRL") wishes to
address some of the significant issues raised by the sayings of chief
prosecutor Addoum.
The Addoum Report
of June 15, 2004
The newspapers
that published the report called it a "judicial report". The report
describes in great detail the official version of the events of May 27,
2004, and depicts the demonstrations as riots. The report asserts that the
high command of the Lebanese army ordered the twelfth brigade to maintain
order during the national strike of that day in Beirut and its southern
suburbs, for the purpose of protecting government buildings, preventing
riots, securing all roads and arresting violators. The army's orders were
based on a council of ministers decision that dates back to 1991 assigning
to the army the task of keeping order in Greater Beirut, quelling all
violations by civil or military elements and preventing any unlicensed
serious demonstrations or gatherings.
The report
concludes that the army contingents involved in the said events were on
the defensive, that the soldiers acted in self-defense and that it was not
possible to determine the identity of the soldiers who fired the shots
that resulted in the deaths and injuries. It found no evidence that any of
the demonstrators fired on the army.
Finally, the
report reached the following conclusion:
"The facts proved
that security is coherent and under control, and that it is not easy to
break it. The active security forces that control security demonstrated
noticeable strength in the capacity to extinguish any fire that infringes
upon internal and national (meaning Pan-Arab) security."
The Press
Conference of June 23, 2004
The chief public
prosecutor before the court of cassation addressed the following main
issues:
A. Independence of
the judiciary and the role of the prosecutors.
B. Detention of
convicts beyond sentences served.
C. Billboard
advertisement and the respect for freedom of expression.
Each of these
issues will be addressed as follows. The issue of the role of the military
justice will also be addressed.
A. Independence of
the judiciary and the role of the prosecutors
A.1. Throughout
his press conference, Addoum spoke repeatedly on behalf of the judiciary,
reflecting the extent of his dominant role within the Lebanese justice
system. Following, for example, are some quotes from his statements on the
judiciary:
"We must say that
the judiciary is an independent power and the constitution has consecrated
this fact."
"The judicial
power is independent of the executive power and does not report thereto."
"As to the
judiciary I reiterate, affirm and say it is an independent power that, in
the final result, is subject to its conscience and the law'
"The judiciary
does not look the other way."
"The Lebanese
judiciary has no problem with any subject."
"The problem of
the judiciary is chronic and it may not be tamed. It is not subordinate to
anybody but is an independent power that the higher judiciary council
manages its affairs and the judges, thank God, are independent."
"The public
prosecution operates under the supervision of the minister of justice."
"The judiciary
informs the (executive) power."
"It was written
and signed by the committee that consists of me, the military prosecutor
general, and the commander of the military police."
A.2. The
Constitution and the statutes provide, with reference to the judicial
power, the judiciary and the chief public prosecutor, as follows:
The Constitution.
Article 20 of the
Lebanese Constitution ("LC") reads:
"The judicial
power shall be exercised by the courts of different instances and
competences in a system provided by law whereby the judges and the
litigants shall have the necessary guarantees.
The conditions of
judicial guarantees shall be provided by law. All rulings and decisions by
all courts shall be issued and enforced in the name of the People of
Lebanon."
Legislative Decree
No. 150/1983 known as the Code of the Justice Judiciary ("CJJ").
Article 4 CJJ
reads:
"The higher
judiciary council shall attend to the proper conduct of the judiciary, its
dignity and independence, and the proper conduct of business in the courts
and make the necessary decisions in this regard."
Article 9 CJJ
requires that all the decisions of the higher judiciary council ("HJC") be
delivered to the minister of justice as soon as they are adopted. The
chief public prosecutor before the court of cassation is, ex officio, vice
chairman of the higher judiciary council of which the first president of
the court of cassation is, ex officio, the chairman.
Code of Civil
Procedure ("CCP").
Article 1 CCP
provides as follows:
"The judiciary is
a power (authority) independent from other powers (authorities) in the
examination and resolution of lawsuits. Its independence shall not be
limited except as provided in the constitution."
Code of Penal
Procedure ("CPP").
CPP embodies rules
of procedure before the "penal judiciary", i. e. penal courts, or leading
thereto. Article 6 CPP entrusts public prosecutors with the function of
prosecuting public actions. A public action may only be brought against
the alleged perpetrators of crimes with the object of subjecting them to
penalties. CPP does not call prosecutors judges but merely prosecutors.
The powers of the chief public prosecutor consist of representing
prosecution before the court of cassation and supervising lower ranking
prosecutors in the conduct of public actions. His relationship with the
minister of justice is mentioned only in Article 14 CPP which permits the
minister to request him to initiate prosecution with respect to crimes of
which the minister becomes aware.
A.3. The "penal
judiciary" is an indivisible part of the "justice judiciary". Justice
judiciary is independent of administrative justice, military justice, a
large number of special courts and commissions, religious courts, and the
constitutional council.
A.4. In Lebanon,
prosecutors are appointed from among judges. They are often reassigned
from, and back to, courts. So technically, they are members of the
"judiciary." This is the main source of the confusion between the role of
the prosecutor and the role of the judge. Addoum was briefly president of
the criminal tribunal of Mount Lebanon before his appointment to his
present office nearly eight years ago. But he continues to call himself a
judge. Other, lower ranking prosecutors, do the same.
A.5. What enhances
the confusion is the use the statutory term "judiciary" as synonymous with
the constitutional term "judicial power." The constitution does not use
the term "judiciary". It is clear from the constitution that judicial
power is not a body but simply a power that may be exercised by any duly
competent court or single judge. The most significant criterion to
distinguish who my exercise the judicial power and who may not is the
ability to make rulings and decisions in the name of the People of
Lebanon.
Like all
prosecutors, Addoum may not exercise this power. A prosecutor is a public
attorney who prosecutes and argues public actions before a court that has
the ability to exercise the judicial power.
A.6. The judiciary
is not a body equivalent to the bodies of executive or legislative
branches of government in that the executive power can only be exercised
by the council of ministers, not by any single minister, and the
legislative power can only be exercised by the parliament, not by any
member of parliament. The term "judiciary" does not describe a body such
as the council of ministers or the parliament. It is used to describe the
totality of judges in the same sense as the term "administration". When
the law refers to the independence of the judiciary, it can only mean the
independence of the judges. Prosecutors, too, must be independent. The
constitution does explicitly provide that the judicial power, or any other
constitutional power, shall be independent, but the principle of
independence, through the separation of powers, is an established
constitutional rule.
A.7. When Addoum
accepted to become part of an ad hoc committee, that also included a
military commander and the military prosecutor general, who both fall
under the authority of the minister of defense, in preparing and
submitting a report to the council of ministers, he proved that he cannot
be a member of a judiciary that may exercise the constitutional judicial
power. At the same time, he compromised his independence as a prosecutor
by reporting to the executive and not the judicial branch of government.
When Addoum unlawfully reports to the president or the council of
ministers, which he ought not to do, he is bound to receive instructions
therefrom. Like all prosecutors, Addoum's sole duty is to report to the
court or courts of competent jurisdiction in the context of instituting or
prosecuting public actions.
A.8. Addoum's role
in authoring the report and his press conference are serious indicators of
the dangerous overlap of the prosecution's role over the role of the
courts to the extent that may be clearly seen from Addoum's own example. A
judiciary dominated by prosecutors is a threat to the rule of law and
democracy.
A.9. Most
countries strictly separate the two roles. The prevailing international
point of view on this issue supports the separation of the prosecutors
from the judiciary in order to avoid any such overlap or confusion. Even
where prosecutors are technically recognized as judges they are not
considered part of the judiciary. In France there is currently a wide and
serious discourse over this issue.
A.10. The
confusion of the two roles is a prime source of public dissatisfaction
with the judicial system. As they wrongly believe themselves to be judges,
prosecutors chronically exceed their authority and overstep their
boundaries. They often assume the role of decision-making by wrongly
ordering arrests, issuing eviction orders, and getting involved in
property and other civil disputes. A large number of their directives to
the police is verbal. During investigations by investigation judges and
examination in penal courts, prosecutors are generally privy to
information and documents that are not made available on equal footing to
defense attorneys. Secrecy is generally used to deny the rights of defense.
A.11. CDRL
supports the strict separation of prosecutors from the judiciary. This
should also apply to investigating judges. When judges are appointed
prosecutors they should not be reassigned to courts in the future. Courts
and investigating judges should maintain equal distances to prosecutors
and defense attorneys in strict observance of the rule of equality of arms
which is one of the pre-requisites of the respect for the rights of
defense. Findings and investigations of prosecutors and investigating
judges should not be used other than for the purpose of indictment and
should not be admissible as evidence in trials.
A.12. CDRL further
believes that prosecutors should not have the power to order detention, or
other measures that affect personal or real property, either verbally or
in writing. Such an authority rests exclusively with judges who are
entitled to issue their decisions in the name of the People of Lebanon.
A.13. Moreover,
prosecutors should not sit on HJC under any pretence. CDRL believes that
the duties and functions of HJC council should come under close scrutiny
in view of reforming this administrative body.
A.14. It is
terrifying to hear a prosecutor in high position, such as Addoum, speak
officially in terms of maintaining "national and pan-Arab security". This
language cannot be found in legal dictionary and is reminiscent of the
rhetoric of officials of the former Soviet and other Eastern European
regimes. Addoum had no business, in the report of June 15, 2004, using
such language or coming to such conclusions.
B. Detention of
convicts beyond the sentence served
B.1. Addoum
acknowledged casually that hundreds of foreign imprisoned convicts finish
serving their sentences; nevertheless, they are not released but routinely
and indefinitely kept in detention at Roumieh and other jails, and that
this abuse led recently to a hunger strike. He further acknowledged that
those illegal detainees are subsequently delivered to the Directorate of
Surete General which maintains its own detention centers.
B.2. This is the
first public acknowledgment by a high Lebanese government official of the
abuse to which many foreign nationals are routinely subjected in Lebanon.
The fact is that they are held captive until they produce through their
own means the cost of airline tickets home, then they are deported.
Needless to say, the prisoners generally have no means to speak off, their
meager possessions are confiscated and they have no direct access thereto,
and their opportunity to raise money depends on their ability to work.
Hence a large number of them become permanent hostages.
B.3. It is beyond
any question that the government owes every prisoner the duty to release
him upon full service of his sentence, and that it may not keep him in
detention beyond the term of such sentence.
B.4. Addoum's
statement with regard to the unlawful imprisonment of foreigners, and his
clear approval of such a highly questionable practice, cannot be
reconciled with Article 367 Penal Code which make it a major crime for any
civil servant to detain a person other than where provided by law, and
Article 368 Penal Code which punishes prison directors and guards with a
jail term of one to three years for keeping a person in detention beyond
the term of his sentence.
B.5. CDRL wishes
to remind the Lebanese Government that foreign nationals are fully
entitled to equal protection of the law and that they, too, have human
rights that must be fully protected.
B.6. CDRL calls
for the immediate and unconditional release of all persons, Lebanese and
foreign, who are being imprisoned unlawfully, i. e. beyond the term of
their respective prison sentences.
C. Billboard
advertisement and the respect for freedom of expression
C.1. Addoum
mentioned in his press conference that the heads of religious
establishments had asked him to take action with respect to billboards
displaying advertisements that depict uninhibited pictures. He asked the
owners of the billboards to remove those ads.
C.2. Again Addoum
is playing the role of judge when he is only a prosecutor. He must respect
the presumption that the ads are protected by the right of free speech. If
someone wishes to challenge such a presumption, the challenger must first
file action before a court of competent jurisdiction so that each case is
judged on its own merits in a way that balances the right of free speech
and the duly proven community standards of morality.
C.3.The heads of
religious communities have long yielded much influence in censoring
publications and the arts in Lebanon. Such a role is in direct conflict
with the rule of law and the constitutional separation of state and
religion and cannot be tolerated in any democratic society.
D. The role of
military justice
D.1.The role of
the military justice in association with the events of may 27, 2004, is
taken for granted throughout the report and the press conference. This
role is accented by the signature of the military prosecutor on the
report. This means that the indictments will be issued in military
justice, will be confined to civilians, and will not include members of
the military. It also means that the survivors and the families of the
victims of the events of May 27, 2004, will have no visible recourse.
D.2.The court
where the trial of the indicted civilians will take place will be the
Permanent Military Court or one of many lower military courts. It is not
possible to bring personal action for damages in such courts. These courts
are dominated by military officers with no legal training. The military
justice system always has compulsory jurisdiction in such events, whether
the forces involved are military or are part of the police or the
gendarmes. In all events, military and police personnel enjoy special
immunity against prosecution that can only be lifted by their respective
top commander.
D.3. The only
recourse for the survivors and the victims' families would be civil courts
in costly actions against the state for damages. A Beirut judge recently
rejected one such case out of hand.
D.4. The military
justice system in Lebanon is intrinsically unfair and does not comply with
normal legal standards internationally recognized. Due to the compulsory
jurisdiction of this system, the survivors of the events of May 27, 2004,
and the families of the victims are effectively denied the right to use
normal penal courts against the alleged perpetrators of the crimes causing
scores of deaths and injuries.
D.5. CDRL calls
for the immediate abolishing of the military justice system in Lebanon
with jurisdiction over civilians, and the lifting of immunity from
prosecution enjoyed by the police and the military personnel. Survivors
and families of the victims of the events of May 27, 2004, should have the
opportunity to fully exercise their right to seek redress in regular
courts. |
