MEMORANDUM

Republic of Lebanon vs. Mugraby: A history of attempted prosecutions and judicial fairness

Re: The pending proceedings involving Dr. Muhamad Mugraby and violation of due process and the right of defense.

1. Background

1.1 Under the direction of the chief public prosecutor of Lebanon, the public prosecutor of Beirut has been trying, for over ten years, to prosecute Dr. Mugraby in relation to his human rights activities. Now, the conflict consists of two criminal lawsuits in progress, both on charges brought by the Bar Association at Beirut ("BAB"), as well as seven lawsuits pending before the Beirut Court of Appeals in which Dr. Mugraby is contesting the right of the public prosecutor to prosecute him. The oldest of the said seven proceedings dates back to 1996 and involves criminal charges filed against Dr. Mugraby by SOLIDERE, a real estate development company controlled by Prime Minister Rafic Hariri which was granted the ownership of the old city of Beirut by special legislation, alleging that Dr. Mugraby, a strong opponent of SOLIDERE, had caused destruction in the Khayat Building on Fouad Shehab Avenue (which was subsequently demolished by none other than SOLIDERE under the protection of hundreds of policemen in gross violation of the building owner's rights). The original number of these lawsuits was nine, and all pertain to lifting Dr. Mugraby's immunity as a lawyer, but he has already won the first two of them. These actions exist (with the exception of the two BAB lawsuits) because the public prosecutor was abiding by Article 75 of the Code on the Organization of the Legal Profession ("COLP"), which prohibits the provisional detention of lawyers, and Article 79 of the COLP, which prohibits the prosecution of lawyers without petitioning the council of the BAB in advance for its permission. All decisions of the said council are subject to appeal before the court of appeals. Enclosed is a schedule of the original nine lawsuits.

1.2 Before the two criminal lawsuits and the two recent appeals as will be explained hereinafter, Dr. Mugraby had also been involved with the BAB in a legal conflict consisting of six pending lawsuits in addition to a report he had filed with the financial prosecutor and an addendum thereto. This coincided with the intensification of Dr. Mugraby's appeal to reform the judiciary and the formation of the Campaign for Judicial Integrity. The conflict started on April 3, 1999, and reached its peak when the former president of the BAB brought criminal charges against Dr. Mugraby on November 19, 2000, the day after the current president took office, for purportedly slandering the BAB Council. This action prompted the filing by Dr. Mugraby, on February 26, 2002, of the newest civil action against the BAB and its previous and current presidents, seeking an order to prevent the BAB and its president from harassing him or interfering with his practice of law until a final decision is entered in the action. Much of the civil conflict centers over the validity of the BAB's internal bylaws and their sharp conflict with the COLP and other laws in force, the powers of the BAB presidency, and Dr. Mugraby's rights and freedoms under the Lebanese Constitution and the Universal Declaration of Human rights. A schedule of the lawsuits pending with the BAB is enclosed. A copy of the claim form in the said action is hereby enclosed in its Arabic original. Translations will be provided when they become available.

1.3 The public prosecutor and the investigating magistrate allowed the criminal complaint of the former head of the BAB against Dr. Mugraby to go forward without first complying with the requirements of Article 79 COLP, and in spite of the fact that he had no capacity to act on behalf of the BAB. It alleged slander of the BAB by Dr. Mugraby due to a communiqué issued by the Campaign for Judicial Integrity, a coalition of activists of which Dr. Mugraby is chairman. The communiqué criticized the hasty action taken by the BAB council in promptly authorizing the prosecution of Ms. Shmaisani, a young lawyer from South Lebanon. The charges against Ms. Shmaisani were brought by three judges, of which the full panel of the Sidon Criminal Court is comprised, at a time when those judges were being officially investigated for having unlawfully released one of her clients without her knowledge and under highly suspicious circumstances. The client, who had been a fugitive, called Ms. Shmaisani to report that he obtained his release by making a bribe of fifteen thousand dollars plus paying a fee of five thousand dollars to a new lawyer who arranged for his release. She reported the substance of the telephone call to the clerk of court who in turn reported it to the senior judge on the panel, the chief judge of South Lebanon. Ms. Shmaisani was called to testify as a witness in the investigation conducted by the Judicial Inspection Bureau, and the obvious purpose of the charges was to intimidate her and discredit her testimony. Dr. Mugraby agreed to represent Ms. Shmaisani, under the proceedings of Article 79, in challenging the decision of the BAB council.

1.4 In February of 2002, disciplinary proceedings against Dr. Mugraby were commenced based on an order allegedly made by the former head of the BAB in November of 2001 before leaving his office. They resulted in a decision made in absentia dated April 4, 2002 purporting to suspend Dr. Mugraby from practicing law for three years. Dr. Mugraby does not recognize the purported decision, the purported disciplinary board, the legal basis for bringing the proceedings, and the authority of the person who ordered it to do so. He promptly appealed the purported decision to the Beirut Court of Appeals as authorized under Article 108 COLP.

1.5 The present head of the BAB, Mr. Chedid, used Dr. Mugraby's civil action of February 26, 2002 as the pretext for a second purported disciplinary proceeding that culminated in an illusory decision, made in absentia dated January 17, 2003, allegedly striking Dr. Mugraby off the BAB register. According to Mr. Chedid, Dr. Mugraby failed to obtain his 'required' personal permission in advance of filing the action against BAB. In other words, the head of BAB sought to punish Dr. Mugraby for using one of his civil rights in his own defense. Signaling the commencement of the new proceeding 18 days after the first purported decision, Mr. Chedid's letter to Dr. Mugraby, addressed on April 22, 2002, constitutes a clear admission of the motives of his new action. A copy thereof is also enclosed in its Arabic original. An English translation will be provided when available. Again, Dr. Mugraby promptly appealed the second purported decision to the Beirut Court of Appeals as authorized under Article 108 COLP.

1.6 Each of the two purported decisions, purportedly adopted in absentia, was signed by three "lawyers" constituting a "disciplinary board". These are two of the three such "boards" constituted by order of the BAB president in flagrant violation of his mandate under Article 96 COLP, which permits only one board consisting of two members under the chairmanship of the BAB president. Article 99 COLP authorizes disciplinary prosecution for violations of lawyers' duties under the COLP, or for conduct otherwise dishonorable to the dignity of the legal profession. Thus, the three 'disciplinary councils' of nine members with three permanent chairmen are illusory and nonexistent. Criticism of the decisions of the BAB council (as part of the activities of the Campaign for Judicial Integrity, led by Dr. Mugraby) is not a disciplinary offense as alleged, but a proper exercise of basic constitutional and human rights that was violated by Mr. Chedid. The illusory and nonexistent decisions were intended to serve as a punishment for criticism. The president of the BAB first tried to give teeth to his "decision" through the former chief justice (the brother of the president of Lebanon), who acceded to his demand, called the chief clerk of the court of cassation, and ordered her not to accept any more papers from Dr. Mugraby or his law firm. When word reached Dr. Mugraby, he went to see the chief justice and discussed the matter with him. The chief justice was convinced of his error and called the chief clerk, reversing his prior instructions.

1.7 Thereafter, Dr. Mugraby continued the practice of law normally and kept normal relations with the BAB. In June of 2002, he sought and received written permission required under the COLP to accept a number of clients in a lawsuit against a colleague. On April 1, 2003, he paid his annual dues to the BAB against an official receipt. The payment was made by check, and the president of the BAB, Mr. Chedid, personally endorsed the check for deposit. Evidently, the BAB did not take the two "decisions" seriously. Rather, it appears that it was hoped that they might succeed in silencing Dr. Mugraby through intimidation.

1.8 In June 2003, a large number of lawyers with BAB membership nominated Dr. Mugraby for election to the BAB council and to the BAB presidency. In order to block Dr. Mugraby's campaign activities and his election, the president of the BAB brought criminal charges against Dr. Mugraby accusing him of "impersonating a lawyer". Mr. Chedid based his criminal complaint against Dr. Mugraby on the two aforementioned purported decisions, which were purportedly adopted in absentia. Furthermore, the petition called for the immediate arrest and jailing of Dr. Mugraby, who was arrested on August 8, 2003, and released three weeks later. The president of the BAB formally opposed his release on four different occasions. Indictment proceedings are still pending as the investigating magistrate discarded the main charge. The case is in appeal.

1.9 Moreover, the full text of the petition (a copy of which was never made available to Dr. Mugraby or his law associates) was published in a daily newspaper, Ad-Dyar, two days after his detention.

1.10 Shortly after Dr. Mugraby's release, a lawyer for the BAB requested that the president of the court of appeals set a date for a speedy hearing in the two appeals against the purported disciplinary decisions. The date was set for October 8, 2003, although no slots were available on its calendar for that date.

1.11 Thus we are faced with a president of a bar association at Beirut who commits grave errors of law, openly violates the basis of his legitimacy, orders the formation of unlawful and illusory "disciplinary councils", and, in total disregard of the judiciary's role in resolving the pending civil legal conflict, orders two of these "councils" to place Dr. Muhamad Mugraby on disciplinary trial in absentia for matters unrelated to his obligations as a lawyer but rather to the exercise of his constitutional, civil and human rights. The irony of it all is that Dr. Mugraby used to defend clients against the abuse of power purportedly based in the constitution and the laws, while now he stands to defend himself against the abuse of illusory and nonexistent "power", which is not only legally baseless but is in defiance of legal power, the Constitution, and the Universal Declaration of Human Rights.

2. Proceedings before the Court of Appeal and Fresh Violation of Due Process

2.1 As Dr. Mugraby's case before the Beirut Court of Appeal against each of the two purported disciplinary decisions is based on the total lack of legality and due process, and the virtual non-existence of the disciplinary councils and their decisions, he made the appeal against the BAB, its president, certain of its employees, members of the purported disciplinary councils, and members of the BAB council. When the court of appeals sits to hear such appeals, Article 108 COLP requires the addition of two BAB council members to its three-judge panel. The BAB council appoints two members and an alternate member for that purpose. As all BAB council members have taken a uniform position against Dr. Mugraby and are at the same time respondents in the two lawsuits, including, inter alia, the filing of an answer in each of them calling for the dismissal of Dr. Mugraby's appeal, Dr. Mugraby filed, on October 7, 2003, motions for the recusal of the BAB council members sitting on the appellate panel.

2.2 Under Article 125 of the Code of Civil Procedure ("CCP"), a judge who is subject to a recusal motion must desist from the case from the moment he is notified of the recusal motion until a final determination is made of the recusal petition. This rule is equivalent to Article 346 of the French code of civil procedure.

2.3 A judge, Sami Mansour, who is not the chief appellate judge that Article 123 of the CCP calls for as the proper authority over the recusal case, ordered the chief clerk of the court of appeal not to send the motions out for notification. Therefore, Dr. Mugraby obtained a simple attestation as to the filing of the recusal petition in each of the cases and filed it into the record of the respective case. The following morning Judge Mansour recused himself from the case but the chief appellate judge refused to rescind Mansour's order not to serve the recusal motions.

2.4 Dr. Mugraby also filed a motion in each of the two cases to suspend the proceeding until final decisions are entered in the two parallel criminal proceedings, which share the same set of facts and issues with the appellate cases. This motion is based on the doctrine that criminal justice preempts civil justice.

2.5 In the hearing of October 8, Dr. Mugraby advised the court that the two BAB council members sitting as part of the panel were subject to recusal motions. Lawyer Elias Abu Eid appeared on behalf of the BAB, its president, and its council members. He produced powers of attorney on behalf of all BAB council members including the president, but not of the BAB. The court ordered him to produce a power of attorney by BAB and continued the two cases until the following Wednesday, October 15.

2.6 Several alarming signals were exhibited in the hearing which indicate a threat to due process and to Dr. Mugraby's right of defense:

a) The two BAB council members who had a direct conflict of interest and who were subject to recusal proceedings sat throughout the hearing as part of the court of appeals panel.
b) The chief judge paid little attention to the other judges. At one point he began to author a decision putting off the determination of the motion related to the suspension of proceedings to the final decision in the case.
c) The chief judge allowed Mr. Abu Eid to insert in the record, a lengthy defense against the recusal motion although such motion comes under the jurisdiction of a different panel, and before Mr. Abu Eid could produce a power of attorney on behalf of the BAB.
d) The chief judge, against obvious but muted objections by the two other judges, ignored the recusal motions and insisted on a short continuation of the two cases, which indicates an intention to go ahead full steam with a flawed panel and an inexplicable disregard of the pending motions.

2.7 On Wednesday evening, October 8, the president of BAB issued a decision in the name of the BAB council rejecting Dr. Mugraby's candidacy to the council and the BAB presidency, based on Article 110 of the BAB's internal bylaws. COLP requires the council to make a decision as to whether the legal qualifications are available in a candidate. Dr. Mugraby's candidacy was advanced by 74 lawyers in a joint petition as well as by him personally. Dr. Mugraby has appealed the decision to the Beirut court of appeals that is required by law to rule on the appeal within three days. Most probably, the same appellate court that has the two above-mentioned appeals will take the case.

2.8 Dr. Mugraby, though an able attorney, is in urgent need of highly competent legal counsel. Lawyers who are members of the BAB have been generally intimidated and are reluctant to offer help. Two members of Dr. Mugraby's own law firm are already facing disciplinary proceedings for having appeared on his behalf in the latest criminal case following his detention without having first obtained the permission of the BAB president as he unreasonably requires. Many leading Lebanese professionals have already been approached and declined to offer assistance because the case involves the BAB. This threatens Dr. Mugraby's ability to defend himself and puts his rights of defense and due process as a whole in extreme jeopardy.

2.9 For these reasons, Dr. Mugraby urgently requires the assistance of highly competent defenders from out of the country. Article 115 COLP permits the appearance of non-Lebanese lawyers before Lebanese courts based on reciprocity.