Lebanon: No immunity for corruption at AUB

Al-Akhbar is currently going through a transitional phase whereby the English website is available for Archival purposes only. All new content will be published in Arabic on the main website (www.al-akhbar.com).

Al-Akhbar Management

Students protest against increased tuition fees at AUB on February 27, 2014. Al-Akhbar/Marwan Bou Haidar

Published Friday, November 21, 2014

The Judge of Urgent Matters in Beirut, Nadim Zwein, issued an order on Wednesday compelling Al-Akhbar to remove a report on the ‘AUB Leaks’ scandal titled, “Will allegations of corruption at AUB go to US courts?” and all documents linked to in the story from the newspaper’s website and social media. Al-Akhbar was forced to implement the court order despite its ‘arbitrary’ nature.

However, Al-Akhbar decided to file a complaint with the Public Prosecutor, which is what the judge should have done, and submit a report to the Ministry of Health to complement its current efforts in cracking down on fraud, particularly since the documents that the judge ordered to be suppressed included allegations of distributing expired medicines at the university’s hospital (AUBMC), manipulation of Ministry of Health and Social Security bills, in addition to tax evasion.

The worst offense to one of the most prestigious universities in Lebanon has come from the university administration itself. The administration went to the Judge of Urgent Matters in Beirut Nadim Zuwain, to get an injunction ordering Al-Akhbar to remove an article and its links (20 documents) from its website and social media accounts, and also the personal Facebook page of the report’s author, Hussein Mahdi.

The report was published by Al-Akhbar on November 14, 2014 titled “AUB Leaks - Will allegations of corruption at AUB go to US courts?” The article contains documents focusing on discussions between a number of AUB trustees, administrators, staff, and lawyers, suggesting there was corruption, mismanagement, and attempts to cover it up, along with the people involved, and more importantly, to prevent this information from reaching the Attorney General in New York, even if that meant seeking help from powerful figures.

Judge Zwein’s decision follows a request made by the American University in Beirut (AUB), dated November 17, 2014, (through its lawyer Randa Shaker Abu Suleiman from the Abu Suleiman Law Firm). AUB said in its request that Al-Akhbar, in the report in question, had published “confidential internal documents, memos, and correspondence belonging to AUB.”

By doing so, AUB acknowledged the authenticity of the documents, and even acknowledged the presence of 1,000 documents comprising 1,220 pages that have the same classification. AUB requested that these documents remain undisclosed, despite the fact that they contain valuable information.

Al-Akhbar’s lawyer Nizar Saghieh, in his remarks before Judge Zuwein, said, “This summons is to gag voices calling for reform at the university and outside.” He added, “This is the foundation of this legal action. The problem therefore relates to the right of the respondent or any other party to raise its voice against corruption and expose the corrupt in fulfillment of the public interest, [and relates to] punishing the press that is committed to corruption cases and forcing it to ignore evidence, proof, and documents in its possession to appease the university’s administration in a way that undermines the future and prospects of the young people enrolled [in the university].” Saghieh concluded, “We rely on your wisdom today to stand as one rank to fulfill society’s interests against the corrupt and unjust system.”

Judge Zwein, instead of scrutinizing the content of the documents in question and refer them to the Public Prosecutor to investigate their serious implications, adopted an interpretation of the law that does not take into account the principles of the freedom of the press and the citizens’ right to access documented information that has specified sources. He did not take into account the fact that these documents reveal the presence of multifaceted corruption in the university, including appropriating public funds through tax evasion in a case mentioned in one of the documents, as well as manipulating bills for treatment and medicines at the expense of the Ministry of Health and the National Social Security Fund, in addition to mismanagement of AUB funds.

Judge Zwein relied on Article 583 of the Penal Code, which prohibits ‘defamers’ from trying to prove allegations that are the subject of ‘defamation.’ Judge Zwein thus concluded that publishing any facts that undermine the “dignity of the university” is defamation, even if the allegations are true. According to the judge’s decision, it is prohibited to defame any institution or private commercial enterprise no matter the extent of the alleged corruption; this leads to completely absurd results.

For example, these institutions and enterprises could engage in any violations they like, including forging bills, appropriating public funds, and selling expired medicines, without the press having a right to expose them. This is in complete contradiction with the principles of journalistic work and a fundamental principle in the Penal Code, which presupposes that no crime occurs except in the presence of criminal intent. In Al-Akhbar’s case, there definitely is no criminal intent, and the newspaper submitted in its remarks to Judge Zwein in response to the summons enough proof that it had published those documents to serve the public interest, protect public funds, and uphold the rights of the patients and the interests of the university, especially its faculty and students.

In light of the judge’s decision, it is a duty to ask: What is the difference between what Al-Akhbar has done and what Minister Wael Abu Faour is doing, exposing commercial enterprises selling contaminated food? Isn’t the basis the same in both cases, namely, to expose corruption? Isn’t Al-Akhbar, like the minister of health, providing proof of corruption?

In fact, the principle of the “right to defame” was debated at length during former Minister Charbel Nahas’ defense plea against the company that owns supermarket chain Spinneys and its CEO Michael Wright, which had sued Nahas for slander. Nahas argued that defamation becomes a right when it becomes a duty, demanding his right to be given the opportunity to prove the company had used intimidation tactics against its employees. The case has yet to be settled and is today being considered by the Court of Cassation.

Al-Akhbar presented to the court a myriad of Lebanese and French legal opinions that allow the dignity of certain individuals to be sacrificed for the sake of public interest, and explained to the judge the nature of each document and how it relates to cases of corruption, and cases where deliberations took place over how to silence Al-Akhbar and cut deals with the newspaper. However, Judge Zwein’s order stated, “It is not apparent from the case that the...defamation…is justified by extraordinary public interest.”

Yet the decision did not specify what might construe ‘extraordinary’ public interest that would justify exposing corruption. Is the presence of ordinary public interest, for example, not enough? Is the university’s own admission of having forged bills to get undue allowances from public money not a matter of ‘extraordinary public interest,’ or indeed, the university’s own acknowledgement that it had used expired medicines? Are these issues not matters that affect public safety, and hence, violate extraordinary public interests? Does this not require exposing this major university to defend the rights of the citizens and the public treasury?

From all these angles, the decision was a major violation of the freedom of expression, particularly the freedom of the press, in exposing corruption. The position lent cover to corrupt individuals, who boasted repeatedly in the documents published of their ability to silence the press and prevent the publication of anything that could reinforce suspicions regarding practices occurring in this longstanding institution.

Interestingly, the judge’s decision was based on the principle of the “confidentiality of private documents.” However, this conflicts with the right of the citizens to have access [to information] enshrined in the International Covenant on Civil and Political Rights, which was ratified by Lebanon. This is a more important right that supersedes the right to confidentiality in the presence of public, not private, interest that justifies the sacrifice.

In fact, the documents include confessions of committing criminal offenses. Judge Zwein should have instead referred the case (the report and documents) to the Public Prosecution. This is what Al-Akhbar will do by reporting the matter to the Ministry of Health in recognition of its current efforts in the fight against fraud and also in order for the Public Prosecution to act.

Judge Zwein’s decision made the following conclusions:

First: To compel Al-Akhbar Beirut SAL to remove the article titled ‘AUB Leaks’ published on November 14, 2014 with the links from its website immediately, and to block it permanently and refrain from publishing the links again under penalty of paying a fine of 40 million L.L. (~ $26,666) for each day the violation of the order continues.

Second: To compel Mr. Hussein Mahdi to remove the article mentioned in the clause ‘First’ in this order and its links from his Facebook page and any account he has on any other social media site, and refrain from publishing it again under penalty of a fine of 20 million L.L. (~ $13,333) for each day the violation of the order continues.

Third: The judicial assistant Ghassan Mashlab shall be tasked with informing Al-Akhbar Beirut SAL and Mr. Hussein Mahdi immediately and oversee the implementation [of the order], and assign expert Fouad Aqiqi to oversee the implementation for a week using all technical methods available and to submit a report after this period, providing that the plaintiff pay an advance of 200,000 L.L. ($133) for the expenses of the clerk and 300,000 L.L. ($200) for the expenses of the expert.

Judge Zwein issued his order despite the fact that the university administration acknowledged that the documents were authentic, and despite the fact that the corruption is established rather than being part of a malicious campaign against the university, as the plaintiffs tried to suggest to the court. Rather, Al-Akhbar’s report supports the suspicions about the legality of how the university’s funds are managed, which impacts the educational reputation and interest of the students. The court’s order did not take into account the fact that what Al-Akhbar published justified ‘defaming’ the corrupt as this served an important public interest.

This is not the first time that AUB’s administration has resorted to the Court of Urgent Matters to silence the media. Previously, AUB’s administration filed for an injunction against MTV to prevent it from airing a special report on corruption in the university, which was going to interview a former AUB trustee. The judge complied with the university’s request at the time.

In one of the documents the judge ordered Al-Akhbar to remove from its website, several methods are discussed on how to silence the press, through the judiciary, or by using inducements including invitations, social occasions, or even negotiations and deals with Al-Akhbar, using the Lebanese Press Syndicate for the purpose. One of the people proposing this course of action even quotes the saying, “Keep your friends close, but keep your enemies closer.”

In the face of all this, Al-Akhbar sticks to its professional duties in publishing everything that would expose corruption. Al-Akhbar declares that there will be no immunity and impunity for AUB’s administration.

(Al-Akhbar)

This article is an edited translation from the Arabic Edition.

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