We recently witnessed the longest work stoppage by Lebanon’s judges in the country’s history. It began on July 20, 2017, the day after parliament approved a bill that allows the government to revise the benefits and resources of the Cooperative Fund of Judges and made the salaries of first and second class civil servants higher than the wages of judges of the same grade. Notably, the importance and dimensions of this event were not well recognized. Unlike in many countries where judges’ movements to defend their independence receive widespread support from beyond the judiciary, Lebanon’s judges remained virtually alone in their stances and unable to attract the public’s attention.
Several factors have obscured people’s views of this event. They include the general dissatisfaction with the judiciary’s performance and productivity, which has been reinforced by several judicial scandals. They also include the relatively regressive stances of the two bar associations which dealt with the matter as a derogation from judges’ fair rights, without connecting it in any way to judicial independence or even to conditions conducive to the practice of law. Hence, the statement of solidarity issued by the two bar associations seemed like no more than a courtesy. On July 27, 2017, the Beirut Bar Association even declared, in parallel to the judges’ work stoppage, an open strike. The Bar Association did so on account of taxation issues specific to lawyers without linking this strike in any way to the judges’ work stoppage, or its causes. The principle seemed to be, “they have their demands and we have ours”.
The Supreme Judicial Council (SJC) itself also helped obscure the view. Despite the strong stance it demonstrated by declaring the work stoppage, it was content to merely open channels of negotiation with the political forces without paying attention to the queries of public opinion or those who influence it. The Council dealt with the issue as a theoretical one related to judicial independence or the separation of powers. It cared little to answer people’s questions or clarify for the public the reasons for the prolonged work stoppage or, most importantly, its plan for overcoming dysfunctions in the judiciary and the obstacles to accomplishing it. Making matters worse, was the absence of a judges’ association capable of addressing the public and interacting with the media and civil society organizations.
While the aforementioned factors were certainly important, the biggest factor was the decline of the culture of judicial independence opposite the near-universal normalization of the various means of interference in the judiciary. This socio-cultural reality has deprived the problematics of judicial independence of much of their importance and impact among the people, and turned them into trite issues secondary to people’s general concerns. Many judges have contributed to this normalization by becoming close to the political forces out of a desire for occupational gain, or to pragmatically protect their jobs. Consequently, a number of media figures downplayed the judges’ movement. They saw it as no more than a fleeting defense of financial interests as judges have never mobilized against graver attacks on their independence, most notably, the repeated obstruction of the judicial personnel chart drafts since 2010.
This article aims to put things back into their proper perspective. While the dysfunctions in judicial performance and organization (which The Legal Agenda has, throughout its existence, sought to highlight and solve) are certainly important, the parliamentarians’ approach to them is erroneous in two ways.
It is erroneous in terms of the manner in which responsibility for this dysfunction is assigned. Political forces have been exonerated of the many and major wrongdoings that they have perpetrated, both in terms of how the judiciary is organized and in the systematic interference in its work.
In any case, the approach of politicians also errs in identifying the correct paths of reform to address these dysfunctions. Besides the fact that reforming the judiciary presupposes strengthening its independence, the derogation from the social safeguards for ordinary judges essentially constitutes collective punishment. The worst aspect of this collective punishment is that it most harshly impacts the judges most dependent on these safeguards. These are the judges most compliant with the principles and exigencies of the profession, who have no sources of income besides the legitimate income of their work. This aspect explains the subtitle that I chose for this article, namely, “Purging the Judiciary of its Best Personnel”. This subtitle of course reflects a critical stance towards the political authorities, which after failing to effect accountability within the judiciary and thereby purge it of its corrupt and indolent elements, crowned this failure with the adoption of measures that redirect the purge toward its most competent, honest, and independent elements. This reform process thereby turned into a process that destroys whatever independence and positive spaces remain within the Lebanese judiciary.
I thereby hope to provide a clearer idea of the causes and dimensions of the prolonged work stoppage, an image supportive of the judges’ demands which necessarily constitute a fundamental guarantee of their independence; and, hence of the citizens’ right to a competent, independent, and neutral judge.
The Danger of the Legislative Amendment
As previously explained, this amendment leads to a great reduction of the judges’ social benefits. The amendment’s danger is compounded by its symbolic dimension: it undermines key achievements in the history of the judges’ struggles since the 1960s –achievements that have their place in the judges’ collective perceptions– and thereby sends a disappointing message.
This we shall try to explain in detail in relation to the two issues at hand.
The Cooperative Fund of Judges
This fund was one of the key demands of the judges’ struggles in the early 1980s, specifically in 1980 and 1982. A number of late or former judges, including the late Gabriel al-Maushi, the late Hasan Qawas, and Munif Hamdan, played a key role in these movements by establishing a judicial committee that organized a number of meetings and sit-ins. The committee reached the point of declaring the first open strike of its kind in 1982 in the presence of hundreds of judges.
These movements, whose demands the SJC supported despite its condemnation of the means used, succeeded in bringing about the establishment of the fund via a legislative decree issued in 1983. This fund was destined to gain even more importance, for it became the key factor that guaranteed the judges’ social rights despite the low purchasing power of their wages after the Lebanese currency collapsed; and, that discouraged more judges from submitting their resignations. Similarly, the movement of “reasoned resignations” by a large number of judges in the early 1990s succeeded in extracting a major state contribution to the fund, a contribution that reached LE 4 billion during the era of Minister of Justice Bahij Tabara (1994). Thanks to this contribution, the fund’s benefits expanded to provide judges with total health coverage, their children’s school and university installments, and their bank loan guarantees, in addition to payments supplemental to their salaries.
The bill that prompted the work stoppage entrusted the government with the task of unifying the funds and the benefits they provide, opened the door for all that judges have acquired in this regard to be reconsidered. This not only threatens the judges’ basic financial interests, but also gives the government another weapon to extort judges, influence their stances, and when necessary, to pounce on their rights. Needless to say, this amendment infringes on the principle of the separation of powers and the safeguards of judicial independence according to the Constitutional Council’s jurisprudence; that which prohibits undermining any of the judges’ safeguards without granting them equivalent safeguards pursuant to the principle of judicial independence.
Civil Servant Wages Higher Than Judges’ Wages
The second issue affected is the proportionality of the judges’ wages to the nobility of their job, an issue linked not only to the state’s budget but also to the salaries that it sets for the various public service jobs. When the MPs approved the bill’s provisions which made the salaries of classes of civil servants higher than those of judges, they compromised this proportionality. Note that this orientation contradicts those that the legislature had expressed since 1993 under the pressure of the judges’ movements, orientations that favored separating judges’ rank and salary scale from the scale for civil servants. This is evident in the mandating reasons section of the 1993 law separating the judiciary’s scale, which stressed the need to bring judges’ salaries closer to those of the members of the political authorities. While judges benefited from this separation in 1998 and 2011, the adoption of the 2017 rank and salaries scale turned it from an opportunity to close the gap between judges’ salaries and those of the members of these authorities, to an opportunity to raise the salaries of civil servants beyond those of judges; a move which evokes disdain toward the judicial profession.
Judicial Performance, Responsibility, and Financial Rights
A review of the political discourse used to justify the abovementioned measures reveals that a number of MPs openly linked undermining the judges’ rights to general judicial performance. MP Ahmad Fatfat made this connection clearly in the session convened on July 21, 2017. After mentioning former Minister of Justice Shakib Qortbawi’s promises that increasing the 2011 salaries would lead to real reform in the judiciary, he stressed that nothing of the sort had occurred. He also denounced the claim that SJC President Jean Fahed had made two weeks earlier in the Finance and Budget Committee, namely, that investment in the capacity of the judiciary were dictated by the judiciary’s independence as a branch of state power and had nothing to do with reform, nor with any other matter.
Fatfat’s statements were in the same vein as the interventions made by a number of MPs during the discussions of the same salary scale bill in previous sessions on April 15, and May 14 of 2014. On April 15, MP Fouad Siniora stated that the previous government’s increase of the judges’ salaries in 2011 had been rushed and ill-advised, going as far as to demand that this scale be revised. On May 14, Siniora described the benefits of the Cooperation Fund of Judges as squander and a drain [on resources], calling for judges to be given a choice between increasing productivity and resignation: “Reform or go home”. MPs Ahmad Fatfat and Serge Toursarkissian agreed with him, stressing the need to revise the judge’s benefits and to crack down on their work conditions.
While dysfunction in judicial work and the exigencies of reform are certainly important, the aforementioned discourse –which went uncorrected in parliament and ultimately convinced most MPs, as evidenced by their adoption of the bill– invites several observations.
Firstly, it is based on general impressions, far removed from any objective data about the extent and forms of dysfunction in judicial performance.
Secondly, it exploits the absence of objective data to place all the responsibility on judges in a manner that exonerates the political authorities of their major wrongdoings in the judicial realm. Assigning responsibility in this manner constitutes a great fabrication of the facts and disregards the reality of the judicial organization, which remains largely subject to the whims of the political forces and the quarrels between them; either directly, or via whomever these forces appoint in the top judicial positions.
To understand this subjection, we need only recall that the political forces appoint eight of the SJC’s ten members and all the Judicial Inspection Authority’s members. In practice, they also appoint the judges in most of the sensitive positions, and they have no qualms about blocking the judicial personnel charts because of the quarrels between them over a number of these positions. Moreover, amid their quarrels between 2005 and 2009, these forces kept more than 100 judges –(i.e., approximately one fifth of all judges) who had graduated from the Judicial Studies Institute and were entitled to their wages– idle for periods as long as four years. This was done by blocking the decrees that would appoint them to judicial positions. The personnel charts decrees have also remained blocked since 2010, which obstructs the career development of judges.
Hence, who is responsible for the poor distribution of work among the regions and courts? Who is responsible for frustrating judges via the near-daily interference in their work? Most importantly, who is responsible for the judges’ lack of accountability? To put it more clearly, can the political forces come clean with the public about the names of judges whom they support and seek to place in top positions in public prosecution offices, investigating judiciary, and the courts? Can they come clean about the criteria that they employ to select these judges? Without identifying names, I will merely state that the phenomenon of the corrupt or indolent judge that persists in the judiciary would never have arisen, were it not for the support of political forces for many such judges. Nor would it be the case had it not been for the political intervention to stop disciplinary action against such judges at one stage or another. Behind most judicial scandals lies an influential political figure.
Of course, these objections are in no way aimed at flattering judges or absolving them from responsibility. Nor are they aimed at denying the need for radical reforms in the organization of the judiciary in its entirety. Rather, they aim to lay bare the political authority’s arguments and its ulterior motives. Usually, this authority exploits the citizens’ dissatisfaction toward the performance of the judiciary to encroach into it and further render its affairs fair game, only to then hide behind the judiciary and charge it with full responsibility.
Thirdly, undermining the judges’ financial safeguards naturally constitutes a collective punishment affecting all judges, including the judges that dedicate themselves to their work. The worse aspect of this collective punishment is its twofold absurdity.
On one hand, the punishment is most severe on the judges most compliant with the principles and exigencies of the profession, whose only income is the legitimate income from their work. It has much less impact –and even becomes merciful– on judges involved in administrative and financial corruption who find various sources of livelihood, that perhaps spare them from needing the fund’s benefits. In other words, it is a collective punishment whose salient feature is that it becomes more severe the less deserved it is, thereby conflicting with the most basic components of justice.
On the other hand, the punishment is essentially a punishment for the sake of punishment; one that is devoid of any intent or attempt to improve judicial performance. Worse, it is a punishment with a destructive effect that is likely to purge the judiciary of its best elements because of the appreciable decline in their safeguards, while also discouraging the good elements in the world of law and the universities from entering the judiciary. The biggest concern is that the derogation from judges’ rights will form a precedent that allows the political forces not only to subordinate judges, but also to begin a process of purging the judiciary not of its corrupt or indolent elements (as claimed in the political statements) but of its best elements, who constitute Lebanon’s true treasure and must be defended with full force. This is the worst part of the catastrophe. Hence, the choice that Siniora suggested should be given to judges is, in reality, not one between “reform or going home”, but between complete concord with the exigencies of the political regime and obedience, on one hand, and resignation from the judiciary, on the other.
Facing these facts, everyone aspiring to reform the judiciary and strengthen its independence is bound to resist these decisions. But how? What means of power do judges who have for decades been deprived of the freedoms of expression and assembly possess? What means of social advocacy do they have? And, what discourse must be adopted to generate more social support? This I wish to examine in a follow-up article.
 See: Ilham Barjas’s, “Idrab ‘Khass’ li-Muhami Bayrut: Ziyadat al-Dara’ib Akhtar min al-Mass bi-Istiqlal al-Qada’”, The Legal Agenda, July 2017.
 For example, see: Amal Khalil’s, “al-‘Adala al-Mu’takifa”, Al-Akhbar, July 31, 2017.
 See: “When Judges Went on Strike in Lebanon: Experiences During and Before the Civil War (1970-1990)”, The Legal Agenda, July 2017.
 See: Myriam Mehanna’s, “Li-Hadhihi al-Asbab al-Ta’arrud li-Sunduq Ta’ahud al-Quda Ghayr Dusturiyy”, The Legal Agenda, July 2017.
 See: “Nuwwab Yasna’una Hashashat al-Qada’, wa-l-Quda Yarudduna bi-l-Harak wa-l-Muwajaha”, The Legal Agenda, Issue No. 17, April 2014.