On Saturday, 12 June 2021, judges elected retired judges Claude Karam and Therese Alawi to the National Anti-Corruption Commission (NACC). While the NACC has an extremely important role in the application of anti-corruption laws, the process of appointing and electing its members raises many questions. In this article we answer the most important of these questions.

 

Why Is the NACC Important?

 

The NACC is pivotal to the application of an array of anti-corruption laws as their force or full effects are contingent on its formation. These laws include the Whistleblower Protection Law, the Right to Access Information Law, the Oil Transparency Law, the Stolen Assets Recovery Law, the Unjust Enrichment Law, and the Anti-Money Laundering and Terrorism Financing Law.

 

Hence, citizens have for years been counting on the launch of this commission in order for this arsenal of laws, which were issued in succession, to be applied. However, its formation was obstructed by the complications that delayed the passage of the Law on Combating Public Sector Corruption and Establishing the National Anti-Corruption Commission for more than a year.

 

Who Makes Up the NACC?

 

The NACC consists of six members, including its president and vice-president. They are appointed via a Council of Ministers decree for a six-year, nonrenewable term and are distributed as follows:

 

• Two retired judges with honorary status elected by all judges. The minister of justice sends the names of these two judges to the Council of Ministers.
• A lawyer or jurist appointed from among four nominations, two made by the Beirut Bar Association’s Council and two made by the Tripoli Bar Association’s Council.
• An accounting expert appointed from among three nominations made by the Lebanese Association of Certified Public Accountants.
• A banking and economics expert appointed from among three nominations made by the Banking Control Commission of Lebanon (BCCL). The Association of Banks in Lebanon (ABL) is known to have significant influence over the BCCL’s composition.
• An expert in public administration, public finance, or combating corruption appointed from among three nominations made by the minister of state for administrative reform.

 

In summary, the Council of Ministers has broad latitude to appoint four of the NACC members, and the ABL has broad latitude to dictate one of these appointments.

 

What Was the Significance of the Elections for Judges?

 

The invitation to judges to elect representatives was very important for the following reasons:

 

• This was the first time that every rank and file judgewas invited to elect members in an official body. Previously, only Court of Cassation judges (who constitute fewer than 10% of judges) elect representatives, namely in the Supreme Judicial Council. Hopefully, this election heralds a role for all categories of judges in electing their representatives in all the councils that administer the judiciary once the judicial independence law is passed.
• The two elected members are the only members whose appointment is beyond the influence of the Council of Ministers. In principle, this frees them from quota-sharing obligations.
• The elected judge who was graded higher at the time of retirement will be the NACC’s president and therefore preside over the Department for Recovering Assets Derived from Corruption.
• The dozens of judges who assembled on June 4 issued a statement calling upon all judges to seize the opportunity provided by the NACC elections to also elect representatives for the Supreme Judicial Council. This could have involvedmean setting up parallel ballot boxes or voting for working – and therefore unnominated – judges.

 

The Flaws in the Election Process

 

The process by which the judges elect two NACC members has several issues that could prevent these members from playing their desired role within the commission. These problems include – but are not limited to – the following:

 

• Eligibility is limited to retired judges. The retirement age for judges is 68, and the NACC is expected to face an enormous caseload because of its branching powers and the prevalence of corruption. Hence, limiting the right to run to retired judges and excluding working-age judges is a bizarre choice.
• Eligibility is limited to honorary judges. Besides limiting eligibility to retired judges, the law establishing the NACC also requires candidates to have been appointed as honorary judges by decrees issued after their retirement and approved by the Supreme Judicial Council, the Bureau of the Court of Accounts, or the State Council Bureau. The law regulating this status prohibits the appointment of judges who, within the last fifteen years of their judicial service, received any disciplinary sanction besides a warning or reprimand. However, this prohibition is not a sufficient safeguard given the deficiency of the judicial accountability system, whether in the Judicial Inspection Authority or the disciplinary councils. This law also places no checks on the discretion of the judicial or other authorities that sign these decrees. Hence, many judges have been denied honorary judge status in the absence of any objective grounds to reject their requests.
• Some of the nominations were provocative. The restrictiveness of the eligibility requirements is evident from the fact that the elections witnessed only five candidates. They were Claude Karam (public prosecutor in Mount Lebanon from 2009 to 2017), Marwan Karkabi (president of the Cases Committee from 2008 to 2017), Therese Alawi, Fawzi Adham (known for his examination of several drug trafficking cases), and Muhammad Khayr Mazlum. Recently, the Legal Agenda exposed Karkabi’s role in the Imperial Jet case, which almost caused the Lebanese state to unduly owe hundreds of millions of dollars to a private company.

 

Has the NACC’s Independence Come Under Attack?

 

To perform the desired role, the NACC must at least enjoy complete independence from the political authority and its interference. In this regard, there are several concerns, most notably:

 

• The broad latitude of the Council of Ministers to appoint the members. Beyond the two judges, the Council of Ministers chooses from the nominations sent by the relevant authorities, as previously explained. This threatens its independence from two angles. Firstly, it would be better to allow the associations to appoint their representatives directly. Secondly, political forces may exert influence over the members of the associations’ councils when they make their nominations.
• The continuous procrastination in appointing the NACC members. Issued in May 2020, the law establishing the NACC stipulated that the aforementioned authorities must conduct their nominations or elections for the first time within three months of the law’s publication, and the Council of Ministers must make its appointments within one month of these nominations or elections. This condition was not met as the judges’ elections were delayed for approximately a year (on the pretext of pandemic measures) and the nominations have been similarly delayed. This reinforces our suspicions of intentions to obstruct the NACC. We also fear that Hassan Diab, the prime minister of the caretaker government, will invoke his dubious definition of caretaking to refuse to appoint the NACC members, just as he did in relation to the appointments to the Supreme Judicial Council and Constitutional Council.
• Possible attempts to subordinate NACC members by tailoring laws. Minister of Finance Ghazi Wazni’s budget proposal for 2021 included articles amending the requirements for three of the NACC members. This suggests an effort to appoint a specific person or specific people who do not meet the current requirements. Likewise, the proposed budget includes the NACC’s budget not in a dedicated section but in the section for the Prime Minister’s Office, i.e. the head of the very executive branch that the NACC was created to monitor.

 

This article is an edited translation from Arabic.