Summary administrative justice, particularly the diversity and development of its procedures, is one of the most important standards indicating that rule of law, under which people as well as public authorities are subject to the principle of legality and rights, freedoms, and public interest are all upheld, has effectively been established.

In fact, developing summary judicial procedures [référé] helps make the administrative judiciary more effective and elevates it from the role of a spectator that merely annuls administrative decisions after-the-fact and provides unsatisfactory restitution for their consequences, to the role of an interventionist judiciary that guarantees, protects, and upholds rights, freedoms, and public interest and swiftly and effectively puts a stop to selective and authoritarian application of the law by public authorities.

In Lebanon, despite amendments to the State Council Statute in 1993 and 2000, summary procedures are rarely invoked or marred by flaws and shortcomings that prevent the administrative judiciary from rising to the aforementioned role.

The 1993 and 2000 amendments enumerated some summary procedures, packing them into one lone article. Hence, the current law stipulates four procedures: procedures to establish facts [référé constat], procedures for precautionary measures [référé conservatoire], procedures to compel an advanced payment [référé provision], and pre-contractual procedures [référé précontractuel].

Missing Summary Procedures

The current list omits many fundamental summary procedures that can guarantee the swiftness and efficiency of administrative justice and the rights of litigation and defense, as well as respect for legality and the preservation of public interest.

Summary Procedure to Stay the Execution of Administrative Decisions

Summary procedure to stay execution [référé sursis à exécution or référé suspension] allows the administrative judge to temporarily suspend a contested administrative act. This vital measure is the only weapon available to citizens for countering the administration’s prerogative to issue decisions into force and compensating for the fact that administrative decisions are not suspended while under judicial dispute as Article 77 of the current State Council law only permits such a suspension under narrow circumstances and conditions. Hence, citizens deprived of this weapon must usually endure the potentially irreparable consequences of an administrative act of dubious legality until the administration retracts it or the trial judge annuls it, unless the matter falls within the narrow limits permitted by Article 77, which are not sufficient to check the aforementioned prerogative and protect legality. The narrow restrictions on staying execution include:

• Cases aiming to annul regulatory decrees or annul decisions pertaining to preserving order, security, public peace, or public health are excepted. In other words, the administrative acts likely to most infringe on citizens’ rights are excepted from this stay-of-execution procedure.
• This stay of execution decision, should the State Council agree to take it, remains particularly ineffective against administrative rejections because suspending such a decision does not necessarily cause the administration to issue a corresponding approval and, under the current law, administrative judges have no authority to issue injunctions against the administration.
• Finally, under Article 77, the stay-of-execution procedure is subject to strict conditions. The damage that the applicant could sustain must be severe and the grounds underpinning the case must be both serious and “significant”.

Many cases show the consequences of the absence of this kind of summary procedure, including as serious a case as that of the Phoenician port.[1] In that instance, the State Council dismissed a request by the Association for the Protection of the Lebanese Heritage to take interim protective measures to suspend the [construction] works in the port. The State Council justified its stance on the basis that such measures “necessarily require staying the execution of the minister’s decision to remove the property from the historical buildings list and staying the execution of a construction permit supposing that it exists, and the law explicitly excluded these two matters from the summary judge’s powers”. This stance enabled the construction company to complete the excavation and construction, completely destroying the ruins.

Summary Procedure Pertaining to Freedoms

Another summary affairs procedure harmfully absent from administrative trial procedure is summary procedure pertaining to freedoms [référé liberté]. Of course, these freedoms remain minimally protected by judicial judges via the doctrines of unlawful expropriation [emprise irrégulière] and administrative trespass [voie de fait], the latter of which is applied whenever the administration commits a flagrant violation infringing on a freedom or property right. However, this trespass doctrine does not encompass all kinds of infringement on freedom as the judicial judiciary declares itself competent only in two cases:

• The case where the administrative decision infringes on a freedom or property right and cannot be linked to the exercise of a power granted to the administration. Hence, merely attaching decisions that violate freedoms to an administrative function deprives the judicial judiciary of its jurisdiction and leaves the citizen defenseless before the administration.
• The case where the administration begins forcibly implementing a decision under illegitimate circumstances, even if the decision is legal. Hence, the judicial judiciary is not competent whenever the administration need not resort to forcibly implementing decisions that violate freedoms.

Another cause for concern about the absence of summary measures pertaining to freedoms in administrative litigation is the judicial judiciary’s perspective on the freedoms that fall under its jurisdiction. It is feared that judicial jurisprudence could restrict the notion of the freedoms that trespass affects and merely protect individual freedoms in the narrow sense, leaving it up to the administrative judiciary to protect all fundamental and public freedoms. Regarding a property right, judicial jurisprudence could require that the trespass lead to the demise of that right in order to declare its competence, leaving it up to the administrative judiciary to protect property from other trespasses.

Hence, the situations in which citizens find themselves deprived of these judicial safeguards are likely to increase such that their only way to confront the administration is to contest the merits, which is a slow and inadequate process as the administrative judge has no means of stopping such trespasses in urgent cases. Administrative judges have virtually no injunction authority, and Article 77 of the law clearly prohibits them from issuing a decision to stay the execution of any decisions aimed at preserving public order, i.e. the very decisions that infringe on freedoms, individual or otherwise.

Comparative law shows the consequences of this deficiency in Lebanese law. For example, when countries took decisive freedom-restricting measures to curb the spread of COVID-19, citizens and associations in France resorted to this kind of contestation to criticize the government’s decisions impinging on public freedoms. The judge had the appropriate tools to confront unjustified encroachments on these rights by the authorities, while Lebanese citizens appeared incapable of legally challenging any of their government’s decisions.[2]

Contractual Ssummary Pprocedure

The third summary procedure missing from the State Council law pertains to contracts. The 2000 law did, in fact, stipulate pre-contractual summary procedure [référé précontractuel], albeit marred by many flaws, as we shall see below. However, a contested contract is no longer subject to summary procedures once it is concluded. The absence of contractual summary procedure [référé contractuel], i.e. summary procedure that occurs after a contract is made and encompasses measures that protect the rules of transparency, publicity, and competition, undermines the authorities’ respect for these rules. Such measures include suspending a contract’s implementation, canceling a contract for not complying with publicity rules or for violating competition conditions, and even voiding a contract that was signed even though the signing was blocked by the pre-contractual summary measure stipulated in Article 66 of the State Council Statute.

Summary Iinvestigation Pprocedure

Finally, the fourth summary procedure missing is summary investigation procedure [référé instruction], which would afford applicants greater protection by allowing them to ask for an expert to be appointed to assess the damage or determine its causes. This is not possible via the fact-establishing measure stipulated in Article 66, which is limited to the appointment of an expert to survey the facts that could become the cause of a case in the administrative courts.

Flaws in Existing Summary Procedure

Besides the absence of the aforementioned summary procedures, the procedures stipulated in Article 66 – namely establishing fact, preventative measures, compelling an advanced payment, and pre-contractual cases – suffer from significant flaws.:

Firstly, these summary procedures are not exempt from the appointment of a lawyer, which could deter citizens from filing cases. Moreover, the conditions of summary procedures, such as the timeframe for issuing a ruling in the context of pre-contractual summary procedure, are insufficiently defined. Pre-contractual summary procedure also suffers from many shortcomings that could severely affect its effectiveness. For example, a pre-contractual case does not automatically block the signing of the contract as that decision is left up to the court president’s discretion. Hence, if the signing occurs before or during the case, the case will be dismissed for inadmissibility or lack of subject matter. Naturally, these shortcomings are exacerbated by the absence of waiting periods before a contract’s signing and the absence of post-contractual summary procedures. These flaws encourage the authorities to race to sign the contract in order to obstruct pre-contractual summary procedures and further protect the illegally signed contract.

Finally, the right to a fair trial in the context of summary procedures appears to be equally impaired by the absence of sufficient means of appealing the decisions made by summary judges. Except for pre-contractual summary procedure, summary decisions cannot be appealed. The only avenue for challenging them is to file an objection with the competent chamber, and the judge who issued the decision participates in the ruling. This is a further undermining of guarantees of a fair trial and efficient administrative justice.

 

This article is an edited translation from Arabic.

 

Keywords: Lebanon, Judiciary, Summary procedure, State Council, Administrative justice, Administrative judiciary 

 

[1] Joe Romanos, “Qadiyyat al-Marfa’ al-Finiqiyy Takshifu Thughra Qanuniyya fi al-Tanzim al-Qada’iyy: La Qadi ‘Ajala li-Waqf Tanfidh al-Qararat al-Idariyya”, published in the 2012 addendum to issue 7 of The Legal Agenda, 1 February 2013.

[2] Shehrazade Yara El-Hajjar, “Qira’a li-Qarar Shura al-Dawla al-Faransiyy Hawla Tadabir al-Hadd min Intishar Corona: Ayy Durus li-Himayat al-Huquq wa-l-Hurriyyat al-Asasiyya fi Lubnan?”, The Legal Agenda, 2 April 2020.