Among the biggest current problems with the State Council’s system and practices is the acute hierarchy prevailing inside it, particularly in the relationships between its president and its other judges, between the chamber presidents and the chambers’ other members, and between the government commissioner and his assistants. Adding to the gravity of this hierarchy is the fact that a significant number of the top-level judges (particularly the president and the government commissioner) are dropped into the State Council from outside by government decrees. Consequently, the hierarchy not only negates the principle of equality among judges (a prerequisite for their independence and ability to deliberate over cases on equal footing) but also serves as a gateway for escalating external and internal interference in the judiciary and ultimately controlling its decisions.

 

The main manifestations of this hierarchy are the following:

 

Hierarchy Among State Council Judges

Unlike the judicial [i.e. regular] judiciary, the State Council’s statute adopts hierarchy among its members, distributing them across several ranks (president, chamber president, auxiliary judge, and assistant auxiliary judge). The worst aspect of this hierarchy is that promotion from one rank to another does not occur automatically based on a fixed schedule but via decisions issued from above. Hence, promotion from assistant auxiliary judge to auxiliary judge occurs via a decree based on a decision by the State Council’s Bureau. Moreover, the State Council’s presidency and chamber presidencies are assumed via a government decree. Hence, people from outside the State Council – specifically judicial judges – can be appointed in these positions. This we have dubbed “parachute appointments”.

 

Any talk of hierarchy is tantamount to a an official declaration of disparity among judges and a warning to them that they must respect the dignitaries above them, which contradicts the principle of equality among judges. The best example of such talk is the circular that the State Council’s Bureau issued to the judges on 12 February 2013 ordering them to “uphold judicial virtues and observe hierarchy and the rules of conversation”. Clearly, the phrase “rules of conversation” [usul al-takhatub] means the rules of conversation between lower ranks and higher ranks as it follows a reference to the need to “observe hierarchy”. This instruction suggests that there are customs of respect and veneration to which administrative judges are expected to adhere when addressing the chamber presidents (i.e. the Bureau members).

 

The Hierarchical Powers of the State Council’s Rulers

A Bureau Consisting of Top-Level Judges

The first form of hierarchy is the composition of the State Council’s Bureau, which is responsible for ensuring its independence and good performance. All the Bureau’s members hold membership by virtue of their positions, to which they are appointed by the executive branch. None are elected by the judges. Moreover, they are all top-level judges (the chamber presidents, the government commissioner, and the president of the Judicial Inspection Authority). Hence, none of the auxiliary judges or assistant auxiliary judges are represented in the Bureau.

 

The State Council President: One-Person Rule

Unlike in the judicial judiciary, where a collective body (the Supreme Judicial Council) is responsible for administering the judicial process and that body’s president does not have broad powers outside it, the State Council’s president enjoys autonomous individual powers that nearly exceed the powers of the Bureau he or she presides over. The most dangerous of these powers are the following:

• The president exercises the “powers of a head boss in administrative and financial terms”. Hence, he or she is the figure who gives or withholds permission for judges to participate in a seminar, publish an article, or travel.
• Article 3 of the State Council’s statute grants the president the financial and administrative powers that the laws and regulations grant to a minister, except for constitutional powers. Hence, the president alone holds financial powers.
• The president single-handedly attaches and transfers assistant auxiliary judges, who constitute nearly half the State Council’s judges, and consequently controls their career paths and the performance of the entire State Council. Assistant auxiliary judges are judges holding the first of the State Council’s ranks and cannot be promoted to the rank of auxiliary judge until they have reached the seventh grade, i.e. until they have served for at least 12 years. Such promotions occur via a Bureau decision followed by a decree on the basis of non-objective evaluation criteria.
• The president single-handedly assigns State Council judges to (paid) advisory functions in the various ministries and public administrations. This power grants the president enormous authority over judges as he or she can withhold or grant these assignments. The president can also grant multiple assignments to the same judge and hence is free to discriminate among them based on his or her closeness or satisfaction with them. Besides the clout that this authority over all State Council judges affords him or her, it also enables the enjoyment of a number of privileges with many public administrations via the judges they appoint as their advisors.
• The president’s approval, not the Bureau’s, is required for any State Council judge to be fully seconded to the public administrations. After this approval, the secondment occurs via a decree.
• In practice, the president is responsible for investigating disciplinary infractions imputed to State Council judges as he or she both appoints the judge that conducts the investigation and presides over the Disciplinary Council.
• The president has the right to transfer any case to the Cases Council, which he or she presides over.
• The president presides over the Consultative Chamber. The president also presides over the first judicial chamber, which grants him or her – like the other judicial chamber presidents – enormous power to control its cases, as explained below.

 

Making this hierarchy worse, within the State Council there is no means of appealing its president’s decisions.

 

Chamber Presidents Who Control the Fate of Cases

While the bench ruling on cases must consist of two administrative judges besides the chamber president, and one of the three must be a rapporteur, the chamber president has a broad leeway to appoint and change them.

While changing the non-rapporteur member is possible at any time because of a loophole in the law, two practices that enable the chamber president to change arbitrarily either of the other members have developed. The first is that chamber presidents appoint themselves as rapporteur in important cases, which allows them to change the other two members when any decision is issued. The second is the tendency for some chamber presidents to appoint a rapporteur at the first stage of the case (when a decision to suspend the contested government action is considered), only for him or her to be changed after the issuance of this decision at any of the case’s other stages.

This discretion is compounded by the chamber president’s control over the date that the decision is issued, in a blatant violation (that has essentially become an illegal customary practice) of the State Council’s statute. A date for the session for issuing the decision is not scheduled publicly, as required by Article 95 of the statute, and therefore is not conveyed to either the litigants or the judges who are meant to be involved in its issuance, including the rapporteur-auxiliary judge. Rather, usually the chosen judges are called upon to deliberate on a case without having been able to view it in advance or prepare their arguments. The members of the bench also often get selected on the day of the decision’s issuance, which places them in an awkward position where they face a difficult choice: they either go along with the chamber president’s request and sign the ruling as a formality, or they refuse and potentially damage their relationship with the chamber president. Naturally, the situation is even more difficult for the judges of the first chamber as its president – the president of the State Council – has powers affecting their careers on several levels, as previously explained.

 

Hence, the effect of hierarchy within the State Council’s chambers is that their presidents control not only the date of the decision and the people participating in it but also their readiness to discuss the facts or legal points in dispute. Consequently, they have broad control over the outcome of cases.

 

Subjugated, On-Call Judges

Here we will address the lower part of the State Council, which consists of the auxiliary judges and assistant auxiliary judges. These judges – the ruled – are generally subjugated, to varying degrees, to their rulers. The variation among the auxiliary judges is virtually a natural consequence of the hierarchical authority given to the rulers, which usually results in measures that discriminate among them based on the rulers’ closeness and satisfaction with them.

Moreover, there is no form of joint participation in the running of the State Council. Until the April 2018 establishment of the Lebanese Judges Association, which includes a number of administrative judges, the administrative judges had no framework in which to assemble. Even when it comes to the general assembly of State Council judges that must be convened annually, a tradition has taken root whereby the president presents a copy of the annual report to the judges in the meeting and the content and decisions in it do not get discussed.

Finally, it is worth referring to the very revealing circular that the Bureau issued on 12 February 2013, which also compelled administrative judges (with the exception of the chamber presidents) to abide by office hours (i.e. the time for arrival in the morning and leaving in the afternoon). Remarkably, while these judges are bound by office hours, neither the date of sessions to deliberate on cases nor the members of the ruling bench must be determined in advance. These matters remain contingent on the temperament of the chamber presidents, who decide on them as they see fit without prior notice. Hence, the goal of the office hours requirement seems to be to keep administrative judges present and “on call”.

 

This article is an edited translation from Arabic.

 

Keywords: Lebanon, State Council, Hierarchy, Judges, Auxiliary judge, Administrative judge