Based on the invitation sent by the sub-committee that emerged from the Administration and Justice Committee to the Independence of the Judiciary Coalition (IJC) to provide its comments on the bill of the Independence and Transparency of the Administrative Judiciary (submitted by deputy Dr. Osama Saad in cooperation with the Coalition in March 2021), and the bill of the Administrative Judiciary Organization (submitted by deputy George Adwan after it was prepared by President of the State Consultative Council in July 2021), the coalition shared its comments, which we publish here today for transparency.
The coalition ended its comments by asking the aforementioned sub-committee to involve the concerned parties, mainly the State Consultative Council, the Lebanese Judges Association, and the Independence of Justice Coalition, in all discussions, provided that they are public and take place on the basis of standards of judicial independence and fair trial. The coalition also asked the sub-committee to set a realistic timeline for the completion of the two bills without delay.
Before sharing the comments, it is worth noting that the aforementioned sub-committee assumed its duties on July 5th, 2022 consisting of deputies George Okeis (chairman), Marwan Hamadeh, Ashraf Baydoun, Dr. Osama Saad and Hussein Hajj Hassan. Also, deputy Halima Kaakour attends its sessions on a regular basis.
At the invitation of the subcommittee of the Administration and Justice Committee, this morning the Independence of the Judiciary Coalition (IJC) sent its comments on the Independence and Transparency of the Administrative Judiciary Bill (presented by MP Osama Saad in cooperation with the IJC in March 2021) and the Administrative Judiciary Organization Bill (prepared by the State Council president and presented by Georges Adwan in July 2021). Pursuant to transparency, we are publishing those comments here. They conclude with a call for the subcommittee to involve stakeholders, particularly the State Council, the Lebanese Judges Association, and the IJC, in all discussions, which should be public and based on judicial independence and fair trial standards. The IJC also asked the subcommittee to set a realistic schedule for completing the bills without delay.
Before presenting the comments, we must mention that the aforementioned subcommittee began operating on 5 July 2022 and comprises MPs George Okais (as president), Marwan Hamadeh, Ashraf Baydoun, Dr. Osama Saad, and Hussein Hajj Hassan. MP Halime Kaakour is also regularly attending its sessions.
Irrespective of the similarities and differences between the bills in terms of their rationales and contents (which we discuss below), the mere drafting of two bills this large reflects a general agreement that there is a need to introduce comprehensive reforms into the administrative judiciary in order to build an integrated judicial system not reduced to the State Council, and to improve this judiciary’s organization and trial procedure in order to strengthen its independence and litigants’ rights. The significance of this trend is increased by the fact that it is occurring at the same time as the parliamentary and public debates on the bill on the independence of the judicial judiciary are progressing, which indicates a general agreement that the judicial institutions as a whole and their social role need to be reformed.
In view of previous experiences – particularly when bills on the judicial judiciary were debated – and to make it easier for your committee and ensure the quality of legislative work, we think that the two bills before it should be studied via the following methodology:
Following these preliminary comments, we shall now deliver our comments on each bill:
Part 1: Comments on the Independence and Transparency of the Administrative Judiciary and Administrative Procedure Bill presented by MP Osama Saad
MP Osama Saad presented this bill in cooperation with the IJC. The Legal Agenda prepared it with assistance from Lebanese and French university professors at Saint Joseph University and French administrative judges. The bill was also sent to stakeholders, including the Ministry of Justice and the State Council, to obtain their feedback. The bill is distinguished by the fact that it was drafted based on the same standards that underpinned the original version of the Independence and Transparency of the Judicial Judiciary Bill after a comprehensive review of the deficiencies in the regulation of the State Council and administrative cases in both law and practice. The Legal Agenda documented these deficiencies in a special issue it published in April 2020 under the title “The Administrative Judiciary: Who Protects the State and Who Defends It?” (attached). This review identified twenty grounds for enacting a new law, grounds that underpin the bill in question. The bill and all the solutions therein seek to observe the standards of judicial independence when it comes to the organization of the administrative judiciary, on one hand, and fair trial standards when it comes to trial procedure, on the other.
The most important solutions proposed in this bill include the following:
Regarding judicial organization and ensuring judicial independence
2. Vesting the fundamental powers to administer the judicial process in the Supreme Council of the Administrative Judiciary. This requires transferring many of the powers that the current law vests in the State Council president to this council, which reduces the hierarchy prevailing therein, as well as excluding the Ministry of Justice and executive authority from this process pursuant to the principle of the separation of powers and Article 20 of the Constitution. The Venice Commission recommended reducing executive branch interference when it suggested entrenching some rules concerning judicial self-administration at the constitutional level in order to eliminate any ambiguity over the executive branch’s powers vis-à-vis the judiciary and granting the Supreme Judicial Council powers to decide appointments and transfers without confirmation by governmental decrees.
3. Guaranteeing the internal and external transparency of the Supreme Council of the Administrative Judiciary. This means enacting an internal statute for the council fully compliant with the Access to Information Law and ensuring that rulings by the administrative judiciary are published within short timeframes.
4. Adopting equality and transparency in judicial appointments. This means ensuring that all citizens can enter the Institute of Judicial Studies based on merit and without their chances being reduced by any subjective or irrelevant considerations. In particular, the bill abolishes the ability to eliminate candidates based on a personal information form or oral interviews, pursuant to equality among citizens in the assumption of public offices.
5. Holding an annual competitive exam for entry into the Institute of Judicial Studies in the hope of filling the vacancies in the judicial cadre within a reasonable timeframe.
6. Fortifying judges with a set of legal safeguards, most notably the irremovability of any judge from a case, freedom of expression and to establish associations, the right to a fair trial, the right to challenge all individualized decisions concerning their careers, safeguards against abuse of their evaluation procedures, the right to run for vacant positions, and the principle that judges cannot be transferred without their consent.
7. Prohibiting measures that discriminate among administrative judges, pursuant to the principle of equality among them. Hence, the bill categorically prohibits assigning administrative judges to consultative work in public departments in order to uphold the principle of the separation of powers and prevent favoritism and discrimination among them.
8. Abolishing hierarchy among judges. Currently, the State Council is composed of chamber presidents, counselors, and assistant counselors. This creates hierarchical relationships among judges, especially between the chamber presidents and the others, once again in contravention of the principle of equality.
9. Creating a file for every judge and introducing a system of periodic performance evaluation. Currently, there is no system for evaluating judges.
10. Dividing disciplinary infractions into categories each of which is subject to punishments in proportion to its gravity, as well as defining these infractions pursuant to the principle of the legality of punishments.
11. Restricting investigation of judges’ disciplinary infractions to the Judicial Inspection Authority. The bill also stipulates that the disciplinary trial be conducted by the Supreme Council for the Administrative Judiciary in order to uphold the principle of separation between the powers of prosecution, investigation, and ruling.
Regarding guarantees of access to justice
12. Establishing a system of legal aid and expanding the types of cases that can be filed without a lawyer.
13. Guaranteeing the principle of the proximity of courts to litigants by establishing administrative courts in the governorates. This addresses the issue of the centralization of administrative justice exclusively in the State Council.
14. Establishing mechanisms that allow cases of an urgent nature to be addressed. Currently, the absence of these mechanisms prevents citizens from challenging administrative decisions effectively. The most notable missing forms of summary justice included in the bill are summary procedure to stay execution, summary procedure concerning freedoms, contractual summary procedure to guarantee transparency, publicity, and competition, and summary investigation procedure.
15. Expanding the concept of capacity and standing to litigate before the State Council to ensure the legality of administrative decisions. The State Council’s current jurisprudence is known to differ from chamber to chamber and be inclined toward constricting capacity and standing to an extent that often immunizes administrative decisions marred by flagrant legal flaws because nobody has the capacity and standing to challenge them. Hence, the bill includes texts that ensure legality and protect public interest by opening the judiciary’s doors wider to litigants in this area without turning cases into a populist tool.
Regarding bringing trial procedure into conformity with fair trial principles
16. Introducing the principle of the natural judges such that the judges of the bench are appointed based on criteria set by law and their names are announced when the case is filed. This prevents the bench from being changed at the will of the chamber president and its members from being kept anonymous, as currently occurs.
17. Shortening the deadlines for exchanging briefs, which will accelerate administrative trials.
18. Introducing the principle of two-level litigation and enshrining the right to cassation in order to standardize jurisprudence. To this day, the State Council usually acts as an administrative court of first and last instance, and its rulings are not subject to cassation.
19. Enshrining that debates are public and oral, if only partially, by having the chamber president call the parties to a public hearing wherein the investigation stage is effectively concluded. This consecrates the principle of public and oral hearings in line with civil and criminal disputes and strengthens the adversarial principle, defense rights to oral pleadings before the bench, and therefore fair trial conditions. The publicity of hearings is a fundamental principle that protects litigants from secret justice. This is a key democratic condition essential to transparent justice.
Regarding guarantees of the effectiveness and execution of rulings
20.Granting administrative judges the power to direct orders to the administration, contrary to the current law. In this case, the bill limits the judge’s power to compel the administration to take a specific measure in the vein of his or her decision, in line with development occurring in French law and to prevent the judge from displacing the administration. The bill also gives the judge the power to impose a fine for failure to execute the decision. Moreover, it establishes a bureau in the State Council for following up and facilitating the execution of rulings in close cooperation with public departments. While we could have established more measures that are more injunctive to ensure that decisions are executed, it may be sounder to do so at a later stage as the public departments’ performance and the administrative judiciary’s independence and effectiveness improve, for there are legitimate fears that rulings that rightfully or wrongly place major burdens on the state could be issued.
Hence, we deem it necessary to enshrine the reforms found in the Saad/IJC bill.
Part 2: Comments on the Administrative Judiciary Bill presented by MP Georges Adwan
MP Georges Adwan presented this bill in July 2021, four months after the first bill was presented. It was prepared by State Council President Fadi Elias.
The bill pays homage to many of the reforms in Saad’s bill, which indicates that there is a general agreement on their necessity. The most notable are the following:
On the other hand, the bill breaches principles of judicial independence and fair trial in many of its provisions. The most notable are the following:
Hence, we must ask, what is the point of restricting the justice minister’s power if the bill expands the power of another figure appointed by the executive branch, namely the State Council president? Would we not face the same risks of interference, albeit under different labels?
In conclusion, these are our most important comments on the two bills before your committee, which we hope will enable it to complete its work. We would also like to use this letter to ask you once again to do the following:
1.Given the vital nature of the administrative judiciary’s independence and its centrality to state-building, decide – under Article 34 of Parliament’s Internal Statute – that all your deliberations will be public so that the public can view and follow them and experts and stakeholders can enrich them.
2. Declare that your committee will abide by judicial independence standards and fair trial principles when evaluating the two bills such that these standards and principles become a shared language that resolves any difference in stances and ensures that the final bill conforms with the stated goals.
3.Involve stakeholders, foremost among them the State Council, the Lebanese Judges Association, and the IJC, in all the discussions, which should be public and based on the standards specified above.
4.Develop a realistic schedule for completing the bills without delay.
The IJC remains ready to respond to any queries from your committee related to these bills or the standards mentioned in this letter.