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.

 

Introduction

 

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.

 

1. General recognition of the need for comprehensive reforms to the administrative judiciary and, more generally, the judicial institutions as a whole

 

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.

 

2. The need to adopt a methodology to achieve the reform’s goal

 

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:

 

• Determine the key issues currently impeding the State Council’s performance on the levels of both organization and trial conditions so that the desired reform can solve them without skipping or neglecting any one.

 

• Adopt the international standards for judicial independence and fair trials as a frame of reference for evaluating the proposed texts and ultimately determining their final content. Besides the fact that employing these standards will limit the reasonable legislative choices and help to resolve the differences among them, it will also make legislative work more principled and accordant with public interest and reduce the role of circumstantial gain-loss calculations by individual political factions.

 

• Draw on the debates occurring on and around the bill on the independence of the judicial judiciary, both in terms of the choices that the Administration and Justice Committee previously reached and the comments and recommendations that the (European) Venice Commission delivered in this regard after the Lebanese state consulted it. The commission itself mentioned this point, stating that the same standards and legislative spirit should be adopted for both the law on the judicial judiciary and the law on the administrative judiciary.

 

• Given this bill’s extreme importance, the debate on it should occur in accordance with the principle of publicity such that the public can follow your committee’s discussions and it forms a model to emulate in legislation.

 

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

 

1. Forming a body governing the administrative judiciary (the Supreme Council of the Administrative Judiciary) that enjoys independence in accordance with international standards. This means that half the members are elected by judges themselves, with all judges able to run and vote in these elections on equal footing, and that non-judge members (lawyers and university professors) are also elected. The proposal allows the ex officio and elected judges to appoint two additional judges in a manner that guarantees fair representation of all social groups, should any imbalance emerge in this regard, without infringing international standards. Even when it comes to the ex officio members from the administrative judiciary (the State Council president and the rapporteur-general), the bill stipulates that they be appointed from a list of three nominations that the Supreme Council of the Administrative Judiciary prepares after deciding among the candidacies presented to it.

 

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:

 

• Consistency in the name adopted for the body governing the administrative judiciary such that it becomes the “Supreme Council of the Administrative Judiciary” rather than the “State Council Bureau”. This amendment shows an intent to elevate the council and make it responsible for ensuring the independence and proper functioning of the administrative judiciary.

 

• Strengthening the council’s powers via-a-vis the Ministry of Justice when it comes to appointments, distributing work, and personnel charts and thereby strengthening the separation of powers and judicial independence, in line with the Venice Commission’s recommendations.

 

• Enshrining the principle of external transparency and the publishing of annual reports and final judicial decisions.

 

• Creating a file for every judge and introducing a system for periodically evaluating administrative judges’ performance.

 

• Establishing a mechanism regulating access to legal aid and expanding the types of cases that can be filed without a lawyer.

 

• Establishing mechanisms that allow urgent cases, particularly those concerning freedoms, to be addressed.

 

• Enshrining the principle of the natural judge and the appointment of the bench’s members when a case is filed, thereby enabling the litigants to know their identities.

 

• Shortening deadlines for exchanging briefs.

 

• Establishing administrative courts in the governorates and a deadline for doing so.

 

• Enshrining the principle of two-level litigation following the establishment of the administrative courts.

 

• Granting the administrative judiciary the power to direct judicial orders to the administration.

 

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:

 

• Eight of the ten members of the Supreme Council of the Administrative Judiciary are appointed by the executive branch, whereas only two are elected, and they are elected exclusively from among judges who have obtained the rank of counselor and are working in the State Council (a minority of administrative judges). Moreover, there are no non-judge members. This composition contravenes international standards, which require that at least half of the council’s members be elected by judges. It also marginalizes junior administrative judges (those working in the first instance courts and assistant counselors) by preventing them from running and voting. This, too, conflicts with the Venice Commission’s opinion, which recommended that juniors and women be represented fairly in the councils governing the cadres in which they work.

 

• The bill retains the ability to appoint the State Council president and government commissioner via executive decrees without establishing any candidacy system to ascertain their competence. It also retains the ability to appoint these figures “by parachute” from outside the council. These factors all reduce the chances of the most competent person being appointed and increase the scope for politicization.

 

• The bill retains for the State Council president enormous powers that this figure exercises single-handedly without referring to the Supreme Council of the Administrative Judiciary. This personalizes the administration of the administrative judiciary and increases the chances of abuse and politicization. Making matters worse, the council president is appointed by a decree issued by the executive branch, so this branch can control the entire administrative judiciary by appointing a loyalist. The gravest of these powers include the fact that five members of the Supreme Council for the Administrative Judiciary are appointed by the executive branch via a decree based on his or her (and not the supreme council’s) proposal, as well as the ability to dictate appointments in administrative courts and the distribution of work among their chambers without referring to any other authority, the ability to appoint judges to functions in public departments, and the ability to preside over any judicial chamber. This figure can also suspend judges referred to the Disciplinary Council or for trial.

 

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?

 

• The bill does not stipulate that an internal statute be enacted and thereby weakens internal transparency.

 

• Regarding the appointment of administrative judges, the bill allows an oral exam to be conducted without any controls. It also allows candidates to be eliminated based on oral interviews. Thus, it breaches the principle of equality in entry to the judiciary, contravenes Article 12 of the Constitution, and opens the door for allegiances to play a role.

 

• The bill neglects one of the most important standards of judicial independence, namely the irremovability of the judge. Thus, it conflicts with the bill on the independence of the judicial judiciary as adopted by the Administration and Justice Committee and ignores one of the most important abusive practices against judges.

 

• The bill allows judges to be assigned to paid consultative functions in ministries, albeit while establishing some controls. The dangers of these assignments are numerous. Most notably, they infringe the principle of the separation of powers, create a flagrant conflict of interest, legalize practices that discriminate among judges contrary to the principle of equality among them, and increase the hierarchical authority of the council president, who can assign or withhold assignment from whomever he or she pleases.

 

• The bill still differentiates among chamber presidents, counselors, and assistant counselors and is silent about how promotion from the rank of assistant counselor to counselor occurs. The existence of ranks conflicts with the principle of equality among judges, especially as moving from one rank to another is not automatic and interference and favoritism can therefore play a role.

 

• The bill requires that files be created for administrative judges and that the judges be evaluated, but it vests the presidency of the evaluation committee in a figure appointed by the executive branch, namely the State Council president. Hence, this branch can influence the evaluation. The bill also stipulates annual evaluation, placing exhausting pressure on judges. Worst of all, the bill leaves it up to the executive branch to define the criteria for this evaluation. The Venice Commission mentioned the need to grant the primary role in evaluation to the Supreme Judicial Council and the danger of granting broad power to the executive branch in this regard.

 

• The bill lacks any oral procedures or pleadings before the judiciary, in contravention of the fundamental fair trial principle of publicity.

 

• The bill retains the current law’s flexible definition of a disciplinary fault punishable before the Disciplinary Council: “any breach of job duties or dishonorable, undignified, or indecent act”. It adds specific infractions, including “breaching the duty of restraint by appearing in the media or on social media without prior permission or making media statements, directly or through others, that could compromise the reputation, dignity, or independence of the judiciary”. Hence, the bill opens the door for abusive prosecutions based on flexible concepts and directly and grievously infringes on judges’ freedom of expression by subjecting it to prior permission. The Venice Commission warned of loose and ambiguous texts.

 

• The bill includes a list of disciplinary punishments that can be handed down without mentioning proportionality between the gravity of the infraction and its punishment. This, too, the Venice Commission warned against, recommending that the law include the principle of proportionality.

 

• Like Saad’s bill, this bill seeks to enshrine two-level litigation. However, it also expands the types of cases that the State Council examines as a court of first and last instance. They now include cases of encroachment on public rights and freedoms, including individual freedom, and expropriation. Hence, while the bill establishes first instance courts, it deprives them of broad powers.

 

• The bill does not establish summary procedure to stay execution. Creating an expedited means of staying execution is important as the current procedures take at least one month.

 

• The bill once again requires direct, personal standing to litigate without defining it. This could obstruct litigation, on one hand, and immunize administrative decisions against challenges because of the constriction of standing and capacity, on the other. Hence, it could deprive the administrative judiciary of its protective role.

 

• The bill grants the administrative judiciary narrower power to direct judicial orders to the administration than Saad’s bill. This power is limited to just the realms of taxes, fees, elections, expropriation, and public service.

 

• One of the bill’s gravest aspects is its criminalization of what can be regarded as mere critique of the administrative judiciary’s work by broadly defining interference therein. Article 25 imposes a sentence of six months to three years of imprisonment and a fine of ten to one hundred times the minimum wage (the punishment stipulated in Article 419 of the Penal Code, which criminalizes interference in judicial work) for anybody who, by any publication medium, interferes in the administrative judiciary’s work via an attempt to influence judges or address pending cases. Consequently, if this bill is adopted, anyone who raises a social issue pending before the State Council, as well as anyone who “addresses” [yatanawalu] a preliminary decision by the council (or a decision to stay or not stay execution) or a report by a rapporteur counselor, is liable to be prosecuted. Hence, the bill restricts freedom of expression and conflicts with Article 13 of the Constitution and international conventions (the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights), which now have constitutional force.

 

Conclusion

 

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.

This statement is an edited translation from Arabic.