In mid-December 2021, the Administration and Justice Committee adopted an amended version of the bill on the independence and transparency of the judiciary. This version is an attempt to correct the version that its micro-committee completed last May in light of the feedback it received, particularly from the Independence of the Judiciary Coalition, which explained in detail that many international standards of judicial independence had not been respected. Unfortunately, upon reviewing the committee’s amended version, we find that it again neglects multiple of these standards. Consequently, the new bill is deficient and falls short of achieving judicial independence. While the coalition is working on detailed comments, the foundations of its position are the following:

 

1. The Failure to Free the Supreme Judicial Council from the Grip of Politics

The bill stipulates that the Supreme Judicial Council (SJC) consist of ten judges. Three are ex officio members – namely the president of the Court of Cassation, the president of the Judicial Inspection Authority (JIA), and the cassation public prosecutor – and seven are elected. To define the mechanism for electing seven members, the bill divides judges into seven categories and asks them to elect one member from each. The categories are:

1. The presidents of chambers in the Court of Cassation.
2. The presidents of chambers in the Courts of Appeal.
3. The presidents of Courts of First Instance.
4. The counselors of chambers in the Court of Cassation.
5. The counselors of chambers in the Courts of Appeal.
6. The investigating judges.
7. Both the single judges and the proposed itinerant judges. (Rather than occupying a set position, itinerant judges will be delegated to functions in any court and are not required by the bill to possess any particular grade.)

This constitutes an important change to the current situation, wherein the executive authority appoints eight of the SJC’s ten members and only judges from the Court of Cassation elect representatives, who must be from among its chamber presidents. However, the devil is in the details, which include unjustified choices that afford the political authority broad latitude to influence the election results and hence the SJC’s composition. This is because of the following factors:

 

1. a) The Seven Categories Are Artificial and Boost the Chances of the Categories Closest to the Political Authority

The first thing we notice is the disparity in the sizes of these categories. While there are just ten chamber presidents in the Court of Cassation, the judges in the seventh category will probably number more than 140 (107 single judges per the 2017 personnel charts plus the itinerant judges, who constitute 5% of the judicial cadre – i.e. approximately 33 judges – per the proposal). The other categories range between these two sizes per the 2017 personnel charts (41 chamber counselors in the Court of Cassation, 55 chamber presidents in the Courts of Appeal, 63 chamber counselors in the Courts of Appeal, 22 presidents of Courts of First Instance, and 45 investigating judges). The disparity in the sizes of the electoral categories is especially strange because the only logical explanation for dividing judges in this manner is a conscious choice to boost the status of the judges at the top of the hierarchy (who are generally the closest to the political forces) and weaken the status of young or junior judges (who are usually the most independent from the political forces). No concerns or interests distinguish the chamber presidents from the chamber counselors in the Court of Cassation or Courts of Appeal. Rather, these judges share the same needs, aspirations, and challenges, so why divide them into different categories? Meanwhile, single judges and itinerant judges have no common denominator, so why combine them into one category? Just as distinguishing chamber presidents aims to elevate them and guarantee their candidates’ chances of success, the choice to combine single judges and itinerant judges into one category aims to reduce the number of representatives of young judges. It restricts them to one seat and makes the battle of any candidate from this category extremely difficult because of the large number of judges it contains.

Moreover, four of the electoral categories proposed – namely the cassation, appellate, and first instance chamber presidents and the investigating judges – mostly comprise judges favored by the political forces per the latest personnel charts (2017). Consequently, these forces will have broad latitude to control the results of the SJC elections.

 

1. b) Marginalizing the Young

The second, equally grave effect of these artificial divisions is the marginalization of young judges. The bill deprives members of Courts of First Instance and all judges below the fourth grade – which corresponds to six years of service and is the grade the bill requires for the position of single judge – of the right to run for election (except the few who may be appointed as itinerant judges). Furthermore, the grades judges require to belong to the six other categories are as follows:

• Cassation presidents: grade 16.
• Cassation counselors: grade 12.
• Appellate presidents: grade 14.
• Presidents of Courts of First Instance: grade 9.
• Appellate counselors: grade 6.
• Investigating judges: grade 6.

Hence, if we leave aside the winner in the largest category (single judges and itinerant judges), the newest judge from any other category will have completed at least ten years of service. In other words, young judges, along with the ideas they may have for reform inside the judiciary, will be totally marginalized.

Usually, the marginalization of young judges is accompanied by gender marginalization because the percentage constituted by women is higher among the junior grades than it is among the higher grades.

 

1. c) Control Over the Appointment of the Ex Officio Members

The bill constrains the government’s power to appoint the ex officio judges by requiring them to be appointed from among lists of three names developed by the SJC. However, the text then promptly grants the minister of justice the ability to add other names and thereby undermines this safeguard, even if it does stipulate that the SJC must approve them.

In conclusion, the political authority will have a virtually decisive say in the identity of the three ex officio members. In principle, it will also enjoy much influence over the election of four of the representatives of the electoral categories as defined by the bill. Hence, the bill fails to create an electoral mechanism that guarantees the independence of the SJC, which is supposed to be the first safeguard of the judiciary’s independence.

 

2. The Failure to Achieve the Independence of the Judicial Authorities

The purpose of the independence of the judiciary bill was to achieve the independence of all the judicial authorities in order to limit political influence. This applies especially to the JIA, which has, because of its composition, often provided political cover to protected judges. However, nothing has changed in this regard. The JIA remains under the supervision of the minister of justice and continues to operate in total secrecy. Most importantly, all its members are still appointed unilaterally by the executive authority. Hence, the bill increases the JIA’s members, staff, and resources without paying any attention to its independence.

More remarkably, the bill takes the same approach to the authority established to evaluate judges. It grants the executive branch the power to appoint all the Judicial Evaluation Authority’s (JEA) members after consulting the SJC, even though it subjects the authority to the latter’s supervision.

While the SJC must propose three names for the presidency of the JIA and another three for the presidency of the JEA, the bill grants the minister of justice the latitude to add other names (with the SJC’s approval) to be presented to the appointing body. This could lead to the imposition of names that match the executive authority’s wishes and calculations.

As for the Institute of Judicial Studies (IJS), it too lacks a guarantee of independence. It remains a unit of the Ministry of Justice without any legal personality. The minister of justice nominates all its directors, including the director of continuous education and the members of its board, after the relevant judicial authority’s approval. Its president is appointed via the same mechanism as the presidents of the JIA and JEA.

 

3. The Failure to Free the Judicial Personnel Charts from Interference

The judicial personnel charts are one of the most important opportunities for interfering in the judiciary and building political loyalties. The bill was expected to provide an answer to the issues at hand by enshrining international standards, most importantly an impartial mechanism for appointments, the principle of a judge’s irremovability, the ability to run for vacant positions, and standards of integrity and competence. The bill’s solutions remain insufficient – nay illusive – in multiple regards and at complete odds with international standards, as we explain below.

 

1. a) The Lack of an Impartial Appointment Mechanism

While the bill affirms that the personnel charts draft prepared by the SJC is promulgated via a decree based on a proposal by the minister of justice, it introduces articles that allow the charts to be put into effect even if the political authorities fail to issue the decree on time. It stipulates that if the SJC and Ministry of Justice disagree, the former can settle the draft via a seven-member majority “provided that each position is voted on individually”. If the decree is not issued, the charts are considered effective one month after the draft reaches the bureau of the Ministry of Justice. These provisions fall short of guaranteeing that appointments are impartial for the following reasons:

• Requiring a majority consisting of seven of the SJC’s ten members to settle the disputed positions strengthens the executive authority’s ability to impose its will. Given that it appoints the three ex officio members, all it takes is one vacant SJC position or for one elected member to side with the ex officio members to make achieving this majority impossible. Any serious amendment in this regard requires reducing this majority to a plurality.

• Voting on each position individually could produce a draft that cannot be implemented. For example, the majority required to appoint a judge to a given position may exist while the majority required to appoint the judge currently occupying it to another position is absent. Promulgating the draft would thereby become impossible.

• The bill does not define the mechanism for voting. In particular, it does not specify whether the ballot is secret or open. This, too, could affect the vote’s outcome.

 

1. b) Undermining the Principle of Judges’ Irremovability (i.e. Not Transferring Judges Against Their Will)

While the bill explicitly enshrines this principle, it proceeds to undermine it or palpably limit the scope of its application in other articles. In a strange turn, the Administration and Justice Committee decided that the principle applies “outside the judicial personnel charts”, thereby stripping judges of any safeguard when they are developed. Hence, we do not understand where this principle, which was devised specifically as a control on the personnel charts, is to be applied. Does it apply exclusively to individual transfer decisions? Does it apply to partial personnel charts, which the bill does not regulate at all?

Even in these exceptional cases, the bill still allows the SJC to undermine this principle and transfer judges to positions against their will if the number who meet the positions’ requirements proves to be insufficient. This exception to the principle is especially grave as it will probably become the rule for all important positions because of the prohibitive requirements that the bill establishes for them. For example, these requirements demand that the judge have occupied specific positions in specific governorates for several years, prohibit most judges from running for new positions for as many as five years after their appointment to a position, and prohibit any judge from assuming a Public Prosecution position for a second term.

 

1. c) The Principle of Transferring Judges Even Against Their Will

Usually, the principle of rotation – i.e. the ability to forcibly transfer judges who have occupied a position for a certain term – appears as one of the checks on the principle of a judge’s irremovability. Even though the bill undermines irremovability, as previously explained, it enshrines the principle of rotation and turns it into a legal requirement that the judge be transferred as soon as the aforementioned term ends. This rule is accompanied by another, equally egregious rule that locks judges in their positions for a specific term by prohibiting them from running for other positions that become vacant during it.

 

1. d) Undermining the Principle of Running for Important Positions

The bill enshrines the principle that judges can run for judicial positions after their terms in their current positions end. However, as previously explained, it establishes prohibitive requirements that will, in practice, lead to an absence of people qualified to run for most important positions. In this case, the SJC is given the discretion to disregard all the standards set for the personnel charts.

 

1. e) Establishing the Category of Itinerant Judges

Finally, the bill creates a peculiar judicial function, namely that of the itinerant judge who, rather than occupying a specific position, can be delegated to any function as necessary. The bill states that itinerant judges may constitute as many as 5% of all judges. Consequently, judicial independence in these positions is extremely fragile. The biggest concern is that judges belonging to this category will be delegated to bodies suffering vacancies or recusals for the purpose of serving the interests of influential forces in cases concerning them. We cannot but stress the danger posed by this practice in Lebanon’s current situation.

 

4. The Failure to Recognize Equality Among Judges and the Retention of Opportunities for Enticement and Favoritism

The bill displays a spirit of discrimination between senior judges and the younger categories and between chamber presidents and counselors. It also leaves the door open for the paid appointment of judges to committees in the absence of any controls. Likewise, it allows judges to be seconded to certain administrations (the President’s Office, the Prime Minister’s Office, and the Supreme Discipline Authority), entitling them to a salary from the administration concerned on top of their base judicial salary.

 

5. The Failure to Recognize Personal Guarantees for Judges

The bill runs counter to many of the fundamental guarantees enshrined for judges internationally. The most notable deficiencies in this area are the following:

• The bill establishes no rules guaranteeing financial independence or fundamental rights such as health, education, and housing, which is especially concerning amidst the total collapse of the value of their salaries.

• The bill only recognizes the principle of a judge’s irremovability as lip service.

• The bill constricts judges’ freedom to establish associations, which constitutes a safeguard of their independence. It requires that an association’s subject matter not conflict with the SJC’s powers. This is a grave and unjustified requirement, especially as the bill includes among the SJC’s powers watching over “judges’ moral and material rights” and “anything related to judges’ independence”. Consequently, judges’ freedom to establish associations is restricted to recreational and cultural clubs that lack any rights focus.

• The bill empowers the SJC to fire judges by declaring their disqualification without defining “disqualification” or enabling them to defend themselves.

• The bill leaves the judge vulnerable to disciplinary action based on flexible texts, contrary to the principles of the legality and proportionality of punishment.

• In disciplinary cases, the bill does not afford judges the fair trial guarantee of litigation on two levels. This contravenes Constitutional Council Decision no. 5 of 2000, which explicitly deemed the right of defense a requirement for independence.

 

6. The Failure to Achieve Equal Access to the IJS and the Retention of a Fast Track for Entering the Judiciary from Outside the IJS

The original bill drafted by the Legal Agenda and adopted by the Independence of the Judiciary Coalition sought to ensure equality among candidates to enter the judiciary or the IJS by prohibiting their arbitrary elimination and establishing fair examination conditions.

Unfortunately, the Administration and Justice Committee’s bill goes in the opposite direction by granting the SJC additional opportunities to eliminate candidates via decisions that are not based on any objective criteria and cannot be challenged. This it does by establishing an additional condition for candidacy to enter the IJS, namely that the candidate have passed a preparatory year. Enrollment in the preparatory year hinges on a discretionary decision that an examining committee appointed by the IJS’ board makes after interviewing the candidates. The SJC can also eliminate any candidate for the IJS’ entrance exam based on another oral interview. To ensure equality, enrollment in the preparatory year should be based on objective criteria (such as possession of a specific university degree), and passing it should not in any case be a requirement for candidacy for the IJS’s entrance exam.

Worse, after extending the time it takes to enter the judiciary via the IJS to approximately four years, the bill then opens a fast track to appoint accredited judges from among lawyers and judicial assistants via an exam without placing controls on their selection (not even an interview). It requires only that they have ten years of experience. Making matters worse, the bill places no limit on the number of judges that can be recruited via this means. We fear that this will lead to the introduction of dozens of new judges connected to political groups to compensate for the resignations currently occurring in the judiciary.

For all these reasons, and because we deem that the bill in its current form does not achieve its objectives, we reject its content and call for it to be corrected in a public debate session before it is referred to Parliament’s general assembly. We do not want any old law – we want a law that truly guarantees judicial independence.