On May 1, 2014, a decree setting up a secretariat for Lebanon’s Supreme Judicial Council (SJC) was published in the Official Gazette. Its main text was formulated under former Justice Minister Chakib Cortbaoui, and the decree was put on hold pending the formation of a new government cabinet that could ratify it. In theory, it is a positive step, enabling the active judges who make up the SJC to fulfill the functions assigned to them by law – most prominently, that of drafting a judicial appointments bill.
Upon careful examination, however, the decree does not seem to be aimed at enabling the SJC to fulfill such functions. Rather, setting up a secretariat seems to have been used primarily as an opportunity to create new functions for the SJC, departing in principle from those assigned to it by law. The decree also bolsters the standing of the SJC president in particular. This is likely to breed fears that reinforcing the hierarchical structure within the judiciary would endanger the internal independence of judges, i.e., their independence from the judicial institutions that govern their work.
Before proceeding to demonstrate this, it should be recalled that 8 out of 10 members of the SJC are appointed by the executive branch of government, often based on power-sharing arrangements. According to the principle of judicial independence, reconsidering the manner in which they are appointed would seem a priority over seeking ways to strengthen the SJCs power within the judiciary and over it. The same principle would also dictate the placement of restrictions that would safeguard judges from potential interference, including one connected to the SJC itself.
Expanding SJC Functions Under the Pretext of Setting up its Secretariat
The functions assigned to the secretariat listed in the decree “for the purpose of illustration, not restriction” remain unclear. As mentioned earlier, most of these functions seem to be aimed at granting the SJC new powers beyond those assigned by law. The decree does not make a token mention of the the judiciary’s independence, which is the SJCs raison d’etre. Nor does it mention the need for the secretariat to monitor existing interference in the affairs of the judiciary before referring it to the SJC, or the secretariat’s contribution to drafting laws, or similar regulatory texts aimed at developing judicial action.
Additionally, while it might be theoretically possible to connect some of the secretariat’s functions to the powers ascribed to the SJC by law, the decree does not clearly draw any such connections. For instance, it does not specify how the secretariat’s regular reports on the judiciary’s work should be used to draft the judicial transfers bill. It is as if the SJC were at liberty to pick and choose without being constrained by objective standards of any kind. Such a function would lead to strengthening the SJC’s power and ensuring its constant presence in courtrooms, without the assessment of those judges resulting in granting them or upholding any of their rights.
Article 4 of the decree raises more reservations. It entrusts the secretariat with the task of “monitoring judges’ social and private affairs, as per their request and as assigned by the council”. Does this mean that the SJC is entitled to discriminate against certain judges or make exceptions for some, on the basis of private considerations? Is there no fear that using such terms might pave the way for turning the SJC into some kind of syndicate or fraternity?
Another striking function is that of “organizing the formal attendance of representatives of the judiciary at state occasions, conferences and seminars, and making the necessary arrangements as per council decisions”. Is this intended to guarantee the SJC president some special accommodation at certain national and social occasions? If so, this could turn the SJC secretariat into a ceremonial body.
A further source of criticism is the fact that the decree takes for granted the widespread misconception that the SJC represents the judicial branch of government. This contradicts Article 20 of the Lebanese Constitution, which defines judicial authority as the authority of every judge in their courtroom, without any kind of specific representation. Subscribing to such a widespread misconception is not merely a question of theory. It portrays any strengthening of the SJCs powers as strengthening the judicial branch of government. This would eclipse the fundamental requirements for strengthening the latter, namely, offering judges guarantees against any interference in their work – whether from outside the judiciary or from within.
In addition to investing the secretariat with the role played by the media office, the decree assigns to it the task of “following media outlets”. Is the SJC trying to make sure that everything being said about the judiciary is scrutinized in a manner reminiscent of the guidance directorate (mudiriyyat al-tawjih) of security services? Instructions to follow the media is coupled with placing restrictions on the secretariat’s interaction with media outlets. Providing the latter with facts and statements must not violate the principles of the confidentiality of the investigation, the dignity (haybah) of the judiciary, and the freedom of the press. In order to ensure transparency and uphold freedom of the press, the need to regulate the right of reply for judges is completely understandable. Less so is reinvoking the notion of the “dignity (haybah) of the judiciary”, and giving it precedence over freedom of the press. This is likely to pave the way for broad interpretations based on impeding freedom and transparency in the name of dignity, and for turning the SJC into the guardian of judges’ reputations regardless of the facts.
On January 31, 2014, such was the impression conveyed in the statement issued by the SJC media office. In it, the SJC rejected addressing judicial rulings “outside the framework of the legally consecrated review process at a time when the decision remains subject to review”. It also objected to using the media as “a means of pressure to confound the sound course of judicial action”. Even more fraught with peril is the mention of the SJCs authority to lay down the basic principles governing the work of the secretariat in the media field, without any restrictions.
Reconsidering the Organizational Structure of the Judiciary
The organizational aspects of the secretariat’s work are equally subject to criticism. The approach adopted goes against the spirit of the Administration of Justice Act, which sets out the main powers granted to the SJC as a whole. The decree allows for the appointment of three active judges to the secretariat, the latter being headed by a member of the SJC. However, it then consecrates the authority of the SJC president and sets him apart with special powers. Chief among those is that of supervising and monitoring the work of the secretariat, to which the president can assign any task he sees fit, within the boundaries of its functions and role. One should keep in mind here that the decree only lists these functions “for the purpose of illustration, not restriction”. Although comprised of only five articles, the decree mentions the presidency of the SJC seven times!
The SJC presidency is thus doubly strengthened by this decree. Its representative authority within the SJC is bolstered after having broadened the scope of the functions of the entire SJC. Some of these functions include powers that should be exercised by other judicial institutions, thereby enforcing the existing hierarchical structure. How else can one explain entrusting it with administrative preparations for the judiciary’s competitive entrance exams, which is at odds with the notion of empowering the Institute of Judicial Studies (JSI)? The extent to which the secretariat’s regular reports on the work of the judiciary infringe on the powers of the Judicial Inspection Committee also raises serious questions. The fact of the matter is that such articles reflect an increasing tendency to strengthen centralized decision-making in judicial affairs.
The same can be said about the possibility of appointing no more than three active judges to the secretariat, by way of a decree issued upon the recommendation of the justice minister and after approval by the SJC. Such an article blatantly violates Article 52 of the Administration of Justice Act, which bars assigning duties to judges in addition to their own, except in cases specified by law. This is meant to ensure their independence and prevent all forms of enticement. Discriminating in favor of judges appointed to work at the secretariat makes the violation of a graver nature. Unlike their counterparts assigned to work at the Ministry of Justice, these judges do not lose their right to additional compensation (amounting to 20% of their salary). Issued on June 24, 2014, the judicial appointments decree reiterated this, further highlighting a form of discrimination that is difficult to justify.
Finally, one should point to the exceptional importance given to the confidentiality of the secretariat’s work and its relationship with the SJC. Members of the secretariat, including judges, are expected to keep all information confidential, at the risk of being subjected to a fine and imprisonment up to 1 year, as per Article 579 of the Lebanese Penal Code.
This confidentiality applies to all of the secretariat’s work, rather than to certain sensitive issues. No such provisions concerning the deliberations of courts or those of the SJC itself can be found anywhere else in the Administration of Justice Act. It is quite striking for any kind of disclosure of confidential information by those working at the SJC secretariat to be considered a crime. This is regardless of the extent to which such disclosure fulfills the conditions specified, such as disclosure without a legitimate reason for the benefit of oneself or another.
The crime of disclosure, however, ceases to be one with the SJCs written permission! It thus appears that the authors of the text found no contradiction between the severe restrictions they imposed on the members of the secretariat, and the complete freedom they gave the SJC. While going as far as considering disclosure on the part of the secretariat to constitute a crime, they freed the SJC from any requirements or restrictions in this regard, even at the cost of encroaching on the dignity of judges. The text of the decree thus guarantees the authority of the SJC over its confidentiality-bound secretariat, while strengthening its authority over all judges.
Under the cover of bolstering the powers of the SJC and the standing of its president, such a decree clearly represents a step back for the independence of the judiciary in Lebanon.
This article is an edited translation from Arabic.