This article will address one of the main faults in the organization of Lebanon’s State Council: the assignment of its judges, via a decision from its president, to perform consultative work with public administrations for additional compensation paid from the budgets of those administrations (Article 15 of the State Council Statute). Besides removing the divisions between the judicial and executive branches and granting excessive hierarchical authority to the State Council president, these assignments are also a gateway for discriminating among and subordinating judges.[1]

 

Before reviewing the dangers of this practice, the article shall present some forms of assignment that have been observed.

 

Assignment in Practice

 While the form of assignments and the authorities requesting them vary, they are issued exclusively by the State Council president. This president can establish criteria or use discretion to grant or deny assignments to whomever they wish. The discretion in this area is compounded by the fact that all State Council judges, including chamber presidents and the government commissioner’s assistants, qualify for assignment and there is no public record of assignments or permissions granted to administrative judges or the compensation earned from them. Moreover, compensation for working for a public administration or committee varies among ministries and among judges in the absence of any controls.

Three forms of assignment have been observed: assignments for a set period (e.g. one year), assignments that last as long as the minister or the president of the ministerial body concerned remains in office, and open-ended assignments. Some judges enjoy many assignments, while others (those not in good graces) have none. Hence, a large disparity exists between the incomes of judges of the same grade. Many ministers have also become accustomed to nominating the judges whom they want assigned to consultative work in their ministries in the assignment requests they make to the State Council president verbally or in writing.

 While the number of assignments depends on the State Council president’s policy, administrative judges always have an incentive to obtain more assignments to increase their incomes. In one of the Legal Agenda’s interviews with administrative judges in 2018, the judge disclosed that some of his colleagues earn, via these assignments, LL12 to 20 million [USD7,960 to 13,270 at the time] per month on top of their salaries. The judge also disclosed that some assignments are aimed merely at appeasing or benefiting the judge concerned and involve no actual work. He said that he once complained to the State Council president about the severe discrimination among judges, and the latter merely responded with the adage, “Severing livelihood is akin to severing necks”.

 Moreover, the Legal Agenda has documented abuse by some authorities to which judges have been assigned. They tasked the judges with extra functions (in what could be called an assignment on top of an assignment) in committees established by or inside them, including tasks unrelated to legal expertise, without referring to the State Council’s presidency. In one of the most prominent cases documented, former minister of interior Nohad Machnouk assigned one of the judges assigned to his ministry with presiding over a technical committee to examine the tender for mechanical inspection centers. Such assignments are generally illegal as they contravene Article 15 of the State Council Statute, which stipulates that assignments be made via a decision by the State Council president and be restricted to legal consultation work. Although the decision issued by the State Council on 9 July 2018 to annul the tender substantiated the violation, as far as we know it took no disciplinary action against the aforementioned judge.

 

Dangers of Assignment

 The greatest dangers of assignment include the following:

 

• Assignments infringe the principle of the separation of powers. While the executive branch and public administrations should perform their work under the administrative judiciary’s watch and perhaps after consulting it, “assignment with work” incorporates the assigned administrative judges into their teams and, in practice, subordinates the very people who are supposed to monitor them. Making matters worse, the public administration is the one paying these judges’ compensation and can deprive them of it by ending their assignment, whereas the separation of powers principle requires that judges’ salaries be set by specific, legally codified criteria and that the administration have no discretion to increase or reduce them. This can negatively affect the legitimacy of decisions as authorities typically abuse their powers whenever they sense that there is no authority restricting them.

 

• Assignments infringe the principle of the independence of judges and constitute a blatant conflict of interest. Because of the prevalence of assignments, administrative judges generally appear to have one foot in the judiciary, where they work in the morning, and one foot in the public administration, where they work in the afternoon. Similarly, they have two or more salaries – one for their work as judges and one or more for the assignments – which infringes the principle of judges’ financial independence, as previously explained, and exacerbates the conflict of interest. In theory, this conflict could be managed via judges’ recusal from examining the validity of decisions for which they were consulted. However, such recusal is usually infeasible when the assigned judge is a chamber president as the chamber cannot issue a decision without this judge’s signature, and they must appoint the ruling bench, including the rapporteur.

 

• Assignment legitimizes measures that discriminate among judges in contravention of the principle of equality among them. From one angle, administrative judges can acquire additional incomes (as many as five in some cases) from these assignments.[2] Consequently, they compete against each other to curry favor with the public administrations and State Council president and thereby obtain more assignments. This competition elicits feelings of estrangement and distrust among them. From another angle, the assignments lead to an unfair work distribution as the judges without them are usually forced to perform the most complex work because of their colleagues’ commitments. This unfairness elicits feelings of frustration, failure, and being wronged among the unfavored judges who rarely obtain assignments and destroys their motivation to work as the people doing the job do not seem to be the ones benefiting from its privileges. One judge disclosed to us that his 13-year-old son blamed him for not owning what his colleagues with more assignments owned.

 

• Assignments increase the hierarchical authority of the State Council president, who can issue or deny them to whomever they like. This power can be added to the president’s power to investigate misconduct, impose discipline, issue transfers, and distribute work, as well as the privileges of presiding over the first chamber. Such power gives rise to legitimate concerns that it could be exploited to control the State Council’s decisions.

 

• The increasing number of assignments and assigned judges, including chamber presidents, and their subsequent integration – to the point of coalescence – into the public administrations undermines public trust in the State Council so much that it creates widespread legitimate doubt.

 

• Assignments affect fair trial safeguards. Besides their negative impact on judicial independence and its repercussions on these safeguards, auxiliary judges on the bench examining a case usually remain anonymous to the litigants, so the latter cannot even request that these judges be disqualified based on their work in the administration concerned. Of course, the litigants usually also do not know what assignments have been granted because they are not publicized.

 

• Assignments impact the efficiency of court work, especially given the current vacancies, as many judges allocate a significant portion of their time to providing consultation to public administrations. Making matters worse, one judge may perform multiple assignments, the compensation for them may exceed the judge’s base salary, and there are no evaluation mechanisms within the State Council. The fact that assignments can include chamber presidents, who are required to participate in the issuance of their chambers’ decisions, increases the risk of a negative impact on productivity.

 

• Assignments are unjustified. The work vested in a judge in a public administration or establishment or a municipality does not involve the performance of a judicial function and does not require the qualifications or guarantees of a judge. Rather, any lawyer, legal advisor, or official with legal expertise could perform such work. While the presence of judges in these administrations should in principle improve the quality of their decisions, the judges’ full integration into them can also have the opposite effect because their sense of accountability diminishes.

 

This article is an edited translation from Arabic.

Keywords: Lebanon, State Council, Administrative Judges, Judges, Assignments

 

[1] The assignment system is totally different from the secondment system: on assignment, judges undertake the assigned task while still performing their judicial functions, whereas seconded judges fully cease performing their judicial functions throughout the secondment period.

[2] The 2019 budget introduced a reform in this area. It limited the total monthly amount paid to judges for services they provide to public administrations and institutions, such as consultation, in accordance with the laws in effect to three times the minimum wage. However, we have been unable to verify the extent to which this article is respected, whether it is applied to every assignment, or the number of assignments to which it is applied.