Approximately two years ago, we published a special issue titled “The Judicial Judiciary: On the Ruins of Independence”. Today, we are publishing a complementary issue addressing the administrative judiciary, which is currently reduced to the State Council. While citizens have much experience with the judicial judiciary, which examines all civil cases (such as leases) and criminal cases, few have experienced the administrative judiciary, which primarily examines the legality of decisions by the executive authority, public administrations, and municipalities, and determines the state’s liability for the harm they cause to citizens.
Like the earlier issue, this issue is not a reaction to a judicial measure taken in a specific case, nor is it related to a specific circumstance (as is usually the case with any media discussion about the judiciary). Rather, it contains the summary of our monitoring of this judiciary’s regulation, which we present as a rationale for the reforms that we are proposing as part of our plan to reform Lebanon’s justice sector.
What body administers the State Council’s affairs and guarantees that its judges are independent and that it functions properly? Is that body independent from the political authority or does it follow the model of the Supreme Judicial Council, which is more like an arm of this authority inside the judicial judiciary than a body that protects judicial judges from it? How are administrative judges appointed, promoted, transferred, and held accountable? What guarantees are available to them throughout their careers? What place do considerations related to sect, gender, and family connections have in these matters? How does the political authority win over or subordinate judges? How do State Council judges interact with one another, and what forms of cooperation and competition exist among them?
No less importantly, how do we evaluate the State Council’s positions on a citizen’s capacity to challenge administrative decisions that violate the law in serious issues, such as the environment or public property? The State Council has issued decisions dismissing a number of cases on the basis that citizens and organizations concerned may not litigate in defense of the treasury or environment, thereby opening the door widely for legality, along with public right, to be undermined.
Finally, what measures are needed to guarantee fair trial conditions within the State Council, whose procedure has witnessed no development for decades and therefore remains unaffected by all the modernizing reforms that have occurred in countries that follow the French judicial system? Key issues in this regard are that the State Council still lacks a summary affairs branch, its cases are examined without any public hearing and by benches whose members are not always known, and it still issues decisions at the first and last level because its bureau and the Ministry of Justice have failed to establish regional administrative courts despite the legislature’s decision to that effect in 2000.
These are some of the questions that we raise in the articles published in this issue. By focusing on structural issues disrupting judicial work and not isolated events, we hope to plug a gap in the knowledge of this area.
Hence, the first goal of this issue is to enable anyone interested in judicial affairs to become acquainted with the details of the professional environment in which Lebanon’s administrative judges live and, more importantly, its effects on the entire legal and judicial system. While studies and research on the regulation of the judiciary are scarce in general, they are almost nonexistent when it comes to the administrative branch.
Our second goal is to sensitize the public to the dangers of certain practices adopted in the administrative judiciary’s regulation in preparation for mobilizing social groups and forces to confront them. Irrespective of the circumstances of any particular case, there is a dangerous reality that we must address, namely the prevalence of a culture of interference in and subordination of the judiciary over the remnants of its culture of independence. This culture affects the administrative judiciary’s work by immunizing the public administrations against judicial accountability, leading to abuse of power and violation of legality.
Naturally, these questions are more pressing when it comes to the groups or forces that are most severely affected by this reality or that are expected, because of their jobs, to play a larger role in the judicial realm. Where are the individual actions or collective movements by lawyers, who face daily challenges while practicing their profession because of this culture of interference, to demand judicial reform? What role is played by the legal organizations that defend a certain right and constantly discover its limitations because of the absence of judicial guarantees? What role do academics, who usually teach court decisions independently of the circumstances in which they were made, play in developing research on judicial independence and fair trial conditions? And let us not forget about the role of media figures and political parties in shaping a public opinion on practices that interfere in the judiciary and the grave risks they pose to public freedoms and state-building.
While we managed to deliver our proposal to reform the judicial judiciary to Parliament (and the debate over it has actually begun, albeit slowly), the 17 October Revolution has created conducive circumstances that will hopefully boost the administrative judiciary proposal that we are presenting even though this branch is generally unfamiliar to citizens. These circumstances include the following:
Nevertheless, we are under no illusions about the size of the difficulties and obstacles that any reform project might face, especially in the judicial realm and especially given the suffocating living conditions and their ramifications. At the same time, the importance of this issue in the building of tomorrow’s state compels us to embark upon this battle.
Keywords: Lebanon, Administrative judiciary, Judicial judiciary, Reform