Every branch of Lebanon’s judiciary has an authority tasked with ensuring its independence and proper functioning. For the Court of Accounts (CoA), that authority is the CoA Council (hereinafter “the Council”), which parallels the Supreme Judicial Council in the judicial judiciary and the State Council Bureau in the administrative judiciary. The basic idea behind this arrangement is the need for a public authority independent of the executive branch to take charge – to one extent or another – of appointing judges and managing their careers as a fundamental safeguard of judicial independence. Of course, guaranteeing the judiciary’s independence remains a very difficult and delicate matter that usually requires a heightened sense of independence and constant readiness to go as far as confronting very influential forces that regularly strive to acquire positions within the judiciary or at least win certain cases. What rules are adopted to enable the Council to perform this momentous task? More specifically, what rules are adopted to protect the independence of the Council members themselves, and how appropriate and effective are they?

Before addressing these questions, we hasten to say that the mechanism for appointing Council members and their profiles would give any objective observer legitimate concern that the Council may play roles contrary to those expected of it. It is feared that instead of being a safeguard for judges in the face of the political system, the Council may become an arm of the political system inside the judiciary that guards its interests and, worst of all, legitimizes and provides cover for political interference. Making matters worse, the executive branch mostly controls the composition of this Council.

A Council of Senior Judges Recommended by the Executive Branch

The CoA Council consists of five members: the CoA’s president, its public prosecutor, and its three highest-ranking judges. The term “highest-ranking” is defined by two criteria. The first criterion is position: these members must preside over chambers. The second criterion is grade, which depends on length of service (judges are promoted by one grade every two years), and is used to differentiate among the chamber presidents. Hence, the three “highest-ranking judge” members of the current Council are the highest-graded chamber presidents, namely Jamal Mahmoud, Abdel Rida Nasser, and Angham Boustany. This composition has several consequences.

Firstly, it bolsters hierarchy inside the CoA as junior and mid-level judges cannot be represented in the Council. This is because membership is restricted to chamber presidents, to the complete exclusion of chamber counselors. It is also a result of the grades that judges must possess to assume the aforementioned positions: the CoA’s president and public prosecutor must possess the 12th grade or higher (i.e. they must have served for at least 22 years), and chamber presidents must possess the 8th grade or higher (i.e. they must have served for at least 14 years).

Secondly, it grants the executive branch broad power to control the selection of Council members. This is because the executive branch appoints the CoA’s president, public prosecutor, and chamber presidents via decrees that the Council of Ministers adopts in the absence of any controls. The executive branch enjoys especially broad latitude in the appointment of the Council members because it is allowed to choose from among not only financial judges but also judges from other categories, particularly judicial and administrative judges. In other words, a judicial or administrative judge may be appointed as the CoA’s president, its public prosecutor, or one of its chamber presidents at any time via a decision from the executive branch (this we call “parachuting in”). In fact, most of the current Council’s members – namely the CoA’s president Mohamad Badran, its public prosecutor Fawzi Khamis, and the president of its first chamber Jamal Mahmoud – are from the judicial judiciary. While the 2012 amendments to the law regulating the CoA restricted the executive branch’s latitude to appoint chamber presidents from outside the financial judiciary by requiring that they constitute no more than 20% of all chamber presidents, the executive branch violated this condition in 2019 when it appointed two of the eight chamber presidents – i.e. 25% – from the judicial judiciary in a decision that went unopposed. Granting the executive branch this broad power clearly conflicts with international standards, which require that the majority of members of such authorities be elected by the judges themselves.

Thirdly, it bolsters occupational partisanship inside the judiciary, along with the isolationism that has traditionally prevailed among judges, and thereby negatively affects the regulation of the judiciary and evaluation and accountability activities. This composition results in the exclusion of the CoA’s other employees, particularly its controllers and auditors, from participation in decisions concerning their careers and the regulation of their work. It also conflicts with international standards, which require a truly diverse composition in which legislators, lawyers, academics, and other interested parties are represented in a balanced manner. Similarly, most modern European constitutions adopt a mixed composition for their supreme judicial councils on the basis that justice is a public matter and judicial independence is not a privilege or right of judges but, first and foremost, a safeguard for all litigants. The Venice Commission raised this point in the opinions it delivered concerning the two bills on the judicial and administrative judiciary on 17 June 2022 and 17 March 2024. A mixed composition was also enshrined in the Moroccan Constitution in 2011 and the Tunisian Constitution issued in 2014 (which was rescinded after President Kais Saied took power).

Fourthly, because membership is linked to position and rank, it is not limited to a specific period. The CoA’s president and public prosecutor remain members as long as they occupy these two positions, and the other members remain until they lose their rank one way or another (e.g. disciplinary proceedings) or the executive branch appoints higher-graded judges as chamber presidents.

Fifthly, although the law never mentions the Council members’ sectarian affiliations, customs have dictated that they be distributed by sect. These customs began with the CoA’s president, who has consistently been appointed from among the Shia since 1990 (i.e. the end of the Civil War), and its public prosecutor, who has consistently been appointed from among the Catholics. The executive branch has also had significant influence over the sectarian affiliation of the other three members (the highest-graded chamber presidents) through its selection of the CoA’s chamber presidents and its appointment of two Sunni judges (including one with a high grade) from the judicial judiciary to these positions in September 2019. Thus, the Council is now composed per the following formula: one Shia, one Sunni, one Catholic, and one Maronite, in addition to the CoA’s Shia president. These sectarian considerations strengthen the interference of politicians in the selection of people at the top of the CoA and its chambers, as the sectarianization of positions has become synonymous with quota-sharing among sectarian leaders. This became perfectly evident during the period of the political dispute taking place, with the chamber presidencies remaining vacant from 2007 to 2019.

Finally, the current law includes no guarantee to preserve gender representation, although women have significant representation (two members, namely President of the First Chamber Jamal Mahmoud and President of the Third Chamber Angham Boustany) inside the current Council.

The Council’s President Controls Whether It Convenes

The law regulating the CoA does not mention any need for an internal statute governing the work of its Council, which would strengthen internal transparency, or define how the Council is called to convene. Consequently, the CoA president alone has the power to call – or not call – the Council to convene and can therefore control its performance. Making matters worse, there is no transparency in this regard as neither the Council’s agenda nor its decisions are published. The Legal Agenda has learned that the Council’s sessions have been suspended since 2020 because of disagreements between Council President Mohamad Badran and President of the First Chamber Jamal Mahmoud. It is only called to convene to examine urgent matters, such as accepting the resignation of one of its judges (Khaled Akkari) in 2024.

Inflated Powers for the Council President

The text governing the CoA does not detail the powers of its Council. Rather, it merely defines them indirectly by referring to the powers of the Supreme Judicial Council as outlined in the law regulating the judicial judiciary. This reference suggests that the legislature intended to grant this Council, like the Supreme Judicial Council, primary authority over the administration of the CoA and the careers of its members, particularly its judges. In fact, a similar article exists in the statute of the State Council regarding the powers of its bureau (Article 18 Paragraph 8), although it adds that this bureau, “Ensures… the proper functioning of the administrative judiciary, as well as its prestige, independence, and smooth workflow, and makes the necessary decisions in this regard”. This legislative approach also suggests a desire to surround financial judges, as well as administrative judges, with the same guarantees of independence granted to judicial judges. Similarly, it suggests a desire for all the judicial authorities to benefit from any strengthening of the judicial judiciary’s status and independence guarantees, as the raison d’être for all the various judicial councils is their role in fortifying these guarantees.

However, a close examination of the other articles quickly reveals that the legislature, contrary to the apparent intent of this article, deprived the CoA Council of many of these powers. This is not because the law expands the executive branches’ involvement in decisions related to the administration of the CoA but because it inflates the powers that the CoA president can exercise unilaterally while also granting this figure the ability to effectively veto many of the Council’s decisions. The unbalanced distribution of powers between the CoA’s Council and its president is reminiscent of the unbalanced distribution of powers that we previously documented between the State Council’s bureau and its president. However, the imbalance appears to be even greater in this case as the law grants the CoA president the powers that the State Council’s statute vests in the minister of justice, on top of those that said statute vests in the State Council president. For example, the law vests the CoA president with the power to make decisions concerning the distribution of work, the composition of the chambers, and the establishment of an internal statute for employees, albeit after obtaining prior approval from the CoA Council. Moreover, instead of restricting the powers of the CoA president, the bill that the government referred to Parliament in 2012 expanded these powers to include seconding a judge to preside over a chamber in the case that the chamber president is absent for any reason, in accordance with the same mechanism.

The legislature appears to have opted to expand the powers of the CoA president because it would be inappropriate to vest the prime minister (who represents the head of the executive branch) with functions or powers like those vested in the minister of justice when it comes to the judicial judiciary or administrative judiciary. This approach puts hierarchy and personalized administration before collective administration, thereby increasing the likelihood of interference in the CoA’s work as its administration can be controlled by securing the loyalty of just one person.

Making the unbalanced distribution of powers between the Council and its president even worse, the president controls when the Council convenes and its agenda, as previously explained. Consequently, this figure can expand the scope of his or her intervention and powers, especially whenever a gap or ambiguity exists in the legal texts. In such cases, the CoA president need only endeavor to make a unilateral decision and refrain from putting it on the Council’s agenda. This approach can easily turn into a common practice against which the Council members lack any appropriate means to defend their powers, especially as the law stresses that the president is responsible for the internal administration of the CoA (a flexible expression that defies definition). The best evidence of this problem is the CoA president’s tendency to handle the distribution of controllers and auditors across the CoA’s chambers amidst the law’s silence on this matter. Instead of considering the danger of this practice, Article 27 of the 2012 bill enshrined it, providing further evidence of the presidential system’s control over the CoA. Another example is the issue of accepting donations and signing contracts related to them, which was recently debated inside the CoA after the president signed such contracts unilaterally.

This article is an edited translation from Arabic.