During the past weeks, a number of judges received a circular issued by the Supreme Judicial Council (SJC) ordering them to leave the exclusive WhatsApp group for Lebanon’s judges under pain of discipline. The circular was conveyed via the presidents of a number of appellate courts in an envelope marked ‘top secret’. The judges had created this group in April 2017 against the backdrop of what they considered an attack on their rights in two bills relating to their salary scale and its sources of funding to ensure communication among them. While some judges yielded to the circular, others insisted on staying in the group despite it. The ever-present debate about judges’ ethics, particularly in relation to the freedoms of expression and assembly, thus came to the fore. On one side, the authorities –represented by the SJC– argue that the duty of restraint is the rule and that it strips judges of these freedoms such that they can only exercise them in ways that the council explicitly permits. On the other hand, the reformist current within the judiciary argues that freedom is the rule, and exercising it is a prerequisite for strengthening solidarity among judges; and, hence their resilience to all forms of interference, marginalization, and attempts to isolate them individually. This is the stance that I will put forward in this article.
The Circumstances Surrounding the Circular’s Issuance
As mentioned above, the WhatsApp group for Lebanon’s judges emerged when the parliamentary session on the salary scale and its means of funding was called to convene. The WhatsApp group establishers aimed to enhance communication among judges in order to confront what they considered an attack on the judiciary, and its financial independence. For technical reasons, namely that not all judges could be contained in one group, the group split into two. Thanks to the WhatsApp group, the April 2017 strike was a success. But as soon as the judges returned to work to make way for negotiations, various pressures were exercised to put an end to it.
After a lull, the group became active in the wake of certain developments on the judicial scene. A series of incidents, most notably, Minister of Justice Salim Jreissati’s intervention in the case of Khadija Asaad, were deemed by some of the group’s members an attack on the judiciary. In addition, the efforts undertaken by the Supreme Judicial Council with parliament Speaker Nabih Berri regarding judges’ financial demands failed to materialize. Against the backdrop of these events, some judges in the WhatsApp group coordinated with the first President of the Court of Appeal in Beirut, Tannus Mashlab, to call their colleagues in the group to a meeting in the hall of said court in the Palace of Justice on May 11, 2017. The purpose of the meeting was to discuss the various judicial issues. The SJC’s initial reaction to this meeting was to convene a parallel meeting wherein those in charge of the council expressed their rejection of any general action by, or meeting of judges that does not have its approval. Although news of a disagreement between the members during the discussions leaked out, the transcript recorded an agreement to direct a circular to the judges ordering them to leave the WhatsApp group, as previously explained. What did this circular stipulate?
A Duty of Restraint or a Duty to Remain Silent and Obey?
This is not the first time that the SJC has expressed its rejection of freedom of expression and communication among judges. However, it is the first time that its stance has been so clear and strict. By scrutinizing the circular’s text, we can see that it draws at least three red lines.
The first red line is the banning of any communication among all of Lebanon’s judges outside the auspices and monitoring of the SJC. After the circular deemed the creation of the two WhatsApp groups encompassing judges throughout Lebanon to be a breach of the duty of restraint, it then clarified that judges could only create WhatsApp groups on the governorate level and under the conditions explained below. This suggests that to the SJC, it is not necessarily the content of the communication between judges (i.e., what they say and do) that breaches the duty of restraint; rather, if they work in different governorates, then it is the act of communicating in and of itself. In reality, it is difficult to understand this discrimination on the basis of work location, for partaking in the judicial work gives rise to shared needs and concerns, including those linked to defending judicial independence. Usually, these needs and concerns are greater than those born out of a judge’s attachment to a particular work location.
In fact, the only explanation for this discrimination can be found in the circumstances surrounding the circular’s issuance. The SJC, which did not hide its displeasure about the fact that the invitation [to the meeting in the Court of Appeal] was directed to all judges without it having been consulted, resorted to imposing this red line dividing judges. Governorate-level gatherings are limited to the judges working in a given governorate and therefore have limited power. General assemblies for all judges, on the other hand, have more significant and dangerous dimensions and should only occur if called by the SJC. While this stance adopted by the SJC stems from the same considerations that underpin the denial of judges’ freedom to establish an association or club, it reflects greater concern and wariness toward any communication that could give rise to judicial forces that compete with the SJC or weaken its power to control the judiciary. From this angle, “reservation” becomes synonymous with refraining from any action that could produce a judicial movement free from the SJC’s direction. The concept thus loses any connection to the exigencies of judicial work, or the preservation of litigants’ confidence that it presupposes.
The second red line relates to the content of the communication. No sooner had the circular stated that communication between judges working in the same governorate was permissible than it rushed to constrict the potential topics of discussion to “exclusively administrative matters related to the work of the first appellate president in the governorate in order to ensure that the duty of restraint is fulfilled”. The SJC thus limited the freedom to communicate in this field to logistical matters related to the needs of the courts, while banning any other issue such as interference in the judiciary, and the general issues of judges. Such issues remain under the exclusive purview of the SJC.
The third red line is the proscribing of communication among judges by any other means in order to pre-empt any attempt to convert the WhatsApp group into a Facebook group, or some other kind of group: “Communication on other platforms such as Facebook is in turn governed by the limits and controls of the same duty [i.e., the duty of restraint].”
The circular’s authoritarian nature is reinforced by the following
Firstly, it did not merely direct judges’ attention toward what the SJC sees as an ethical duty. Rather, it came in the form of a command such that any violation of it requires discipline. Most notable in this regard is the vast difference between this explicit, commanding form and the careful, obscure form employed when the subject matter is judges’ communication with and regular visits to politicians. While the SJC intervenes in full force to ban communication among judges (which could increase their resilience and independence), it hesitates to take any stance on their communication with politicians even though such communication raises doubts about their independence and neutrality. This hesitation was evident in the interview that The Legal Agenda conducted with SJC President Jean Fahed in late 2015. Fahed refused to take any principled stance against judges’ periodic visits to political authorities: “A number of judges may have friendships with some politicians, and a judge’s visiting of a politician does not necessarily mean that their aim is to serve the latter’s interests. The relationship is assessed on the basis of the judge’s performance in their work. We expect a judge to strike a good balance between being involved in society, on one hand, and keeping a distance from it, on the other. It is best for the judge to minimize his visits to avoid having people question his neutrality. But do we go as far as to consider them a disciplinary infraction? It is a delicate issue.”
Secondly, the circular was directed without any prior discussion or consultation [with judges in general] and without reference to any definition of the duty of restraint. Hence, the SJC once again handled the duty as a vessel for whatever meanings serve its interests without going to the trouble of providing any definition of it. Returning to the above comparison [between the SJC’s stance on communication among judges and its stance on judges’ communication with politicians], we ask, does the duty of restraint require restraining oneself from actions that could strengthen independence or, conversely, from actions that could cast doubt over independence and neutrality? I ask the SJC this question not just for sake of debate, but also to help clarify and deepen the concepts. Just as a judge should not issue rulings offhand, the SJC should a fortiori not issue circulars in such a manner.
Thirdly, in practice the circular related to an enormous number –more than 200– of judges, implicitly accusing them of violating or being ignorant of ethical duties. This impacts confidence in the judiciary and the judges’ confidence in themselves.
The Judges’ Refusal to Withdraw from the Group and its Effects: Commendable Insubordination
Judges’ stances on the circular varied. While approximately half of them withdrew from the group to avoid problems, many said that the SJC is taking authoritarian stances that lack the lowest degree of legitimacy. They refused to comply with the circular. Moreover, some presidents of the courts of appeal have thus far refrained from conveying the circular to the judges working therein. Hopefully they can persevere in this commendable stand so that a sound relationship can be redeveloped between judges and the SJC, a relationship wherein the council’s primary objective is to ensure the judges’ independence from any intervention, including its own. For the judicial authority lies in the judges, whereas the SJC is merely a safeguard for realizing this independence.
 Interview with Supreme Judicial Council President Jean Fahed on December 16 and 17, 2015, The Legal Agenda, Issue No. 36, February 2016.