For the fifth time, we are witnessing a recurring scene: political forces envisage ways to undermine the financial rights of judges, particularly the resources of the Judges’ Cooperation Fund which provides them with health guarantees and education grants for their children. This happened in 2014, March 2017, August 2017, and March 2018. Each time, some governing authority figures or constituents unfairly pick on judges in order to undermine the legitimacy of their demands. This year’s attempt came through the draft of the General Budget Law of 2019 (more than 7 months behind its constitutional date) which included provisions that would reduce the resources of the Fund by approximately LL9 billion [around US$6 billion]; i.e., 40% of them. As usual, the Supreme Judicial Council was not consulted in advance on these decisions, in violation of Article 5 of the Judicial Organization Law, and the judges held a strike. While judges oftentimes resorted to striking, covered by the Supreme Judicial Council, the limited nature of this apparatus and its association with political forces that appoint 8 out of its 10 members prompted judges to announce their own walkout in March 2018. This scenario happened again, even after judges benefited from the establishment of a club of their own. The club has garnered the support of judges regionally and internationally, which was demonstrated through two statements by both the international and Arab federations of judges, issued on 5 May 2019 – one day before the strike.
The Legal Agenda extends its support to judges and their demands, and reiterates that compromising the financial guarantees of judges is an infringement of their financial independence and a violation of the Constitution. No safeguards of a constitutional right (which are also guarantees of judiciary independence) may be abrogated without replacing them with equivalent safeguards, in accordance with Constitutional Council Decision No.1/1999, issued on 23 January 1999.
Accordingly, the following observations can be made:
First: Unbearable “Harassment”
What the political authority is doing is a form of harassment against judges. What does it mean when political authority comes out periodically – almost yearly – and repeatedly informs judges that their financial rights and guarantees are not safeguarded and that they can be subject to deduction or even elimination? Refraining from compromising any of these rights in the past seems a mere tactic that does not provide any future guarantees, whereby the threat of withdrawing remains hanging over the heads of the judges and subject to the whim of the political authority.
What makes such harassment even worse is that these attempts are often an occasion to scorn the judiciary in public discourse. Over the past years, a number of governing authority dignitaries made a series of statements to justify the reduction of judges’ financial rights. The statements generally went in the direction of accusing judges of corruption, laziness and lack of productivity, all due to general impressions that are not based on any fact or objective assessment. One of the most prominent demeaning positions was that of MP Fouad Siniora during the 14 May 2014 discussions where he went so far as to describe the state’s contributions to the Judges’ Cooperation Fund as waste and a gutter, and gave judges a choice: increase productivity or resign. “Either reform yourself or go home”, as Siniora put it. In the current context, it is feared that such prejudice would reach its peak in light of leaked information about the involvement of many judges in corruption and brokering acts, in investigations that could be the first of their kind in terms of their scope and the number of judges involved.
Harassment reached its highest level when judges were threatened with punitive measures in case they hold any protest or strike, after reminding them that they are merely employees subject to the Public Service Law which prohibits them from holding strikes or expressing any protest opinion. The most recent of these positions was a memorandum issued by Prime Minister Saad Hariri in which he asked all state departments and their regulatory bodies to “implement the principles and texts referred to above and arrange the legal consequences against the violators”.
It is as if the intention is not only to remind the judges of their weak status and systematically humiliate them in public, but also to prevent them from objecting or protesting. Judges are only expected to gratefully acquiesce to what they are subject to.
Second: Thwarting Efforts to Reform the Judiciary
Such harassment, whatever effect it has, can in itself result in a fundamental change in the nature of the rights granted to judges. Instead of being a safeguard under which judges are reassured that they can meet their families’ financial needs, keeping destitution at bay and practically ensure their independence, such rights become a fragile grant whose continuation or interruption is dependent on a mere decision by the political authority. It is as if the latter is sending a message to judges that it, i.e. political authority, is the judges’ sole provider, and that their peace of mind is not possible without them appeasing authority.
This would thwart the efforts to ensure the judiciary’s independence (most prominent efforts were the submission of a draft law on the independence and transparency of the judiciary by a number of lawmakers, and the establishment of a judges’ club, the first of its kind since the Judicial Studies Circle was halted in the early 70s). It would also be a leap backwards that would result in subjugating judges, thus stripping them of any role in holding political authority and the subordinate public administration – accountable. This is what The Legal Agenda repeatedly pointed out in previous statements.
Moreover, this continued targeting of the financial rights of judges would push impartial judges, who refuse to be subjugated or have any income beyond their basic salary and allowances, to resign. Practically, this targeting would purge the judiciary of its best judges and would generally thwart efforts to attract good elements to the judiciary. Both factors lead to a decline in the quality of human resources within the judiciary, in contradiction to the need to strengthen them.
Third: Unjustified Measures Against Social Interest
Aside from the damage resulting from these procedures and the fact that they violate the Constitution or the principle of independence of the judiciary, they are unjustified and completely contradict the principles of necessity and proportionality, and in effect public interest. The savings that the government aims to achieve through this attempt is LL9 billion; i.e., about US$6 million a year. Without downplaying the significance of this amount or any other public funds or resources, it actually constitutes a drop in a bucket of public funds that we can save or recover if the judiciary can function independently and can hold political authority and public administration operators accountable.
From this perspective, it is feared that the desired savings, resulting in judges’ subjugation, would result in the loss of many more public funds. Do Lebanese citizens know the magnitude of the financial and environmental damages that resulted from the government’s decision on 21 March 2019 to give an administrative time notice to rock crushers and quarries to work 90 days, without verifying any legal conditions for the establishment of any such facilities, after former Interior Minister Nohad El Machnouk provided protection for these quarries for years without fulfilling the rights of the state? Do Lebanese citizens know the magnitude of the tremendous damage caused by the continuation of maritime and river violations, some of which have lasted since the civil war 91975-19900, without the state having received any money yet despite offering one settlement after another, and is likely to only receive a very small amount in the absence of an independent judiciary? Do Lebanese citizens know that the financial value of some pending cases before the Lebanese judiciary is equivalent to US$100 million dollars; i.e., more than twenty times the amount the political authority wants to save? In this regard, suffice it to mention the issue of the seizure of 29,000 square meters of the El-Mina Port with the collusion of former Minister of Public Works Ghazi Aridi, while the current Minister of Public Works Youssef Fenianos did nothing to stop this seizure.
Moreover, violations are committed by the companies Ogero and Sukleen, Lebanese customs, and in tenders and soft loans granted in violation of its terms. There is also a large number of financial violationsverified by the Audit Bureau or the Central Inspection Authority, not to mention random employment or illegal enrichment. All these files are awaiting an independent judiciary. Did the government or any of its predecessors think about opening and completing these files, considering the wealth they provide to the state, when the judiciary’s independence was repeatedly violated?
Justifying the reduction of judges’ rights by invoking corruption and non-productivity the way a number of high-level political authorities is nothing but demagoguery. Without detracting from the size of corruption within the judiciary today, eliminating it will not be accomplished this way. It is not achieved by imposing or threatening collective punishment nor by defaming judges in general, but by an individual assessment of the work of each judge, holding accountable every judge involved, and issuing dismissals where appropriate. The first, and maybe only, result of collective punishment is the humiliation of impartial judges who will be morally and materially frustrated and will feel they are no longer needed in the judiciary, thus purging the judiciary of its best judges, not the other way around. Most importantly, judicial corruption is primarily the responsibility of prominent members of political authority who – by direct interference or via their appointees in the Supreme Judicial Council or the Judicial Inspection Authority – bear the primary responsibility for judicial formations or the provision of a political cover for corrupt or non-productive judges. Perhaps the best evidence of this is that the most prominent judges who were involved in the recent corruption investigations had for years assumed their positions under the cover and support of these forces and continued in these positions despite their violations.
Given such data, the new government’s attempt shows either that it is a government that does not know what to do: throwing poison in the well it is supposed to be drinking from, or it is a Machiavellian government that – by targeting judges’ rights – aims to not save money as it claims, but to subjugate judges so as to avoid any accountability. In both cases, the government completely loses its credibility towards its people and the international community, despite claiming its plans and strategy are part of the fight against corruption.
Keywords: Judiciary, Judge’s rights, Political authority, Corruption, Lebanese