On April 7, 2016, Lebanese MP Robert Ghanem announced that the Parliament's Administration and Justice Committee has concluded a revised version of his proposal regarding the amendment of the mechanism of judicial transfers (Article 5 of the Administration of Justice Act). Ghanem had justified his proposal submitted on August 14, 2015 by stating that “the independence of the judiciary collides -in practice- with obstacles; some of which are due to the mechanism followed in issuing judicial formations”. In 2001, parliament had passed what was claimed to be “reforms to enhance the independence of the judiciary”, most notably limiting the power to put together a draft law for judicial formations to the Supreme Judicial Council (SJC).

At the time, this task was under its jurisdiction or under the Minister of Justice’s. While the law held that the formations draft should be agreed upon by the minister of justice and the SJC, it gave the latter the power to resolve the dispute by a majority of seven out of its ten members. However, it soon became apparent that this reform is a mere ink on paper since in order for these formations to come into force, a decree must be issued based on the minister of justice’s proposal. The requirement of a decree means a number of signatures should be obtained, including that of the president of the republic, the prime minister, the minister of finance, and, the minister of defense in the case of appointment of judges in the Military Court. Thus, any of the aforementioned officials may disable the issuance of the draft law by refusing to sign, and that opens the door wide for compromise and apportionment regarding judicial posts.

Accordingly, the objective of this proposal is to offer solutions to this dilemma which often led to the thwarting of the SJC’s efforts in making judicial formations. After discussions by members of the Parliament's Administration and Justice Committee, the following solutions have been adopted:

First: to set a period of one month during which the minister of justice should submit his remarks on the bill and discuss them with the SJC; otherwise, the latter has the power to ratify the draft law. Previously, the absence of a similar mechanism had resulted in illegal practice by former ministers of justice who held on the judicial formations bills, without explaining the reasons for disagreement or discussing them with the SJC. In order to put an end to this practice, the proposal empowers the SJC to finalize formations with a decision by three quarters of its members within 15 days after the one month period elapses, and no joint session takes place. The original text of the proposal states that in this case the draft law will be effective without the need for a decree, whereas the amended version reads that “if one month has elapsed on submitting the final formations bill, binding the Ministry of Justice, and a decree has not been issued, these formations shall be applied along with their effects until a decree is issued…”.

Second: to enable the SJC to overcome procrastination or refusal to sign the final formations bill by any of the executive authority members (president, prime minister, minister of defense, etc.). In this case as well, the original version of the proposal has been modified in a manner similar to the abovementioned, so that, in the event of the elapse of another certain period, formations are put in effect until a decree has been issued.

 

The Civil Observatory for an Independent and Transparent Judiciary had pointed out its objections to some of the provisions of the proposal in its basic form. In the following section we will attempt to evaluate the version submitted by members of the Parliament's Administration and Justice Committee on April 7, 2016. Ghanem’s had pointed out that the proposal constitutes a primary and essential step in the reform of the judiciary and its independence. But from our perspective, it actually results in weakening the independence of the judiciary rather than strengthening it, especially in terms of reinforcing compromise on judicial posts. This is due to the combination of three factors: first, a new emphasis on the current situation in that all judicial posts are kept subject to compromise, not respecting international standards that prohibit the transfer of judges without their consent; second, expanding the framework of compromise between the political and the judicial authorities under the cover of the quest to reduce its risks; and third, which may be the most dangerous, opening the door wide for the importation of political compromises into the SJC by changing the majorities required to resolve the dispute over the judicial formations draft law.

Emphasizing That Everything Can be Compromised

Studying the draft law both in its original and final versions, it is clear that the bill is about dividing powers between the SJC and members of the executive authority who are supposed to sign the decree on judicial transfers, and who do not necessarily make up one team. On the other hand, the bill completely misses a basic criterion for the independence of the judiciary: the principle of consent-based transference of judges. The problem with the proposal is: Which body is authorized to transfer judges? And how is that done without taking into account how to protect the judge from various forms of arbitrariness, whether from outside or from within the judiciary?
 

What reinforces this are three things:

That the proposal states, based on objective criteria, what it called the principle of mandatory transfer; i.e., it strengthens a principle that violates the adopted international standard;

It did not mention any amendment to the terms of appointment of members of the SJC to increase the number of elected judges; and

The requirement to respect the objective criteria of the formations and their details (morality, productivity, knowledge, seniority, and the principle of mandatory transfer) was not coupled with any mechanism that would ensure observance of such criteria, which made such criteria a matter of mere ethical conduct. This was expressed by Ghanem who expressed his hope that the SJC follow these standards.

That would of course keep the margin of compromise and comity wide. Thus, we make no mistake if we say that the proposal remains within the confines of rhetoric reformist discourse that has been prevailing since the Taif Agreement. This discourse often leads to a reduction in the independence of the judiciary by strengthening the powers of the SJC, without paying any attention to the independence of the judges themselves. It seemed clear that the proposal aims to address the formations crisis from the viewpoint of the SJC, without any regard for the concerns of the judges.

Expanding the Compromise Framework Between Political and Judicial Authorities

It appears that the solution adopted by members of the Parliament's Administration and Justice Committee is based on enabling the SJC to impose its bill, even if a decree has not been issued for one reason or another, yet the issuance of a decree is a must. According to Ghanem, the final wording of the draft law is aimed at maintaining a “balance between the judiciary and political authorities”, and “the structure, and the role of the SJC, the minister, the prime minister, and the president”. Irrespective of the effects of this balance, two things should be noted:

First, that the Committee’s solution reflects its consideration of the intransigent manner adopted by the political authorities regarding transfers as a legitimate action, while simultaneously trying to mitigate that intransigence. In doing so, the Committee has further boosted practices adopted by the political authorities in their compromise on judicial posts, instead of condemning them and leaving no room for such practices to take place.

Second, it drafted an odd text that is not found anywhere in Lebanese law, reflecting the extent of compromise in this regard. The text reads: “The formations draft law shall come into effect pending a decree”. What makes this even more susceptible to criticism is the benefit expected from a similar text, not to mention the legal dilemmas that may result from its realization. What is the purpose of adhering to the issuance of a decree when it is supposed to approve the formations draft law which is considered “final”? Is it enough to justify a hybrid text with the need to maintain the formality of the role of members of the executive authority, or is it that hidden effects are behind the issuance of the decree to ensure the executive authority has an influential role, albeit not apparent? A number of questions require clear answers: How will work be distributed among judges after the formations bill takes effect in the absence of a decree, noting that the current law requires work distribution to be based on the decree and issued with a decision by the minister of justice after approval by the SJC?

Distribution of work refers to identifying the judicial functions that will be carried out by the judges at the courts to which they have been transferred, which is necessary whenever a number of judges are appointed in the same post in a particular court. Should new texts be added in this case to enable the SJC to activate the work distribution decision even in the event of procrastination or refusal by the minister of justice, apart from the presence or absence of a decree? How do judges exercise their right to appeal the decision of their transfer? Will the formations bill be subject to appeal if it produces its effects, or should the judge who wishes to appeal wait until the decree is issued? Can the judge appeal in the two phases with all the confusion that follows in the work of courts?

Apart from the fact that insisting on the issuance of a decree for the formations seems unjustified from a legal point of view, it would let the door wide open to chaos and confusion among the judiciary, in light of the questions raised above. Thus, issuing the bill without the executive authority’s approval has more disadvantages than benefits, at least in the case when the formations are broad. This reality would lead the SJC to have reservations and adopt wisdom, i.e., to return to the logic of compromise over positions, respecting the will of any given party. Consequently, the SJC would not exercise the power given thereto except in a few cases that may be limited to the appointment of graduates in the judiciary without delay, or to filling vacancies that do not require any political sensitivity. From this angle, the “final” formations bill, which may not be issued without a decree within the deadlines, becomes temporary, pending political consensus. Then, it can also be amended any time under the decree to be issued, provided that the amendment is approved by the majority of the SJC members and the minister of justice. This would practically lead to continuous compromise.

Compromise is Enhanced by Raising the Required Majority Within the SJC for a Final Decision

In our previous comment,[2] we criticized what we called “preemptive compromise”, which refers to the proposal of raising the required majority from seven to eight members, i.e., 80% for the formations bill to be final in the event of a disagreement with the minister of justice. Practically, this majority strengthens the ability of political parties to influence the SJC decisions by its members. It is enough to convince three of them to disrupt the bill. To understand the potential for that to happen, we need to remember two things: that eight out of ten members are appointed by the executive authority, and that the SJC is composed on the basis of the sectarian quota followed in the councils of ten members (two Sunnis, two Shiites, one Druze, three Maronites, one Orthodox, and one Catholic).

Moreover, sometimes, political parties do not hide their insistence on dealing with the appointment of members of the council in accordance with the sectarian quotas logic, in the sense that each heavyweight leader appoints members of their community. At that time, we expressed our concern that adopting this settlement may increase the tendency by political parties to appoint their relatives in the council, so as to influence its decisions. That ghost hampering the council becomes a potential means to impose certain decisions, just like what happened with the Constitutional Council when three of its members (the hampering quarter) succeeded in preventing it from considering the constitutionality of the bill on extending the Parliament’s mandate. This scenario could even be the only logical explanation for raising the majority required to ratify the formations. It is as if the submitter of the proposal has sought to convince the political parties to give up their powers to stop the judicial formations, by giving them guarantees to prevent imposing unwanted formations thereon. In other words, if the proposal is approved, it will result in bringing politics to the SJC under the cover of freeing the latter from the burden of politics.

In spite of expressing these concerns, the MPs kept the increase in the ratio required to approve the formations bill, although they also kept a wide margin for the executive authority to directly interfere [in its decisions]. Thus, it seems that they have adopted the part of the settlement that enhances the margin for politicians in the SJC without depriving them from the potential of direct interference. By that, the political authorities have recorded an additional gain that would enhance the logic of compromise in the distribution of judicial posts, under the cover of reinforcing the judiciary’s independence.

This article is an edited translation from Arabic.