On 29 November 2022, the Bureau of the State Council (SC) endeavored to make administrative judges’ participation in any committee, or performance of any work beyond the SC, contingent on prior written permission from the SC’s president, under pain of disciplinary action. While the decision was issued as a circular, it specifically targeted two administrative judges representing the Lebanese Judges Association (LJA) in the discussions of the Administration and Justice Committee’s subcommittee on the two bills concerning the administrative judiciary. Those bills are the Independence and Transparency of the Administrative Judiciary Bill, which was submitted by MP Osama Saad in cooperation with the Independence of the Judiciary Coalition (IJC), and the Administrative Judiciary Regulation Bill, which was submitted by MP Georges Adwan, prepared by the SC’s president Fadi Elias, and approved by its Bureau.

 

While the LJA asked the SC Bureau on December 13 to retract the circular because judges’ constitutionally guaranteed freedoms may not be restricted, Annahar relayed from Elias that the Bureau will meet today to make decisions on “the judges concerned in the [State Council] or those engaging with them from outside”. According to the newspaper, Elias also hinted that criminal proceedings might be brought against an LJA official for the letter he sent to the SC Bureau. Elias did not hide his displeasure that the two judges who attended the subcommittee discussions voiced opinions contrary to the bill adopted by the SC Bureau, which he deemed a supreme judicial authority that speaks for all administrative judges.

 

Hence, the IJC would like to underscore the following principles:

 

• The Constitution guarantees the freedoms of expression and to establish associations for all citizens, including judges. These freedoms are also guaranteed by the UN’s Basic Principles on the Independence of the Judiciary, issued 29 November 1985, such that they are limited only as required by the principle of impartiality and independence. Hence, the SC Bureau’s circular banning judges from discussing proposals to reform the judiciary restricts their freedoms in an unjustified manner that conflicts with the principles of necessity and proportionality in a democratic society and with the aforementioned UN instrument.

 

• The freedoms of expression and to establish associations are not only constitutionally guaranteed freedoms but also safeguards of judicial independence according to the principles of the aforementioned UN instrument. In fact, safeguards of judges’ independence remain deficient if the judges are deprived of their right to participate in judicial reform, respond to political interference, and appeal to public opinion when necessary.

 

• Though important, the SC Bureau is an administrative apparatus that owes its existence to its function of safeguarding the independence of administrative judges, pursuant to Article 20 of the Constitution, from the political authorities. When the SC Bureau deems itself the supreme judicial authority that speaks for the entire administrative judiciary, or when it prohibits administrative judges from contradicting its opinions or proposals for regulating that judiciary, it displays unjustified authoritarianism that – worst of all – conflicts with the reason it exists: to protect judges’ rights and independence, not undermine them.

 

• The independence of judges means not just external independence from the political authorities but also internal independence from the councils that manage their careers such that the latter cannot engage in abuse or authoritarianism. This is especially relevant under the current SC system, in which the Bureau consists of seven members all appointed by the executive authority via political and sectarian quota-sharing. Hence, any attack on judges’ independence and freedoms constitutes such an attack irrespective of whether it comes from the political authority or the judicial authority.

 

Based on these principles,

and given that adopting the bill that Saad submitted in collaboration with the IJC would guarantee these principles both in terms of the SC Bureau’s independence and safeguarding judges’ rights and freedoms,

the IJC expresses the following positions and demands:

1. We urge the SC Bureau to retract its circular and any measure that it has taken or is taking to limit administrative judges’ freedoms of expression and to establish associations, pursuant to Article 20 of the Constitution and the international standards enshrined in UN instruments.

2. We again call on the Administration and Justice Committee’s subcommittee to develop a workplan ensuring that the study of the bills is completed within a reasonable timeframe. We also ask it to make all its deliberations public under Article 34 of Parliament’s Internal Statute, as it did with the November 1 session. The ability of any citizen to follow its work in such an important matter is just as important as the participation of the LJA’s judges in this work.

3. Finally, we declare our full solidarity with the LJA – especially its administrative judges – in any abusive measures they may face, in the hope that efforts can be combined to achieve judicial independence.

This statement was originally published in Arabic on 15 December 2022