There is international consensus regarding two of the most important basic standards of judicial independence. The first is that judges should not be transferred without their consent. The second is that their career advancement should be tied to objective criteria. The case of Lebanon clearly confirms this view. In this country, the absence of such guarantees has turned judicial appointments and transfers (hereinafter “the appointments”) into the primary concern of judges as well one of the arenas wherein political forces bargain and wrestle to strengthen their intervention in the judiciary. The year 2017 has witnessed extremely significant contention in this regard. It began with an effort by judges to lift the political forces’ hands off judicial affairs and ended with the complete domination of political forces over these affairs.

Political domination over the appointments is not new. Appointment drafts – both those adopted and those aborted – have usually been politicized. However, three aspects of this politicisation are new. The first is that this domination became a spectacle, fully exposing the Supreme Judicial Council’s subordination and the decline of its role. The second is the publicization of this domination in the same year that witnessed the broadest judicial movement and longest work stoppage in the judiciary’s history. The third and most dangerous is the participation of a broad spectrum of judges – including some who have for periods of time been models of independence and reformist judges – in the practices adopted. Such participation opens the door to further normalization of these practices even though they comprise an “overdose” of politicizing the judiciary. In this article, we shall discuss the ten steps which produced a scheme of appointments, and with it a judiciary, in the image of the [existing] political regime.

A clarification is in order. Saying that the judiciary is politicized does not necessarily imply that the resulting appointments are bad. Minister of Justice Salim Jreissati alluded to this when he said in an interview with Lebanese newspaper Annahar that the appointments, though politicized, were not corrupt (October 4, 2017). Rather, it implies the establishment – or rather the consolidation and development – of precedents that could lead to further politicization of the judiciary and bind judicial performance to the evolution of the political authorities’ performance. In other words, the judiciary will worsen or improve when these authorities worsen or improve, just like any other public utility. It will become incapable of ever holding these very same authorities accountable or providing leverage for reforming state affairs or guaranteeing citizens’ rights.

Scuttling the Proposed Amendment to the Process of Judicial Appointments

The first subversive means used this year in the realm of judicial appointments was the rejection of the bill to amend the mechanism for producing them, namely Article 5 of the law regulating the judiciary. MP Robert Ghanem presented this proposal in coordination with Supreme Judicial Council President Jean Fahed. Their aim was to enshrine the council’s power to resolve the appointments draft by stripping the executive branch of the ability to block it. The proposal was rejected following the intervention of Prime Minister Saad Hariri and Minister of Justice Salim Jreissati in Parliament’s general assembly on January 18, 2017. Hariri requested a two-month period to study it and present an alternative proposal. Months have since passed without any position from the government in this regard. Admittedly, the proposed amendment demands serious consideration given that Supreme Judicial Council, whose members are mostly appointed by the executive branch, lacks the legitimacy [such an amendment demands]. However, the government’s reluctance to search for alternatives, guaranteeing the judiciary’s independence reflects an insistence on politicizing the judiciary or, at the very least, the lack of any will to reform in this area.

The Minister of Judicial Performance

The second subversive means used this year was Minister of Justice Salim Jreissati’s public pronouncements that his involvement in the monitoring of judicial work is necessary in order to ensure good judicial performance. This behavior peaked when Jreissati saw fit to phone Hani Abd al-Munim Hajjar, the assigned president of the Beirut Criminal Court, and demanded that he hastily rule on the case of [stabbing victim] George al-Rif. The minister justified this request on the basis that this case is one of the “hot files” that he has on his desk and is personally following closely. During this phone call, Jreissati had no qualms about invoking the will of the country’s president and prime minister and reminding the judge about how soon the judicial appointments would be drawn up. What distinguished this ministerial intervention was that it was made into a spectacle: it was videoed and broadcasted on television screens without the judge knowing. Consequently, the minister of justice was portrayed as intent on good judicial performance and the judge as the subordinate who must be pressured to perform his tasks. From this angle, the incident helped promote the ministry’s role in listening to people’s complaints. It legitimizes the ministry’s interference (and therefore the interference of politicians) in judicial work in contravention of the law, which vests this task in the Judicial Inspection Authority.

The minister went even further in an interview on OTV on June 28, 2017, by giving these practices a theoretical justification based on Article 66 of the Constitution, which [he says] vests the minister of justice with the task of overseeing the proper functioning of judicial procedure. Jreissati told the station:

Article 20 of the Constitution talks about the independence of the judicial function. That is to say, when the judge is alone with his knowledge, his conscience, his pen, his thought, and his freedom and he writes a ruling with his own hand, no one interferes. Conversely, if the minister of justice sees, in all the trial proceedings, that there’s postponement, procrastination, delay, or excuses, he intervenes… The minister of justice is not the witness who saw nothing.

The Judge is a Mere Civil Servant

During the 1990s, a legislative discourse emerged aimed at distinguishing judges (albeit rhetorically and formally) from civil servants. This discourse culminated in the separation of the judges’ rank and salary scale from that of civil servants, allowing judges’ salaries to be raised closer to those of members of the legislative and executive branch. Since 2014, a parliamentary discourse to the contrary has emerged. A number of MPs insisted on including in the civil servants’ rank and salary scale clauses concerning the judiciary. The most important of those was the one charging the government with revising the benefits provided by the cooperative funds, including the Judges’ Cooperative Fund. Rather than exploiting the separation of scales to raise judges’ salaries, the legislature raised the wages of some first and second-class civil servants higher than judges’ wages, which reflects disdain toward the judicial profession. This was accompanied by a discourse accusing the judiciary of unproductivity. Although the judges stopped work for approximately two months to protest these two developments, the political authority did not budge.

Threatening Judicial Leaders

The fourth subversive means was the threatening of judicial leaders with not only loss of their positions but also the possibility that they could be prosecuted for corruption, unless they performed the roles asked of them in the production of the judicial appointments.

The first threat was the dismissal of State Council President Shukri Sader from his position via a political decision taken amidst the judicial work stoppage. This move signaled to all other judicial high-ups that they could be dismissed the same way, with or without justification. Making matters worse, in one of the minister of justice’s television interviews, he attributed this dismissal to an incompatibility between Sader’s personality and the approach adopted by the Lebanese presidency, refusing to give any clear mandating reasons in contravention of the Access to Information Law. This statement reflects a conception that important judicial positions should be filled with judges “concordant” with the presidency’s approach: the presidency appoints its judges just as it appoints its ministers or advisors, to use late Judge Nasib Tarabay’s words.[1]

The second threat seemed more direct and effective, although it is difficult to be sure that it originated from a specific political or intelligence body. This threat was the leak to the media of news that a criminal complaint and a disciplinary complaint had been filed against Supreme Judicial Council President Jean Fahed based on his role in the Court of Awqaf. The publicization of these complaints was accompanied by increased talk about the imminence of the replacement of the Supreme Judicial Council’s president and Cassation Public Prosecutor Samir Hammoud. A few days after the leak, the Supreme Judicial Council backtracked on the decision to have judges stop work without having secured any practical outcome. Almost immediately, it was announced that work was beginning on the judicial appointments draft.

Striking the Judicial Movement: Divide and Conquer

The Supreme Judicial Council declared a judicial work stoppage twice during 2017. It was protesting the detraction from judges’ financial guarantees – particularly the benefits provided by their cooperative fund – and the raising of the salaries of some first and second-class civil servants above judges’ salaries. The council would not have turned to confrontation were it not for the rage and uniform opposition to these measures among judges. While the March work stoppage lasted a few days, the July-August stoppage became the longest one in the Lebanese judiciary’s history. In connection with these two actions, the judges developed means of communicating with one another electronically, namely through two WhatsApp groups. They eventually named these groups “Lebanon’s Judges’ Club” in mid-August. The judges then organized a petition, signed by 352 of them, demanding a bill enshrining the judiciary’s independence, especially the appointment of the Supreme Judicial Council’s members via means uninfluenced by the executive branch, and the principle of a judge’s immovability.

Despite the strength of this movement, the Supreme Judicial Council, under pressure of threats, decided unilaterally and without consulting the judges to backtrack on the work stoppage. It then promptly began work on the judicial appointments, as previously explained. This development completely changed the judges’ mood and concerns. It affected the level of solidarity among them. Fear of retribution by the political authority or a desire to attain its approval replaced the courage to demand the judiciary’s independence from it. Most importantly, the newfound solidarity among judges regressed into a state of division and competition over positions. Hence, observers witnessed a real revolution in the judicial landscape: in a matter of days, the longest case of opposition in defense of the judiciary’s independence and rights against the political forces transformed into a workshop led by the Supreme Judicial Council that completely identified with these very forces, all amid the division and individual isolation of judges.

The Sectarianization of Judicial Positions

It was announced that sectarian considerations would be abandoned in the selection of those successful in the entrance exams of the Judicial Studies Institute (the main means of entering the judiciary). Nonetheless, sectarianism has remained a permanent feature of the distribution of sensitive judicial positions such as the presidencies of higher courts, public prosecution offices, and departments of investigation. The severity of political division across sectarian lines has broadened the scope of sectarianization. Important evidence in this regard includes the increased weight of the oral component of the aforementioned exams [a component wherein the subjects’ identities are known to the examiners], which allows greater manipulation of the results. It also includes a steady increase in the number of judicial positions reserved to a sect. For example, a number of press articles attributed the lateness of the judicial appointments to the Amal Movement’s insistence on increasing the Shia share of judicial positions in the courts of Beirut and Mount Lebanon.[2] Of course, sectarianization in this manner usually goes hand in hand with giving the leader of the relevant sect the right to nominate the candidate judges for these reserved positions from among the judges closest to him.

The Three Lists: Every Leader Has His Posse

After agreement on the principle of issuing the appointments and to increase the chances of their passage, a consensus was reached on establishing close cooperation between the Supreme Judicial Council and the political forces, particularly the Free Patriotic Movement, the Future Movement, and the Amal Movement. In addition to the sectarian diversity represented by these forces, they reflect the array of state officials that have to sign decrees of judicial appointments can (the president of the republic and ministers of justice and national defense, all from the Free Patriotic Movement; Prime Minister Hariri from the Future Movement; and the minister of finance from the Amal Movement). It was then agreed that each of these forces would submit a list covering the judicial positions allocated to the major sect (Christian, Sunni, or Shia) that it represents. Subsequently, the sectarianization of the judicial positions was not only a key factor allowing each political group to appoint judges close to it per the agreed-upon formulas; it was also a tool for limiting the chances of conflict between these political groups over judicial appointments. Each leader may appoint judges in his sects’ positions and must in turn respect the other leaders’ right to do the same without interference.

The Supreme Judicial Council may comment on these lists based on information in its possession regarding the competence or ethics of the proposed judges or the exigencies and obstacles imposed by the appointments mechanism. This process is consistent, in principle, with the beliefs of the Supreme Judicial Council’s president, who has previously stated, in the presence of The Legal Agenda and many judges, that heeding the requests of political actors is not a problem if there are no reservations about the proposed judges. However, some of the names and the facts leaked suggest that the council went along with the lists even in cases marred by major issues (e.g. a judge to be appointed to a high position who has been referred to the Discipline Council for grave violations that could necessitate his dismissal).

The council found it permissible, even necessary, to raise objections when a list incidentally mentioned judges from sects other than the one to which the submitter of the list belongs to. For example, when the Free Patriotic Movement’s list nominated a non-Christian judge with ties to it, the council only accepted her after a long discussion about the merit of nominating in this manner. When this list expressed a wish to see certain Shia judges appointed [to the Shia positions], those in charge of the appointments categorically refused to consider this opinion, in order to respect the consensus spirit and the exigencies of quota-sharing.

The Rotation Principle: Chiefdom is for Politicians, Not Judges

While defending the appointments draft, Minister Jreissati stated that he adopted the principle of rotation in the public prosecution offices, investigating judge positions, and court presidencies in all Lebanon’s courthouses:

There are no more islands or centers of power… No one will say ‘I’ll happily enjoy my position’. Rotation with consistent criteria has been largely established in the standing and sitting judiciaries [i.e. among both prosecutors and trial judges] in the felony and misdemeanor [courts]. Since assuming office in the Ministry of Justice, my goal has been to revitalize the judicial body, and the only way I’ve found to do that is rotation. I consider myself to have succeeded in proposing it to the [Supreme] Judicial Council at the beginning of my term, and the Council ultimately agreed via a written pledge to adopt it.

This principle requires that a judge only remain in his or her judicial position for a fixed period to prevent it from turning into a “judicial emirate”. The judge must be transferred to another position after the period elapses. Although Jreissati attributed the rotation principle to himself, it has been a constant feature of the Free Patriotic Movement’s discourse for years, as evidenced by the fact that former Minister of Justice Shakib Qortbawi went as far as to include it in the draft of his proposal to amend the law regulating the judicial judiciary. The main reason for the adherence to this principle may be that the Free Patriotic Movement is a relative newcomer to the quota-sharing system, which means that it needs vast changes in the administrative and judicial positions in order to appoint persons close to it. While rotation is important, two observations must be made:

 

• The declaration of this principle came in tandem with an increase in the number of positions reserved for sects and in the political powers’ entitlement to fill them. In other words, the principle applies to judges, preventing them from turning their positions into their own personal emirates, without applying to the sects or the forces that appoint the judges, which remain free to turn these positions into emirates under their control.

• The laws regulating the judiciary in democratic countries generally adopt rotation not as a principle but as a means of mitigating the negatives that could arise from the adoption of the key principle of a judge’s immovability. This principle guarantees judges that they cannot be transferred from their positions without their consent, except after a certain period (such as five or seven years) has elapsed. On the other hand, adopting rotation without the immovability principle exposes judges and puts them in more vulnerable circumstances.
   

The Judicial Appointments as Part of Broader Negotiations

Additionally, certain media outlets reported that some political forces raised the topic of judicial appointments as part of political bargaining over tax, budgetary, and audit laws.[3] This is another indication that the political leaders are approaching the appointments as bargaining chips in negotiations at the national level.

Increasing Participation of Judges in Practices that Politicize Judicial Appointments

The tenth subversive means was increased involvement by judges in practices politicizing the judicial appointments. The political parties’ lists – based on leaked names – were not limited to judges affiliated with parties. Rather, they included many who have been known within the judiciary for their inclination toward independence and their integrity, competence, and involvement in judicial activism. While this step reflects a broadening of the definition of a judge associated with a political side, it also reflects a higher degree of acclimatization with these practices. They are transforming from (deviant) practices alien to the judicial system into “normal” practices inherent in it, which affects the entire socio-political system.

Subsequently, future judicial developments will be worth monitoring and studying. On one hand, for many judges, judicial work will turn into a process of reconciling the principles that they have usually highlighted in their judicial discourse (their conscience and professional ethics) with their newfound, compulsory concord with the forces to which they owe their career advancement. Judicial work will most likely turn into a process of near-daily negotiation with these forces. On the other hand, judges who still keep their distance from the political forces pursuant to their understanding of judicial ethics will be in no better place, as they endure the risks of delayed career advancement. They will find themselves called upon almost daily, sometimes from within their own families, to forsake their “arrogance”, “puritanism”, and “moral obstinance” to find a political patron.

For the sake of these judges and so that the whole justice system does not fall into the claws of politics, the most eloquent stance to adopt at this time may be to speak and act in a way that rejects the normalization of such practices.

This article is an edited translation from Arabic.

_______________

[1] Civil Observatory for the Independence and Transparency of the Judiciary, “Dismissing the State Council President: Backtracking on a Presidential Promise”, The Legal Agenda, August 8, 2017 (English version published October 9, 2017).
[2] Al Akhbar, June 5, 2017, and October 5, 2017.
[3] Al Akhbar, October 5, 2017.