Since its inception, The Legal Agenda has dedicated the bulk of its resources and capacities to enhance the independence of the judiciary. The Legal Agenda’s approach is derived from its conviction in two things: the importance of judicial independence in a divided society; and, the [need to address] the development of a culture of interference, violation, and dependency in the judiciary that has affected its independence to a great degree – especially since the end of the civil war (1975-1991). While the sectarian system was purportedly designed in the 1920s to provide reassurance to citizens and to bring them together in order to develop a civil life free from fear and need, it has turned into a system of polarization (the rule of the zu‘ama) which aims to frame all citizens within networks of interests whose leading members dominate the entire public life.

 

As a result of this diagnosis, one of the most prominent requirements for the reconstruction of the state is the disengagement between the judiciary and the polarizing ruling authorities. Regardless of how political power is shared, protecting citizens’ rights and freedoms requires that the judiciary remain outside the sphere of such power sharing. The judiciary should remain a public space where all citizens feel reassured and enjoy their fundamental rights, without having to be affiliated with a particular leader.

 

Based on its diagnosis of the Lebanese situation, The Legal Agenda has developed its work mechanisms aimed at resisting and changing this situation. To this end, The Legal Agenda has worked with its partners, the International Commission of Jurists (ICJ) and the International Institute of Higher Studies in Criminal Sciences (ISISC), to develop and work – as part of this project – on three courses of action.

 

Media and Research: Monitoring Forms of Interference in the Judiciary, Understanding and Analyzing Them

This is a much needed course of action. Putting an end to interference in the judiciary that violates the rights of judges and litigants, requires readiness and persistence in monitoring the different aspects of this interference, as well as its forms and risks. It also requires competence and in-depth knowledge of the judicial system and its activity, and most importantly the capacity to properly develop problematics relating to judicial independence and the principles of fair trial. In this regard, it should be noted that the establishment of The Legal Agenda as a specialized research and media project had originated from our belief in the need to promote transparency, follow-up, and the monitoring of judicial affairs in accordance with high professional standards.

 

To this end, the project aims to draft a comprehensive report on the judiciary’s situation, and the most prominent issues hindering its independence by employing a scientific methodology based on available documentation and archives, as well as interviews with individuals who witnessed important events in the palaces of justice. We hope to complete this report by the end of 2015, which will furnish us with major research material for the reforms that we will propose in the following two years.

 

Under the same project, we are also working on establishing “a regional center for judicial studies and policies”. We hope this center will operate in coordination with the Institute of Judicial Studies, and will provide research material for judges and trainees and all those interested in judicial affairs, including media personnel who wish to specialize in judicial affairs.

 

Social Action: Enhancing Judicial Activism [Harak] and Other Forms Surrounding Judicial Matters to Strengthen the Judiciary’s Social Status

During the years of its work, The Legal Agenda has supported movements advocating for the independence of the judiciary or [the enhancement] of its social status, thereby giving great importance to working with judges, since we believe that judicial reform must begin with the independence of the judges who must be partners, not just recipients, in the making of such reform. Thus, the project supports the reformist trends within the judiciary, most prominently those aiming to form professional democratic judicial groups, like the judicial studies seminar which was formed by pioneering judges in the period 1969-1972. This creates solidarity between judges and strengthens the safeguards against any interference, control, or sectarianization. We also support reformist trends aiming to activate participation within the courts’ general assemblies. In this regard, the formation of the advisory committees recently established by the Supreme Judicial Council shall mark the beginning of such an endeavor [activating participation].

 

Within this course of action, the project aims to highlight the significance of resorting to the judiciary on important social issues, especially those that collide with the barriers of political interests. This is what we call strategic litigation, i.e., litigation designed to change a practice that violates the law, or to uphold a basic right through the judiciary. Referring these social issues to the judiciary shall reflect positively on its perception of its own role, along with the citizens’ perception of it. One of the most recent and notable initiatives in this regard was made by politicians who filed a lawsuit to the State Council, calling for the issuance of a public budget after 10 years of tragic delay as a means of restoring public order.

It goes without saying that the success of these initiatives will enhance communication between social rights-based movements and the judiciary. It is evident that the judiciary is the main gateway to developing the human rights system, and is often a cure for the sterile legislative and executive powers. As a result, citizens will care more to defend its independence. This is what we have clearly witnessed during the campaign launched by families of the missing persons, to demand that the government implement the judicial decision issued by the State Council on March 2014. The said decision acknowledged the families’ right to know [the fate of their loved ones] after decades of waiting. This campaign was carried out under two concurrent slogans: the right to know, and the independence of the judiciary through the implementation of its provisions. This interaction between social groups and the judiciary will be featured in a forthcoming documentary, which will contribute -through visual media- to strengthening the community’s will in defending the role of the judiciary and its independence.

The Legislative and Institutional Course

This course is primarily about working on the formulation of clear issues of reform, specifically the drafting of laws including the Administration of Justice Act and other regulations in several areas, such as the one relating to criteria for the appointment or transfer of judges. This will be conducted in coordination with the Supreme Judicial Council and other judicial bodies within this framework.

The most significant principles which will guide us through this work are as follows:

 

The principle of participation in the drafting of bills. The judicial issue is a public matter, if not one of the most significant public matters. It requires the participation of large segments of society in its reform, spearheaded by lawyers, college professors, judges and human rights organizations. The more segments participate in the drafting of a bill, the more the social momentum it gains,thus increasing the chances of its ratification. This is what we will take due care to guarantee, by ensuring the widest social participation in reform workshops and the broadest media coverage of its various stages and outcomes.

Carefully identifying reform priorities, and taking the highest precautionary measures to avoid any adverse effects that may lead to a reversed outcome. The disadvantages of accountability mechanisms for judges may outweigh the advantages (that is what we have shown over different periods of time) if these mechanisms, or the related discourse, is developed without giving enough consideration to guarantees of the independence of judges.

Thus, with the lack of sufficient safeguards to protect judges from selectivity or the abuse of these mechanisms against their favor, accountability and the discourse surrounding it will turn into another reason to strip judges of their immunity. Hence, it is important to couple evaluation and accountability mechanisms with the mechanisms aiming to strengthen guarantees of the judiciary’s independence.

Compliance with international standards for the independence of the judiciary. In this regard, the most prominent issues in the Lebanese context are as follows: the principle of the natural judge (and the corresponding principle of the abolition of special courts); the principle of the non-transfer of judges except with their consent; the principle of equality among judges without any distinction or hierarchy of a judge over another; the principle of election of members of the judicial bodies supervising the judiciary course; the freedom to congregate and the freedom of expression; and, safeguarding the judges’ right to a fair trial in any prosecution that may lead to taking action against them.

 

It is our pleasure today to start this course, in coordination with the Beirut Bar Association, representatives of the Ministry of Justice, and various judicial bodies. While we are aware that this cooperation may face certain obstacles due to different perspectives or views on certain issues, the best means to achieve the independence of the judiciary, or the priorities or feasibility of these means, we will deal with these differences in a very positive manner, all in the interest of justice. However, we shall also hold fast to our independence and our duty of constructive criticism. We hope that with this cooperation we will succeed in drafting bills which gain both extensive judicial legitimacy and support from the community, and help in the building of a new state.

 

Editor’s note: This article is an edited translation from Arabic of a speech delivered by activist lawyer Nizar Saghieh on behalf of The Legal Agenda and its partners in the implementation of the discussed project. These partners are the International Commission of Jurists (ICJ) and the International Institute of Higher Studies in Criminal Sciences (ISISC), Italy.