On 1 November 2022, the subcommittee of the Administration and Justice Committee met to discuss the two bills on the administrative judiciary’s independence and trial procedure presented successively by MPs Osama Saad and Georges Adwan. The most notable aspect of the session was that, at the request of the Independence of the Judiciary Coalition (IJC) and in a break with decades of confidential parliamentary committee meetings, subcommittee president George Okais made it public. Hence, besides MPs Okais, Saad, and Ashraf Baydoun, a number of specialized journalists attended, as did representatives of the IJC, Lebanese Judges Association, State Council, and Ministry of Justice. Pursuant to the publicity principle, we are hereby reporting the key discussions that occurred inside the committee over an hour and a half. Though important, these discussions remained general, and the principle of public discussion sessions itself occupied a portion of the debate.

 

Publicity Pursuant to Democracy?

 

As explained above, subcommittee president Okais complied with the IJC’s demand that confidentiality be lifted from the committee’s deliberations, as permitted under Article 34 of Parliament’s Internal Statute. Subsequently, the Legal Agenda’s (LA) Parliamentary Observatory and several journalists specialized in judicial affairs were invited and allowed to report on the deliberations. Okais pointed out that he had submitted two bills making committee sessions public, but they were not even debated. He pledged to do what he can within the bounds of the current Internal Statute to maximize transparency, in accordance with his convictions.

 

Note that in order to accept the Administration and Justice Committee’s invitation to discuss the bill on the independence of the judicial judiciary, the LA had stipulated that the discussion be public. The president of the committee at the time, Georges Adwan, rejected the request and thereby excluded the LA from the discussions, which continued inside the committee for approximately two years. The IJC also reaffirmed, in its statement about the beginning of the debate on the bill on the administrative judiciary’s independence, the importance of making the discussions public.

 

We hope that this approach will be applied to Parliament’s permanent committees and other subcommittees, paving the way for the Internal Statute to be amended and public sessions to be enforced, in order to enrich legislative work and uphold society’s right to access and view it. We also stress the LA and IJC’s consistent stance not to attend any committee session to which we are invited unless it is public.

 

Discussions About Publicity

 

Despite its democratic nature, the session’s publicity did not go unchallenged. Retired judge Samih Maddah, representing the State Council, declared that the committee’s right to invite whomever it wants to the discussion should not free it from the legally binding principle of confidentiality, thereby implying that declaring the session public conflicts with the Internal Statute. However, Article 34 of the Internal Statute clearly states that “the sessions, work, and records of the committees and the events of the discussion and vote shall be confidential unless the committee decides otherwise”, thus allowing the sessions to be made public, contrary to Maddah’s insinuation.

 

Lawyer Nizar Saghieh, from the IJC, then read out the aforementioned article. He concluded by saying that the publicity being debated is not a legal question as the Internal Statute allows it. Rather, it is primarily a question of our vision for legislative work, its transparency, and democracy more generally.

 

This point was reaffirmed by Okais, who stated that the committee exercised its power under Article 34 to lift confidentiality from its deliberations. He said that there is a need to bridge the gulf and increase trust between society and Parliament and that he personally is doing so by making the sessions public. He added that the course of the bill on the judicial judiciary’s independence has made him more insistent on publicity. He also expressed amazement that General Assembly sessions, which sometimes discuss very serious matters, are public while committee sessions, which discuss bills, are confidential.

 

Saad also declared his support for the principle of public sessions, arguing that judicial independence is a matter concerning not just the committee members but also the general public, especially as it was one of the main demands made by the protesters on 17 October 2019. He said that publicity, candor, and putting things above – rather than underneath – the table reassures the people.

 

Journalist Layal Bou Moussa also spoke about the importance of making the committees public. She argued that committee publicity helps journalists convey a clear picture of legislative work to the public, which should be informed of it, whereas confidentiality forces them to draw their news from potentially inaccurate sources.

 

The IJC’s Participation in the Discussions

 

Another matter noted at the beginning of the session was committee president Okais’ commitment to inviting the IJC as a key party in the discussion of the administrative judiciary independence bill, alongside the Lebanese Judges Association, State Council, Beirut and Tripoli bar associations, and Ministry of Justice. The IJC’s representatives committed to attend as long as the committee’s sessions are public.

 

Developments Concerning the Judicial Judiciary Law: The Minister of Justice Blocks Parliamentary Initiative

 

At the beginning of the discussion, Okais informed the attendees of the latest developments concerning the bill on the judicial judiciary’s independence, particularly regarding the comments on it sent by caretaker minister of justice Henry Khoury. Okais stated that contrary to what was supposed to occur, Khoury sent his comments not to Parliament but to the Council of Ministers. Hence, Okais had so far been unable to view them. When Saghieh revealed that General Secretary of the Council of Ministers Mahmoud Makkiyeh had told him that Khoury had sent a new draft bill in this regard, Okais said he had not yet been able to verify that information.

 

Saghieh asked what the committee and MPs’ stance will be on Khoury’s behavior, namely blocking parliamentary initiative by retaining the file for many months and breaching the principle of cooperation with Parliament. He pointed out that the minister had, upon a request he made to Parliament’s General Assembly, been given one month to deliver his comments in February 2022.

 

Okais answered that the stance must come first from Parliament via its speaker, then from its Bureau, and then from the parliamentary committees. The committee’s secretary (a Parliament staff member) then confirmed that Parliament had sent several letters to the minister asking him about the comments and received no response. MP Baydoun mentioned that the minister had been asked several times and had attributed the delay to the Supreme Judicial Council (SJC).

 

Conversely, the justice minister’s representative in the meeting, Judge Nadine Rizk, attributed the minister’s lateness to circumstances in Adliyeh and the ministry amidst the crisis. She said that the ministry received feedback from the General Secretariat of the Council of Ministers on its comments, which caused further delay. On the other hand, she presented no justification for sending the comments to the Council of Ministers instead of Parliament.

 

The IJC had already issued a statement condemning the justice minister’s conduct, especially in terms of blocking parliamentary initiative.

 

Additionally, Okais said that he had informally viewed the SJC’s comments on the bill on the judicial judiciary’s independence, which the justice minister sent enclosed with his own comments to the General Secretariat of the Council of Ministers. He explained that the comments were overall positive. They stated the following:

• To limit political interference in appointments, the justice minister should not be allowed to add names to the list that the SJC refers to the government to fill top positions (the president of the Court of Cassation, the Cassation Public Prosecutor, and the president of the Judicial Inspection Authority).
• The judicial personnel charts developed by the SJC should be effective and binding without the need for a decree to be issued, especially as the decree has transformed into a tool for politicizing all judicial positions.
• The conditions of the election of the SJC’s members should be amended. Judges should be divided into three electorates, each of which elects its own representatives (two from the Court of Cassation, two from the Courts of Appeal, and one from the Courts of First Instance). The elected judges should then select two additional judges.
• The bill should be amended to grant the judicial branch financial independence.

 

Okais asked lawyer Karim Daher, from the IJC, to present a proposal to strengthen the judiciary’s financial independence. While the Lebanese Judges Association supported most of the SJC’s comments, it argued that dividing judges into categories that each elect one or more representatives is a repeat of the experience of the elections of Court of Cassation representatives, which failed dismally. The Lebanese Judges Association once again demanded that all the council members be elected.

 

The Timeframe for Discussing the Law: Contingent on Logistics?

 

Saghieh raised the concern that the administrative judiciary independence bill will meet the same fate as the judicial judiciary independence bill, which was presented four years ago and is still unfinished. He called for a reasonable, practical timeline for completing the study of the bill. The administrative judiciary independence bill was presented in March 2021, and the Administration and Justice Committee only began studying it in July 2022, i.e. approximately a year and four months later.

 

Okais responded to these concerns by emphasizing logistical difficulties. Parliament’s staff only attends once a week, electricity is unavailable after 2:00PM, and the rooms available while the staff and electricity are present are limited and must therefore be shared by all permanent committees and subcommittees. Hence, he promised to set a timeline as soon as the logistical obstacles are solved.

 

Another issue – namely how the delay in the completion of the judicial judiciary independence bill will affect this bill – was also raised. The two bills are supposed to proceed together to ensure that they contain the same standards, especially in relation to judicial independence safeguards.

 

President of the Lebanese Judges Association Faisal Makki argued that procrastination is one of the main means of obstructing reforms and demanded that the discussions on the administrative judiciary independence bill be expedited and not tied to the outcome of the judicial judiciary bill.

 

Finally, we must mention that under Article 38 of Parliament’s Internal Statute, the timeframe set for parliamentary committees to finish studying bills referred to them is one month. Most committees exceed this period for numerous reasons documented by the Parliament Observatory’s report on parliamentary work during the 2018-2022 term, some of them logistical (as Okais mentioned).

 

General Discussions About the Standards Adopted in the Bill

 

As we mentioned in the introduction, the discussion of the two bills’ content was limited to some of the general standards that the law should adopt and did not delve into procedural details. The most notable of these discussions were the following:

 

The Judge’s Independence: A Personal Obligation or a Product of Legal Safeguards?

 

The question of judges’ election of representatives in the Supreme Council of the Administrative Judiciary raised an issue that usually comes up in public debate about the imperatives of legal reform, namely whether judges’ independence emanates from themselves and their personal resilience or from legal safeguards.

 

While discussing the judges’ election of the aforementioned council members, Maddah questioned whether elections guarantee judicial independence when this independence is intrinsic to the judge’s character. Baydoun raised this point again, arguing that independence stems from upbringing and despite all the pressures on judges, independent judges currently exist, as do judges who take instructions.

 

In response, Lebanese Judges Association President Makki expressed a different opinion. He said that every time laws to guarantee judicial independence are proposed, talk about independence in souls being more important than independence in texts arises as an excuse not to adopt texts on independence. For his part, Saghieh emphasized legal safeguards of independence, arguing that although judges’ resilience or personal strength is important, it does not guarantee them appointment in important judicial positions, which generally remain the prerogative of judges close to the ruling political forces. Hence, codifying judicial independence is a precondition for good, independent judges to assume offices commensurate with their personal attributes.

 

As for the elections themselves, Maddah mentioned that he – as a representative of the State Council – believes that the principle of a fully elected council does not produce independence but, to the contrary, could constrain judges’ independence. He argued that independence does not mean the authorities must be independent islands but that they must cooperate with one another. Hence, he proposed adopting the method that combines ex officio, appointed, and elected members in the supreme council (as in Adwan’s bill, wherein only two of the ten members are elected).

 

For his part, Baydoun wondered about the effects of expanding the election rule within the judiciary. He stressed that he was just asking questions to avoid “jumping out of the frying pan and into the fire” and had not made up his mind. His concern clearly seemed to be that resorting to judicial elections to limit domestic political forces’ influence over the judiciary (the frying pan) could strengthen foreign political forces’ influence over it (the fire).

 

In response, Okais pointed out that election is one of the most important universal standards of judicial independence and that we must allow the majority of the supreme council’s members to be elected while retaining an appointed minority, though the number of members and means of appointment and election should be debated. Saghieh commended this stance, mentioning that judges’ election of their representatives in their council is not the sole standard or safeguard of judicial independence but one that should be added to a number of others that will hopefully cause a transition from a culture of judicial interference to a culture of judicial independence. He also mentioned that the current system – whereby SJC members are appointed by the executive branch and, in practice, via quota-sharing – has proven to subordinate and politicize the judiciary. Hence, when talking about judges’ election of the council members and its risks, we should not forget the drawbacks of the system of executive-branch control over council appointments.

 

From another angle, Makki stated that the Lebanese Judges Association had presented a proposal for all members of the Supreme Council for the Administrative Judiciary to be elected. Okais asked the IJC to deliver comments in this regard. For her part, Rizk said that Minister Khoury will agree to the election principle if it goes forward.

 

An Expanded Authority for Judges

 

Maddah, representing the State Council, addressed the proposal in Saad’s bill to add non-judge members – namely two professors from law faculties and two representatives of the Beirut and Tripoli bar associations – to the Supreme Council of the Administrative Judiciary. He expressed fear of the effects of adding a partner in judicial governance who is not a member of the judiciary, arguing that this move would overturn general rules and has never occurred before. Finally, he said that these figures could be present in advisory bodies, but he categorically rejects their participation in decision-making.

 

On the other hand, after mentioning that having members from outside the judiciary on the judiciary’s council is a standard of judicial independence followed in most democratic countries, Saghieh stressed that Saad’s bill accommodates judges’ concerns in this regard by distinguishing between the body comprising only the judge members, which makes decisions affecting judges’ careers, and the expanded body concerned with the justice system, which is a matter of public interest. While he noted that the Lebanese Judges Association and its concerns in this regard must be heard, he hoped that the bill will ultimately allow interaction among the legal professions inside this council to be trialed.

 

For his part, while Okais agreed that the matter warrants discussion, he wondered whether having representatives of academics and lawyers join the council would weaken it or strengthen it by increasing the legal professions’ interest in the judiciary’s regulation.

 

Administrative Judges’ Consultative Services in Ministries and Public Administrations

 

Finally, journalist Bou Moussa addressed the subject of the consultative services that judges provide to ministries and public administrations in exchange for high monthly remuneration. She argued that these assignments should be prohibited – as in Saad’s bill – because they contravene the principle of the separation of powers. Maddah rejected Bou Moussa’s position, arguing that it is an attack on the judiciary.

This article is an edited translation from Arabic.