The Legal Agenda Launches the Civil Observatory for an Independent and Transparent Judiciary

2014-06-09    |   

Since its inception, The Legal Agenda’s main objective has been to enlarge the share of public space dedicated for judicial affairs and consequently for people’s issues being addressed before the courts. Success in this endeavor depends on two things: restoring respect for the citizens' issues by turning the latter into a matter of public interest, while restoring confidence in the judiciary as a refuge for citizens who have been wronged and as a site for dealing with social issues. The main intent was not to proselytize judicial affairs in an abstract manner, but to rely on  field research as illustrated by the work that The Legal Agenda has produced and which took conditions on the ground as its starting point. Relying on facts does not mean our work has been purely technical and based on a fragmentary vision. Rather, it is political with a national vision, one that sought to reinforce citizenship, democracy and the separation of powers.

In order to achieve that, The Legal Agenda has made great efforts to develop its work and resources and has created its own media outlets (a periodical publication that is now monthly, and a web page with selected content). These outlets made it possible to extend knowledge of the practical application of the law beyond legal texts, whereby the latter might remain ineffective or of limited effect. This media-based approach has also helped bring to light some fundamental problems with respect to regulating the judiciary – problems that seek to 'tame' judges under the guise of judicial reform. It has also made it possible to expose many instances of the way those in power,including public prosecutors and law enforcement agencies, use the judiciary as a means to intimidate people and make them accept injustice. Together with its partners, the Lebanese Physical Handicapped Union (LPHU) and Lebanese NGO, Skoun (Lebanese Addictions Center), The Legal Agenda hopes to institutionalize and expand these efforts with the setting up a Civil Observatory for an Independent and Transparent Judiciary.

From the start, it has been clear to The Legal Agenda that the objectives mentioned above (restoring respect for citizens and for the judiciary), cannot be achieved solely by encouraging the media to expand their coverage of the judiciary. Two other elements are required: encouraging people to seek the courts to demand their rights instead of resorting to political leaders, and at the same time encouraging judges to retain their independence and to work to prevent persistent injustice. The Observatory will therefore be an instrument working on all three elements of advocacy, all of which are interconnected: The more interest the media takes in the judiciary, the more willing people will be to depend on the court system to deal with their grievances and the more judges will cling to their independence and their freedom to make decisions. Similar effects can be discerned in the opposite direction.

The role of lawyers in the process is still fundamental. They are the inevitable mediators between plaintiffs and judges and fundamental participants in the process of placing social issues within a legal framework. In this respect, it would be wrong to see the Observatory solely as an instrument for capturing a snapshot of the judiciary as it is today and disseminating it. On the contrary, when it defines its priorities and the approaches it will take, it will try to capture and disseminate images that reflect a high level of social dynamism. The observations should be like pebbles that cause ripples when thrown in water, ripples that in turn give rise to wider circles and cause fundamental changes in the field of judicial activity, and consequently in the social sphere impacted by that activity.

It is thus expected that the Observatory will face resistance from the forces that are organically linked to the current system. These forces will be quick to take a hostile attitude toward The Legal Agenda and its members, or to criticize it because it has allegedly gone too far or not far enough in achieving its aims. To be fair, the hostility towards or disagreement with The Legal Agenda might stem not only from a clash of interests, but also in many instances from a deep misunderstanding of its objectives. One senior judge, for example, argues that The Legal Agenda is seeking to destroy the judiciary, whereas it obviously seeks to achieve the exact opposite. Opposition to our work may also arise because the Observatory's attitude does not conform to the expectations dictated by certain inherited professional traditions, or at least to the way some people understand these traditions. The most prominent of these traditions is the belief that the function of judges is solely to serve the law, uphold the obligation of discretion and silence, thereby eliminating their freedom to express themselves or to act collectively. They are consequently denied the basic guarantees of judicial independence endorsed by the United Nations.

The Legal Agenda is also at odds with the Beirut Bar Association regarding another tradition, namely, the ban on lawyers speaking out about judicial issues relating to human rights and the public interest before the final ruling of a case is issued. This is a ban that, in our opinion, constrains the ability of lawyers to support social rights, usually in the face of forces that are very influential. The problem here does not lie in the difference of opinions between The Legal Agenda and the Association, but in the fact that this difference sometimes leads to a breakdown in communications. We regret this and we are trying to change it through dialogue, open-mindedness, and by accumulating experience.

Not all commentary by The Legal Agenda has been of a critical nature. We note with satisfaction various helpful developments, most notably, the establishment by the Supreme Judicial Council of a media office to ensure transparency. This step represents a significant development compared with the previous judicial strategy for dealing with the media, even if this development still falls short of meeting the criteria for transparency. We also note with satisfaction the growth of a democratic movement within the judiciary and among lawyers, especially among the young ones, in opposition to the hierarchical mentality that was usually the driving force that sought to tame and silence judges.

In practice the Observatory's work will focus on two tasks. First, monitoring the operation of the courts, through examining the rulings they issue and also through direct observation of court hearings. In this regard, the Observatory will depend on the initiative of its own staff, people working in the judiciary and the parties to cases in drawing the Observatory's attention to certain issues or practices. To this end, the Observatory will draw up a chart of courts across Lebanon to cover them all, while giving priority to cases that are most relevant to sectors of society that are most prone to exploitation and abuse. One such priority is exposing any interference in judicial proceedings, with the belief that this is a fundamental starting point for guaranteeing judicial independence, and putting an end to practices that are now widespread often with the blessing of senior judges. The truth is that, although interfering with the judiciary is a crime, public prosecutors refrain from acting on it or prosecuting it, while many judges, lawyers, and parties to lawsuits treat interference as though it were normal.

The second task will be to monitor contentious issues relating to the judicial system and the relevant public policies. What policies would make the judiciary more independent and more transparent? What policies on court procedures and legal aid would ensure that the conditions for a fair trial are met? What policies regulating the legal profession would enable lawyers to play their role properly and independently? The success of the Observatory will depend on the cooperation of the court staff and of the parties to the cases. The Observatory welcomes those interested in its work with open arms.

Upon its inauguration, the Observatory will be the third such centre in the Arab world that aims to promote judicial independence and transparency. The other two are the Tunisian and Moroccan Observatories for Judicial Independence. In that respect, The Legal Agenda’s Observatory views itself as part of a regional network of advocacy that approaches judicial reform as a social priority, and as a basic element in any real and lasting reform.

This article is an edited translation from Arabic.


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