It is no secret that an administrative judge has brought a private action against State Council President Judge Fadi Elias for what she deems sexual harassment. This occurred after the Lebanese Judges Association filed a report about the same matter. It is also no secret that the cassation public prosecutor (Jamal Hajjar) is personally conducting the investigation into this complaint and that several judges have testified to being harassed by the same judge. 

While media outlets have published various information about the matter, what interests us here is not the facts of the harassment itself or their veracity but what the filing of this case indicates in terms of changes in the judiciary, especially in the relationships between those sitting at the top of its hierarchy and the rest of the judges. Although the recurring harassment, if proven, is evidence that this hierarchy has reached the point where judges’ own bodies are not off limits, the mere filing of such a serious complaint by the Lebanese Judges Association and the judges concerned illustrates the size of the growing resistance to this hierarchy within the judicial body – resistance that would never have reached such a level were it not for a long path of judicial struggles, the most important being the struggle to establish the Lebanese Judges Association itself. In other words, the harassment – if proven – can be explained based on not just personal impulses but also, and primarily, the power relations and expansion of hierarchy inside the judiciary. Similarly, the collective action by judges against what they deem harassment did not arise in the spur of the moment. It is rather the culmination of a long struggle to strengthen solidarity among judges and, subsequently, their ability to confront attacks on their independence, including attacks by senior judges.

Hence, the implications of this case go far beyond the alleged facts. It indicates, in particular, that there are significant efforts to reshape judicial relations in a manner that reduces or perhaps undermines hierarchy, in keeping with the principle of equality among judges.

A Clear Indication of the Level That Hierarchy Has Reached

The remarkable aspect of this case is not just the identity of the person accused of harassment (the highest-ranking judge in the administrative judiciary) but also, and above all else, the identity of the plaintiffs, who are all judges. In other words, we are dealing not with plaintiffs who suffer from vulnerabilities that make it easier to mistreat them (as may be the case for foreign domestic workers), but with plaintiffs who supposedly have sources of power that deter such abuse or make rebuffing it easier. In such a context, any explanation of the act of harassment, should it be proven true, based only on a deficiency in the personality of the perpetrator seems unconvincing. A more convincing explanation is one derived from the power relations prevailing inside the State Council, which are based on granting its president extreme hierarchical authority that virtually deprives him of any sense of accountability or boundaries or even fear of consequences. When describing the administrative judiciary’s situation, the Legal Agenda warned against this exact authority because it could transform into a tool enabling one person to control the decisions of this body in its entirety. These concerns were confirmed by a series of transgressions recently observed, including the banning of administrative judges from participation in the discussion of the two bills regulating the administrative judiciary on the pretext that the judiciary is represented by its leaders, as well as the use or threat of disciplinary power against judges for taking stances that displease this leadership. For example, administrative judge and former minister of education Tarek Majzoub was threatened with prosecution for statements he made, as a minister, about the State Council president assigning administrative judges to advisory roles in public administrations with unjustifiably high remuneration.

While reducing this hierarchical authority was one of the most important aims of the bill on the independence of the administrative judiciary drafted by the Legal Agenda and presented by MP Osama Saad, the bill on regulating the administrative judiciary drafted by the State Council’s president and submitted by MP Georges Adwan went in the opposite direction by strengthening this authority. The Venice Commission (a consultative authority subordinate to the Council of Europe whose advice was requested by the Ministry of Justice) criticized this point at length, stating that the State Council president enjoys “far reaching powers” and acts as a “supreme judge over all administrative, financial and disciplinary matters” and that granting him such powers “jeopardizes the internal independence of the administrative judiciary and risks further ‘closure’ of the system”. Hence, the commission recommended reducing these powers pursuant to judicial independence principles, which demand not only external independence but also internal independence. Judges should be “independent and impartial in their decision-making and capable of acting without any restriction, improper influence, pressure, threat, or interference, direct or indirect, from any authority, including ‘authorities internal to the judiciary’”, the opinion read.

The hierarchy inside the State Council has recently been exacerbated by the State Council Bureau’s loss of its quorum, which enables the president to exercise additional powers unilaterally, pursuant to the extraordinary acts doctrine.

A Battle to Enshrine Equality Among Judges

On the other hand, another equally important aspect of this case is that it was initiated not by the accusers, as generally occurs in harassment cases, but by a report filed by the Lebanese Judges Association. This indicates a general sense that initiating such an action, which represents a challenge to the prevailing power relations and a break of judicial and social taboos, requires broad judicial solidarity. Thanks to this solidarity, the abused judges have not been left to face the judicial hierarchy and social stereotyping alone, and the hierarchy has found itself facing not plaintiffs who can easily be isolated individually and pressured to rescind their allegations but a weighty, organized group of judges that has credibility and experience confronting such pressures and – most importantly – has become good at appealing to public opinion when the need arises. 

When these taboos are broken and the judges concerned are fortified by their colleagues’ solidarity thanks to a report filed by the association, it becomes easier for them to, one after another, deliver their testimonies. One judge, once she was confident of her colleagues’ solidarity, even joined the case directly as a private plaintiff, bearing the risk of retaliatory measures, criminal prosecution (for false accusations), and disciplinary proceedings that would seriously impact her career should the Public Prosecution not adopt her allegation. While the Lebanese Judges Association has repeatedly issued statements protesting abuse by the judicial authorities (most of which have been directed at the Cassation Public Prosecution and the Supreme Judicial Council), in this case it managed, thanks to the criminalization of harassment, to convert its opposition from mere rhetoric into an action aimed at setting the wheels of criminal prosecution in motion against one of their most important figures.

Thus, the Lebanese Judges Association has provided us with a perfect example of the most important role that it is intended to play. That role is to prevent judges from being isolated individually and bolster feelings of fraternity and solidarity among them, thereby strengthening their ability to defend their independence (including their internal independence) and – most importantly – to reshape judicial relations from ones based on power into ones based on equality and mutual respect. Note that during the same period, the association succeeded, via another action that it initiated before the Constitutional Council (namely the challenge to Law no. 327, which grants privileges to other judges at the top of the judicial hierarchy), to extract a decision constitutionalizing the principle of equality among judges as a precondition for judicial independence.

From all these angles, the judicial confrontation occurring today transcends personal factors and the facts of the case to become one of the most significant battles for judicial independence in the face of judicial hierarchy, which has long been an effective tool for dividing, subordinating, and mistreating judges. Obviously, for the Cassation Public Prosecution and the judicial authorities, it has become a major embarrassment and a true dilemma. On one hand, admitting the case would pave the way for a reshaping of judicial relationships on different foundations, along with the collapse of any legislative proposal based on authoritarianism and hierarchy, particularly the bill that Elias tailored to himself and his own wishes and was adopted by Adwan. On the other hand, any attempt to cover up the case or pressure the judges concerned will generate more awareness of the danger that hierarchy poses to the judicial system, having reached the point where judges’ bodies are considered fair game. This would presumably strengthen the independence movement inside the judiciary and bolster its power to oppose any attempt to restrain rights from above. So let’s keep watching.

This article is an edited translation from Arabic.