Previously, the Legal Agenda produced a draft law named the “Judicial Judiciary Independence and Transparency Law”, which was adopted by a group of parliamentary blocs and is currently under debate by Parliament’s Administration and Justice Committee. In 2020, the Legal Agenda is producing a proposal for a law on the administrative judiciary’s independence and transparency in an effort to address all the issues in the State Council’s organization and working mechanisms. This new proposal complements the earlier proposal and aims to reform Lebanon’s justice system by entrenching judicial independence, one of the October 17 Revolution’s top demands. This demand emerged in the popular consciousness after citizens realized that corruption has exhausted the state, affected even their private wealth, could transform Lebanon from a prosperous country into a poor one, and would never have reached this level were the judiciary independent and capable of confronting and placing limits on political authority. While we rely on the Public Prosecution offices and criminal judiciary to prosecute and deter crimes of corruption and illicit enrichment, we rely on the administrative judiciary to block decisions that violate the law via corruption, exploitation, or distortion of power and – in short – to ensure the public administration’s compliance with law and legality.
But does reforming the administrative judiciary require a comprehensive law, and what are the main anticipated benefits? A comprehensive law is in fact needed because the current law is largely deficient, marred by many gaps and lacking guarantees of judicial independence. To demonstrate, this article will list 20 reforms, grouped into four themes, whereby the proposal rectifies flaws in the current law.
Adapting the Regulation of the Administrative Judiciary and Administrative Judges’ Status to Standards of Judicial Independence
1- Forming a body to govern the administrative judiciary (the Supreme Administrative Judicial Council) that enjoys independence in accordance with international standards as most of its members are elected from the judges themselves, all the judges vote and may run in the election, and it also includes non-judge members elected from among lawyers and university professors.
2- Vesting fundamental powers to manage the judicial process in this council [to be exercised] collectively. This [reform] requires transferring many powers that under the current law belong to the State Council president to the Supreme Administrative Judicial Council, which would alleviate the hierarchy prevailing within the State Council, as well as excluding the Ministry of Justice and the executive branch from intervening in this process.
3- Guaranteeing the Supreme Administrative Judicial Council’s internal and external transparency, which means establishing an internal statute for the council and its full compliance with the Access to Information Law, as well as ensuring that the administrative judiciary’s rulings are published shortly after their issuance.
4- Adopting equality and transparency in judicial appointments. This [reform] involves ensuring that all citizens have a chance to enter the Institute of Judicial Studies based on merit and unhindered by any considerations that are subjective or not justified by the requirements of an administrative judge’s job.
5- Holding an annual competitive exam for entrance into the Institute of Judicial Studies in the hope of filling the vacancies in the judiciary’s cadre within a reasonable timeframe.
6- Protecting judges with a series of legal safeguards, the most important being the irremovability of any judge from a case, freedom of expression and to form associations, the right to a fair trial, and the right to contest all individual decisions relating to their careers.
7- Preventing measures that discriminate among administrative judges pursuant to the principle of equality among them. Hence, the proposal fully prohibits assigning administrative judges to consultative work in public administrations in order to uphold the separation of powers and prevent favoritism and discrimination among them.
8- Abolishing hierarchy among judges. Currently, the State Council consists of chamber presidents, auxiliary judges, and assistant auxiliary judges. This division creates hierarchical relationships among judges, particularly between chamber presidents and other judges, once again violating the principle of equality.
9- Creating a file for every judge and introducing a system for periodically evaluating judges’ performance. Currently, no such system exists.
10- Grouping disciplinary infractions into categories, each subject to punishments proportional to its seriousness.
11- Restricting investigation into judges’ disciplinary infractions to the Judicial Inspection Authority while the Supreme Administrative Judicial Council handles the disciplinary trial, the goal being to ensure the principle of separation among the prosecution, investigation, and ruling authorities.
Guarantees of Access to Justice
12- Establishing a system of legal aid and expanding the instances wherein cases can be filed without a lawyer.
13- Ensuring the principle of the courts’ proximity to litigants by establishing administrative courts in the governorates. This [reform] addresses the issue of the administrative judiciary’s exclusive centralization in the State Council.
14- Establishing mechanisms for addressing urgent cases. The current absence of these mechanisms prevents citizens from contesting administrative decisions effectively. The main missing forms of summary justice provided by the draft law include summary procedure to stay execution; summary procedure pertaining to freedoms; contractual summary procedure to safeguard rules of transparency, publicity, and competition; and summary investigation procedure.
15- Broadening the concept of capacity and standing to sue in the State Council, the goal being to ensure legality. The State Council’s current jurisprudence varies among chambers and tends toward constricting capacity and standing to the extent that administrative decisions marred by flagrant legal flaws are often protected by the absence of people with the capacity and standing to contest them. By contrast, the proposal includes legal texts that ensure legitimacy and protect public interest by widening the doors of the judiciary for litigants in this area without turning cases into actiones populares [i.e. without lifting all capacity and standing-related restrictions].
Adapting Trial Procedure to Fair Trial Principles
16- Introducing the principle of the natural judge, whereby the judges of the ruling bench are appointed based on criteria set by law and their names announced when the case is filed. This [reform prevents chamber presidents] from changing the ruling bench at will and the anonymization of the bench members, as currently occurs.
17- Shortening the timeframes for exchanging submissions, thereby accelerating administrative trials.
18- Introducing the principle of trial at two levels and establishing the right to cassation to standardize jurisprudence. To this day, the State Council is usually a court of first and last instance, and its rulings are not subject to cassation.
19- Enshrining the publicity and oral nature of debates, albeit partially, via an invitation that the president directs to the parties to attend a public hearing in which the investigation stage is effectively concluded. This reform brings administrative disputes into line with civil and criminal disputes. It also reinforces the principle of adversariality and defense rights in oral pleadings that occur before the ruling bench and hence strengthens fair trial conditions. The publicity of hearings is a fundamental principle that protects litigants from secret justice, a key democratic requirement essential to the transparency of justice.
Guarantees of the Effectiveness and Implementation of Rulings
20- Giving the administrative judge the power to direct orders to the administration, contrary to the current law. This power is limited to compelling the administration to take a specific measure in line with the judge’s decision, as in French law, lest the judge supplant the administration. The proposal also gives judges the power to impose compulsory fines in the case of failure to implement the decision.
This article is an edited translation from Arabic.