People demonstrate in front of Ministry of Justice on September 29, 2021 against the dismissal of Judge Tarek Bitar. . (Photo by Hussam Shbaro/Anadolu Agency via Getty Images)
Analysis

Towards an Independent Judicial Branch in Lebanon? Part 1: The Civil Judiciary

Since mid-2019, Lebanon has been “sinking”to borrow the term used by a recent report from the World Bank—as the political and socioeconomic structures underpinning the country since the end of the civil war have collapsed. But the current financial and economic crisis Lebanon is experiencing has been a long time coming. Kleptocratic warlords-turned-politicians, oligarchs in the private sector monopolizing key sectors of the economy, and financiers in the banking sector have used public funds at their pleasure, providing lucrative public contracts to one another and taking hold of state assets to distribute patronage to their sectarian clientele. Since the end of the civil war, the country has been run in a kleptocratic spoils-sharing system. Transparency, oversight and accountability in the Lebanese state have been deliberately rendered quasi-inexistent by the aforementioned triumvirate.

The current collapse has long been in the making, and countless corruption scandals have emerged since the 1990s in Lebanon, yet with little-to-no accountability ever meted out. Where has Lebanons judicial branch been?

Two branches of Lebanons judiciary play a key role in protecting public funds, holding corrupt officials to account, and preserving citizens rights: The civil judiciary and the administrative judiciary. Given the importance of each of these two judicial branches, this analysis will be divided into two parts—the first part focusing on the civil judiciary, and the second focusing on the administrative judiciary—examining why Lebanese courts have almost never been able to hold the country’s political elite to account. The analysis will also highlight the recent efforts led by civil society and independent political groups to bring about much needed systemic changes in the judiciary. The Lebanese civil and administrative judiciaries must be urgently reformed as, without an independent judiciary, there is no way through which Lebanon escape the socioeconomic abyss in which it has been thrown in by those governing the state.

What is the civil judiciary?

Lebanon’s hierarchical civil judiciary is composed of courts that look into criminal, commercial, and civil cases. At the bottom of this hierarchy lie the Courts of First Instance, where civil and criminal cases are reviewed and determined. Then comes the Courts of Appeal, where requests to review judicial decisions are made. Hovering over them is the Court of Cassation, the higher civil court, which interprets and reviews laws when necessary. The civil judiciary also includes a hierarchical public prosecution office, which is tasked with protecting the publics interest in civil and criminal courts through pressing criminal charges against alleged offenders. At the top of the public prosecution office sits the Beirut-based State Prosecutor at the Court of Cassation, with jurisdiction over the whole country, followed by prosecutors at the governorate-level based in the Courts of Appeals.

Overseeing the whole civil judiciary is the High Judicial Council (HJC), a body composed of ten members who, as per Decree 150 of 16 September 1983 (the decree organizing the civil judiciary, amended several times since then), are responsible for ensuring “the proper functioning of the judiciary, its dignity, its independence, and the proper functioning of the courts and their related important decision-making.” To do this, the HJC has substantial powers: it can issue decisions and opinions on laws and regulations, and, more importantly, it prepares the “judicial formations,”—the appointment or transfers of judges within the civil judiciary, done to ensure that the judiciary is running smoothly and that judges do not entrench their influence in specific positions.

The civil judiciary is also equipped with a Judicial Inspectorate, which is in charge of monitoring and ensuring that judges are adequately carrying out their duties and responsibilities, and can refer judges to a Disciplinary Council within the civil judiciary which can issue a raft of disciplinary measures—such as warnings, demotions, halting promotions, suspensions with pay restraint and dismissal without the right to receive benefits.

Suffocation and cooptation

Serious flaws and inadequacies severely hamper the civil judiciarys abilities while ensuring that the executive branch—and thus, Lebanons oligarchic kleptocrats—have a direct say in its functioning.

The civil war had badly devastated Lebanons judiciary. A World Bank-commissioned study in 1994 aptly titled “Judicial Suffocation in Lebanon” highlighted how the civil judiciary at the time only had 336 out of 515 positions filled, with few replacements for retired judges, while enormous backlogs of cases piled up, many of which had been frozen during the war years. Judges were overworked and underpaid, while the civil judiciary lacked computerized systems for information sharing.

Over a quarter of a century later, the civil judiciary still suffers from this “suffocation.” There continues to be a large backlog of cases, while computerized data and easy access to legal information remain inadequate. In addition, judges remunerations and entitlements remain relatively paltry, and the executive branch has several times threatened to reduce the governments financial allocations and their financial autonomy—most recently in the 2019 State Budget, when that years “austerity” budget sought to reduce allocations to the judges mutual fund and cancel all exemptions entitled to them.

But the “suffocation” means more than simply structural deficiencies in the civil judiciary or attempts at reducing judges social benefits.

The aforementioned HJC is, by design, conducive to political interference in the civil judiciary. Half of its members are appointed by a cabinet decree after names are proposed by the Minister of Justice, while three members are members by virtue of their positions—the First President of the Court of Cassation (who acts as the HJCs president), the State Prosecutor at the Court of Cassation (who acts as the HJCs vice-president), and the President of the Judicial Inspectorate. These three individuals are appointed by decree from the Council of Ministers. The remaining two members are elected by the judges in the Court of Cassation. In other words, eight out of ten members of the HJC, the highest authority in the civil judiciary which decides on judges’ appointments and transfers, are appointed directly by the executive branch.

But it doesn’t stop there: the Minister of Justice, with the HJCs approval, has the authority to take unilateral and arbitrary decisions regarding the transfer of judges—in other words, judges deemed problematic to the political class can be punished through such arbitrary decisions. In addition, the judicial formations which the HJC prepares are carried out in a sectarian manner, which paves the way for all sorts of patronage appointments, and the HJC can move a judge from one position to another at will, without obtaining their consent which contravenes the principles of an independent judicial branch.

These judicial formations are also contingent upon the signatures of the President of the Republic, the Prime Minister, and the Minister of Justice. Thus, if the judicial formations are deemed detrimental to their interests, they can block or delay them, which notoriously happened in late 2005 when political deadlock and polarization resulting from the assassination of former prime minister Rafik Hariri prevented the appointment of the successors of five members of the HJC whose mandates expired. The deep political rivalry between president Emile Lahoud and prime minister Fuad Siniora meant that for three years, around one hundred graduates of the Institute of Judicial Studies were not appointed to the judiciary, and one of the HJCs members resigned in protest in October 2008. Several months later, in March 2009, agreements behind closed doors between the political class led to the judicial formations approval—three years late.

One of the reasons why the judicial formations are such a contentious issue is because of the appointment of public prosecutors, who are theoretically responsible for protecting the publics interest, and hence play a key role in combating corruption. Yet, the sectarian nature of the appointments allows for politicized appointments. For example, the State Prosecutor at the Court of Cassation is, by established practice, always Sunni, the governorate-level public prosecutors are divided on a sectarian basis, while the First President of the Court of Cassation—and hence the president of the HJC—is Maronite. The 2017 judicial formations have been notoriously politicized, and the public prosecution office has long been seen as falling under the influence, if not control, of the political class. This politicized control over the public prosecution office—and particularly over the position of State Prosecutor at the Court of Cassation—is crucial for Lebanon’s ruling class. Since amendments made to the Code of Criminal Procedure in 2001, the State Prosecutor has possessed significant powers over the whole hierarchical public prosecution office, as he can issue binding written and oral orders to the public prosecutors at the governorate-level, and can thus effectively halt any investigations over corruption allegations. Unsurprisingly, ensuring that the judge occupying this position is pliant is a key concern for Lebanon’s ruling class. 

This politicized public prosecution was on full display in April and May 2021 when a public dispute erupted between State Prosecutor Judge Ghassan Oueidat, perceived to be close to the Future Movement, and Mount Lebanon public prosecutor Judge Ghada Aoun, perceived to be sympathetic to the Free Patriotic Movement. The latter sought to investigate a money exchange firm alleged to have engaged in money laundering and illicit enrichment with the full connivance of political officials and a local bank in late 2019, and even raided the companys offices with a group of supporters to retrieve evidence. This dramatic act had come after the State Prosecutor, with the blessings of the HJC, had removed judge Aoun from the case in the previous week, and both proceeded to exchange diatribes against one another on social media. The situation reached the comically absurd when supporters of the two judges hanged posters and put up ads on billboards defending their respective judges. No wonder that a former member of the HJC told LOrient-Le Jour, under the guise of anonymity, that “never before has the judicial system been so close to collapsing.”

Growing momentum for an independent civil judiciary 

Momentum towards systemically reforming the civil judiciary has been growing in recent years. In July 2018, Legal Agenda, a nonprofit research and advocacy organization, submitted a law proposal on the “Independence and Transparency of the Civil Judiciary” through nine MPs and began efforts, along with partner civil society organizations, to raise awareness on the law proposal and pressure lawmakers to pass it. One of the key systemic changes in the proposal is how the HJC is composed. Instead of the ten members (eight of whom are appointed by the executive branch), the HJC would comprise of 20 members. Thirteen of the members would be judges: Nine elected by their peers in the civil judiciary (three from the Court of Cassation, three from the Courts of Appeal and three from the Courts of First Instance); four ex officio judges; and three judges selected by the elected and the ex officio judges. Joining them would be two lawyers elected from the Beirut and Tripoli Bar Associations, and two university professors from the Lebanese Universitys Faculty of Law and the faculty of law of an accredited local private university elected by their peers in the faculties. The HJC would also have its own budget line within the State Budget, something which it currently does not have. In addition, the law proposal enshrines the principle of transparency and stipulates that all final verdicts and courts’ annual reports are to be published on the HJCs website.

These efforts had the full backing of the Judges Association, a group formally established in 2018 and composed of reform-minded judges who advocate for an independent judiciary in Lebanon. It is important to bear in mind that Lebanese judges have long struggled to engage in collective action as the HJC and political pressure would clip their wings through disciplinary measures or intimidations which makes the emergence of the Judges Association all the more remarkable. In a conference held in January 2019 by Legal Agenda and its partners, Judge Amani Salameh, then-president of the Judges Association, bluntly stated that “time is running out,” and that “the [Lebanese] state is dying while public funds are pilfered,” stressing the need for an independent judiciary to not only put a halt to the deteriorating socioeconomic conditions, but also bring forth real accountability and anti-corruption efforts.

Yet, despite the rhetorical support provided by the major political blocs in parliament, discussions over the law proposal by the parliamentary committee on administration and justice were done behind closed doors, meaning that there was no way to know how the law proposal was being amended, which MPs were supportive of it, and which ones sought to dilute it. The rhetorical support to the law proposal provided in early 2019 by parliamentary blocs did not come out of nowhere. At the time, a new government was on the verge of being formed (which it eventually did, on January 31, 2019), and Lebanons political class were eager to give off a reformist image to outside onlookers, as several countries had pledged much-needed loans and grants to Lebanon in exchange for structural economic and governance reforms in the previous years CEDRE Conference.

An independent civil judiciary: antidote to the suffocation and cooptation?

The way the law proposal was changed and ultimately defanged in parliament is a testament to how damaging the veil of secrecy in parliamentary committees is to the public interest. Rather than working on the law proposal submitted by Legal Agenda, a sub-committee within the parliamentary committee on administration and justice dug up an old law proposal submitted by former speaker of parliament Hussein Al Husseini all the way back in 1997 and decided to combine both law proposals. With such chicaneries practiced, the amended law proposal that was eventually concocted and seen by Legal Agenda in mid-May 2021 fell well below the standards set by the original law proposal submitted.

The amended version has some positive attributes that were preserved from the original version submitted by Legal Agenda—the principles of an independent judiciary would be enshrined; seven of the ten members of the HJC would now elected by their peers; judges freedom of assembly would now be recognized; transparency would be enhanced, as all judicial entities would be mandated establish rules of procedures and release annual reports detailing their work, including the public prosecution office; the HJC would be required publish its agenda and decisions, and inform relevant stakeholders about it; judges performance would be evaluated periodically with clear guidelines. Yet, the devil is in the details: if passed, judges with less than eight years of experience would not be eligible to run for HJC elections, while some chambers would be overrepresented in the body. The proposal endows judges with freedom of assembly, as long as it does not infringe upon the powers of the HJC—this can be a double-edged sword, as this reasoning was used previously to discredit the Judges Association under the guise that its demands for an independent judiciary infringe on the HJCs prerogatives.

More worryingly, there are clear drawbacks: The original law proposal sought to limit the powers and abilities of the State Prosecutor at the Court of Cassation to intervene in the work of public prosecutors; however, rather than limiting the State Prosecutor’s powers, the amended version not only kept them, but also gave the same powers to the Minister of Justice. In addition, there are now very strict and debilitating criteria which limit who can apply for senior positions in the judiciary: judges applying must now have served in several courts in specific governorates. If the HJC doesn’t find suitable candidates who fit these positions, it can decide to appoint judges, without their consent, who do not necessarily meet the criteria. It will become harder for applicants to enter the Institute of Judicial Studies to become judges, as they will have to undertake two oral examinations, the first to enter the obligatory preparatory year in the Institute, and the second to formally enter the Institute after the preparatory year. These oral examinations could pave the way for discrimination against specific candidates while allowing for the HJC to engage in favoritism and accept candidates who may have familial or personal relations with the political class.

The amended law proposal also didn’t change some of the existing problematic matters in the civil judiciarys structure. Notably, when it comes to disciplinary measures to be meted out to judges, the criteria and penalties remain vague and reprimanded judges cannot demand their case to be reexamined. In addition, the president and members of the Judicial Inspectorate will continue to be appointed by a decree issued by the Council of Ministers, all of which paves the way for arbitrary decisions to be taken against judges.

In an interview with a prominent Lebanese journalist in early August 2021, Legal Agenda executive director Nizar Saghieh harshly criticized the parliamentary committee’s amendments, bluntly saying that the 33 months since law proposal was submitted were a time of “organized sabotage” by the parliamentary sub-committee, and that the current system governing the civil judiciary—despite its glaring systemic flaws—remains better than the system the amended law proposal seeks to establish. Ensuring that this amended version does not pass is the next step in the struggle for an independent and transparent civil judiciary. Pressure from below backed by reform-minded independent judges is of the utmost necessity in this regard.

This first part sought to shed light on the state of the civil judiciary in Lebanon, the systemic deficiencies it suffers from which allow for wide political interference, as well as the efforts being carried out to reform it. The second part will shed light on another branch of Lebanons judicial system, the administrative judiciary.