The October 17 revolution sparked an awakening in the judicial landscape. After an initial indifference towards the judiciary, there was a common perception during the revolution’s early days of the priority of judiciary’s independence, given its central role in combating the corruption that has plagued the state and in recovering plundered funds.
All anti-corruption laws and reforms that were adopted under catchy names (e.g. the Anti-Corruption Law, the establishment of the National Anti-Corruption Commission, the amendment of the Illicit Enrichment Law, and Recovering Funds Derived from Corruption) need an independent judiciary in order to implement them, one that conducts prosecutions, exposes corrupt officials, and holds them accountable. The main entry point for achieving this is the prompt approval of two proposals: the “Judiciary Independence Law”, which is under discussion before the Administration and Justice Committee, and the “Administrative Judiciary’s Independence Law”, which was adopted by the Judicial Independence Coalition in Lebanon and submitted by MP Osama Saad to the Parliament on 10/3/2021. The Legal Agenda had prepared both law proposals.
In this article, we chose to focus on the reasons that encourage the reform of the administrative judiciary and the passing of a new law that supports it and dedicates the basic guarantees of its independence and transparency. The reason being that it is the de facto defender of the public decisions’ legitimacy and the main shield to protect the state. Today, the prevalence of the culture of interference in the administrative judiciary (and of its subordination) helps protect public administrations from judicial accountability with the implied abuse of power and violation of legitimacy.
Here are twenty compelling reasons for adopting a new Administrative Judiciary Law:
Adapting the Administrative Judiciary’s Regulation to the Principles of Judicial Independence
Here, the law proposal intends to address the organizational issues of the administrative judiciary and the status of administrative judges, in order to adapt them to the standards of judicial independence. Some of the most significant reforms in this regard:
- Form an independent body to regulate the administrative judiciary (Supreme Council of Administrative Judiciary), according to international standards, by electing the majority of the members from the judges themselves, provided that all judges participate as both candidates and voters, and also by electing non-judge members from among lawyers and university professors.
- Vest this body, collectively, with basic powers to manage the judicial process. This requires transferring many of the powers, which are attributed under the current law to the Council’s president, to the body in order to reduce the hierarchy prevailing in it, as well as preventing the Ministry of Justice and the executive branch from interfering in this process.
- Ensure the internal and external transparency of the Supreme Council of Administrative Judiciary. This means setting up a bylaw for the Council and its full commitment to the Access to Information Law, as well as ensuring that rulings are published shortly after being issued by the administrative judiciary.
- Adopt equality and transparency in judicial appointments. This means ensuring that all citizens have equal opportunities to enter the Institute of Judicial Studies based on merit, away from any subjective or unjustified considerations by the requirements of the administrative judge’s position.
- Hold an annual entrance exam to be admitted to the Institute of Judicial Studies, in the hope of filling the vacancies in the judicial personnel within a reasonable period of time.
- Support judges with a set of legal guarantees, most notably the inadmissibility of withdrawing a judicial case from any judge, the freedom of expression and association, the right to a fair trial, and the right to contest all individual decisions relating to their career paths.
- Prevent discriminatory measures among administrative judges, in accordance with the principle of equality among them. For example, strictly forbidding the assignment of consultative work to administrative judges in public administrations, in order to preserve the separation of powers principle, and to prevent favoritism and discrimination among them.
- Abolish the hierarchy among judges. Currently, the State Council is made up of chamber presidents, advisors, and assistant advisors. This would create hierarchical relationships among judges, in particular between the presidents of chambers and other judges, in contradiction again with the principle of equality.
- Adopt a file for every judge and introduce a system of periodic evaluation of judges’ performance, as there is currently no assessment system for them
- Classify disciplinary violations into categories, each of which is subject to penalties proportionally to their severity.
Guarantees of Access to Justice
- Limit the investigation of judges’ disciplinary violations to the Judicial Inspection Authority, while the Supreme Administrative Judicial Council handles the disciplinary trial, in order to ensure the principle of separation between the powers of prosecution, investigation, and ruling.
- Establish a system of judicial aid and expand the number of cases that can be filed without the mediation of a lawyer.
- Ensure the principle of proximity of courts to litigants by establishing administrative courts in the governorates (Muhafaza). This will address the problem of centralizing the administrative judiciary exclusively in the State Council.
- Establish mechanisms that allow addressing cases that are urgent by definition as these mechanisms are currently absent and prevent citizens from efficiently contesting administrative decisions. Some of the main missing forms of summary justice that we included in the draft law are: summary stay of execution, summary procedures relating to freedoms, summary procedures relating to contractual affairs ensuring rules of transparency, declaration, and competition, as well as summary investigations.
- Expand the concept of capacity and standing for prosecutions before the State Council to ensure legitimacy. It is a fact that the current jurisprudence of the State Council varies depending on chambers, and tends to narrow the capacity and standing to an extent that leads, in many cases, to the protection of administrative decisions suffering from significant legal flaws, due to the lack of persons having the capacity and standing to contest them. On the contrary, the proposal intends to include legal texts that ensure legitimacy and protect the public interest by expanding the judiciary’s scope for litigants in this area without turning the recourse into a popular action (actio popularis)
Adapting Trial Procedures to Principles of Fair Trial
- Introduce the principle of the natural judge, whereby judges of the arbitration tribunal are appointed based on criteria defined by law, and their names are announced when the case is filed. This would prevent changing the arbitration tribunal according to the will of the chamber’s president or ignoring the members of the arbitration tribunal, as is the case now.
- Shorten the time for exchanging pleadings, which leads to accelerating administrative trials.
- Introduce the principle of a two-level trial while recognizing the right to cassation as a standard jurisprudence, as the State Council remains to this day the administrative court that is often ruling at first and last instance, and its rulings are not subject to cassation.
- Ensure the public and oral nature of debates, even partially, through an invitation addressed by the president to the parties for a public hearing in which the investigation stage is effectively concluded. This would ensure the principle of public and oral hearings, as in civil and penal disputes, and reinforce the principle of ruling in presence and the rights of defense in oral pleadings that take place before the arbitration tribunal, and consequently, the conditions for a fair trial. Public hearings are a fundamental principle that protects litigants from secret justice. This is a major and necessary democratic requirement for the transparency of justice.
Guarantees for the Effectiveness and Implementation of Rulings
Grant the administrative judge the authority to direct orders to the administration contrary to the current law. In this case, the judge’s authority is limited to compelling the administration to take a specific measure in line with his/her decision, as in the French law, to avoid a condition where a judge is supplanting the administration. The proposal also gives the judge in this case the authority to impose a coercive fine in the event of failure to implement the decision.
In conclusion, the Judiciary’s Independence Law proposal, and the Administrative Judiciary’s Independence Law proposal, together constitute an integrated and coherent project to restore the judicial institutions. In this sense, the battle over the adoption of both proposals is not only legal, but rather a political one to recreate the authorities, define their roles and powers, and separate them, as a necessary entry point to build the democratic state that is based primarily on accountability.
Hence, the Judicial Independence Coalition, which was recently established at the initiative of more than 50 legal and political groups, is gaining crucial importance in the course of change.
The Legal Agenda
Legal Agenda is a Beirut-based non-profit research and advocacy organization with offices in Lebanon and Tunisia and correspondents in several other Arab countries. It was established in December 2009 by a group of legal professionals, scholars, and human rights activists who institutionalized their efforts to build a critical and multidisciplinary approach to law and justice in Arab countries with a special focus on political, civil, social, and economic rights. Since its inception, the Legal Agenda has conducted analytical research on legal and judicial developments in the Arab region from a critical and multidisciplinary perspective. Its research examines how laws are produced and applied and the relationship between law and social changes. The Legal Agenda has three different media publications, namely The Legal Agenda–Lebanon, The Legal Agenda–Tunisia, and The Little Agenda magazines, in addition to its website. Via these platforms, the Legal Agenda contributes to public debate with the results of its research, investigative journalism, and watchdog activities. Through strategic litigation and advocacy activities, the Legal Agenda promotes legal and social change via the courts and public institutions. In 2014, the
Legal Agenda established the Civil Observatory for an Independent and Transparent Judiciary in Lebanon, which monitors and analyses court cases, trials, and judicial policies concerning the various actors in the justice system, such as judges, lawyers, litigants, and judicial assistants. In 2019, the Legal Agenda launched the Parliament Observatory in Lebanon, which monitors and analyzes legislative activity and practices and works to ensure access to legislative information and improve the legislature’s work.