SAT 4 - 4 - 2020
Dec 18, 2019
The Daily Star
Independence of Lebanese judiciary
The revolution of Oct. 17 awakened a lot of dormant individuals, unrealized hopes and most importantly latent topics. One topic is the judiciary’s independence, and the shift of its conversation from civil society and academic circles into the corridors of power.
People voiced their call for accountability and distrust in state institutions, all faced with the deafening inaction of the political class. Which is why citizens looked for another institution to put their trust in: the judiciary. Citizens called for judges to intervene and help in the fight against corruption, the president of the republic himself assured judges, on two occasions, that he is the metal roof over their heads.
Sadly, in a camouflaged attempt to comply with the Lebanese people’s demands, the political class decided to shift its fight into the judiciary. This resulted in certain judges fighting for the Judiciary’s independence while others are now doing the bidding of political parties.
It is no secret that political interference is a major problem that judges face daily. The intervention of politics in the judiciary has been normalized both in laws and practice. For instance, the high judicial council is formed of 10 members, 8 of which are assigned by the executive branch while the other two are chosen among the presidents of the cassation court’s chambers. Unfortunately, it has also become quite customary for a candidate wishing to become a judge, to pay a political warlord a visit to secure their hire.
Since the beginning of the protests, the parliamentary commission on administration and justice has decided to review law propositions on the independence of the judiciary, starting Dec. 3, 2019. Following the commission’s meeting, its president affirmed that intensive meetings will be scheduled, as no concrete fight against corruption can take place without a real independence of the judiciary. On the other hand, one judge hasn’t hesitated to blatantly display her political affiliation, the star political player, Mount Lebanon Public Prosecutor Ghada Aoun, who’s proudly doing the bidding of her political party in her so-called prosecution of corruption.
In an effort to bring additional thinking into the conversation, and based on the conference which took place at the Saint Joseph University on the independence of the judiciary, we will first treat the principle of the judiciary’s independence and its outskirts, then finish with the prosecutor’s actions and her confrontation with MP Hadi Hobeich.
independence of the judiciary: from changing the system to relying on ethicsThe Lebanese Constitution consecrates in its preamble the principle of separation of powers. It specifies in Article 20 that judicial power shall be exercised by courts of various degrees. As such, the constitution recognizes the independence of the judiciary without specifying its extent. Given that the judiciary is an independent power, just like the executive and legislative powers, a definition of its stance in the Lebanese system has to be determined.
1 - A reconsideration of the system: Constitutionalizing the judiciary
In an effort to define the principle, Dominique Rousseau, a reference in French public law, explained how the initial concept of separation of powers is obsolete in all democracies, as the legislative and executive have become the same power: the executive being merely an emanation of the parliamentary majority, or in Lebanon’s case a reduced representation of the Parliament. Therefore, the initial theory of separation of powers developed by Locke and Montesquieu becomes, in a way, obsolete.
This thinking entails that the judiciary be an independent power, completely separate of the other powers, excluded from the political institutions within the state, and able to determine its own policy. Which would then require that the practice of having a justice minister interfering in the judiciary be abandoned, as such intervention constitutes a stark violation of the separation of powers and brings the judiciary within the sphere of political processes.
This position calls for a complete constitutional independence of the judiciary, as a real, separate power within the state able to rule on its own and to hold political powers accountable.
2 - A reform of the system: Guaranteeing independence
While taking into consideration the importance of an independent judiciary, this approach aims at relieving pressures exercised on judges to rule in one way or another. It would confer judges the guarantees and rights they require to accomplish their mission either through a legislative reform or a constitutional amendment.
This is the position adopted by most judges and organizations working in Lebanon, as it seeks to alleviate the pressure and influence exercised by the executive power on the judiciary through the nominations, salaries, positions and so on.
Such position does not seek to make of the judiciary a constitutionally and politically independent structure, it does however grant judges the required guarantees in order to practice as they see fit.
3 - A preservation of the system: Relying on ethics
This last approach is mostly adopted by judges who are of more experience, namely judges who have been able to maintain a certain degree of independence thanks to their own self-restraint, resilience, and strong morals. According to such an approach, judges could single handedly acquire their independence by refusing to submit to the pressures, which politicians try to impose. This also appears to be the position of the president of the republic who offered protection to judges against interference.
This thinking seeks a fortified recruitment process of judges which evaluates not only legal knowledge but also values, ethics, culture and psychological profile. It entails an evaluation of vulnerabilities of future judges and limits access to those who are prone to bypass the ascension process through qualifications by simply visiting a politician’s house. Those supporting this approach would not refuse guarantees granted by a law, but perceive their consecration as an added value rather than a necessity. Independent judges would then transform the judiciary into an independent corps.
Political judges and MP outburst
In order to understand the actions of Prosecutor Ghada Aoun, it is necessary to dress a timeline of her activities since the beginning of the protests:
On Oct. 23, charges were brought forth against former Prime Minister Najib Mikati for illicit enrichment.
On Nov. 10, four demonstrators were arrested for closing the roads in Jounieh and her decision was then overruled by State Prosecutor Oueidat.
On Nov. 11, the prosecutor charged Director-General of the Traffic and Vehicles Management Authority Hoda Salloum on the counts of bribery, forgery, waste of public funds, illegal enrichment and breach of duties based on a complaint filed by Wadih Akl, a senior member of the Free Patriotic Movement’s political bureau.
The charges prompted member of Parliament and lawyer Hadi Hobeich to go to the prosecutor’s office and have a public outburst of anger in defense of his relative, Hoda Salloum.
What is disputed here is not whether Mikati and Salloum are indeed guilty of the charges brought forth, but of the prosecutor’s intention by doing so in key political moments.
The charges against Mikati were brought in days after the protests started and upon the beginning of the conversation around Hariri’s potential replacement, in an effort to sink all possible competitors. Interestingly enough, the latest charges were filed in an effort to pressure Hariri into forming a techno-political government.
It is clear, based on the actions of the MP and the prosecutor, a law on the independence of the judiciary is needed now more than ever. And indeed, the administration and justice commission has started reviewing propositions on the matter, which MP Hobeich, proudly fighting for his relative without any legal regard, is part of.
It is evident that a consecration of the separation of powers should take place and is in the works, but we do not owe this to the knowledgeable in power, we owe it to the street.
Specifically to the people screaming their distrust in state institutions, no matter the cost.
These screams, if justice will indeed be served, will one day lead to judges not succumbing to political parties’ wills and MPs, or any other individual, feeling empowered to interfere or even sometimes scream out a judge.
In short, justice will one day be served, and the state will work for the people again, rather than against them.
Karim Chalhoub is a legal researcher on public sector reform projects. He has a background in law, politics, economics and history. He holds a Master’s Degree in Public Law from the Saint Joseph University of Beirut as well as a Political Science Bachelor from the same university.
THE DAILY STAR publishes this commentary in collaboration with Project Syndicate © (www.project-syndicate.org).
A version of this article appeared in the print edition of The Daily Star on December 17, 2019, on page 4.
The views and opinions of authors expressed herein do not necessarily state or reflect those of the Arab Network for the Study of Democracy
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