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AUB roundtable and Justice for All

Judicial sector suffers from suffocation and begs urgent reforms

The first centennial has concluded with Lebanon’s judiciary body in a state of severe devastation. Serious flaws and inadequacies have severely hampered the civil judiciary sector’s abilities, as the executive branch—and consequently, Lebanon’s oligarchic kleptocrats—had direct influence over its functioning.

At the beginning of the second millennium, there emerges a pressing need for an independent and transparent administrative judiciary to rectify the structural flaws and deficiencies present in the judiciary.

To address these issues and recommend a vision for the judiciary system in the second centennial, the seminar series “Lebanon in its Second Century: A Future Vision” included a session titled “What Vision for Lebanon’s Judicial System in the Second Centennial?” This session, part of the Governance Track, was held at the American University of Beirut, with researcher Sam Mnassa moderating.

Speakers highlighted that five years after the 2019 crisis and over a quarter of a century later, the judiciary still suffers from “suffocation.” Despite several initiatives, such as the establishment of the “Lebanese Judges Association” in 2018 following approximately 12 years of judicial struggle against the authorities’ opposition to its inception, no real reform has been achieved. Since then, the association has provided a platform for building a pro-independence current within the judiciary, as confirmed by the dozens of statements it has issued over the years, even during the most challenging stages.


Reform and independence as organic

The first session was addressed by Arkan El Seblani, Head of Advisors and Regional Anti-Corruption Projects Director at the United Nations Development Programme (UNDP) in the Arab countries. He emphasized that judicial independence should have an organic relationship with all constituents of society.

He pointed out that “despite the importance of discussing independence, it is necessary to reframe and broaden the topic of independence as a means and not an end in itself.”  He underlined that in order for the sector to reform, there is a need to simulate justice and empower people to enjoy their rights and freedoms. “Independence can exist, but it may lack integrity, or it can be independent but inefficient, or independent but ineffective. Therefore, it is crucial not to turn the discussion about independence into a conversation about privileges and immunities that may lead to creating unaccountable institutions. Hence, the focus should be on the importance of enhancing integrity as part of the judicial reform process, at both institutional and individual levels,” he stated.

He stressed that the reform of the judiciary should not be limited to judges or lawyers, but it should involve civil society, legislators, financial experts, and administrators. Documentation, accumulation, and transparency are essential for the endeavor of independence of the judiciary, as well as making the issue an open forum for all, he added.

El Seblani also highlighted some thematic priorities that should be addressed, considering the integrity issue. These include the appointment, promotion, transfer, and dismissal of judges. He emphasized the need for an effective and objective performance assessment, as well as ethical codes applicable to those involved, ensuring quality and actual implementation. He pointed out the importance of specific reform issues related to the judicial inspection system, the role of public prosecution and investigative judges, their complementary relationship, and their connection with the judiciary police. El Seblani clarified that not all issues and challenges require waiting for laws to be resolved, as some can be addressed through alternative means, including simple technological solutions such as recording conversations between the public prosecution and the judiciary police.

On the other hand, El Seblani believes that “the independence of the judge is important, but we cannot expect the judge to be a superhuman. They should have guarantees, enshrined in laws but also require a consensus over their work. Therefore, reforms should encompass strategic thinking on how to benefit from the experience of the past thirty years, which has not yet yielded a single law for judicial independence.”

El Seblani clarified that “comparative experience and the Lebanese narrative confirm the need to create a more transparent and participatory path to achieve judicial system reform in line with international standards, including those outlined in the United Nations Convention Against Corruption.”

The adoption of a comprehensive and modern judicial law is necessary and beneficial, but caution must be taken not to create a zero-sum equation that leads to a desired reform dialogue.


Is the judiciary system incapacitated?

The Assistant Professor at the Faculty of Law at Saint Joseph University and researcher at the Legal Notebook, Samer Ghamrawi, pointed out that a major obstacle hindering any talk about essential and necessary reforms lies in the reality of the living and material crisis affecting the judges. Consequently, the productivity in their work, in exchange for modest financial compensation, has witnessed a chronic decline. This, in turn, reflects on the courts and all those working in the judiciary who share the same crisis as the judges. Moreover, this has led to the disruption of judicial formations and the introduction of “new blood” into this system, posing a threat to the future of justice and the judiciary as a whole in Lebanon.

To be noted, a World Bank-commissioned study in 1994 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.


Is the judiciary system incapacitated? 

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 government’s financial allocations and their financial autonomy—most recently in the 2019 State Budget, when that year’s “austerity” budget sought to reduce allocations to the judges’ mutual fund and cancel all exemptions entitled to them.

Ghamrawi underlined that the paralysis experienced by the judiciary in sensitive and controversial cases, such as the Beirut port explosion and financial issues, is due to the requests for the state’s recusal and response. For example, it would come as no surprise that the State Council has, at instances, been incapable of acting in the public interest and that the hands of administrative judges have been tied.

In the past decade, there has been absolute control over the judiciary, and recently, this control has manifested itself in different cases. We now witness public interventions by political parties and decision-makers, benefiting judges who manage to improve their situation with these parties. Meanwhile, other judges are suppressed to fulfill the desires of parties, forces, and the political system in general. Ghamrawi called on the social movement to support honest judges because judicial reform is everyone’s responsibility and an integral part of the national reform movement.

What further complicates the working lives of administrative judges is that rising through the ranks is not based on merit. The executive decides which judges get promoted and presents names to the Council of Ministers, which then passes a decree based on those recommendations. This effectively means that judges from outside the State Council—such as judges in the civil judiciary—are often “parachuted” to senior positions in the State Council, such as chamber presidents.


Is reform the responsibility of the media?

While the former judge and former Director-General of the Ministry of Justice, Maisam Al-Nuweiri, claimed that the responsibility for reforms lies with the media and civil society, arguing that the media sometimes neglects to shed light on major issues periodically and intensively, emphasizing the need for accountability.


Justice and Independence

Sami Al-Hassan, the head of the Bar Association in the North, affirmed that reforms need to begin within the parliament, and independence begins within the judiciary, specifically through the selection of judges.


Where do we go from here?

The seminar has sounded an alarm about the potential collapse of the country’s judicial system, highlighting the persistent issue of political meddling amid Lebanon’s overarching crisis and rampant corruption.

The need for reforms is imminent as the current financial crisis cannot be a persistent reason for the stalemate in the judiciary and for the rampant corruption in the system. Judicial corruption is not limited to financial corruption (e.g., accepting bribes from litigants). Instances of financial corruption tend to be individual in nature. Judicial corruption includes other forms of corruption, such as administrative corruption, which are likely to be more influential and widespread within the professional environment of the judiciary.

It is no secret that members of supervisory judicial bodies are largely appointed by the executive branch of government. A number of judges would not have attained their judicial posts were it not for the compromised status of the Supreme Judicial Council, and the absence of any accountability in light of the ineffectiveness of the Judicial Inspection Committee and its subjection to broad interference.


Maan Barazy is an economist and founder and president of the National Council of Entrepreneurship and Innovation. He tweets @maanbarazy

The views in this story reflect those of the author alone and do not necessarily reflect the beliefs of NOW.