Draft law in Lebanon aims to strengthen judicial independence

Chakib Cortbaoui said the new bill would "increase the independence of the judiciary". [Abdo Zakka/Al-Shorfa]

Chakib Cortbaoui said the new bill would "increase the independence of the judiciary". [Abdo Zakka/Al-Shorfa]

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Lebanese cabinet ministers are currently reviewing a bill submitted by the justice ministry that seeks to strengthen judicial independence.

The bill, which proposes a number of amendments to the country's judiciary law, has garnered support from officials and legal specialists since it was announced May 8th.

The draft law will "increase the independence of the judiciary on a gradual basis", said Justice Minister Chakib Cortbaoui, who appointed the committee of retired judges and lawyers who helped him write the bill.

The bill would expand the Higher Judicial Council -- whose members are currently appointed solely by Lebanon's executive branch -- from 10 members to 14 members. Twelve council members would be active judges, and the 13th would be a former judge selected by the justice minister from among five names submitted by the permanent members of the Higher Judicial Council.

The 14th member would be a former bar association president, chosen by the justice minister from among four names proposed by the current presidents of the Beirut and Tripoli bar associations.

The bill also stipulates that council terms be extended from three to four years, and that its members be prohibited from serving another term on the council until two terms after their initial membership.

It gives council authority over judicial selections, such as appointments, promotions and transfers, without requiring a decree from the president, prime minister and justice minister in the event there is a dispute between the council and the justice minister over the appointments.

'A necessary but partial reform'

Lawyers said the draft law is a positive but partial step, adding that further steps are needed to reform Lebanon's judiciary.

"The bill is one of many steps necessary to achieve independence of the judiciary, which will require that existing laws be amended," said Ramzi Jreij, the former president of the Beirut Bar Association and a member of the committee that wrote the draft law.

Jreij told Al-Shorfa the proposed amendments are insufficient if they are not accompanied by a genuine political will to strengthen judicial independence.

However, "a partial reform is better than no reform at all", he said.

It is important the bill coincides with other reforms, like instituting regular performance evaluations for judges, conducting judicial inspections, implementing a reward and punishment system and activating the role of the disciplinary committee, Jreij said.

Youssef Saadallah Khoury, former head of the country's Shura Council, also said the draft law would strengthen the Higher Judicial Council and that further reforms are needed.

"[The bill] is not enough, considering the prevailing political circumstances in the country," he said.

Khoury said the bill is limited in scope because it does not address the financial and administrative pillars of Lebanon's judiciary.

In addition, it is a problem that judges alone do not administer the judiciary, he said.

"The judiciary's biggest problem is that the legal and constitutional laws providing for the independence of the judiciary are not respected by the political authority," Khoury said.

Judicial appointment, selection, promotion and disciplinary processes, entrusted under current laws to the political authority, are among the major issues that undermine the judiciary's independence, he said.

"This runs contrary to the principle of separation of powers enshrined in the Lebanese constitution," Khoury said, adding that appointments, promotions and disciplinary actions must be left to the judges themselves.

Role for the Bar Association

Attorney Nassif Abou Dargham said he believes judicial independence requires that attorneys play an active role.

"The Justice Ministry's bill is a positive step, but needs to be completely [developed] to achieve the desired results," Abou Dargham said. "That can be accomplished with the inclusion of representatives from the Bar Association [in the Higher Judicial Council]."

He told Al-Shorfa that a truly independent judiciary will be attained when "the members of the Higher Judicial Council are not appointed by decree of the executive branch because whoever is appointed by decree can similarly be removed by decree".

Abou Dargham said he supports "complete independence of the judiciary" coupled with putting controls in place, such as periodic elections of Higher Judicial Council members and selecting judges based on specific job competencies.

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  • READER COMMENTS

    خالد رشدي

    2012-6-30

    The role of the Minister of Justice should be confined to overseeing the implementation of the penal policy and communicating it to those in charge of its implementation. He should also inform them of Penal Code violations that are reported to him. He should not go beyond that by commanding the Public Prosecutor to pursue those that are in violation of the foregoing. He should also not report to the concerned court what he believes is befitting. In addition, group and district courts must be abolished due to their lack of compliance with requirements concerning independence from the executive power. These courts are lacking any regulating laws in terms of guaranties and requirements that would allow them to issue fair and just rulings. Realistic requirements of having just and fair court rulings and decisions necessitate having independent and impartial judges who are up to the responsibility and trust and are prepared for that.

  • ماهر علي

    2012-6-30

    No party should exercise any authority over the judicial authority no matter who that party might be. This is to say that the judges should only be dismissed or transferred from their positions in accordance with the law. The Minister of Justice’s overarching legal authorities over the status and work of judges should also be put to an end. Instead, a fully independent body should oversee these processes, and such a body can be no other than the Supreme Judicial Council. In addition, there should be strict requirements that hopeful members of this council should meet, in terms of high competency and good mannerism. Putting an end to the Minister of Justice’s overarching legal authorities over the judiciary should turn the minister into someone who merely implements the decisions of the Supreme Judicial Council.

  • عدنان ابراهيم

    2012-6-22

    The legislative requirements demand the removal of all legal gaps that hinder the independence of the judiciary. The judiciary should be distinguished as an authority independent from the legislative and executive branches. The composition of the Supreme Judicial Council must be reconsidered with regard to the level of its powers. It must be consisted of judges that are elected and only under the chairmanship of the First President of the Supreme Council.

  • ابو بكر عماد

    2012-6-21

    One of the topics that cannot be raised whenever we speak about wanted political reform or one of the incidents of injustice or exploitation is related to the law and judiciary as well as their position in the political structure of the state. This requires more than being satisfied with theoretical discussion of basic sayings or rules. The most important thing that we need to stress is the independence of the judges and the rule of law, in addition to the need to make a link between this rule and the concept of justice, which is one of the main human values. The supporters of oppression may dare to justify the random decisions to defame the constitution, fire a judge, or even fake a law. However, they cannot speak directly about justification of the deactivation of justice itself. In this case, they work on claiming that they respect them and apply them through these unfair decisions, which affect justice. This confirms the importance of making a link between speaking about respect for the law and the independence of justice, as well as working on achieving them through real and radical political reform based on the axioms of the system of values, especially the values of justice.

  • تحسين

    2012-6-17

    Promoting awareness is the foundation for the balance of the society and safety of relations among different sectors of society and with its authorities. How can we talk about a righteously independent judiciary and supreme law amid endless campaigns that spread deception, especially through the chaotic misuse of expressions in most societies?

  • مصباح

    2012-6-17

    Applying the rule of separation of powers has to be achieved hand in hand with solving a basic dilemma by finding a practical way to combine the independence of the judiciary and the priority of the judiciary over the executive and legislative authorities. It also has to ascertain that the legislations are subject to their powers and the legal systems are linked in turn to the enforcement of these legislations.

  • مامؤن خيرت

    2012-6-16

    The independence of the judiciary is not enough to achieve the justice of rulings and judicial decisions at the political, civil, economic, social and cultural levels. The independence of the judiciary alone is not enough to gain access to justice, even if this independence is achieved in full legal terms. The laws applied by the judges have to be fair, and they are not going to be so unless they are based on the principles of human rights and comprehensive in terms of the political, civil, economic and social aspects. Such laws will only be achieved through a democratic constitution in its preparation and in its content. This is on the grounds that the Constitution is the authority that makes the choices that underpin the laws and draws a relationship between the authorities, including the judiciary. In addition, it also lays the foundation for protecting the independence of the judiciary. Fair laws are important to the exploited, oppressed and suppressed majority of the people. This is why it becomes necessary and obligatory for the democratic forces to contribute to the awareness of the masses of their rights and for them to engage in their struggle to achieve fair laws. It is not enough to have fair laws, but we must ensure and work on the application of these laws, otherwise they would be useless. Working on the application of these laws requires punishing those who violate them and ensuring no impunity from the administrative and judicial punishment.

  • نعيم هاشم

    2012-6-16

    There should be no interference or influence by others on the procedures, decisions and rules of the judiciary. Interference or influence is rejected, whether it is physical or moral, and whether it is direct or indirect. It is rejected by all means. The executive and the legislative authorities and the men of public and private law are also banned from influencing the judiciary. Among those who are forbidden to influence the judiciary, there are also the administrative presidents of the judges and the parties of the lawsuit. On the other hand, the independence of the judiciary obligates the judges to refuse to respond, accept or submit to any interference or influence. Based on that, judges should never respond or submit to anything except the voice of the law and conscience. The aim of judicial independence and the protection of this independence is to achieve justice, which can never be achieved in the absence of one of its main components, which is the independence of judges and protecting this independence against any interference or influence.

  • موفق هادي

    2012-6-16

    The different representatives of the components of the political, partisan, legal and social communities have to work constantly to defend the independence of the judiciary, to protect it and stand firmly against anyone who touches this independence or even tries to touch it.

  • نصيف عاصم

    2012-6-16

    Judges must report to the Supreme Judicial Council all types of interference in their judicial powers, regardless of their origin, especially those of the executive authority. The Supreme Judicial Council has to do what is necessary to go after those who interfere, criminally and administratively. Judges must form an association to defend their financial and moral interests, protect their independence and clean up their side of the offenders. The state must constantly strive to raise the stature of the judiciary and judges, whether at the level of continuous training or through an increase in wages, compensations for judges and the legal recording officers, and in the human and material prospects. The independence and protection of the judiciary includes the independence of judges who make decisions and the judiciary, i.e.the judicial corps, namely the judges who practice their duties in the management of the Ministry of Justice. This is derived from the requirements of the judiciary. The independence of the judiciary and the protection of this independence are justified by the fact that the legal system is concerned with, among other things, and specialized in conducting research in the crimes committed, the report of the follow-up, the delivery of pleadings to the Court and the implementation of the resolutions and the provisions of the latter. If necessary, the independence of the judiciary, in the practice of the mentioned terms of reference, may protect this practice against all types of interference and influence in order to achieve justice, which is reflected, among other things, in no impunity for those who deserve it and in not pursuing or punishing those who do not deserve to be punished and pursued.