Corruption is among the most conspicuous shortcomings in the performance of the Lebanese judiciary. Yet it is difficult to give precise data about its scope, due to weak oversight mechanisms and the judiciary’s commitment to secrecy. As a defense against accusations of generalizing or infringement against the judiciary as a whole, let us first explain what we mean by “judicial corruption”. We are referring to the spread of instances of corruption within the judiciary, in the absence of effective tools or deterrents to control it, including instances that at times occur under administrative or legal cover. This does not necessarily imply that corruption has become the general norm in the judiciary. In the title of this article, we link judicial and political corruption for three reasons.

First, contrary to what is found in official discourse, 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. Generally, this form of corruption depends upon practices that are practically institutionalized; it stems from tying a judge’s professional advancement to his favorable dealings with the interventions of senior judges, or ruling political forces. This kind of corruption can impact the judiciary’s professional image, making it seem less independent and more like a “command judiciary”, or a compliant judiciary (these two labels were used to describe the Tunisian judiciary before the January 2011 revolution).[1]

Second, in most cases, judicial corruption is tied to external influences on the judiciary; most significantly, the long reach of political forces that control judges’ career paths. 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. Previously, The Legal Agenda has referenced legislative debates during the 1960s about “cleaning house” in the judiciary. These explicitly attributed judicial corruption to the loss of a judicial investigative body due to political interference following independence, and to the problem of this body’s independence from the ruling authorities.[2]

Third, typically, when the rhetoric of judicial corruption is invoked, it is not out of any real or robust desire to fight it. This is equally the case when methods for combating judicial corruption are discussed as political tools for weakening judicial independence, or for undermining demands to strengthen judicial legitimacy. This was the case during parliamentary debates in 1999, when the Selim Hoss government presented a draft law that would eliminate judicial immunity. In one of the most telling statements made by legislators, former representative Misbah Ahdab said, “the government promised us it would preserve the independence of the judiciary. So we were sorry to discover the chaos that we heard and witnessed in the judiciary, resulting from the government’s use of the scepter of cleaning house and the lifting of judges’ immunity. This places the judiciary under political pressure. Now, in newspapers that are aligned with the authorities, we read what will happen to someone who is arrested even before testimony is heard or legal opinions have been presented”.

The issue is now a vicious circle. Political forces cause corruption in the judiciary through widespread interference in its work, through incitement and intimidation. But when demands are made to guarantee judicial independence, political forces refuse, claiming that corruption in the judiciary renders it undeserving of independence. This only magnifies existing weaknesses and paves the way for further corruption.

Based on the above, we suggest that while it is crucial to discuss issues connected to judicial corruption, this discussion remains dangerously incomplete if it does not also address the interference of influential individuals in the judiciary and the corruption of the political regime as a whole. If these broader issues are not addressed, the door is left open to fighting judicial corruption through worrying measures that might infringe upon the guarantees of judicial independence.

Below, we highlight a number of forms of corruption; future issues will examine examples of the means used to combat corruption and how effective they are.

Administrative Corruption is Corruption, Too

Following the revolution in Tunisia, the phrase “administrative corruption” became widely used. It referred to “command judges” who carried out the will of the political regime through their rulings, but in ways that did not necessarily entail financial corruption. While use of the term is not common in Lebanon, abundant evidence suggests that this kind of corruption is among the most significant forms of corruption in the Lebanese judiciary today.

According to the 2005 Code of Ethics for Lebanese judges, this form of corruption can be either consensual or coerced. The code refers to “a judge’s submission to pressures motivated by fear, flattery, or a desire to strengthen his position”. This form of corruption is distinctive among other forms of judicial corruption because it is the most susceptible to spread and expand. Contrary to financial corruption, which is difficult to justify, administrative corruption spreads like mushrooms within a group of outlooks, perceptions, and professional practices. It progresses alongside these practices without creating a major moral crisis for the judges who are implicated.

Generally, this kind of normalization takes place upon joining the judicial supervisory bodies –specifically, the Supreme Judicial Council and the Judicial Inspection Committee– through practices that bring judges closer to political forces. To put it bluntly, it pushes them straight into their arms.

This is what comes of linking career advancement, or any form of professional distinction, to one’s proximity to political forces rather than standards of competence, impartiality, and independence. It results when links with political powers are transformed into a shield against investigation or accountability. Instead of a hierarchical authority that works to protect a judge’s independence (and to exercise accountability if necessary), it has become a tool for guaranteeing the judge’s subordination and for imposing particular behaviors – namely, an amenability and conformity to the demands of those who wield influence.

This is the prevailing atmosphere that we experience in the courthouse. There are no appointments to important posts without special support. In reality, there are two options: either we work on behalf of senior judges, as though we were their chauffeurs, as some judges do. Or, we work on behalf of the politicians. When I was appointed, I was immediately contacted by the office of [an influential member of parliament]. They said to me: “What do you want? How can we help you? We are here to support you with anything you need. Don’t hesitate. – Judge, interview with The Legal Agenda, 2015

This also takes place by way of the widening purview of judicial bodies and the executive branch when it comes to granting compensation and professional benefits, which goes against the principle of equality among judges. This is done in such a way so that enticements may be offered through official or “legal” methods. Among the most prominent forms of compensation judges aspire to attain are appointments to paid committees. These lead to notable increases in judges’ monthly incomes, potentially doubling it or more.

The committee provides the judge with an additional income between 10 and 50 percent above his salary; there are judges on multiple committees at the same time. There are judges that receive about 7 million lira a month, between their fixed salary and their committee salaries. They’ve started to function like bribes: ‘Instead of paying me 10,000 dollars per case, appoint me to a committee and I’ll take a salary from it ‘till I retire.’ – Judge, interview with The Legal Agenda, 2015

Adding to the dangers of a widening circle of administrative corruption are the development of mechanisms that legislate systematic interference with judges’ work. Among the most prominent of these are the establishment of an office of complaints with a secretariat housed at the Supreme Judicial Council, and the Ministry of Justice’s investigations of judges on the basis of complaints made against them through this office. In the absence of regulation, and if they are further developed and abused, these mechanisms can pave the way to directing judges and giving them instructions.

In the same vein, there is abundant evidence of the emergence of what might be described as a judicial “leadership” that plays the role of representing political forces within the judiciary. Its basic mission is to form a group of judges (usually on a sectarian basis) to serve the interests of the forces they represent.

Currently, there is a system in the judiciary; this system means that every politician and village and sect has its own “key” within the judiciary, and they conduct their petitions through them. This individual is compensated, of course, because he complies with their requests, in anticipation of appointment to certain positions or committees.

Once, one of the prosecutors contacted me and said that [a leading politician] requested that he approach me about a certain case. The prosecutor said to me, “ Please treat those litigants as if they were the politician X.” Personally, this prosecutor did not hold any direct power over me. But he played the role of spokesperson in the name of [so-and-so], so that he didn’t have to communicate with me personally. Judges are aware that this individual will be salted to become a member of the Supreme Judicial Council in the coming years. And furthermore, their positions might be placed under threat during appointments if they resisted this judge’s demands. Their thinking goes: ‘I don’t want to anger him, because I know it will come back to me later.’ – Judge, interview with The Legal Agenda, 2016

There are judges in certain positions who gather judges and work with them as a group. The judge either belongs to a leader, or he holds a position of power and establishes a group on his side. And among those we find both hawks and doves. Positions of power are cooked up by judicial and political authorities who wish to strengthen their positions of influence within the courthouse. –Judge, interviewed by The Legal Agenda, 2016

By the same token, one must also mention the matter of gas vouchers. The General Directorate of General Security and other security apparatuses have taken to distributing these to a number of judges on the basis of unclear and most definitely unobjective standards. This practice was disclosed during the examination of the request to transfer the case of prime minister Rafiq Hariri’s murder from investigating judge Elias Eid; it came out that he had received gas vouchers from General Jamil Al Sayyed, who was (at the time) one of the suspects in the case.[3]

It has been pointed out that on September 13, 2007, the Supreme Judicial Council commissioned its president to examine the circumstances of gas vouchers, and convey his findings to the ministries of defense and the interior in order to establish the truth and the reasons behind the practice. Yet this was not followed by any statement or action.[4] The distribution of less significant benefits has also been noted, such as funding education at the Institute of Judicial Studies or travel.

The minister of justice and his advisors have a huge influence on judges. They influence the formation of committees, judicial appointments, and travel. There are judges who travel three or four times a year, to conferences or training courses. A judge isn’t sent based on his specialization or qualifications; he is sent because he is someone’s friend, or because he has provided a service. –Judge, interview with The Legal Agenda, 2015

Making matters worse is the normalization that results from administrative corruption, as exemplified by the regular visits that judges make to influential individuals, and more generally, in the forming of ties that they establish with such individuals. It has become so normalized, in fact, that judges can flaunt these connections without objections.[5] The judicial code of ethics refers to this practice, stating that “sometimes judges receive invitations to attend banquets or private parties with which they have no connection; this is done by some politicians, businessmen, and others who seek influence”. These behaviors are generally free from any form of accountability.

This was evident in an interview conducted by The Legal Agenda with the president of the Supreme Judicial Council Jean Fahed in late 2015. He reported that he had not held any judge accountable for their links to political authorities. Indeed, Fahed refused to take a basic stance against judges’ regular visits to these authorities.

“Friendships may arise between a number of judges and some politicians. For a judge to visit a politician does not necessarily mean that his aim is to serve the politician’s interests, and that the relationship should be assessed based on the judge’s performance at work. We expect a judge to master the balance between belonging to society, on one hand, and maintaining distance from it on the other. It is best that a judge minimize his visits in order to avoid people questioning his impartiality. But does it go to such an extent that we deem this a disciplinary violation? It’s a delicate matter].”[6]

Financial Corruption, in its Various Forms

Here, we find corruption at its most obvious. Its most visible form is accepting monetary bribes or material benefits from litigants in specific cases. Other less obvious aspects include accepting gifts from political officials or businessmen, not necessarily in connection with a particular case. These gifts might be given on family occasions, like holidays, weddings, children’s weddings, etc. They might also take the form of employing someone’s children or relatives in institutions they control.

Usually, the payment of bribes takes place through some form of indirect means – such as through the participation of third parties in their group of lawyers, which have a close connection with the judge and with court clerks, in a process that has come to be referred to as judicial brokering or “keys”.

There are “keys”. The lawyers and clerks are the keys, especially the clerks. There are politicians who communicate with judges by phone. In reality, they build social ties with judges; they meet them at lunch receptions and dinners, at parties, at private evening gatherings, or while traveling. Some judges enjoy a very luxurious social life and have relationships with all of the country’s wealthy and political class. Those judges have formed anomalous social relationships, openly and shamelessly. –Journalist, interview with The Legal Agenda, 2015

There are brokers in the courthouse. They can build relationships with the clerks, which means that they can turn to a clerk to move a case along more quickly. It’s not that they necessarily have a relationship with a judge or politician. But they receive money in exchange for their services. ‘Nothing is done for free.’ One of them got into trouble and they banned him from coming back to the courthouse. But he did came back, and we still don’t know on what basis. –Court registrar, interview with The Legal Agenda, 2016

Some of the judges that allowed us to hear their testimony pointed to another form of brokerage that has become widespread: the use of court experts.

There are judges who built palaces by way of court experts. They give an expert 20 cases and they split up [the spoils] at the end of the month. In the beginning I tried to choose good experts, but at this point I have a list of experts I can work with. Some judges work as a broker with experts. The judge gets something out of the case; such as a money transfer from the lawyer. –Judge, interview with The Legal Agenda, 2016

The experts are the biggest corruption ring. They’re an even more serious problem than the clerks. An expert that is considered part of a case can change it and force the judge to make a ruling he can’t get out of. When a litigant can’t get to a judge, they turn to the experts. There’s no such thing as a judge without a few experts in his family. Several judges have contacted me to appoint one of their relatives as an expert in the court; the appointment of experts has become a way for judges to exchange favors. A judge can cause harm to the litigants if an unqualified expert is appointed, because he might sabotage the case. And the overwhelming majority of experts are unqualified. –Judge, interview with The Legal Agenda, 2015

To sum up, the Lebanese code of judicial ethics has the most fitting expression for understanding the meaning of judicial corruption in Lebanon. It states that the judiciary requires judges to be encouraged to confront “antagonistic influences that view a judge’s impartiality as a form of weakness in the face of the demands of everyday life”. This might be surprising in a document about ethics, but it reflects problems in judges’ professional environment that might be seen from three perspectives.

First: if a judge’s power and ability to impose his wishes, and to profit from doing so, constitutes a goal for judges and a factor informing their behavior, then actions that strengthen that kind of exercise of power become incentivized and actions to the contrary become undesirable. A commitment to impartiality cannot be taken for granted: calling upon judges to commit to being impartial requires that they are first convinced that impartial actions do not constitute weakness. This is something the 2005 Code attempts to establish.

Second: practically speaking, the issue of adhering to impartiality is something each judge must consider, particularly when it comes to balancing it with their professional status. In a system like this, judges feel that remaining impartial automatically deprives them of the means to maintain a stable position, particularly in the face of what might seem like procedures that could shortchange or marginalize them within the judiciary. In the context of the current system, the impartial judge does usually end up marginalized. Successful judges who rise through the ranks are seen as a threat to the advancement of other judges.

Third: There are currents within the judiciary that oppose the fight against corruption. This shows that there are influential circles [within the judiciary] that are completely opposed to the requirements of impartiality. Generally they assume the role of protecting a judge and guaranteeing his rise in status, in exchange for his flexibility when it comes to maintaining impartiality in the service of their interests.

This is an excerpt from a longer report about judicial corruption and how to fight it. It was prepared by The Legal Agenda as part of its project about supporting an independent judiciary, “The Judiciary as a Social Priority”. This project was funded by the European Union.

This article is an edited translation from Arabic

__________

[1] Samer Ghamroun and Nizar Saghieh’s, “The Arab Judiciary in the Age of Democracy”, Tunis, 2016.
[2] Joelle Boutros’, “Purging the Judiciary, 1965-66 (1): A law lifting judicial immunity”, The Legal Agenda, Issue No. 36, January 2016.
[3] Nizar Saghieh’s, “The Supreme Judicial Council dons a new sash: arrogance”, al-Akhbar newspaper, September 23, 2009; also, “Judiciary ends Eid’s mission as investigating judge in Hariri assassination case”, al-Mustaqbal newspaper, September 7, 2009.
[4] “The Supreme Judicial Council dons a new sash”, see note 3 above for reference.
[5] Some judges publish photographs taken with politicians, religious leaders, and military officials on their social media pages. However, The Legal Agenda refrains from publishing these images out of respect for the judiciary.
[6] Interview with the head of the Supreme Judicial Council, Judge Jean Fahed: “our priority is improving the productivity of the judiciary, and we are fighting ‘till we win the trust of the public”, The Legal Agenda, Issue No. 36, February 2016.