When, in late July, Lebanese judges refrained the second time this year from working –a rarity in Lebanon’s modern history– the debate over the legality and legitimacy of this measure reemerged.[1] It is well known that Article 15 of the Civil Servants Law bans civil servants from striking. Violation of this article has long been used as an argument to deter judges from stopping work, alongside other arguments that deem striking to be improper for judges (arguments that, by portraying striking as a shameful act, reveal the class-based image that some people paint of the judiciary, but that is another discussion).

 

Just like in the 1970s, the issue today has fundamental political dimensions that transcend the limited technical and vocational discussions. If judges are deprived of one of the main means of activism, i.e., striking, how can they confront the political authority when it forces the courts to serve its own interests or interferes in their work? We know that this authority has many means of pressuring judges, such as judicial appointments and transfers (which still require the approval and satisfaction of the political leaders [zu’ama’]), as well as the appointment of most members of the Supreme Judicial Council (SJC). If judges cannot stop work to restore balance to their power relations with the political class, what choice do they have other than to visit the politicians to market their demands or to offer services in hopes of preserving the politicians’ satisfaction? This satisfaction is then expressed in, for example, judicial transfers and appointments and the granting of privileges? How can judges protect people’s rights and private and public freedoms in light of such an equation that entrenches their de facto weakness in the face of people with influence? The demonization of judges’ strikes is an important part of the policies of subordinating judges and marginalizing their power to monitor positions of political and financial influence.

 

The judge’s right-to-strike debate has persisted for decades in many countries, including France and Lebanon.[2] In this article, we shall present the main events and debates that occurred in the Lebanese judiciary with regard to the issue of striking in the 1970s and 1980s, i.e., during the Civil War. This period was witness to the most confrontational and provocative judicial movements toward the government with regard to fundamental issues, such as the judges’ moral and material safeguards and independence.[3] Here, two basic problems expressing all of the judicial movements in Lebanon arise. The first is the issue of the judges’ complicated relationship with the government; as much as they may be its class allies in the context of exerting its control over society, they may also sometimes be a source of fierce resistance to it and its interests, resistance that works in favor of vulnerable groups. The second is the relationship of the judges’ groups with the SJC; striking with the consent of the Council or even upon its invitation (as has occurred in every case since 1990) is different to striking against the Council or at least in a manner that bypasses it, as occurred in 1982 when a large portion of judges were demanding and striking, on the one hand, and the Council and government were threatening and trying to contain the movement, on the other. These two kinds of strikes have very different political and judicial consequences that help us understand what is happening today.

 

The Pre-1982 Movements: Lectures, Petitions, and the Media as an Alternative to Striking

 

The “Judicial Studies Circle”, which was established in 1969 by the Lebanese judges, rarely resorted to means of pressuring the government. There were no press conferences, no harsh statements, and no strikes. There was no confrontation even when one of the organization’s main leaders, Judge Nasib Tarabay, was referred to the Disciplinary Council after he criticized political interference in a lecture –especially by the president’s office– in judicial appointments and transfers, thereby angering President Suleiman Frangieh. Appeasing the government was the rule for the majority of the Judicial Studies Circle’s judges at the time. The graduates of the Judicial Studies Institute did the same when they produced a “demand” study in 1979, and then toured the courthouses collecting 172 signatures of judicial judges (out of a possible 270 at the time) on a petition to realize the demands therein.[4] On December 27, 1979, the study and petition were presented to Minister of Justice Yusuf Jibran (who was also president of the SJC), and a copy was presented to the SJC, but there were no talks in the media about stopping work. As for the “Temporary Judicial Committee”, which in 1980 instigated an important movement inside the Palace of Justice, its members (notably, Gabriel al-Maushi and Munif Hamdan) never went as far as to call for a work stoppage despite the high and confrontational tone that it adopted to market its demands. At the time, the judges strategically used the media to address the judges and the public without seriously addressing the topic of striking. They continued as such until the government and the SJC used the judicial appointments and transfers as a weapon to exact retribution on the leaders of the movement.

 

The common denominator of these three movements may be the SJC’s dissatisfaction toward them, or at least the Council’s marginalization by the assembled judges. The judges attempted to forge a judicial movement that was independent of the Council and addressed judges and the public directly. Hence, the choice to go on strike could have harmed their careers and they preferred to avoid it.

 

The 1982 Exception: Striking Against the Political and Judicial Arms of Government

 

As for the large 1982 movement, striking was used as a key weapon to achieve demands. This case may be the only one wherein judges went on strike not only against the government, but also in defiance of the SJC. The latter found itself caught between the mobilized judges and a displeased political authority. This movement began in early 1982 at the instigation of what was named “Judicial Committee for Pursuing Judges’ Demands”. It consisted of twelve members, including the three most prominent members of the previous committee, namely, Gabriel al-Maushi, Hasan Qawas and Munif Hamdan.[5] On March 27, 1982, the committee called judges to a general assembly appending to its invitation a recommendation that, “judges resign and stop work immediately if the demands of judges and judicial assistants, which are now familiar to all, are not met”. The invitation was directed not only to judicial judges, but also to administrative judges and judges of the Court of Accounts, and to the Sharia courts. The general assembly was held on the scheduled date and attended by a large number of judges; 347 to be exact. They elected a committee to represent them, and announced unanimously that work would be stopped if the demands were not met by April 10.[6]

 

From the outset, the general assembly was divided over the two options raised, namely, striking or submitting collective resignations because of a disagreement over the legitimacy of the former. To some extent, this divide was overcome with the adoption of an approach that gave the government a short period (two weeks) to meet the demands before the work stoppage would be carried out.[7] However, the rumors that a number of judges intended to submit collective resignations because they were not convinced of the legitimacy of striking persisted.[8] As in the issue of resorting to the media, the debate here went beyond the question of the compatibility of this means [of protest] with judicial morality and customs. The debate addressed the legality of such measures, especially in light of the ban on striking found in the Civil Servants Law. How could judges break the law which explicitly bans civil servants from stopping work, when their jobs are specifically to ensure that the law is respected? Was their action aimed at pursuing vocational interests irrespective of public interest, or even the harm the action causes to the thousands of people in pre-trial detention? Such potential consequences received much attention in the media, with some outlets focusing on the status of detainees. In reality, these objections did not emanate solely from the government, MPs, or citizens, but also from judges within the movement itself.

 

The SJC played on this sensitive chord. It sent a representative –namely, president of the Judicial Inspection Committee Abd al-Basit Ghandur– to the general assembly held on April 10. He tried hard to deter the judges from this decision, which is further evidence of the Council’s cautiousness toward the movement. From Ghandur’s perspective, stopping work meant “deviating from morality and the mission that judges bear; therefore, it is improper behavior for the judiciary”.[9] He added that it must not be “said that judges have stopped working on account of material matters. We don’t want it to be said that judges want to bring the state to its knees so that their demands are met. This method is improper when the state is as weak as it is right now. We must adorn the virtue of judiciousness and work to obtain our rights via peaceful means”. His speech resulted in a broad and relatively intense debate in the hall, which led to the postponement of the decision to strike although the threat remained on the table.

 

Conversely, the committee justified striking with the exceptional nature of the present circumstances, which required overstepping the texts and customs that govern the work of the judiciary and judges under normal circumstances. Is it acceptable to talk about judicial morality in the strict sense, and the obligation of restraint when the judicial branch is collapsing and its decisions are being flouted by the militias and de facto powers? In light of these conditions, the decision to stop work was linked to several considerations such as the judiciary’s “dignity” and “independence”, and “the impossibility of performing [its] constitutional functions” under the then present circumstances. The committee also endeavored to publish a legal study by one of its members, former Judge Francois Dahir, wherein he deemed striking to be a legitimate legal decision given the current circumstances. The committee even referred to judges’ demonstrations in France in order to derive greater legitimacy from this comparison with a European country.

 

On another level, in their strike the judges attempted to stand in solidarity with all the other judicial professions. After the judges’ movement began, the judicial assistants began a parallel movement by calling a general meeting in the Palace of Justice to discuss their demands and support the judges’ demands. The meeting was attended by Judge al-Maushi and Judge Hamdan, who delivered supportive speeches.[10] Furthermore, the judicial assistants occasionally displayed greater determination and impulse. For example, they did not hesitate to declare a strike two weeks before the judges, who were postponing the decision to stop work week by week.[11]

 

The Supreme Judicial Council Stands with the Demands But Against the Strike

 

When the negotiations failed even though the deadline was extended twice in two subsequent meetings, the judges, for the first time in Lebanon’s history (as emphasized by the newspaper Annahar, which ran the news on its front page) actually carried out their threat to strike. In another general meeting on April 24, 1982, the judges decided to stop work until their demands were met. The judges displayed remarkable zeal and determination when they announced the strike. The 356 judges present in the general assembly took the decision by unanimously standing, refusing a secret ballot; they then applauded and congratulated themselves, praising the unity and the historical decision adopted.[12]

 

At this point, the rift between the assembled judges, on the one hand, and the SJC and the government, on the other, widened. On May 2, the SJC issued a statement adopting most of the demands, but it appended to the statement a strongly worded and somewhat condescending warning directed toward the striking judicial judges and judicial assistants, calling upon them to resume work immediately and stating that any “action in contravention of this decision and any announcement or statement from a judge [will be considered] an essential violation of judicial morality, necessitating the application of Law no. 49/65 of September 6, 1965”, i.e., the so-called “Purge Law”.[13] This statement divided the movement between a majority who wanted to suspend the strike on the basis that the SJC had adopted the demands with satisfactory momentum and a minority who, on the contrary, saw the Council’s threats as an additional humiliation that warranted more discontent (some judges demanded that the Council withdraw its purge threat as a precondition for resuming work).[14] The members against suspending the strike (most notably, al-Maushi and Hamdan) saw the SJC’s statement as a provocation and additional attempt to humiliate judges, which prompted them to contest the Council’s representative capacity, and escalate their media statements in a manner reminiscent of the escalatory statements made at the end of the 1980 movement. Hamdan went as far as to call a press conference, which was prevented from occurring amid a near-total security blockade of Adlieh [the district of Beirut that hosts the Palace of Justice].

 

Just like the judges, the politicians were divided over the strike and its legitimacy. One of the most prominent supporters was MP Hasan al-Rifai, who deemed that “judges should have declared the strike long ago”, and added that “if we knew the motivation of the behavior of the government in general and the minister of justice in particular, the judges’ strike would be more than justified”.[15] MP Albert Moukheiber announced his support “for the judges’ rightful demands”,[16] although he welcomed putting an end to the strike which he described as chaos “that ultimately harms the dignity of the judicial institution”.[17] One of the most negative stances was that taken by the president of the Administration and Justice Committee, MP August Bacchus. Although he declared his support for the judges’ demands, he directed an open letter to them imploring them to abandon the idea of striking and to “be above getting carried away by emotions because man cannot live off bread alone”.[18] On his part, Parliament Vice-Speaker Mounir Abou Fadel urged judges “to pursue their demands in legal ways, especially as the joint committees have shown themselves fully prepared to defend [the judges’] rightful cause”. Similarly, he stated that “they should not threaten to strike when they are the ones who try people who incite [striking]”,[19] which is another indication of the class-based function that many influential people expect the judiciary to perform.

 

The resulting debate led to the suspension of the movement until June 7, i.e., the deadline that the SJC had given the government to meet the demands. Yusuf Gibran described this step as great and “consistent with the principle of judicial discipline”,[20] stating that the SJC was not backing down from its decision to reject the strike because “it derives its existence from the people and works only for the good of the people”.[21] On June 5, 1982, the Israeli invasion of southern Lebanon altered the judicial equation and, consequently, the SJC suspended the movement “to put public interest ahead of private interest”.[22]

 

After the Big Strike: The Establishment of the Judges’ Cooperation Fund and Cautiousness Toward Any Similar Movement

 

Following the large strike, several measures were taken. Some involved accepting a large number of the judges’ material and moral demands, while others aimed to inhibit the emergence of collective movements in the future.

 

Regarding the Demands

 

Two major events concerning the demands occurred.

 

The first was the establishment of the Judges’ Cooperative Fund, which was one of the judges’ main demands, via Legislative Decree No. 52 of July 29, 1983.

 

The second was the amendment of the legal texts to reinforce some of the institutional aspects of the judiciary’s independence, especially in connection with the work and the powers of the Judicial Inspection Committee, via Legislative Decree No. 150 of September 16, 1983 (the Judicial Judiciary Law).

 

Hence, the judges of the 1982 movement can, despite the many criticisms that the SJC and political authority directed against them, boast that their struggle led to financial and moral gains, including the Judges’ Cooperative Fund which would constitute a life raft for many judges during the 1990s.

 

Regarding Judges’ Activism: Curbing It Without Banning It

 

In this regard, the key amendment was that made to Article 44 of the Judicial Judiciary Law by the legislative decree issued on March 23, 1985. The amended article states that, “Subject to the provisions of Legislative Decree No. 112 of June 12, 1959 (i.e., the Civil Servants Statute), every collective vocational demand must go through the Supreme Judicial Council”. The timing of the amendment three years after the large strike suggests that it was a response to the Judicial Committee’s movements and strike, and the dispute between the judges and the SJC that they entailed.

 

This amended article put two obstacles in front of any collective vocational demand by judges. The first is the need to go through the SJC, which deters judicial movements that are the most radical and confrontational toward political authority; and, quells judicial enthusiasm about making demands or strengthening independence. The second is the need to comply with Legislative Decree No. 112 of June 12, 1959 (the Civil Servants Law), which prohibits joining professional organizations or syndicates, and striking or inciting a strike. Given that the Judicial Judiciary Law clearly stipulated in one of its concluding general provisions that the Civil Servants Law applies to judges in all respects that do not conflict with its provisions, the inclusion in Article 44 of a specific stipulation in this regard reveals not just a strong intent on the part of the legislature to suppress any future movement resembling the 1982 movement, but also anticipation of, and caution toward, any interpretation of Article 44 that could allow unionist trends, strikes, or the like.

 

Despite this article’s restrictiveness toward judges’ freedom, it displayed a certain openness toward collective movements by judges. It acknowledged their freedom to form collective demands, which entails discussions and assembly. Judges would use this acknowledgment under the difficult circumstances of the following decades to call for judges to unite around collective demands. One of the most important and famous of these movements took place in June 1997 when more than 300 judges put forth demands. They referred them to the SJC on the basis of the aforementioned Article 44 and in conjunction with their publication in the media. Just as in the 1982 movement, this petition included a group of material and rights-based demands. The former included most prominently the improvement of the Judges’ Cooperative Fund’s resources via an increase in the state’s contribution, the detachment of the judiciary from public service, and complete equality with the legislative and executive branches. The latter included the granting of the SJC all the virtues of financial and administrative independence, including full power over transfers and appointments to ensure the judiciary’s independence.

 

The judges considered the petition to be a cautionary first step. It set the deadline for meeting the demands on October 1, 1997, the day when the subsequent judicial year began. They stated that more steps may follow should it not be implemented. They also stressed their respect for the SJC’s authority, and explained that in speaking out through the petition they were going “through the Supreme Judicial Council and not against it or in disregard of its opinion”.[23] The petition had great effects. Besides the SJC’s support of some of its demands, the judges succeeded in extracting a doubling of their salaries in 1998, and most importantly, in stimulating the political forces to launch a legislative movement to reform judicial laws; the likes of which Lebanon had never witnessed, and one that involved many MPs submitting bills to consolidate an independent judicial branch.

 

This article is an edited translation from Arabic.

 

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[1] The first work stoppage occurred last March.

[2] See, for example, the case of the strike by the French Magistrates’ Syndicate in 1976: Liora Israël, 2009, “Un droit de gauche ? Rénovation des pratiques professionnelles et nouvelles formes de militantisme des juristes engagés dans les années 1970”, Sociétés Contemporaines, Issue No. 73, p. 60.

[3] To view a detailed study on this topic, see: Nizar Saghieh and Samer Ghamroun’s, “al-Taharrukat al-Qada’iyyah fi Lubnan” in Nizar Sagheih (ed.), Hina Tajama’a al-Quda, Beirut, 2009, Sader; several sections of the study were used in this article.

[4] The signatures were collected in particular by Judges Umar Natur and Khadar Zanhur.

[5] The new members were Abd al-Karim Salim, Rashid Hutayt, Adnan Addoum, Muktar Sad, Nadim Abud, Yusuf Sadallah al-Khuri, Nusrat Haydar, Shabib Muqallid, Francois Dahir, and Elias al-Khoury.

[6] Annahar, March 27, 1982.

[7] Sheik Halim Taqi al-Din, president of the Druze courts, made the suggestion to grant the government two weeks, Annahar, March 27, 1982.

[8] See: Annahar, April 27, 1982.

[9] See: Annahar, April 11, 1982.

[10] Se: Annahar, April 1, 1982.

[11] See: Annahar, April 11, 1982.

[12] As stated verbatim in Annahar, April 25, 1982.

[13] See: Joelle Boutros’s, “Tathir al-Qada’ 1965-1966 (1): Qanun Raf’ al-Hasana ‘an al-Quda”, The Legal Agenda, Issue No. 36, 2016.

[14] See: Annahar, May 6, 1982.

[15] See: Annahar, April 29, 1982.

[16] See: Annahar, April 10, 1982.

[17] See: Annahar, May 6, 1982.

[18] See: Annahar, April 17, 1982.

[19] See: Annahar, April 21, 1982.

[20] See: Annahar, May 8, 1982.

[21] See: Annahar, May 6, 1982.

[22] See: Annahar, June 6, 1982.

[23] Samer Ghamroun and Nizar Saghieh, op. cit., p. 104.